Ejueyitsi v Maloney [2009] HCATrans 174 (31 July 2009)

Last Updated: 11 August 2009

Replacement Transcript

[2009] HCATrans 174

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Perth No P48 of 2007

B e t w e e n -

VINCENT EJUEYITSI

Applicant

and

JOHN MALONEY

Respondent

Application for special leave to appeal

CRENNAN J
KIEFEL J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON FRIDAY, 31 JULY 2009, AT 2.57 PM

Copyright in the High Court of Australia

MR EJUEYITSI, appeared in person.

MR P.S. HASTINGS, QC: May it please your Honours, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

CRENNAN J: Thank you very much. Just before you start, just three matters which I will mention to you. The first is that we have received the supplementary material which you have sent. The next point I wanted to make to you was that you have 20 minutes within which to address us and then you will be required to sit down and then there will be a possible opportunity for your opponent to speak and then you will have a right of reply which will be of the order of five minutes. Then the third thing I wanted to say to you was that what we are most interested in hearing from you is what you say are the mistakes in the Court of Appeal’s decision.

MR EJUEYITSI: Yes, your Honour.

CRENNAN J: Okay. You may start.

MR EJUEYITSI: Thank you, your Honour, for the opportunity given to me. First and foremost I should confess to you, your Honour, that I am not too proud to be in your honourable Court today to appear myself without a barrister or a solicitor to assist me to put in my case before you. Unfortunately, the last barrister I contacted I could not afford the legal fees, but as the law requires, I have to present myself physically to put my case before you so that the truth of this case will come out to light. I said that this case has been a lengthy period of bringing this case before your honourable Court and I could say it was because of the circumstances beyond my control at that time.

I was convicted in 2001 of making a false statement to a migration officer. Within in my mind the statement I made was a correct statement, however, the solicitor I had at that time I told him that I wanted to appeal. He said it is no business for me to appeal, that the answer I gave was correct and that appealing would be a waste of time, waste of.....and that it was a minor case. As a result of this, I decided to give up the case. Not until 2004 when I wanted to migrate to Canada and the High Commissioner wrote me that the offence I committed unfortunately is a blockage to my advancement to Canada. It was on the basis of this that I decided to appeal, to bring this to your honourable Court.

No doubt about it, your Honour, the charge about the questions they asked me – the first question they asked me was a – the question they brought to the Court which was in the indictment sheet, was, how long have you lived in this residence? That question was not the question they asked me during the court. When they came to the court they change their evidence and said they asked me how long I have resided in the residence and that one is not in the indictment sheet.

When the learned magistrate was passing on his own remark, he asked me how long have I lived and resided at this address. I was not asked entirely that question entirely. That is why the dissenting judge, Justice Pullin, made it clearly in his good court that the appellant was never asked this question, that the learned magistrate ought to have asked him the question they asked him and that they combined the two questions.....convicted on that question.

CRENNAN J: Do you have the transcript there which you provided to us?

MR EJUEYITSI: Yes I have the transcript, yes, your Honour.

CRENNAN J: I just wanted to ask you to look please at page 149 up in the top right-hand corner. Do you have that?

MR EJUEYITSI: Yes, I have the transcript of the interview.

CRENNAN J: Page 149 up at the top corner.

MR EJUEYITSI: At 149, yes.

CRENNAN J: Yes, and at the bottom of the page, do you see that it says there:

And in a conversation with Scott Hughes, he asked you how long you had been residing at unit 3/187 Hardey Road, Belmont. Do you remember him asking you that?---Yes.

Then you were asked:

And do you remember what you answered him?---Yes, since 1997 I’ve lived there.

MR EJUEYITSI: Yes, your Honour. And I thought I clarified myself. If you go back to paragraph 17 of Justice Pullin’s statement, I clarified myself. Paragraph 17 of Justice Pullin’s statement.

CRENNAN J: Yes, we have that.

MR EJUEYITSI: Paragraph 17:

The appellant’s evidence at trial in examination-in-chief was as follows:

You wrote that you met Nola Khan in July, August 1997. Do you recall that?---That is true.

Why did you write that on the form?---That’s a true date.

Alright.

You should come back to “Why”. Your Honour, if you go back to:

Why did you answer him that?---I told him that in 1997 when I came to Perth, I lived there. In 1998, when I come to Perth, I live in that same Hardey Road. In 1999 - - when I went to –

I did not say specifically I lived there permanently. The learned magistrate went on the assumption that I said I lived there permanently. That is why he has convicted me. That is why Justice Pullin brought this material out to the world to see that, the appellant did not say he lived there permanently in 1997. That is the position. I never said I said I cohabitated there. When I came in Perth in 1997 I cohabitated there. In 1998 I cohabitated.....1999 I.....but the intention of the magistrate was that I lived there permanently in 1997 - - -

CRENNAN J: I understand what you are saying.

