Siewertsz Van Reesema v Flavel [2006] HCATrans 410 (4 August 2006)

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Siewertsz Van Reesema v Flavel [2006] HCATrans 410 (4 August 2006)

Last Updated: 29 August 2006

[2006] HCATrans 410

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A60 of 2005

B e t w e e n -

ERNST ABRAHAM SIEWERTSZ VAN REESEMA

Applicant

and

KEVIN GEORGE FLAVEL

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 4 AUGUST 2006, AT 11.05 AM

Copyright in the High Court of Australia

MR K.V. BORICK, QC: If the court pleases, I appear with MR M.S. HEGARTY for the applicant. (instructed by Michael Hegarty & Associates)

MR R.J.H. MAIDMENT, SC: If the Court pleases, I appear with MR R. PERROTTA for the respondent. (instructed by the Commonwealth Director of Public Prosecutions)

GLEESON CJ: Yes, Mr Borick.

MR BORICK: I will deal first with the finding by the Full Court that the applicant absconded in the course of the proceedings. That appears at page 204 of the book at line 34. The respondent in his outline of argument, first at page 234 and then at page 240, says that the breach of bail occurred when the applicant left Australia. The Full Court found that the breach of bail occurred when the applicant failed to appear at the hearing of his original appeal before Justice Duggan.

Against that, it is necessary for me to explain the documentation, in particular, the bail agreement, which I believe is now before your Honours. When the applicant was released on bail there was a condition that he was required to prosecute his appeal with due diligence and if in consequence of the appeal he was required to serve any period of imprisonment that he would surrender himself to the Court within 24 hours of the determination of that appeal. That condition appears on the Bail Agreement form.

The applicant’s position about that was that the Bail Agreement form itself was, in effect, a pro forma document and he pointed to the fact that under conditions of bail under condition (f) he would surrender any passport that he possesses. He did posses a passport and he was not required to surrender it. That was the passport he obviously used when he left Australia in 1992 which was just before his appeal was heard. Of course, he provided the court with the address where he would be in Europe. He says he did so by letter but that letter does not appeal on the record. The difference between what – as to what amounted to the breach of bail is important because one way or another the fact that there was a breach, whichever it was, led to the finding that he absconded and the finding that he absconded was based on the record which, in our submission, was incomplete and inaccurate.

If the Court accepts our basic proposition that there is a requirement that a court, particularly in a sentencing process dealing with the freedom of an individual, is obliged to keep a full and accurate report of what happened because an appellate court is totally reliant upon that record, then there were a number of reasons which point to the fact that the record in this situation was incomplete and inaccurate.

If I could take your Honours to page 61 of the book, the preceding dozen or so pages contain the notices which were sent to the applicant advising him that he had to appear in Court on the 27th day of August 1992. Now, in each of the documents preceding the one which appears at page 61 they all refer to a conviction under section 227(1) of the Companies (South Australia) Code and in each instance that is wrong because he was not convicted of any offence in relation to section 227(1) but rather under 227(2).

The document at page 61 refers to a conviction that he failed to secure compliance under section 555 of the Companies (South Australia) Code and that was a matter which had been completed four years prior to that date. It is difficult to explain why that document was sent and, in fact, how on the reverse side of it exactly the same writing appears as appears on all of the other documents.

GLEESON CJ: What is the special leave question that you say is raised?

MR BORICK: The special leave question is that it is incumbent upon a court, particularly a sentencing court dealing with the freedom of an individual, to keep an accurate, complete record of the process and that is because - - -

GLEESON CJ: I am looking at a page in the application book that has number 225 on the bottom of it and it is headed “APPLICANT’S SUMMARY OF ARGUMENT” and the special leave question is identified in paragraph 1 on that page. Is that so?

MR BORICK: Yes, your Honour, although it is against the background of what is set out at page 231, “Reasons why Special Leave to Appeal should be granted”, but paragraph 1 simply relates the question. What I rely upon is in Part IV. The reasons why special leave to appeal should be granted is as I have just put to the Court: the reliance upon the appellate court – the accuracy, completeness of the record that was sent to it. If that is right, then it is incumbent upon all courts to keep an accurate and complete record.

