Bow v The Queen

[2009] HCATrans 90

[2009] HCATrans 090

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S495 of 2008

B e t w e e n -

WAI KWAN BOW

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

FRENCH CJ
GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 1 MAY 2009, AT 2.22 PM

Copyright in the High Court of Australia

MR S.J. ODGERS, SC:   May it please the Court, I appear for the applicant.  (instructed by Gregory J. Goold)

MS W.J. ABRAHAM, QC:   May it please the Court, I appear with my learned friend, MR C.P. O’DONNELL, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

FRENCH CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, the question of general importance raised by this application is determination of the applicable maximum penalty for an offence of conspiracy to commit some foundational offence where the maximum penalty for the foundational offence varies depending on the existence of some objective fact.  We contend that the aggravating circumstance for the conspiracy offence must be that the conspiracy for which the offender is being sentenced comprehended that objective fact, that is that the offender agreed that the objective fact would come into existence.

FRENCH CJ:   This all turns on the construction of 11.5 and the word “offence” therein.

MR ODGERS:   Correct. It is our submission that the words in section 11.5(1), which are “as if the offence to which the conspiracy relates” should be understood in this context to mean punishable as if the offence and the circumstance of aggravation which the offender conspired to commit has been committed. Your Honours, obviously section 11.5(1) is the key provision. I will not read it out. Your Honours no doubt appreciate that this was an offence of conspiracy to import narcotic goods.

In respect of the foundational offence of import narcotic goods, the circumstance of aggravation which increases the maximum penalty to life is that, in fact, a commercial quantity of narcotic goods were imported.  We submit that, properly applying 11.5(1) as it should be interpreted, to be liable to life imprisonment for conspiracy to import a commercial quantity the offender must have conspired not only to import narcotic goods but conspired to import at least a commercial quantity of narcotic goods.

BELL J:   What is it about the Code provision that produces that result?  In Kingswell I think the offence was one of conspiracy but under (cb) of section 233B.

MR ODGERS:   Your Honour, I have reflected on that.  I do not think the situation is any different.  Indeed, I would go so far as to say that Kingswell does not resolve the question.  It does not seem to be an issue that was litigated in Kingswell.  If I take you to that decision at 159 CLR – it is in the respondent’s authorities.  The question of principle which Kingswell resolved was that a circumstance of aggravation - it is not an element, it is nonetheless something that a jury should determine, but the question was, what was the circumstance of aggravation in Kingswell.  It was, as your Honour says, a conspiracy to import case.

If your Honours look at page 272 of the joint judgment of the Chief Justice and Justices Wilson and Dawson at point 5 there is a sentence:

There was evidence in the present case that the quantity of heroin which was the subject of the conspiracy charged was 1.332 kilograms.  The witnesses whose evidence established that fact were not cross‑examined and there was no evidence to the contrary.

I focus on the words “the quantity . . . was the subject of the conspiracy charged”.  It leaves ambiguous how you determine that.  Is it based on the fact that something was imported, or was it that what was proposed under the conspiracy was to import at least a commercial quantity.  That was never resolved because it was not necessary because it was not an issue in the proceedings.

BELL J:   And yet the issue in the proceedings was the contention that 233B created, when read with 235, a number of cascading offences, and that was rejected.

MR ODGERS:   Yes.  I am not challenging that here today, your Honour.  The point I am making about Kingswell is that what was the circumstance of aggravation for the purposes of the conspiracy offence was not something that needed to be determined and was not determined in Kingswell because it was not an issue before the Court.  There is simply that statement that the quantity, the subject to conspiracy was not – there was no evidence to the contrary; it was not in issue; therefore it was concluded ultimately that even though the jury had to determine it and they did not, there was no miscarriage of justice.  That was the point their Honours came to ultimately in their judgment.  All I am saying, your Honour, is that Kingswell may have been interpreted to say that in a conspiracy case the circumstance of aggravation is the fact of the quantity, but it does not clearly or unambiguously say that.

