Batemberski v The Queen

[2002] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B90 of 2000

B e t w e e n -

ALEXANDER BATEMBERSKI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON WEDNESDAY, 26 JUNE 2002, AT 11.30 AM

Copyright in the High Court of Australia

MR P.T. LOWE:   If the Court pleases, I appear for the applicant.  (instructed by Mr A. Batemberski)

MS L.J. CLARE:   If it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

GAUDRON J:   Yes, Mr Lowe.

MR LOWE:   Your Honour, just as a matter of good housekeeping.  Together with the appeal book, your Honours should have the applicant’s authorities in a tabulated booklet.

GAUDRON J:   We do, yes.  This is one of the criminal appeals in which an extension of time is not required, is that right?

MR LOWE:   Yes, as I understand it.

GAUDRON J:   Yes.  It must be a first.

MR LOWE:   Indeed.  The applicant was convicted following a two‑day trial in May 2000.  He had been arraigned on two charges:  the first one of production of an unlawful drug pursuant to section 8 of the Drugs Misuse Act and in the alternative he was charged with possession of that same drug.  On 24 May he was acquitted of the production charge under section 8 and was convicted of the alternative charge under section 9 of that Act.

The principal difference between the charges, beyond the fact that they are substantively different, is that the Crown, in proof of its case under section 9, but not section 8, relied on  an evidentiary provision, which is a reverse onus evidentiary provision under the Drugs Misuse Act - it is section 57(c) ‑ in proof of its case, and that document, an extract of 57(c) is actually found at the last page of that tabulated book.

GAUDRON J:   Now your arguments centre entirely on that provision, do they not?

MR LOWE:   The applicant until very recent times has been unrepresented.  He was unrepresented on appeal before the Queensland Court of Appeal and the summary of argument and reply to the respondent’s argument was done without the benefit of obtaining legal advice.  There are matters contained in those documents which go outside the traditional nature of the appeal that would be sought in this Court, but the merits of this appeal do not resolve with the putative invalidity of section 57(c) but, in fact, the merits of what happens in terms of procedure when an accused is charged with 57(c); charged with an offence where the Crown is seeking to rely on 57(c) in support of the prosecution.

This was an odd case, in my respectful submission, where the Crown could have proceeded with a possession of an unlawful drug and relied on 57(c) of the Act, and I would not be complaining, but the gravamen of the problem is that under section 8 they did not rely on the reverse onus provision.  Now certain consequences flow, we say, in terms of an unfair trial as a result of pursuing a charge under section 8 where 57(c) is not relied on and section 9, where it is relied on.  The first thing is that the election that an accused has whether to remain silent at trial, is taken away, effectively.

GAUDRON J:   You will have to take this a little slowly for me, Mr Lowe, because this does not appear in anything that has happened hitherto, so you really say ‑ ‑ ‑

MR LOWE:   It is an abuse of the court’s process and ‑ ‑ ‑

GAUDRON J:   Does the gravamen lie in charging these matters as alternatives?

MR LOWE:   As alternatives.  If it was in the singular, there would be no complaint and no appeal.

GAUDRON J:   So he was charged with – where do I find the indictment, which I confess I have not found it necessary to look at before.

MR LOWE:   The indictment is found at pages 1 and 2 of the application book.

GAUDRON J:   He is charged with production under section 8 for which, 57(c) ‑ ‑ ‑

MR LOWE:   The Crown disavowed any reliance on that reverse onus provision in proof of that charge and, on page 2, in the alternative, is found the unlawful possession for which the Crown relied on section 57(c) in proof of its case.

GAUDRON J:   Yes.  Now could you explain ‑ and please take your time on this ‑ how it is that you say an unfairness comes about.

MR LOWE:   On a number of different bases.  I have outlined in the applicant’s authorities a number of bases and I wish to address your Honours as follows.  We say that there has been an unfair trial for four separate reasons.  The first is the choice of charges and the reliance on a reverse onus evidentiary provision.

GAUDRON J:   But I do not understand the particular consequences of unfairness which you say ‑ ‑ ‑

MR LOWE:   Well, unfairness is where you are charged with a full mens rea offence such as, in this case, unlawful production, and the gist of the Crown case was cultivate the cannabis, then as ordinarily would happen at a trial, one can choose whether to give evidence or not in one’s own case.  But where you are charged, as in this case, in the alternative, with an offence provision, which is possession of the unlawful drugs, and the Crown relies on section 57(c), that election is affectively taken away, because the onus is then on the accused to proffer an explanation within the terms of 57(c), which is, in terms of that evidentiary provision ‑ ‑ ‑

CALLINAN J:   Could the prosecution have relied upon the presumption for both charges, if it wished?

MR LOWE:   Well, the issue then becomes, in terms of 57(c), whether a person was an occupier or concerned in the management or control of the place where the drugs are found, being conclusive evidence.  No, they could not, but, as an issue, which ultimately I wish to address your Honour on an inconsistent verdict, the Crown case for the applicant was that no one else, except the applicant, was involved in the cultivation of the cannabis.  The way that the Crown cross‑examined the applicant at trial, that no one else, except the applicant, was involved in the production of the cannabis.