MR EJUEYITSI: My position here in your honourable Court is that the question they asked me was entirely different was in indictment. By my own understanding of the legal process, before they change any question – the respondent try to change any question, you have to follow the normal process of the law by filing an affidavit to the Court to change its testimony – its question to the Court which they failed and neglected to do. The magistrate convicted me on a different question and that particular question was amalgamated. How long have you lived and resided.....they amalgamated the two questions and combined it as one and convicted me.

KIEFEL J: Would you mind speaking just a little bit slower for me. I just find it a little hard to follow.

MR EJUEYITSI: Yes, your Honour. What I am saying is that the two questions were joined as one; how long have you lived, how long have you resided there? They were joined as one. The learned magistrate joined it as one and convicted me, which Justice Pullin said was wrong. An official look at the High Court judgment in Antoun v The Queen in 2006, the Full Court, comprising of Chief Justice Gleeson, Justice Hayne, Justice Heydon, his Honour, Justice Kirby and Justice Callinan, they made it clearly in this type of case that –I can quote – that ultimately given effect by this Court, strong as the case may be, the appellant is entitled to fair hearing, that the trial was fundamentally flawed by impermissible inclusion of irrelevant material and legally inadmissible accusation. The trial also involved a substantial miscarriage of justice because such inclusion permitted contamination of the evidential consideration before the jury by a factor that that might have been prejudiced to the appellant.

That was the beauty of that judgment. If you look at this particular combination of the question I was asked, I was not asked that question. I was convicted.....the question I was not asked by laws against the principle of.....spirit.

Secondly, the normal process for the conduct of an interview was not followed by the migration officer. To conduct an interview to people you do not understand his accent, people who has the poor grammatical constructions, there is the basic principles. There is a document I submitted to you called.....Principles. Do you have that document? They call it.....Principles, is that principle demonstrated conduct. This tells me that before an interview has been conducted that somebody from a poor grammatical – somebody from a poor country, people who cannot speak English very well that is the process they need to follow.

Apart from that, Immigration itself has a procedure to follow for the conduct of an interview from people you could not understand their accent and they did not follow that procedure. He interviewed me. Some of the material evidence was not recorded. He went to the court and submitted that material as – he even confessed to the court, confessed to the learned magistrate that he could not understand.....By law, that material should not be accepted as an exhibit of the court, but the learned magistrate accepted it and convicted me on that.

That is why I have to bring this Full Court to the judgment of Dietrich v R. In 1992 the Full Court Bench of the High Court constituted by Chief Justice Mason, Justice McHugh, Justice Brennan, Justice Dawson, Justice Deane, Justice Toohey and Justice Gaudron, they unanimously arrive at this judgment that if the appellant had had an interpreter at the interview, the result might have been different.

The basis upon which I am drawing my conclusion is that if the migration officer who conducted the interview had an interpreter or what they call the McKenzie friend or a representation or an interpreter at the interview with me, I would not have been here today. He would not have come to the court of law and confessed to the magistrate that during the process of the interview - - -

CRENNAN J: Did you have a solicitor acting for you at the original hearing?

MR EJUEYITSI: At which of the steps?

CRENNAN J: At the original hearing, did you have a solicitor?

MR EJUEYITSI: At the original hearing at the Magistrates Court I had a solicitor acting for me. That solicitor has been made a magistrate now. His name is Paul Roth. He was acting for me at that time.

CRENNAN J: Did he make submissions on your behalf?

MR EJUEYITSI: In what level? In the Supreme Court or the court below?

CRENNAN J: At the Magistrates Court.

MR EJUEYITSI: I do not think.....he came to came to argue orally and I was convicted in the first one – I was freed in the first one. I was convicted in the second one. Then I told him I wanted to go on appeal. He said, no, the answer I gave was clear. The magistrate had made it clear that I have clarified I said. Why did they charge me? So I did not appeal. I took it in that faith and I left.

So what I am saying, the learned magistrate convicted me. That is.....the migration officers came to the court to confess to him that during the process of the interview they could not understand what I am saying. That is why the dissenting judge, Justice Pullin, was making it clearly that it is quite obvious that Mr.....was not taking notes verbatim, that the court could see that the appellant speak quickly, that sometimes it is difficult to understand him, that the transcriber of the court finding difficult to comprehend him. If there had been an interpreter at the end, it would have been – and this judgment of the Full Court is in agreement – the judgment of the Full Court in Dietrich v R in the High Court is in agreement with Article 6 of the United Nations charter on the right of representation, on the right of communication and the right to representation.