BELL J:   It is just that the reasoning in terms of what constitutes an offence on the face of it is applicable notwithstanding the introduction of the Code provisions.

MR ODGERS:   Quite.  But, your Honour, we are not in any way challenging the reasoning or the outcome in Kingswell, Meaton or Cheng.  Our contention is that an agreement to import a commercial quantity – we do not say that is an element of the offence.  We say that is the circumstance of aggravation which increases the maximum penalty to life.  We then say Meaton and Kingswell stand for the proposition that that should be included in the indictment and the jury should determine it.  That did not happen here.

BELL J:   What happened here was that it was included in the indictment, but the jury were not asked to ‑ ‑ ‑

MR ODGERS:   It was included in the indictment, but without clarification of whether it was the fact of the quantity or an agreement as to the quantity.  In fact, the jury were not even asked to determine that a commercial quantity was imported, but certainly they were not asked to determine that there was an agreement to import a commercial quantity.  That, of course, is our primary complaint.

Your Honours, if we are wrong and it just turns on quantity, then there would be no question.  We would not be here because there is no dispute that a commercial quantity was imported.  There is no doubt about that.  But if we are right that, properly understood for conspiracy to import a commercial quantity you have to conspire to import a commercial quantity, then we say that that was an issue which should have been left to the jury; they did not determine it.  You cannot say for certain that if they had considered the question they would inevitably have found in favour of the Crown.

FRENCH CJ:   When you put it that way it sounds as though you are suggesting that the importation of a – or the commercial quantity aspect is an element of the offence.

MR ODGERS:   No, I am certainly not suggesting that, your Honour.
Kingswell and Meaton stand for the proposition that, even if a circumstance of aggravation is not an element – and we do not contend it is – if it increases the maximum penalty it should be included in the indictment and determined beyond reasonable doubt by the jury.

FRENCH CJ:   So you are saying this is not a matter that, although there is a practice and a rule of practice, this is not a matter which can be determined by the judge.

MR ODGERS:   I am saying in accordance with the rule of practice established in Kingswell and Meaton it should be determined by the jury.  If it is not, an appeal against conviction should be allowed unless the Court is satisfied that there was no miscarriage of justice.  That is what Kingswell and Meaton establish.  We do not seek to challenge that.

FRENCH CJ:   Appeal against conviction for what?

MR ODGERS:   As I understand it, how a jury should be directed is if you are satisfied beyond reasonable doubt that there was a conspiracy to import a commercial quantity, you would convict of the offence and make it clear that you are satisfied of that aggravating circumstance.  If you are not satisfied beyond reasonable doubt of that aggravating circumstance you would find him guilty of the offence ‑ ‑ ‑

FRENCH CJ:   Yes, but the conviction must be the conviction of the offence, not a conviction reflecting a finding of the aggravating circumstance.  Is not that right?

MR ODGERS:   I accept that, your Honour.

FRENCH CJ:   So what does an appeal against conviction appeal against?

MR ODGERS:   Your Honour, I must say I appreciate the question and I do not have a completely persuasive answer.  But as I understand it, when one looks at Kingswell the High Court appears to have proceeded on the assumption that if the practice is not followed there should be a new trial to allow the opportunity for the jury to determine the question.

FRENCH CJ:   Can you take us to the relevant passage on that?  You say it proceeds on an assumption.

MR ODGERS:   Page281, your Honour, five lines down:

Where the circumstances of aggravation described in s.235(2) are relied on, they should be charged in the indictment.  If necessary, of course, an alternative charge, omitting the circumstances of aggravation, could be laid in addition.

FRENCH CJ:   But that is preceded by the proposition:

There is no reason why the satisfaction of the judge should not be founded upon the findings of the jury.

MR ODGERS:   Correct.

FRENCH CJ:   I am wondering whether that is the only way in which this can proceed.  Does Kingswell close out the possibility of the judge determining the circumstance of aggravation?

