Cameron v the Queen P87/2000

[2001] HCATrans 536

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P87 of 2000

B e t w e e n -

JOHN LEONARD CAMERON

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 11.10 AM

Copyright in the High Court of Australia

MR J.L. CAMERON appeared in person.

MR R.E. COCK, QC:   If your Honours please, with my learned friend, MS J.A. GIRDHAM, I represent the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

GAUDRON J:   Yes, Mr Cameron.

MR CAMERON:   Firstly, your Honours, I have no experience, of course, in matters before the High Court except where my limited research has led me, so I would ask for the Court’s indulgence for any mistakes I may make in the delivery of this case.

Your Honours, there are three primary matters I submit are of great public importance and I will seek to agitate on this appeal.  These matters, firstly, was there a manifest error in the exercise of the learned sentencing judge’s discretion regarding circumstances of aggravation in this case and, secondly, does a discount on the fast‑track scheme serve the administration of justice and encourage early pleas of guilty.  Thirdly, was the original indictment a nullity.

I submit, your Honours, that if the answer is yes to any of these questions it is in the public interest for this Court to intervene in this case and grant special leave to appeal.

GAUDRON J:   Except that you did not go to trial on the original – ultimately, the original indictment was withdrawn.

MR CAMERON:   Exactly, yes.

GAUDRON J:   And a fresh indictment was presented. 

MR CAMERON:   That is right.

GAUDRON J:   Was it withdrawn or amended?

MR CAMERON:   It was withdrawn, I believe.  Your Honour, central to this entire issue is the fact that there is an expectation and a legitimate expectation that offenders who save time and cost in the administration of justice ought to be given substantial discounts and as I referred in the Western Australian case of Trescuri v The Queen, which I have referred to at page 27 of my extracts of authorities, in a unanimous decision, their Honours Justices Ipp, Anderson and White said at paragraph 4:

Sentencing discounts for pleas of guilty under the fast track system range between 20 per cent and 35 per cent, and commonly around 30 per cent –

Your Honours, I would submit that this case is a case that falls into that category in order to attract the full fast‑track discount of 30 per cent.  The administration of justice requires no less.

KIRBY J:   What was the percentage discount?  You got 10 per cent, did you not?

MR CAMERON:   Ten per cent, yes, your Honour. 

KIRBY J:   The suggestion is that you took a bit of time in acknowledging that you were going to ‑ ‑ ‑

MR CAMERON:   Yes, that is what I would like to go through, your Honour, because ‑ ‑ ‑

KIRBY J:   Yes, very well.

MR CAMERON:   Your Honours, in my appeal in the Supreme Court of Western Australia, his Honour Justice Ipp said at my application book at page 24 that the “fast‑track plea” of guilty “should attract 20 to 30 per cent discount”.  In my case a discount of 10 per cent for an early guilty plea was said to be sufficient because it was not, in fact, a fast‑track plea, because as his Honour Justice Pidgeon said at page 36 of my application book that I could have pleaded guilty much earlier.

I submit that this is an error of law as the indictment as it had stood was invalid.  As it was pointed out in R v Mai that I have referred to at page 23 of my extracts of authorities:

[the indictment] must identify all of the factual ingredients of the offence charged.

GAUDRON J:   Well, the factual ingredients were being in possession of a prescribed substance.

MR CAMERON:   Well, the actual charge, your Honour, read “possession with intent to sell and supply methylenedioxymethamphetamine.  It did not say in possession of a prohibited drug so the actual indictment itself was incorrect and as ‑ ‑ ‑

GAUDRON J:   And you were legally represented at that stage?

MR CAMERON:   I had legal aid, yes, your Honour.

GAUDRON J:   Yes, and it could have been drawn to the attention of the prosecution that it was the substance, the precise identity of the substance was challenged?

MR CAMERON:   Well, this is the matter that was brought up in the Court of Criminal Appeal, that when the chemical analysis was issued some two months after my arrest and there was dispute because the barrister that represented me in the Court of Criminal Appeal I had never met or never spoken to, was appointed one week before the Court of Criminal Appeal case, knew nothing about the case.

KIRBY J:   That is better than in Queensland.  We had a case the other day where it was a matter of hours.  At least you had a week.  Do not worry, go on with it.

MR CAMERON:   And it was some months later before we knew what was the chemical analysis and the lawyer at the time had said that when they changed the charge we can then discuss the plea.

KIRBY J:   But I think the suggestion is that if you want the full per cent discount you have to come with open arms bearing gifts to the Crown and say, “I will plead guilty to a charge of which I am guilty, namely the charge to which you ultimately pleaded guilty”.  You did not do that.

MR CAMERON:   Your Honour, with respect, it was for the Crown to amend the charge, not the accused, and this was pointed out by his Honour Judge Ipp.  His Honour said at page 25 of the application book:

It’s a bit difficult to say that he should have pointed out to the crown that the charge was in respect of the wrong drug –

and, your Honour, further when asked, the learned counsel for the Crown said ‑ ‑ ‑

GAUDRON J:   You see, what is put against you is what was also put by Mr Dempster at page 25.  The Legal Aid letter could have been sent many months beforehand.

