Cao v The Queen

[2006] HCATrans 529

[2006] HCATrans 529

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S156 of 2006

B e t w e e n -

CHI THANH CAO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 29 SEPTEMBER 2006, AT 11.39 AM

Copyright in the High Court of Australia

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

MS W.J. ABRAHAM, QC:   May it please the Court, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Odgers.

MR ODGERS:   Your Honours, we submit that this application falls squarely within the words of Justice McHugh in Krakouer’s Case which your Honours will find at page 157 of the application book at line 20 where his Honour said that:

“An accused person is entitled to a trial according to law.  Where the law requires that an issue be tried by a jury, the accused does not have a trial in any meaningful sense where the jury is prevented by judicial direction from determining the issue.  It is of no relevance in my opinion that a court of criminal appeal thinks that the evidence of guilt is overwhelming.

Your Honours, the misdirection in this case is to be found at application book page 23.  If your Honours go to the bottom of page 23, line 40, his Honour correctly directed the jury that the mental element for intention to import narcotic goods was an intention, not surprisingly.  As the Criminal Code provides, intention is satisfied if a person means to possess something.  That is where his Honour should have stopped.  However, he then proceeded to say:

Such intention is established if the Crown proves beyond reasonable doubt that the accused from the time he collected the three red marked cartons believed ‑ ‑ ‑

GLEESON CJ:   What he should have said was, “You may find that such intention is established”.

MR ODGERS:   You may, in reasoning towards the ultimate question of whether or not there was intention, take into account any conclusion you have reached about his suspicions or his admissions that he had suspicions, his awareness, if you find it, that there was a likelihood or real chance, et cetera.  Yes, your Honours.  He has replaced a test – I made the submission in the Court of Criminal Appeal and I have made it in the written submissions and the Crown has submitted that it is wrong ‑ ‑ ‑

GLEESON CJ:   What I wanted to ask you is this, Mr Odgers, just focusing on those words, in the circumstances of this case, if the Crown proved beyond reasonable doubt that the accused from the time “he collected the red marked cartons believed that they contained or were likely to contain narcotic goods”, what other conclusion would be open than that such intention was established?

MR ODGERS:   Your Honour, I really am not going to answer that question, with respect, because it is important to go to the next words which are how his Honour defined the word “likely”:

The word “likely” in this context means that the accused believed that there was a significant or real chance -

So, putting it more precisely, if I might say, with respect, your Honour, the question is, if he was aware that there was a real chance that there were narcotic goods in the boxes, what other inference was open?  The answer, with respect, is that he admitted he had suspicions - he had been given instructions on his account which were strange.  He had been told to look out to see if he was being followed.  The scenario is that he is a stupid man who has been given instructions by the drug importer who is using him to essentially find out whether there is police involvement.  He has his suspicions but he is not party to any criminal enterprise to import drugs.

GLEESON CJ:   This is one of those cases where the person undoubtedly intended to possess the container ‑ ‑ ‑

MR ODGERS:   Of course.

GLEESON CJ:   ‑ ‑ ‑ and the question is whether he intended to possess the contents.

MR ODGERS:   Correct. 

GLEESON CJ:   So he intended to possess the boxes ‑ ‑ ‑

MR ODGERS:   Knowing what was in there, of course, because you intend to possess what is in the boxes.

GLEESON CJ:   He intended to possess the boxes.  Assume he did not know precisely what was in the boxes, assume it is found beyond reasonable doubt that he thought there was a good chance or a significant or real chance ‑ ‑ ‑

MR ODGERS:   A real chance.

GLEESON CJ:   ‑ ‑ ‑ the boxes contained heroin.

MR ODGERS:   Drugs.

GLEESON CJ:   The drugs.  Did he intend to possess those contents?

MR ODGERS:   The answer I have given your Honour is that it is entirely possible that a person who is aware of a real chance and is in that way suspicious is not somebody who intends to participate in a drug importation enterprise.  He does not mean to obtain drugs.  He is following instructions from somebody who he has suspicions about.  He is aware that there are risks.  He should have refused to do it but on his account – I mean, this was the issue in the trial, with respect, your Honour, this was the issue.  He admitted to the police, “Yes, I had suspicions, but did I know that there were drugs there?  No.”  Another way of saying that is, “Did I intend to be involved in a drug importation enterprise?  No.  I had suspicions but I was not ‑ ‑ ‑

GLEESON CJ:   That way of putting it makes it sound as though the question is whether he wanted the boxes to contain heroin ‑ ‑ ‑

MR ODGERS:   No, your Honour, I am not putting it in that way.

GLEESON CJ:   ‑ ‑ ‑ or whether he hoped the boxes would contain heroin.

MR ODGERS:   Intention requires you mean to do it, that is, meaning is very close to that concept.

GLEESON CJ:   The “it” being to possess, that is, to have it yourself so that nobody else can take it away from you, for example. 

MR ODGERS:   Yes, your Honour, but in this context when you are talking about possession of something you mean to possess the thing which criminal liability attaches to.  So he had to mean to possess narcotic goods.  There is no dispute about that, although I think the law might have changed since this case – the statute, by legislative amendment.  In this context, there is no dispute that he had to mean to possess narcotic goods.  I know that it is a fine line between motive or goals and intention, but it really is very similar to say “When I mean to obtain narcotic drugs that is my goal”.  But perhaps the better way to look at it is to step back and say the real issue here was, was he somebody who is a participant in a criminal enterprise to bring drugs into Australia or is he somebody who is, to use the language that was used, an innocent dupe who has his suspicions but fails to act on those suspicions and fails to refuse to follow the instructions he has been given. 