MR ODGERS:   Before I answer that directly, your Honour, as it happens in this case the sentencing judge did not make that finding.  I just draw that to your Honour’s attention.  So the assumption – it may not be necessary for me to answer that difficult question.  But I have understood the principles that Kingswell and Meaton - I have not put Meaton on the list of authorities, but I have understood those principles to be that if a practice is not followed, if the Court is not satisfied there was no miscarriage of justice, then the appeal against conviction should be allowed and it should go back to a jury where it is properly resolved in accordance with the practice.  That is what I have understood the law to be.  I may be wrong about that.

BELL J:   If you look at 281, the third paragraph from the end, “The practice which ought to be observed was not followed”, then their Honours went on to note that there had been in Kingswell no dispute about the matter and so their Honours concluded there was no miscarriage.  Now, in Meaton I think it was again – it was pointed out in the joint reasons in Meaton that the rule of practice is not an invariable one and in the event it is not followed it becomes necessary for the court to consider whether the failure to follow the practice had resulted in a miscarriage.  But all of this seems somewhat far removed from your contention, which is that offence relevantly has to be viewed as embracing the circumstance of aggravation for the purpose of a conspiracy under the Code.

MR ODGERS:   Your Honour, the difficulty I have is if that is not correct, what is the circumstance of aggravation?  It is not clear from the judgment of the Court of Criminal Appeal what the court considered it was.  The best I can do is to say that it appears to be the view of the court that the circumstance was the objective fact that a commercial quantity was imported.  That appears to be what the court has held, but, of course, the point we make about that is that that simply cannot be correct because in many conspiracies nothing in fact is imported.

Does that mean, then, that if A and B are overheard on a listening device saying, “We plan to import 100 kilograms of drugs”, and the police arrest them and charge them, it is the standard.  It is accepted in New South Wales and I imagine in the rest of Australia that in that situation they are liable to life imprisonment because they have agreed.  In that case everyone accepts that the circumstance of aggravation is the agreement to import a commercial quantity.  They have been arrested and charged and sentenced, no doubt, on that basis.

So the point I am making is that in that case nothing has actually been imported.  It cannot be right that the circumstance of aggravation will vary depending on that fact of whether something has actually been imported.  Therefore I ask, rhetorically, what is the circumstance of aggravation that increases the maximum penalty if it is not the agreement to import a commercial quantity.

BELL J:   I just have difficulty seeing how you get there if you are not challenging Kingswell because Kingswell is authority for section 233B creating one offence.

MR ODGERS:   Yes.  I have said it, your Honour, and I will say it again:  I am not challenging the proposition that there is one offence.

BELL J:   Yes.

MR ODGERS:   I am saying that in working out what is the circumstance of aggravation for this offence in the case of a conspiracy – and I am submitting that the inescapable conclusion is the circumstance of aggravation must be an agreement to import a commercial quantity.  Therefore, I then apply Kingswell and Meaton principles to that.  So I am not challenging Kingswell in any way, shape or form.  I am, however, making the point that – to respond to the Chief Justice’s first question; I am sorry, it was your question – it is not clear to me that, even under the previous law the situation was different.

BELL J:   We are coming back to the point that in Kingswell this particular issue was not taken.

MR ODGERS:   Quite.  That is my point.

BELL J:   Yes, I understand.  All right.

MR ODGERS:   Your Honours, as I have said, it is not clear what precisely the Court of Criminal Appeal held was the circumstance of aggravation.  At this point I should note that the Crown in their submissions appear to have advanced an approach which is different – which seems to submit that the circumstance of aggravation – they concede it is not the fact of importation of a commercial quantity.  They resist our contention that it is an agreement to import a commercial quantity which is entered into by the offender and appear to contend that the circumstance of aggravation is an objective fact that the conspiracy involves importing not less than a commercial quantity.  The reason I say that, your Honours, is that from page 166 of the application book, where at line 15 the Crown says:

Proving objectively that a conspiracy involves importing not less than a commercial quantity of narcotic goods is not confined to those cases where the drug is actually imported.