MR CAMERON:   Your Honour, I do not know if you have familiarity with Legal Aid, but to be in contact with Legal Aid is almost impossible and I had not been able to talk to the Legal Aid lawyer I had for nearly two months and finally, in a phone call – when I finally got to speak to that lawyer and I said, “What’s happening?  The charges are still wrong”, after we had had the chemical analysis.  She said, “Well, they will be changed” and I then said to them, “Well, I’ve been trying to get you for two months.  I will plead guilty if the charge is changed”.  That was when Legal Aid contacted the prosecution.

KIRBY J:   Do you say that you always made it clear to Legal Aid that you would plead guilty to the charge if they amended the charge?

MR CAMERON:   Well, it was two months after the chemical analysis was given to me which brought it to August or so and it was a further two months after that before I actually spoke to my lawyer from Legal Aid and they said that the charge would be changed, but the charge was not changed.

KIRBY J:   And was yours a case where the Crown, as it were, had to get its case together to fight the case and was put to a disadvantage or inconvenience by that, or the matter came on for sentence and sentence only?

MR CAMERON:   Well, the matter came up for a preliminary hearing and I had, in my conversation with Legal Aid when I finally spoke to my lawyer, they said, “The preliminary hearing is coming up in a matter of weeks.  The charge still hasn’t been changed.  What do we do?” and they said, “Well, what are you going to do?  What do you want to do?” and I said, “Well, if they change the charge, I will plead guilty”.

KIRBY J:   You were in custody at this time?

MR CAMERON:   I was in custody, yes, and yet this has all been put on as my responsibility and my fault.

KIRBY J:   You got 10 per cent instead of 25 per cent?

MR CAMERON:   As other cases I have here, the range is around 30 to 35 per cent for people pleading guilty at the earliest possible opportunity.  Judge Ipp actually asked counsel for the Crown at the appeal – I have it here somewhere – at page 25 of my application book, his Honour Judge Ipp asked counsel for the Crown if I could have “pleaded guilty earlier” to the indictment and counsel for the Crown said:

He technically could not have pleaded to that charge earlier, that is correct –

so basically, the Crown is saying that I could not have pleaded guilty to the charge earlier and as his Honour Judge Ipp said:

It’s a bit difficult to say that he –

as in the accused –

should have pointed out to the crown that the charge was in respect of the wrong drug.

I submit that I could have gone to trial on that matter and be found not guilty of the charge withdrawn because it was a nullity.

KIRBY J:   What is essentially said against you is that to get the full 25 per cent you should have made it abundantly and absolutely clear from the beginning that you were a fast‑track person, that if only they changed their charge you will plead guilty.

MR CAMERON:   And as soon as the charge was changed, I pleaded guilty immediately, at the earliest possible opportunity.  That is the point, that it was because of the problems of being in contact with Legal Aid, by being in prison ‑ ‑ ‑

KIRBY J:   What is this problem?

MR CAMERON:   You just cannot get the Legal Aid lawyers.  You do not have access to phones where you can ring up at any stage.  You have to put in permission requests to get on the phone.  You ring Legal Aid Office.  The lawyers are not there, of course.  They are in court, or whatever.  They do not return your calls, because they cannot, and you ask them to come in.  You are on a 30 day cycle where – it is a compulsory 30 day cycle as the judges referred in the Court of Criminal Appeal and every 30 days you go for a 30 second appearance out at the ‑ ‑ ‑

KIRBY J:   Every 30 days you go what?

MR CAMERON:   You appear by video‑link for an automatic remand in custody.  Now, Judge Pidgeon has said in the Court of Criminal Appeal that this case did not save the time in the Magistrates Court because of the number of remands that there were.  Now, again, this is not my fault because they are automatic 30 day cycle remands.  You spend up to five to seven hours in holding cells and you appear in video‑link for 30 seconds for an automatic remand in custody.  Now, again that, again is ‑ ‑ ‑

GAUDRON J:   That was your opportunity to make clear, was it not, that if the charge was correct you would plead to it?

MR CAMERON:   At every remand, except for two of those, there was just a duty lawyer there.  The lawyer that I had had from Legal Aid was not there, so all those remands in custody, they were just automatic remands in custody and there was nothing ‑ ‑ ‑

KIRBY J:   There was a magistrate presiding, was there?

MR CAMERON:   Yes, your Honour, and that is all that happens in those cases and it was not till two months after the chemical analysis was received that I actually managed to speak to the lawyer that I had had, and then between that and the actual change of the plea by the Crown, I had spoken to the barrister who represented me on one occasion.  Then, in the actual appeal, I did not see my barrister that was appointed the week before at all, did not speak to him at all and had no contact, no input and that might be classified as fresh evidence, but that was the case of what happened in that instance.  I had no input in the case at all.

