Abbotto v Thorp

[1992] HCATrans 149

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M18 of 1992

B e t w e e n -

MARIO ABBOTTO

Applicant

and

MALCOLM WILLIAM THORP

Respondent

Application for special

·leave to appeal

MASON CJ
BRENNAN J

McHUGH J

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TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 8 MAY 1992, AT 11.55 AM

Copyright in the High Court of Australia

MR P.G. NASH, QC: If the Court pleases, I appear for the

applicant in this matter. (instructed by Juliano,

Ford & Co)

MR M. ROZENES, QC:  May it please the Court, I appear with

my learned friend, MR B.E. WALTERS, for the

respondent. (instructed by the Director of Public

Prosecutions (Commonwealth))

MASON CJ:	Mr Nash?
MR NASH:	If the Court pleases, to adopt the words which

have just fallen from Your Honour the

Chief Justice, this is a case which, in our submission, will involve the Court in the

elucidation of the general law.

In effect, the issue really is whether the

decision of the Full Court should stand as a
precedent in relation to section l0(l)(b) of the

Passport Act 1938. I say that advisedly because

although the charge was a charge of aiding and

abetting under section S, the Full Court, at

page 107, appears to have interpreted the Passport

Act rather than the aiding and abetting section,

section S, of the Crimes Act.

We say, in essence, that the Full Court

ignored the use of the word "knowingly", that the
Full Court effectively ignored Woolmington when

Mr Justice Lockhart, at page 121, line 17, of the application book said:

In the absence of evidence to support a

possible inference of innocence (for example,

that the respondent genuinely believed that

the man depicted in the photograph on the

application for passport was the man known to

him as Mr Marra.ma) it was not incumbent on the

Magistrate to consider it.

Mr Justice Gummow made a similar statement at

pages 139 to 140, starting at line 24 on page 139.

BRENNAN J: What is wrong with that?

MR NASH:  We say, Your Honour, that that ignores the fact

that the offence is that of knowingly being

concerned in the making of a false statement, or

alternatively, if one looks at the facts,

Your Honour, if I move sideways for a moment, the

puzzling thing is that he was not charged with

knowingly making a false statement under

section 10(1) rather than knowingly being concerned

in the making of a false statement.

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But in either case, looking at the word

"knowingly", there is nothing on the evidence,

except the fact that the statement was false, from
which any inference as to the knowledge of the

applicant can be derived and we say that - - -

BRENNAN J:	He certified that this was Marrama's photograph.
MR NASH:	He certified this was Marrama's photograph,

Your Honour, yes.

BRENNAN J: That was false.

MR NASH: That was false.

BRENNAN J:  And he certified that a signature on the

document was Marrama's signature?

MR NASH:  Yes, Your Honour.

BRENNAN J: That was true?

MR NASH: That was true, as it turned out, yes.

BRENNAN J:	So that he certified that the person who signed the document, which he witnessed, was the person
whose photograph he witnessed? The inference is
only one way, is it not?

MR NASH: With respect, Your Honour, that presupposes that

the photograph was signed in front of him. This is

one of the things that is canvassed both by - - -

BRENNAN J: Well, he witnessed it, did he not?

MR NASH:  No, he did not witness it, Your Honour. He did

not purport to witness it and that, in our

submission, is a crucial part of the case. If he

had said, "This was signed in front me" or "I

witnessed this signature" - it was accepted by the

magistrate, by the primary judge and by the Full

Court, with respect, Your Honour, that there was no

requirement for it to be witnessed and there was no

evidence as to whether it was signed in front of

him or not.

BRENNAN J: That is a question of what inference might be

drawn in the absence of any explanation showing

what actually happened.

MR NASH:  With respect, Your Honour, if the decision in this

Court in Pereira is correct, then if one is trying

to infer knowledge or one is required to infer

knowledge from circumstantial evidence, that

circumstantial evidence must lead to only one

rational conclusion and, with respect, Your Honour,

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the circumstantial evidence here does not lead to

one rational explanation in relation to knowledge.

BRENNAN J: Is that not a matter for the jury?

MR NASH:	With respect, Your Honour, it is a matter for a
jury but if - it is a matter for a jury in this

sense, Your Honour, that if this went to trial and

the trial judge took the view that there was no

evidence of knowledge, no evidence on which a

reasonable jury could infer knowledge, having

regard to the statements of the law in Pereira,

then, in our submission, he would be justified in

taking this case away from the jury.

BRENNAN J: Not if he has read Doney's case, he would not.

MR NASH:  I was going to say, with respect, Your Honour,

that it is not a question of whether it would be

unsafe or unsatisfactory, but there would be no

evidence on which a jury could derive that

conclusion as the only rational conclusion,

Your Honour.

If I may go back a step, Your Honour, in

response to that: the Full Court used Doney's case

as authority for the proposition that the

magistrate had no power to make a finding, for want

of a better word, that a conviction on this

evidence would be unsafe or unsatisfactory. Now,

that is not one of the grounds on which we seek

special leave. It is not in the application book.

But, in fact, if one looks at the role of a

magistrate, to equate the role of a magistrate at

committal proceedings to that of a trial judge, in

our submission, is incorrect in that a magistrate should not put a person on trial if the facts are

such that a verdict would be unsafe or

unsatisfactory.

I know that proposition puts the trial judge

on Doney's case in an anomalous position in that he

cannot have regard to matters which a magistrate
could have regard to and cannot have regard to

matters which an appellate court should have regard

to. But it is a question of when should a man be

put on trial? If there is no objective evidence of

one of the ingredients of the offence - and with

respect, Your Honour, we are talking here not of a

situation where we are talking about mens rea in

the sense of having knowledge of what you are

doing, but we are talking about a statute which

inserts the word "knowingly" presumably with the

intention that the mere commission of the act -

forbidden act - cannot give rise to that requisite

inference of mens rea beyond reasonable doubt.