The Crown seems to be contending for the concept that if you can prove objectively that there was a conspiracy to import a commercial quantity of drugs, then even if the accused did not himself or herself agree to that quantity, that because it is objectively established, that will be sufficient.  My response to that, your Honours, is firstly that that is not how the judge directed the jury in this case.  Secondly, in any event, the suggested Crown approach is not attractive because the circumstance of aggravation turns on what the other members of the conspiracy agreed to do but not the offender himself being sentenced.

If the circumstance of aggravation requires agreement as to quantity, as the Crown approach effectively concedes, it is a basic principle that the particular offender should have made that agreement rather than someone else.  So if A, B and C agree to import, let us say, a small quantity of drugs and B and C subsequently agree between themselves to import a commercial quantity, it is not apparent why A should be liable to life imprisonment in those circumstances.  Just because B and C have changed the terms of the agreement to a commercial quantity, why should A, who has not agreed, be liable to life imprisonment?

In any event, your Honours, we say that this was a case where the only plausible, practical and fair outcome is that a circumstance of aggravation which makes a conspirator liable to life imprisonment is that the conspirator agreed or conspired to import not less than a commercial quantity.

Proving that may in many cases be simple, but it is an essential requirement.  It is not an element, but it is a circumstance of aggravation which increases the penalty to life.  The jury were not directed in this case that they had to be satisfied of that in accordance with Meaton principles.  We say that it could not be concluded that there was no miscarriage of justice.  We have put submissions in writing as to why that is the case.

BELL J:   Well, the submissions in writing depended in part, did they not, on Justice Giles’ observation that if it should have been put to the jury, then it was ‑ ‑ ‑

MR ODGERS:   It may have been a matter of significance.  Indeed, he granted leave in accordance with rule 4, notwithstanding the failure to request.  Because of that reason we would call that in aid as well as the other factors that I have referred to in the written submissions.

BELL J:   Coming back to the facts, this was 37 boxes are imported into Australia.  The applicant’s contention was he thought they were blank credit cards for use in his scheme.  In fact, they were MDMA.

MR ODGERS:   Yes, all correct, your Honour.

BELL J:   So on a Kingswell approach ‑ ‑ ‑

MR ODGERS:   Your Honours, if the conclusion were that it is inescapable that a jury would have been satisfied beyond reasonable doubt that he agreed to importation of not less than a commercial quantity then Kingswell and Meaton led to the conclusion the appeal would fail.  I accept that.

Your Honours, I say it is not black and white, it is not clear.  One option, your Honours, I suggest, might be that this Court could determine the question of principle, and it is an important point of principle.  That is another matter I should just very quickly address, but before I get to it, should determine the question of principle but might remit the question of miscarriage to the Court of Criminal Appeal.  That would be an option the Court might consider.

But why is it important?  The Crown has pointed out that the legislation has been changed at the Commonwealth level so they say it is not important any more, but there are still Commonwealth offences where the same issue arises.  In the Northern Territory this issue arises in virtually every drug supply case where conspiracy is charged because the legislation is identical in the Northern Territory.

In New South Wales the same issue arises in respect of large commercial quantity, so that a jury – it is a circumstance of aggravation that there was a large commercial quantity – so that if we are right a jury should be directed that they have to be satisfied beyond reasonable doubt of that fact, and we say that that is a very important issue, it applies to a number of jurisdictions.  We say that it should be determined by this Court.  Thank you.

FRENCH CJ:   Thank you, Mr Odgers.  Yes, Ms Abraham.

MS ABRAHAM: Your Honours, in the respondent’s submission, there are three reasons why special leave should not be granted. First of all, in my submission, what the Court of Criminal Appeal did in this instance was apply well‑established principle, and it was well‑established principle, and section 11.5 of the Code does not alter that.

My friend today has repeatedly said that he is not elevating this to an element of the offence.  Well, with all due respect to my friend, he might be saying that, but in fact he is doing that, because he accepts the correctness of Kingswell, and indeed Meaton and Cheng that follow it.