This leads me on to my second ground where I say an error of law has been made, that in regard to the case of Anderson v The Queen in 1993 that I have referred to at page 21 of my extracts of authorities, the High Court has made it clear that if facts of aggravation to an offence relied on by the prosecution are disputed by the accused, then the Crown must have proof beyond a reasonable doubt that their facts are correct.  Now, Anderson has been cited all across Australia in all jurisdictions and this just was not done in my case as in  ‑ ‑ ‑

KIRBY J:   I do not think that is going to help you.  Your real complaint is about the failure to give you the fast‑track reduction.  So, either you are fighting the case or you are not fighting the case.

MR CAMERON:   Your Honour, that is involved again in not being given the opportunity.

KIRBY J:   How?

MR CAMERON:   Because the errors that were made in the District Court, where the prosecution has alleged facts of aggravation and his Honour Judge Blaxell has said that that is the case and he has not listened to my side of the story.  I should have been given an opportunity to get up and tell my side of the story and the facts as alleged by the prosecution and the judge, there was no proof.  The actual counsel to the Crown said – this is at page 14 of my application book:

In the crown’s submission, it is highly unlikely that the offender would have taken the risk of carrying the drugs without expecting personal financial gain.

GAUDRON J:   Firstly, you denied all knowledge of the drug.  Is that not correct?

MR CAMERON:   Yes, that is correct, that is correct and that still is correct.

GAUDRON J:   That you denied all knowledge.

MR CAMERON:   That is still the case.  I pleaded ‑ ‑ ‑

GAUDRON J:   You knew there was something in your luggage though?

MR CAMERON:   I knew that there was a package in my luggage.  That was it.  What I believed it was was certainly not drugs.  I admitted to the offence of – I had in my possession drugs that were – it was a package that was to be passed on to someone else.  So, under the Misuse of Drugs Act 6(1) I was, in fact, guilty of an offence under that section, that I had in my possession what turned out to be drugs that were to be passed on.  I pleaded guilty to that.  I did not plead guilty to the circumstances of aggravation as alleged by the Crown and no evidence was put forward to suggest that.

GAUDRON J:   What do you mean the circumstances of aggravation?

MR CAMERON:   Your Honour, Judge Blaxell says it as well:

In my view the only fair inference from the surrounding circumstances is that you were involved in committing the offence in order to gain money.

GAUDRON J:    You did not give evidence?

MR CAMERON:   No, I was not allowed to and this is not ‑ ‑ ‑

GAUDRON J:   That is not right.

MR CAMERON:   I agree.

GAUDRON J:   You were allowed to give evidence.  You could have given evidence on sentencing and you did not.

MR CAMERON:   I did not know that I could and it is only since the appeal - and I have had to represent myself - that I found out that these things are possible.  As far as I knew, when my barrister got up and gave my story as it was and the prosecution disputed that, well I thought, “Yes, I should have an opportunity”.  I did not know that I had the opportunity to do that.  The judge did not give me that opportunity.

KIRBY J:   Were you given any documentary statement as to your rights?

MR CAMERON:   No, I received nothing about that.  It is only since then that I have found that I had the right.  Now, the circumstances of the aggravation as alleged by the prosecution are not correct.  They are simply not correct and there is no proof whatsoever I needed the money or I did it for money and I could have proved very clearly that I did not do it ‑ ‑ ‑

KIRBY J:   Yes, but a system of law operates on the fact that if you contradict what is being said against you, you have to put your side of the case to the decision‑maker.

GAUDRON J:   Anyway, your counsel put it to the decision‑maker.

MR CAMERON:   No.

GAUDRON J:   Your counsel did.  Mr Hogan was your counsel?

MR CAMERON:   Yes.

GAUDRON J:   Now, listen to this.  Page 11:

He wasn’t doing it for money.

That is put on your behalf.

MR CAMERON:   That was put on my behalf.  The counsel disagreed with it.  There was a dispute as to circumstances of aggravation and in the High Court ruling in Anderson, in Morrison v The Queen, the Queensland case ‑ ‑ ‑

KIRBY J:   What do you say – leave aside the case – what do you say is the principle?

MR CAMERON:   Well, I am saying that if the facts ‑ ‑ ‑

KIRBY J:   You say if the facts are disputed and that they are matters of aggravation ‑ ‑ ‑

MR CAMERON:   I should be allowed to get up and give evidence and cross‑examine.

GAUDRON J:   Well, you were allowed, but your counsel probably thought, for good reason, that it was wiser not to.  I mean, if you had given evidence you would have been cross‑examined.

MR CAMERON:   Yes.  That is true.

GAUDRON J:   Your counsel was entitled to take the view that it was better to rely on the absence of positive evidence than have you convicted out of your own mouth on the ‑ ‑ ‑

MR CAMERON:   Well, as I said, I had spoken to counsel once before the sentencing.

KIRBY J:   For how long?

MR CAMERON:   Twenty five minutes maybe and it was just about me pleading guilty.

KIRBY J:   Is it your submission that you could not have been in a worse position than you have turned out in.

MR CAMERON:   I could not have been in a worse position and especially when it got to the Court of Criminal Appeal.

GAUDRON J:   Well, you could have got a much higher sentence, you know.

MR CAMERON:   Your Honour, I did not do this for money.  I did it as a favour to a friend.