Abbotto 8/5/92

With respect to the Court, I do not wish to

continue to state the obvious or to push an

argument that the Court finds unacceptable but what

we say is - we make three points really: one, this is a special leave point because it is a Full Court

decision dealing with a piece of Commonwealth

legislation on which, so far as we can ascertain,

there is no authority at any equivalent level.

Secondly, we say that on its face it conflicts with

Pereira.

McHUGH J:. I must say I do not think it does. All Pereira

says is that where knowledge is inferred from

circumstances, it must be the only rational
inference available. That is a matter for the

jury. This sort of argument you are putting used

to be put in New South Wales about 20 years ago and

had a bit of currency. I must say I thought it was

a hopeless argument then and I think it is a

hopeless argument now.

MR NASH:  I am sorry to hear Your Honour date me in that

way.

McHUGH J: It is a matter for the jury to determine whether

it is the only rational inference available. The jury might adopt your submission but a magistrate cannot say that it is not the only rational

inference available.

MR NASH:  With respect, Your Honour, he can and, in fact, as

I read what the magistrate said and as I read what the Full Court said, it was a rational inference.

They all found it was a rational inference

available. It was one of two hypotheses. Perhaps

if Your Honour will bear with me for a moment: if

I can go to - - -

McHUGH J: If they were equally consistent inferences, in

other words, one could not choose between them,

then you take the case away from the jury, but it

is a question for the jury. But I am sorry, you

were going to take us to the - - -

MR NASH:  Our purpose, with respect, is to try and persuade

the Court, and it helps if we know the lines of

argument that are totally - - -

MASON CJ: Yes, but not if it helps in such forthright

terms, I would have thought.

MR NASH:  We say, Your Honour, in response to that that the

statement of Mr Justice Lockhart at page 102, where

he states what is the primary question in the

appeal, highlights what we say is the error.	He
says:

Abbotto 8/5/92

The primary question in this appeal is

whether a magistrate is entitled to commit a

defendant for trial in circumstances where

there are two hypotheses, one consistent with

guilt and the other with innocence, or whether

he is bound in those circumstances to

discharge the defendant.

McHUGH J: Well, could I just interrupt you to say that he

really states the question wrongly.	The question
is not that but it is whether, in the

circumstances, there are two hypotheses capable of

arising on the evidence. That was the real

question in the case.

MR NASH:  With respect, Your Honour, this is part of our

reasoning in this application, that whatever the

Full Court did, if one takes what the Full Court

said and the way the Full Court arrived there, we

say there is considerable ground for uneasiness as

to the result. We are not talking about the facts

of this case, we are talking about principles of

law. That result, in our submission, following

from those logical propositions, does present other

courts in Australia with not only a decision on

section lO(l)(b) but a decision in relation to when

knowledge can be - not only can knowledge be

inferred but what happens when you have two

hypotheses.

That comes throughout the whole of -

particularly Mr Justice Lockhart's reasoning, and

it appears very clearly, he keeps on - that in the

absence of explanation. Now, if we have an offence

where the burden of proof is on the Crown to

establish "knowingly", that inference may arise; it

may be that on these particular facts one could

conclude - we do not concede this for a moment; in

fact, if leave were granted, we would contend the opposite, but we do not wish to attempt to debate

basis. the appeal now - that there was only one rational I take Your Honour's point, we would wish to

debate that at a later stage, but even if the

situation is that there are two hypotheses, one

consistent with guilt and one consistent with

innocence, and in the absence of explanation, a

person should be committed for trial on that

basis - - -

McHUGH J: But, you see, if you carried it through to its

logical conclusion, I do not know that you would ever get any case to the jury when you depend on

circumstantial evidence. Whether it be Plomp's

case or whether it be Chamberlain or whatever case

you take into account, there is always, at the

Abbotto 6 8/5/92

close of the evidence a hypothesis of innocence

capable of arising on the evidence.

MR NASH:  Yes, Your Honour. But if one goes back to Plomp's

case, and there was an inference, the inference of

malice there was the only rational inference open,

translating modern words back to what was current

20 years ago, with respect, Your Honour - - -

BRENNAN J: It was not a question of malice, it was a

question of the actus reus there, and the question

was whether or not you would draw the inference

that he murdered his wife because he hated her.

MR NASH:	With respect, Your Honour, yes.
BRENNAN J:	Who knows whether or not "hate" is sufficient in

a particular instance to drive a person to cause

the death.

MR NASH:  But here, Your Honour, we are dealing with not

what objective - in one sense, objective facts. We

have the situation that "The devil knoweth not the

mind of man". We have the word "knowingly" in the

section and we have, we say, a number of inferences

open, and we have the Full Court saying, in effect,

in one place, "It was not the obligation of the
magistrate to take into account those other

hypotheses in the absence of any explanation."

I can put the same argument three or four

times, if the Court pleases, but they are really

the submissions in support of the special leave

application.

MASON CJ:  Thank you, Mr Nash. The Court need not trouble

you, Mr Rozenes.

There is no sufficient reason to doubt the

correctness of the actual decision of the

Full Court of the Federal Court and, on that

account, the application for special leave to

appeal will be refused.

MR ROZENES:  We would make an application for costs, may it

please the Court.

MASON CJ: Yes.	You do not oppose costs, Mr Nash?
MR NASH:	No, Your Honour.

MASON CJ: The application is refused with costs.

AT. 12. 13 PM THE MATTER WAS ADJOURNED SINE DIE

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