If that is correct, then the offence according to those cases is importing narcotics.  Given that what my friend’s argument is based on is the definition of “offence” in 11.5, and my friend concedes there is no reason to distinguish Kingswell from 11.5 in this case, in my submission, that is the end of the matter.

Importantly, from that the circumstance of aggravation was to be decided objectively.  What my friend has done is attempt to elevate the circumstance of aggravation in the respondent’s submission to an element because he has not simply encompassed it within the term “offence” but has added a subjective aspect, that is, that it was the state of mind of that particular accused.

In my submission, what was made clear in Kingswell, Meaton and Cheng is that it is not relevant in proof of the offence of importing narcotics that the accused have knowledge of the quantity of the narcotics.  With respect, that makes perfect sense, not only on the structure of the legislation, but when one deals with common sense, as this Court has repeatedly recognised, clearly in this sort of operation people often do not know what the quantity is, let alone what the pure quantity is, the Commonwealth acting on pure quantities, and indeed the pure quantity is varying from drug to drug, with respect.  So, in my submission, Kingswell is on all fours.  The Court of Criminal Appeal properly applied it, and indeed in the Crown’s submission, the respondent’s submission, the Court of Criminal Appeal was clearly correct.

Secondly, in my submission, in any event, it is significant that the drug offences no longer exist and have not existed for three years in the form that they were in this case.  Part 9.1 of the Code now deals with the drug offences, and in relation to this aspect the structure is different, so that the quantity of drug is an element of absolute liability, so that has no relevance.

My friend has made submissions today that there are Commonwealth offences to which this applies still, and I assume my friend is referring to the material he has provided to the Court.  The offence provision is the Fisheries Management Act, the offence of using a foreign boat for fishing, and that, with respect, highlights the problem with my friend’s submission.  The aggravating feature in this instance is that a boat is longer than 24 metres, and so with respect to my friend, what is my friend suggesting, that the agreement has to be that you are going to use a foreign boat that is longer than 24 metres?

The other aspect that highlights the illogicality of my friend’s submission is this.  The weight, or quantity, is not the only aspect of aggravation under 233B.  Prior conviction is.  So there was an offence

provision for if you had a trafficable amount and a prior conviction.  On my friend’s submission, all circumstances of aggravation become part of the offence.  With all due respect, how does one have a prior conviction as part of an agreement – that I have agreed to commit an offence knowing it is a trafficable amount and, in some way, having something to do with a prior conviction?  In my submission, that is just an illogical approach.  So, in my submission, the second basis is that it has no applicability any longer.

Thirdly, in my submission, there was not a live issue in this case.  On any scenario, in my submission, if the jury accepted, as they did clearly, the importing, it is importing of a large scale.  One is dealing with a sophisticated, well‑planned enterprise.  The commercial quantity is 500 grams.  We are dealing with 235 kilos.  The applicant came to Australia specifically for the purpose of collecting the drugs that had been a shipment.  Thirty-seven boxes he was to collect.  He was to hire premises to store them.  In my submission, it is fanciful to suggest that there was an issue about the quantity of drug being 500 grams or less.

So as a matter of fact, in my submission, even if there was merit in the argument – and we say there is not – as a matter of fact this is not an appropriate vehicle to deal with the issue because it is such an overwhelming fact that it is a sophisticated, well‑planned, large‑scale drug importation.  Those are my submissions.

FRENCH CJ:   Thank you, Ms Abraham.  Anything in reply?

MR ODGERS:   No, your Honour.

FRENCH CJ:   A decision of the Court of Criminal Appeal in this case applied established principle in relation to the way in which the charge of conspiring under section 11.5 of the Criminal Code read with section 233B of the Customs Act should be framed.  The decision of the Court of Criminal Appeal, in our opinion, is not attended with sufficient doubt to warrant the grant of special leave.  Special leave will be refused.

AT 2.50 PM THE MATTER WAS CONCLUDED