GAUDRON J:   But it does not matter.  Whether you did it for money or not, you still could have got a higher sentence.

MR CAMERON:   I could have, but at least I would have had the opportunity to present my case and to be cross‑examined and I was not allowed that, and with the High Court in Anderson and in Dinsdale ‑ ‑ ‑

GAUDRON J:   Now, you have not put on any affidavit about this, have you?

MR CAMERON:   No, no I have not.

GAUDRON J:   No, because if you did you would be cross‑examined.

MR CAMERON:   Well, as according to Bray CJ in Law v Deed the court said the judge must give the prisoner the benefit of a reasonable doubt.  That is not the quote, I am sorry, I will find the quote.  A plea of guilty admits no more than the essential ingredients of the offence and:

the appellant should have been given an opportunity to support his contention by his own sworn testimony . . . he could not be expected to anticipate the learned special magistrate’s rejection of the story and I think that, before the learned special magistrate finally rejected it, he should have given the defendant the opportunity to enter the witness box.”

Your Honour, I was not given any of this, and as I did not know any of this ‑ ‑ ‑

GAUDRON J:   Well, there is probably one very good reason why your counsel or your Legal Aid lawyer chose not to and that is your history of drug usage was not going to stand you in good stead, was it?

MR CAMERON:   I smoke marihuana, that is it.  That is hardly anything to do with carrying this sort of amount of drugs that I knew nothing about.  I knew I had a package in my bag, simple as that.  I did not know what it was.  I actually thought it was something  ‑ ‑ ‑

GAUDRON J:   Past record.

MR CAMERON:   My past record, which is brought up.

GAUDRON J:   Of drug offences, offences of dishonesty and offence of malicious wounding.

MR CAMERON:   Yes, the offence of dishonesty was receiving a stolen car radio in 1973, when I was 18 years of age.  I am now 47 years of age.  That is the only offence of dishonesty.  The drug offences are minor, smoking marihuana offences.

GAUDRON J:   Well, I am just suggesting to you, these are all reasons why your counsel may well have decided for good forensic reasons to put the matter from the Bar table, rather than put you in the witness box.

MR CAMERON:   Well, he did not discuss it with me, and it is only in the last 12 months since I have had to do my own legal research, that I found out that this is what I could have done.

KIRBY J:   I think your time has expired.

MR CAMERON:   Thank you.

KIRBY J:   Mr Cock, may I first say that I know that you are very hard pressed, that your office is very hard pressed, but the written submissions in this case, and speaking for myself in a couple of other cases, do not give the help that we get from the Crown in other States.  I mean, especially with unrepresented litigants the Court looks to the Crown to give it considerable help and to dismiss this matter in a page and a bit is really not enough.  I am

just letting you know that that is my impression.  Now, here we have the Crown with two counsel at one end of the table and the prisoner at the other saying he has not really been given a very good run with Legal Aid solicitors.  What is your response?

MR COCK:   Well, there is no evidence of that, your Honour, until today when it came from the mouth of the applicant.  To expect me to be in a position to respond to the allegations, with respect, is expecting ‑ ‑ ‑

KIRBY J:   But I am hearing this in every State, and I have to tell you I have a sense of disquiet sitting here in this Court about prisoners in special leave applications appearing in their own interests.  They have very little contact with counsel.  The Crown is always well represented, properly so, and prisoners are not.  It is really – I have a sense that I am engaged in a charade and I do not like it.

MR COCK:   Your Honour, even the things that have been said from the Bar table today are not disclosed on the papers before your Honours.

KIRBY J:   I am hearing it in every State of the Commonwealth.  It is not satisfactory.  One day the Court is going to have to deal with it.  Anyway, what do you say the difference between the fast track of 25 per cent and 10 per cent – the 10 per cent seems very hard in this case, given that it was in your camp that the mistake was made in the beginning not to charge him with the correct offence.  How should he be required to plead guilty, as Justice Ipp said in argument?  Why should he have to plead guilty to a charge which you later conceded was wrong, and why should he be penalised by that delay?

MR COCK:   There are two reasons why a person receives the discount from the appropriate sentence on a plea of guilty.  One is to save the criminal justice system the expense of going through the full trial process.

KIRBY J:   It did not go through the trial process.

MR COCK:   But, your Honour, in this instance the applicant elected to have a preliminary hearing, which is not usual now in Western Australia, and it was, indeed, at the preliminary hearing, as I understand it, when counsel advised, on behalf of the applicant, that he would, in fact, plead guilty and he had not given any assistance to the police upon arrest.  He, at no stage, has co‑operated with the police in terms of disclosing where the drugs had come from, and that may provide an additional reason why it was his counsel was reluctant to call him as a witness to adduce some evidence, because he may well have been questioned about who it was that gave him the material if it is suggested, for example, this was being done for a friend and there was no financial benefit.

KIRBY J:   No, but your hypothesis is that he has to plead guilty immediately to a count which you later withdraw.

MR COCK:   I cannot do any better, your Honours, than refer to the  ‑ ‑ ‑

KIRBY J:   That is really the essence of the Crown case, though, is it not?