It is also in agreement with the universal declaration of human right and the right of communication. Even the Bible and the Koran make it clearly that you cannot convict somebody who you do not understand his accent – which Justice Pullin is making it clearly in his dissenting judgment that the appellant is difficult to understand him, that the magistrate should have taken into consideration that this man needs an interpreter before you go into that, yes, and convict him.

Probably the point I want to raise so quickly, not to waste your time, I happen to.....in the case of Mallard v R in the High Court. In that case honourable Justice Gummow, Justice Heydon, Justice Hayne, Justice Kirby and Justice Callinan make it clearly in that case Mallard was dump in the prison for 12 years innocently. Justice Kirby in paragraph 68 made it clearly, and I quote, it is not for the Court of Criminal Appeal to seek out possibilities or troublesome inconsistencies to which an accused had been denied opportunity to explore forensically, that the body have all represented evidence or material, if available to the appellant, that would have provided an opportunity for the appellant to refute the central.....in the.....of the argument of the respondent, that in his conclusion, a miscarriage of justice has occurred. That was the position or the beauty of – in Mallard v R.

Can I take this honourable Court to the transcript in paragraph – to the transcript of the Magistrates Court in paragraph 92.

KIEFEL J: Page 92, do you mean?

MR EJUEYITSI: Yes, your Honour. Paragraphs 91, 92. I quote from where they said “Did you”:

Did you take it any further in relation to what she said –

This particular material – it is in this particular note that I have submitted to the court. In this particular I submitted – in this particular – do you have this?

CRENNAN J: What is the title of that?

MR EJUEYITSI: It said issues that I intend to raise before your honourable Court.

CRENNAN J: Yes.

MR EJUEYITSI: I made it clearly in that particular passage in page 6 - - -

CRENNAN J: Page 6?

MR EJUEYITSI: Yes. What I am trying to do is disclose all material. The respondent is bound by law to disclose material evidence prior to the trial. So all the materials were hidden from the court. That is what I wanted to bring out to you. The.....said:

Did you take it any further in relation to what she said about the power being exercised over her, or about her not really wanting to marry him, and being forced into marrying him?---I can’t recall exactly.

That is what the respondent mean –

I would have asked some questions, some general questions on that.

Can you recall making any notes of the responses?---No, not off hand

Perhaps the prosecution could just inform us as to whether any such notes exist, sir.

Mr BEVILACQUA [PROSECUTOR]: Well, we haven’t seen any, your Worship, but I don’t know whether - - I don’t think we have taken a review of the departmental files, but perhaps we can undertake to do this evening, and see if there’s anything further.

In the evening, what material did he bring? No material did he bring. So material evidence that during the process of interview some certain things I said were not recorded and certain things that were in my favour were removed from the court. It was – or during the trial I started telling my solicitor what I have said. That is why Justice Pullin quoted it – in during that interview, that Mr Ejueyitsi, the appellant has never said he lived in that particular place permanently. He said he has cohabitated, that in 1997 it was in this place, in 1998 he.....but the magistrate went on the assumption that I said I lived in that place 1997 permanently.

So in this regard, your Honour, there was really a difference between the legal system in Africa and the legal system in Australia. Australia must make the laws, give guidance and directions, instruct – told what goes.....Africa.....on the legal system to follow. But is the circumstances, the learned magistrate could convict an applicant on the basis of making a false statement where.....is not a false statement and particularly in circumstances where the prosecution witness came to the court of law and confessed to the honourable court that during the process of interview some material evidence were not submitted, were not recorded, where.....to the general public, not.....community. It would violate United Nation laws on the right of interpretation, on the right of communication. I rest my position, your Honour.
CRENNAN J: Yes, thank you. No need to trouble you, Mr Hastings. The Court will just adjourn for a few moments.

AT 3.13 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.16 PM:

CRENNAN J: I will ask Justice Kiefel to read the disposition.

KIEFEL J: The applicant was convicted on one count of making a false statement to a migration officer.

His case before the Court of Appeal of the Supreme Court of Western Australia was that his evidence about the statement had been misunderstood. The question as to what it could have conveyed to the magistrate was analysed by the Court of Appeal.

There is no question of principle which would found an application for special leave. We are not satisfied that the interests of justice warrant the grant of special leave.

Special leave is refused with costs.

CRENNAN J: Adjourn the Court to 10.15 am on Tuesday, 4 August 2009.

AT 3.18 PM THE MATTER WAS CONCLUDED