CALLINAN J:   But do you say that a possession charge, which relies upon the presumption, can never be joined with any other charge that does not have a statutory presumption?  You really have to go as far as that, do you not?

MR LOWE:   Yes, I do go as far as that.

CALLINAN J:   So that you can never join the two ‑ ‑ ‑

MR LOWE:   You can have them as back-to-back trials, perhaps, but then the Crown took the risk in this case that if the applicant was acquitted, at the first trial on cultivate, then you would have some abuse of process arguments, two bites of the cherry, so to speak, that if the Crown wished to run a possession case, after they had lost a cultivate – and I would be submitting, your Honours, that on the thrust of the Crown case here possession must be implicit in the cultivation.  He was alleged to be the occupier of the premises or concerned in its management or control.  They were alleging that he was responsible for the recent watering of the plants.  The thrust of the cross‑examination by the Crown was that no one else was involved.  So if you are the occupier and you are charged with cultivate you must, by commonsense approach, be the possessor of that which you cultivate.

GAUDRON J:   So you are really saying ‑ ‑ ‑

MR LOWE:   Hence, the alternative verdict is an inconsistent verdict under the Jones ‑ ‑ ‑

GAUDRON J:   Yes, either inconsistent or perhaps autrefois acquit?

MR LOWE:   Well, we did not get that far, but ‑ ‑ ‑

GAUDRON J:   Of an element.

MR LOWE:   It is because of the way the Crown case was framed that the difficulties posed by this case are thrown up.  The reverse onus provision ‑ ‑ ‑

GAUDRON J:   Could I ask you a question on this issue?

MR LOWE:   Yes.

GAUDRON J:   Was any application made to sever the indictment?  Was any application made at trial about this?  Was this man represented at trial?

MR LOWE:   He was represented at trial, but not on appeal, and the Court of Appeal’s judgment in this case is two pages about the dismissal of the 57(c) argument.  But that argument was based on invalidity of the legislation, because if it was inconsistent with Chapter III of the Australian Constitution, that argument, with great respect to the applicant, was doomed to fail.  Now, in the United States, the US Supreme Court has held that equivalent provisions such as conclusive evidence provisions, presumptive evidence provisions, is invalid, but that is because it infringes the due process clause.

GAUDRON J:   But it is not a conclusive presumption here?

MR LOWE:   Well, it is conclusive evidence.  Now there has been a dispute in Queensland ‑ ‑ ‑

GAUDRON J:   Well, it is rebuttable.  It is a rebuttable presumption, I should say.

MR LOWE:   Well the evidentiary onus is cast on the accused.  That relates to another argument I wish to pursue, which is ‑ ‑ ‑

GAUDRON J:   But must not the prosecution have relied on 57(c) to establish possession for the cultivation and should we not therefore assume that the cultivation charge failed for failing to prove something in addition to possession?

MR LOWE:   The summing up made it very clear to the jury that the Crown did not seek to rely on 57(c).  He directed the jury in summing up, pages 90 to 93 of the appeal book.  The appeal book reference should be at pages 13 to 16 – the page is 91.

GAUDRON J:   Mr Lowe, I am sorry, I really do not want to stop your flow, but as you know in these matters we make some preliminary study of the papers and check where things are going and so forth.

MR LOWE:   I have been disadvantaged in the sense that I could have persisted this Court ‑ ‑ ‑

GAUDRON J:   I know; that is what I am going to say.  You, I think, may have been disadvantaged; Ms Clare might be taken by surprise; I am not confident that we have all the necessary transcript to determine this case on the grounds you now raise.  I just want to raise whether the sensible course is not to adjourn this application, to enable you to put in written arguments ‑ ‑ ‑

MR LOWE:   I think the Court would certainly be benefited by ‑ ‑ ‑

GAUDRON J:   Well, do you resist that course?

MR LOWE:   No, I do not resist that course.

GAUDRON J:   Do you resist that course?  It will come before a differently constituted Bench at some other time, but ‑ ‑ ‑

MS CLARE:    Your Honour, I am happy to deal with it today, if that is convenient to the Court, but equally I am happy for it to be adjourned if that appeals to the Court.

GAUDRON J:   Yes.  I think we should adjourn it, but on terms, Mr Lowe, I think.

MR LOWE:   Yes.

GAUDRON J:   Could we require you to file within 14 days new draft grounds of appeal and fresh summary of argument and reserve up to Ms Clare the right to file a reply to that argument within the times ordinarily limited for the filing of a response; is that clear enough?

MR LOWE:   Yes, thank you very much, your Honour.

GAUDRON J:   Yes, thank you.  The matter will be adjourned on those terms.

AT 11.46 AM THE MATTER WAS ADJOURNED