MR COCK:   With respect, the discount is provided either because it saves the criminal justice system ‑ ‑ ‑

KIRBY J:   Yes, but how can you expect a prisoner to plead guilty to a count which you later withdraw?  I mean, it is completely irrational.  How can he be expected to plead guilty to a count which you do not later press?

MR COCK:   Because the elements of the offence ‑ ‑ ‑

KIRBY J:   Just plead guilty to anything.

MR COCK:   Your Honour, the elements are disclosed in the original complaint, which I think was laid in April 1999.

GAUDRON J:   Well, the indictment that I have in the application book is quite specific.  It is an indictment for methylamphetamine.

MR COCK:   Yes.

GAUDRON J:   There was an earlier indictment, was there?

MR COCK:   I understand the earlier indictment referred to the drug commonly known as “ecstasy”.

GAUDRON J:   And that was filed, or presented rather, after the preliminary hearing?

MR COCK:   Yes, your Honour, but that is ‑ ‑ ‑

GAUDRON J:   And at the preliminary hearing it was ascertained, was it, that it was not ecstasy.  It was methyl ‑ ‑ ‑

MR COCK:   That is correct.

GAUDRON J:   And you still filed an incorrect indictment?

MR COCK:   Yes, but it is not the failure to plead to the original indictment that constitutes the difficulty.  The plea is taken from the date of the original plea.

GAUDRON J:   I know that, but - you may say that.

KIRBY J:   It rather suggests that he had prudence and worth in having a preliminary hearing.  He got the charge right for the Crown.

MR COCK:   But, your Honours, the plea was entered, I think in November, in the Magistrates Court.  That is the date from which ‑ ‑ ‑

KIRBY J:   Yes, but our criminal justice system, rightly, is a system, as this Court has often said, of great particularity.  People do not plead guilty in vacuo.  They plead guilty to a charge of which they are accused by the Crown and this man got his preliminary hearing, discovered this error on your part, and even then, as Justice Gaudron points out, you did not correct it, and when you did correct it he pleaded guilty and then the Court of Criminal Appeal says he is not entitled to the fast‑track procedure.  It seems very, very hard, especially to a man who apparently, so he says, had difficulty getting legal advice and assistance, and which I would be prepared to accept, having heard it in every State of this country.

MR COCK:   I can only say that the error in the indictment that was filed in no way operated to the prejudice of the applicant.  He was taken to have pleaded guilty much earlier than the filing of the incorrect indictment.

GAUDRON J:   Well, how can you say that?

MR COCK:   That was the case.

GAUDRON J:   That it operated in no way to the prejudice of the applicant.

MR COCK:   Because the Court of Criminal Appeal and the trial judge took the plea from the date the plea was entered in the Magistrates Court.

GAUDRON J:   Yes, which is the first time you corrected the indictment.

MR COCK:   It was the complaint at that stage, your Honour, but yes.

GAUDRON J:   Well, there was a complaint?

MR COCK:   Yes, yes.

GAUDRON J:   Right.  So, it is the first time the prosecution owns up to the true nature of the prohibited substance?

MR COCK:   Well, with respect, your Honour, the charge was originally laid by police on a suspicion as to what the contents of the white substance was.  They thought that it was commonly known as ecstasy.  In fact, it turned out to be methylamphetamine. 

GAUDRON J:   Yes.

MR COCK:   A certificate was produced some time in June and it was at the time of the preliminary hearing when obviously the matter is carefully prepared that it was identified and it was pointed out, indeed, by Legal Aid, acting on behalf of the applicant, that the proper drug to plead in the charge, the complaint at that time, was methylamphetamine, not MDMA.  That was then corrected and a plea was taken.

KIRBY J:   And he made it clear that he would plead guilty to the correct charge?

MR COCK:   At that time, but having elected to have a preliminary hearing ‑ ‑ ‑

GAUDRON J:   But if he had not had the preliminary hearing, Mr Cock, what was to happen?  It was to go to trial, was it, on a wrong – at least, on an indictment that was not accurate.

MR COCK:   Your Honours, there are obvious difficulties for the police in charging an offender who is arrested at the airport ‑ ‑ ‑

GAUDRON J:   Forget about the difficulties for the police.  There are difficulties for the accused and the police and yourself have the resources of the State behind you.  This man had the resources of Legal Aid, from time to time when he could make contact.  Now, really.

MR COCK:   My office has a process, which is well known, as I understand it, certainly to those representing the applicant, that a plea is taken in Petty Sessions at the earliest opportunity.  The indictment is not filed in the District Court until the certificate of the analysis comes back, because there are many occasions where that takes several months, as, indeed, it did here, and what happens is we then ‑ ‑ ‑

GAUDRON J:   Well, that is not the applicant’s fault, is it?  It is not the applicant’s fault that the certificate takes several months.  That is the resources of the State.  He was in custody all that time.  I would have thought a reasonable system would have got certificates back very quickly in the case of people in custody.

MR COCK:   I cannot respond to that, your Honour.  I accept and, indeed, entirely agree with what you put.