In our submission, that clearly did not happen in this case for the various reasons which have been advanced and including one other, if I may just briefly refer to the Court. In the documents which were purported to be sent to the applicant – and the first is at page 38 and I am looking at the back page – you will see that a copy of the notice was first posted to the address that he had in Adelaide at 31 Myrtle Avenue, Myrtle Bank, and there was registered the fact “That in the ordinary course of post the notice would be delivered”, then there is a crossed out reference to a fax and a note “Tried 6 times”, and then a further certification that it was sent to the address which he had supplied in Europe.

Now, it is something I have not understood before but if you look at the postcode, 2594, it looks like it could be 819 or 8A, but that, in fact, is wrong. The actual postcode was 2594 BA, which may provide an explanation why he did not get the documents as he says, but again, your Honours, it is an indication of a record which is, in this instance, inaccurate and that the Full Court, before coming to a conclusion that the applicant had absconded, could have made a full inquiry into the report once the inaccuracies had been put before it.

GLEESON CJ: When you say the conclusion was that the applicant had absconded, all that was necessary for a decision was that the applicant had voluntarily absented himself from the hearing, was it not?

MR BORICK: That would have been all that was necessary to show that there was a breach of the bail condition, if it was in fact a condition that he appear at the hearing of his appeal.

GLEESON CJ: All that would be necessary to meet a complaint that the applicant was not able to be present at the hearing of his matter was a finding that he had voluntarily absented himself from the hearing, is that not right?

MR BORICK: But that was related, as the Full Court said, solely to him not appearing at the hearing of his appeal when he was represented by senior counsel before Justice Duggan. Obviously, counsel and his Honour were aware that he was not there, but the hearing of the appeal continued. Then the appeal turned out in his favour and the bail condition which he understood to be the only bail condition, that he present himself to the Magistrates Court to, in effect, start his term of imprisonment, disappeared because the appeal had been allowed.

Now, it was one thing for the court to find that he should have been present at the hearing of his appeal, it is entirely another matter to find that he absconded. It does not matter whether the word “voluntary” or not is put in front of it, it is the fact that he absconded, meaning he deliberately absented himself from the processes of the court and therefore our court said that even though the general rule is that a person who is being sentenced should be there, they said because he absconded, or deliberately placed himself out of the court, then that general important rule should not apply.

GLEESON CJ: “Absconding” is a colourful word. A person is entitled to be present while he is being sentenced, but if he chooses to stay home in bed that does not mean the court cannot go ahead and sentence him.

MR BORICK: Of course,.....home in bed but the court has got to make sure that he is home in bed and deliberately intends to stay in bed before they do sentence him. What is being put here is that a notice was sent, it was sent to an address which was inaccurate, and the court sentenced him on the basis that he had absconded. Not only that, your Honours, the court did not do what it was required to do by Justice Duggan and that is re-hear the original sentencing plea, because the magistrate who originally imposed the sentence got the onus of proof wrong and there was also a question of fact to be argued about that. Justice Duggan ordered that to happen and it did not happen.

So it was important that the Magistrates Court which re-sentenced the applicant be absolutely satisfied that he was aware that the case was being heard. The applicant, from his perspective, he had been sentenced to imprisonment and he had been successful on his appeal. Again, from his perspective, the bail condition no longer applied and he was expecting to get a notice and did not get one.

Irrespective of fault which lies with him for not contacting his solicitors or whatever, the special leave point that is raised is that, as I have already put, if a court is making a finding which deals with the individual’s freedom, it must do so on the assumption that the record that is sent to it is accurate. In this case, that would not happen. If the Court agrees with the first proposition that it should be an accurate record and accepts that in this instance the record was inaccurate, then, in my respectful submission, this is an appropriate vehicle for this Court to consider the issue of the record which is maintained by lower courts.

If I may say so, that is against a background where, certainly in this State and I suspect in other States, that courts are under-resourced and under-staffed or claiming to be, particularly in this State, and that in the result records are not being accurately kept. Courts blame that upon governments but, again, in my respectful submission, it is of critical important that this Court demand the accurate and complete records being kept, particularly in the area of the freedom of individuals. That is the basic submission that we make on the application for special leave.

GLEESON CJ: Thank you, Mr Borick. We do not need to hear you, Mr Maidment.

We are of the view that there are insufficient prospects of success of an appeal for a grant of special leave in this matter. The application is dismissed with costs.

AT 11.22 AM THE MATTER WAS CONCLUDED