Giannarelli v Wraith [1988] HCA 52

High Court of Australia Mason C.J. Wilson, Brennan, Deane, Dawson, Toohey and Gaudron JJ. Giannarelli v Wraith [1988] HCA 52

ORDER Appeals dismissed with costs.

Cur. adv. vult.

The following written judgments were delivered:—

Oct. 13 Mason C.J.

The issue in these appeals is whether a Victorian barrister is liable in negligence to his clients who were tried and convicted of perjury, the negligence alleged being his failure to advise them that they had a good defence to the proceedings and his failure to object to certain inadmissible evidence tendered by the Crown. The evidence was essential to the Crown case. Without it the Crown could not have succeeded.

The first three appellants (i.e., all of the Giannarelli appellants) were charged and convicted of perjury under s. 314 of the Crimes Act 1958 Vict. as a result of evidence which they gave to the Commonwealth and Victorian Royal Commission into the Federated Ship Painters' and Dockers' Union. The first appellant was released on a bond; the second and third appellants were sentenced to imprisonment. The first appellant did not appeal. The second and third appellants appealed unsuccessfully to the Court of Criminal Appeal. They then applied for special leave to appeal to this Court. Their application was successful, their appeal was allowed and their convictions were quashed: see Giannarelli v. The Queen [22] . The appeal succeeded on the ground that s. 6DD of the Royal Commissions Act 1902 Cth rendered the evidence given by the three appellants in the Royal Commission inadmissible in the criminal proceedings. The appellants allege that this point was raised for the first time in the application for special leave to appeal. The same point had been raised without success in other proceedings at first instance after the Court of Criminal Appeal dismissed the appeals by the second and third appellants, but before their application for special leave to appeal to this Court.