KIRBY J:   Tell me this.  Is the level of sentencing in Western Australia for ecstasy higher than for the amphetamine, or roughly the same?

MR COCK:   For the last two years it has been identical.  It has been said ‑ and I think there is a comment in the Court of Criminal Appeal in this case, where, I think, Justice Pidgeon said that the level, in the hierarchy, I think he calls it, of ecstasy and amphetamines is identical.

GAUDRON J:   Well, that may be so, but it may well make a difference to one’s position in society as to what one is charged with in this area.  It may well make a difference to one’s position in the prison system even.

MR COCK:   Your Honour, we entirely agree, with respect, in that, and that is why we have a system which is well publicised in the criminal justice system.  We will not file the indictment until we have the certificate of analysis, but ‑ ‑ ‑

GAUDRON J:   Yes, I am sorry.

MR COCK:   We have a system which is well publicised and well known, we understand it, amongst practitioners in the criminal justice system, that we will not file an indictment until the certificate of analysis is available and will only file an indictment relating to the actual drug.

GAUDRON J:   Well, in that case, of course, you cannot plead guilty until ‑ ‑ ‑

MR COCK:   Well, with respect, your Honour ‑ ‑ ‑

GAUDRON J:   If there is some doubt.  Here is a person who says he knew there was something in his bag.  He did not know what it was.

MR COCK:   Well, that would not constitute a plea to the elements of the offence.

GAUDRON J:   No, no, of course it does not, but it does explain why he, at least, has to wait for the certificate, does it not, and the indictment?

MR COCK:   I can only indicate, your Honour, that on the facts as expressed from the Bar table by the applicant, a plea of guilty was not appropriate.

GAUDRON J:   Why a plea of guilty was not ‑ ‑ ‑

KIRBY J:   That may be so, but he was willing to accept the plea because he knew that there was this fast‑track procedure, and he ends up, instead of getting 25 per cent he gets 10 per cent, and then when he asks why he is told, “Because you didn’t plead at the earliest possible stage.  Why didn’t you plead at the earliest possible stage?  Because they had the wrong indictment, and I only discovered that because I insisted on a committal, early preliminary hearing”.  It is really not a very good tale, not a good tale.

MR COCK:   With respect, your Honour, we say those are not the facts of this case.  There is no evidence, either from the Bar table or otherwise, to suggest the plea was entered to achieve any benefit to be derived by a discount.

KIRBY J:   Prisoners get to know that there is this fast‑track procedure and it is intended that they get to know it.

MR COCK:   It is, indeed.

KIRBY J:   And it is in the community’s interest that people should plead guilty, but not to wrong charges.

MR COCK:   We entirely accept that, your Honour.  Indeed, it is in the interests of the justice system generally that persons plead guilty at the earliest opportunity.  This was not a case which had the hallmarks of that.  This was a case where the applicant elected a preliminary hearing.

KIRBY J:   Not unreasonably, as it turned out.  You must concede that, Mr Cock?  As it turned out the preliminary hearing showed you had the wrong charge.

MR COCK:   It was not the preliminary – the certificate of analysis came in any event.  The certificate is ordered and it is produced as a matter of course.

KIRBY J:   It was produced at the preliminary hearing.

MR COCK:   No, no, with respect, your Honour, it was produced, I think, in June.  The preliminary hearing was in November.  It happened ‑ ‑ ‑

GAUDRON J:   And you were still proceeding on the wrong charge.  You were on the wrong charge when you had gone into the District Court.

MR COCK:   Your Honour, these facts were well before the court below that nothing ‑ ‑ ‑

GAUDRON J:   Yes, but they do not seem to have elicited any concern or proper analysis.

KIRBY J:   Your submissions in this case, and in a couple of other cases, just say the High Court is not a Court of Criminal Appeal.  We know that, and there is no matter of general principle to the prisoner.  It is a very significant difference and it seems to me to be an injustice to say you should have pleaded guilty.  “You should have pleaded guilty early.  Plead guilty to anything.  Don’t worry about specificity.  Don’t worry about particularity.  Don’t worry about the traditions of our legal system, the limits and the requirements on the Crown.  Just plead guilty.”  Well, that is not the way we run the criminal justice system, or should.  At least it seems an arguable point.

MR COCK:   Well, we say those are not the facts of the case.  The elements that your Honours referred to are not present in either the evidence or in any of the material before the Court.

GAUDRON J:   Well, let us get straight what is present.  He was charged with ecstasy, not speed.

MR COCK:   Yes.

GAUDRON J:   Presumably he was committed on ecstasy, not speed?

MR COCK:   No, no, that would not have happened.  He pleaded guilty before the magistrate at the committal for amphetamines and would have been committed at that time for sentence in the District Court on that charge.

GAUDRON J:   But you have then filed an indictment, presented an indictment for ecstasy.

MR COCK:   That is correct.  An erroneous indictment was filed.  They copied the first complaint, not obviously the amended complaint.

GAUDRON J:   Okay, so the minute he knows – well, more or less.  Was the charge amended when he pleaded guilty?

MR COCK:   I understand it was amended at the petty sessional courts.  That is the way that was dealt with.

GAUDRON J:   And how long do you say he knew that it was speed and not ecstasy before he indicated a plea of guilty?

MR COCK:   The papers show it was about two months prior to November.  The certificate was dated June and the papers ‑ ‑ ‑

GAUDRON J:   And when was the certificate made known to him?

MR COCK:   The evidence is not disclosed.

GAUDRON J:   No.  When was the certificate made known to Legal Aid?

MR COCK:   I can find that from the files, your Honour, but I do not have that information in the papers before me.

GAUDRON J:   But it was, at most, a month or two before June?

MR COCK:   After June, your Honour.  The certificate is dated June and conveyed to the Legal Aid Commission a couple of months, at least, before ‑ ‑ ‑

KIRBY J:   It would take a little while to get to them and then I would be prepared to infer it takes a little while for the applicant to be able to get in touch with Legal Aid or for them to get in touch with him.

MR COCK:   I accept that.

KIRBY J:   And then, well, pretty promptly, he pleads guilty to the correct charge and the Court of Criminal Appeal says he is not entitled to be dealt with on a fast‑track basis.  It seems very, very hard and wrong in principle.

MR COCK:   I can only say that the fast‑track basis is described in a way which is not the parallel of what happened in this case, and, with respect, the failure to acknowledge the possession of the drugs to the police, the failure at any stage to give any details in relation to the possessor, demonstrates no remorse in relation to the commission of the offence.  Those are the factors that really influence the percentage discount.

GAUDRON J:   Well, that might be so, but he did plead guilty.

MR COCK:   He did indeed, your Honour, and he received a year discount.

GAUDRON J:   And what do you say about what is said by Justice Ipp in this case and in Trescuri that the ordinary discount is around 30 per cent?

MR COCK:   In this instance, your Honour, Justice Ipp, I think, said the ordinary discount is between 20 and 30 per cent.

GAUDRON J:   Yes.

MR COCK:   And that is clearly correct.  Counsel for the applicant advocated the ordinary discount is between 20 and 25 per cent.  I think counsel got it a bit low.

KIRBY J:   So, there is a big difference.

MR COCK:   There is.

GAUDRON J:   Now, Mr Cock, if we were minded to grant special leave in this matter, and the appeal was successful, the matter would be remitted to the Court of Appeal of the Supreme Court for reconsideration and presumably with an opportunity for material to be put before the court as to the circumstances of his imprisonment and contact with Legal Aid.

MR COCK:   Well, of course, there is no evidence before the Court of that at the moment.

GAUDRON J:   No.

MR COCK:   And there is no application that would enable that to be part of the argument.

KIRBY J:   Would you dispute that there are difficulties of prisoners in this State having contact with Legal Aid?

MR COCK:   We would, your Honour, yes.

KIRBY J:   What, they can just ring up whenever they have a worry?  If it is, it is unique.

MR COCK:   Well, your Honour, initially there is an eight‑day cycle in relation to persons who are arrested.  Then it goes to a 30‑day cycle.  The papers demonstrate ‑ ‑ ‑

GAUDRON J:   Well now, it is not before June that he could have done anything, is it?

MR COCK:   There were appearances ‑ ‑ ‑

GAUDRON J:   If one accepts the view that it is irrational to expect somebody to plead to the wrong charge, we have to accept that it is not before June that he could have pleaded to the right charge.  Is that not right?

MR COCK:   No, your Honour.  The elements of the offence were clearly disclosed in the complaint that was given to him when he was first charged.

GAUDRON J:   Well, where is the complaint?

MR COCK:   I do not have it in the papers that have been prepared for the Court.

GAUDRON J:   Because I noted that argument before in the Court of Criminal Appeal, but I looked at the indictment.

MR COCK:   Yes.

GAUDRON J:   And the indictment was not a charge of possession of prohibited substance.  Now, is this a Commonwealth matter?

MR COCK:   No, it is a State matter.  It is a State possession.  It is not an importation charge.

GAUDRON J:   Yes.

MR COCK:   It is a charge under section 6(1), as the applicant has correctly identified, of our Misuse of Drugs Act.  I was about to tell your Honours that there were appearances in the court on 2 July, 30 July, 31 August, 29 October, 10 November and 19 November.  Now, on each of those occasions the applicant would have been entitled, and has access to counsel, and, with respect, I would not concede that he has no access to counsel otherwise.

GAUDRON J:   But he indicated in the lower court, nonetheless, that he would plead guilty to it.

MR COCK:   Yes, a letter was written to my office on 10 November to the effect that the applicant would then plead guilty.

GAUDRON J:   And when did you send your letter to the Legal Aid people?

MR COCK:   I do not have that material with me, your Honour.  Obviously, if this information is relevant, I can get it quickly, but I do not have it instantly.

GAUDRON J:   Well, we can do a number of things in this case.  We can stand it down in the list, but even so, it does seem reasonable to make some allowance for the difficulties of contacting a lawyer.  What you are suggesting is that you can say over a video‑link to the lawyer, when it is a remand hearing, “This is what I want to do”, without getting advice.

MR COCK:   My understanding was it was a confidential capacity, despite the video‑link, which is obviously in the public court.

KIRBY J:   This is a magistrate sitting there to allow a remand.

MR COCK:   Yes.

KIRBY J:   He says it is a matter of seconds, and I would be prepared to believe that.

MR COCK:   It may well be, but my point is that ‑ ‑ ‑

KIRBY J:   He is supposed to say in open court, not knowing what our procedures are or that that is what he should do, not having been able, so he says, to make a telephone call, which I would be prepared to accept, having heard it so many times in so many States of this Commonwealth, that he is supposed to say, “But wait a moment.  I want to plead.  I want to plead guilty.”  It is just not the way life works.

MR COCK:   Your Honours, I cannot concede that the Legal Aid Office is not providing an efficient legal service to the applicant.  That is simply beyond my capacity.

GAUDRON J:   No, but it does seem to be a matter about which there should be some investigation by the Court of Criminal Appeal in relation to this matter, does it not?

MR COCK:   Well, with respect, the applicant was represented at the Court of Criminal Appeal by a competent counsel, who advocated his interests.

GAUDRON J:   All of that may be true, but what does not seem to have been explored in the Court of Criminal Appeal is whether, in the circumstances, he really was not able to deal with the matter sooner.  It seems to have been dealt with on the basis, which surely is wrong, that he should have pleaded to the wrong charge.  Now, that is the way I read the judgment of the Court of Criminal Appeal, that he should have pleaded to the wrong charge.  Now, that cannot be right, can it?

MR COCK:   We would not contend that any process would be proper if it is designed to achieve that purpose.

GAUDRON J:   Well, what I am saying is, if he wanted the discount for the fast‑track system, he should have pleaded to the wrong charge?

MR COCK:   That is not my understanding of what the court said.  The court said he should have pleaded guilty to the offence and the particulars would have been determined.

KIRBY J:   Even though the Crown is not asserting that offence.  There is a step in the logic that seems missing.

GAUDRON J:   Well, Mr Cock, do you wish me to stand this matter down in the list to enable you to get further material?

MR COCK:   Yes, certainly, your Honour.

GAUDRON J:   Or do you wish us to grant special leave at this point, and if we were to grant special leave, would you consent to the appeal being dealt with on the spot and the matter remitted to the Court of Criminal Appeal to allow the matter to be properly argued in that court?

MR COCK:   No, I would not consent to the appeal being dealt with on the spot in the absence of there being affidavit evidence, or some other evidence supporting the assertions that come from the Bar table.

GAUDRON J:   Well then, we can stand the matter down, and we can ask Legal Aid.  Is there a representative of Legal Aid here present in Court?  Would you come forward, please?

MS AMSDEN:   May it please the Court.  My name is Ms Amsden.  I am an employed solicitor with Legal Aid.

GAUDRON J:   You have heard what has been said here today.

MS AMSDEN:   Yes, your Honour, I have heard the argument.

GAUDRON J:   Are you in a position to contact Legal Aid and ask whether somebody from that office could locate the file and see what contact was and was not made, and what were the circumstances relating to this matter?

MS AMSDEN:   Yes, your Honour, I would be pleased to do that.  Perhaps I could have a word with this gentleman and get some details regarding the lawyer, but I undertake to do that.

GAUDRON J:   Probably the better course is to list it at 9.30 tomorrow morning.  That would give the parties some time to check this matter out.

MR COCK:   Certainly, your Honour.

GAUDRON J:   Is that convenient?

MR CAMERON:   Yes, it is, your Honour.

GAUDRON J:   Ms Amsden?

MS AMSDEN:   Certainly, your Honour.

GAUDRON J:   And you think Legal Aid could, at least, provide some affidavit material as to what happened in this case?

MS AMSDEN:   Yes, it will be a matter of accessing the file and then being able to contact the counsel involved, but I would have thought it could be done.

GAUDRON J:   Yes, the question is really what happened in relation to the certificate of analysis and thereafter.

KIRBY J:   In short, whether there was, once the applicant knew the nature of the drug with which he was being charged to which he subsequently pleaded guilty, there was delay from that moment on that warranted a decision of the Court of Criminal Appeal ‑ ‑ ‑

GAUDRON J:   For which he was responsible, for which he was in any way responsible.

MS AMSDEN:   Yes, thank you, your Honour, I understand that.

KIRBY J:   That warranted the decision that he was not entitled, from that moment on, to the fast‑track procedure, which is the premise of the Court of Criminal Appeal’s decision.

MS AMSDEN:   Yes, thank you, your Honour.

GAUDRON J:   We will adjourn this application until 9.30 am tomorrow morning.

KIRBY J:   Perhaps the officers from custodial services might just arrange for a discussion to take place with counsel so that the Court is assisted tomorrow morning.

GAUDRON J:   Thank you.

AT 11.57 AM THE MATTER WAS ADJOURNED
UNTIL THURSDAY, 25 OCTOBER 2001