With respect, your Honour, I do go back to what Justice McHugh said.  I am not seeking special leave to say that it was wrong for the Court of Criminal Appeal to conclude that they thought that there was no reasonable doubt.  It is really a fundamental constitutional question ‑ ‑ ‑

GLEESON CJ:   Your argument, right or wrong, is that there was an issue that was taken away from the jury.

MR ODGERS:   With respect, your Honour, the only issue in this trial.  There was no issue about anything else.  There was no dispute about the circumstantial facts.  It was a question of whether or not an inference was drawn from what happened and his admission of suspicion to a conclusion about intention and what the judges directed them is “Recklessness is enough”.

Now, that has been challenged by the Crown, but it cannot be challenged.  The proposition is recklessness in the Criminal Code, as indeed to some extent in the common law, you are aware of a substantial risk of something.  In a sense, the direction that was given was that something less than recklessness would be intention or let us just accept that it is the same as recklessness; recklessness is enough.  It would be like in a criminal trial of murder saying to a jury, “Well, he has got to intend to kill but if you find that he was aware of substantial risk then that is intention”. 

With respect, your Honours, it is a quintessential case where the only issue in the trial was taken, was withdrawn from the jury; they did not determine it.  In those circumstances, it falls within the general proposition as Justice McHugh articulated in Krakouer; it is a fundamental defect.  It is not a case where it is appropriate for a Court of Criminal Appeal to say they think that this guy is obviously guilty.  It is a matter to be sent back to a jury to determine the only issue in the case.

Your Honours, I am not going to add much more to what I have said.  There was a question about rule 4 but it is clear that defence counsel objected to his Honour’s approach and I can take you to those parts of the transcript if it is necessary but, in essence, defence counsel said knowledge is knowledge, that is what required here, it is not appropriate to dilute the mental element in the way that his Honour proceeded and trial counsel indicated that he had made his objection, he was not going to take it any further once his Honour had ruled. 

In my submission, this Court in Weiss left open the circumstances in which it would be appropriate to conclude that there is a fundamental defect.  In Deemal-Hall, your Honours held that even a misdirection on an element may not be a fundamental defect and I do not challenge that.  The reason it was not in that case and it was not in Krakouer was because the mental element was not in issue, in truth, in either of those cases.  But this

is a case where it was the only issue, as I have said and I am becoming repetitive.

In my submission, this Court should grant special leave to clarify the position to establish the proposition which I have put in my submissions which is that where there is a misdirection on a mental element which is an issue in the trial, if it is disadvantageous to the accused, then there must be a retrial.  Thank you, your Honour.

GLEESON CJ:   Yes, Ms Abraham.

MS ABRAHAM:   Your Honour, in my submission this argument is factual, namely, my friend’s argument is that the proviso should not have applied on the facts of this particular case.  He does not criticise the principles in relation to the proviso - as I indicated, purely factual.

What occurred in this instance was that the Court of Criminal Appeal determined that the issue of the mental element was not as a matter of fact taken away from the jury.  They did so looking, not just at the passage that my friend has referred to, but the whole of the summing‑up, the evidence, and the issues at trial.  My friend keeps saying that there is this other explanation.  He is the innocent dupe.  That explanation, innocent dupe, was well and truly before the jury.  Indeed, it was put on two occasions that if this man was suspicious in the manner he describes in the record of interview then they must acquit.  That was put explicitly twice by the trial judge. 

GLEESON CJ:   Where do see that, Ms Abraham?

MS ABRAHAM:   At page 30 - it comes after the direction that my friend has mentioned and the directions about inferences and circumstantial evidence.  In the middle of page 30, that deals with the paragraph factually before, that is, the innocent dupe scenario. 

GLEESON CJ:   I think you really have to go up to the top of page 30.

MS ABRAHAM:   Yes, or, indeed, to be perfectly correct, the bottom of page 29 which sets out what that argument was, my friend is now saying is an inference that was open.  Again, that is referred to in pages 57 and 58 of the summing‑up - it begins at the bottom of 57, the factual scenario put at the top of 58 and the direction in the middle of 58. 

GLEESON CJ:   This scenario, this hypothesis consistent with innocence was based on a statement he had made to the policeman?

MS ABRAHAM:   That is correct, he did not give evidence.  So what one is talking about at the end of the day is the Court of Criminal Appeal having considered the summing‑up in its entirety – I have sort of jumped over it but there is clear and accurate and repeated directions about onus and burden of proof, circumstantial evidence, that the Crown case was circumstantial, that that involved the drawing of inferences and how one draws inferences.  All those directions are perfectly proper and are in the summing‑up and repeatedly ‑ ‑ ‑

GLEESON CJ:   Where do we see the account of what he said to the policeman?

MS ABRAHAM:   The record of interview is not in the application book.

GLEESON CJ:   Is it in the summing‑up?

MS ABRAHAM:   It is summarised ‑ ‑ ‑

GLEESON CJ:   I just want to see what the defence case was.

MS ABRAHAM:   Certainly.  The particular paragraph appears in my learned friend’s submissions at 155. 

GLEESON CJ:   Thank you.

MS ABRAHAM:   Obviously there are a number of items of circumstantial evidence that are outlined at the beginning of the judgment of the Court of Criminal Appeal in which his Honour went through in great detail.  They included, for example, his driving and activities between obtaining the boxes and the restaurant which, to say the least, was rather unusual and clearly not consistent with the innocent dupe scenario.  So, in my submission, my friend did not indeed answer your Honour’s question about what other explanation is possible or is open reasonably because what one is talking about here is three words missing - “you may find”, “you may infer”, either of those words - and that is all. 

In my submission, that does not, in the circumstance of this case, take the issue of the mental element away from the jury and the Court of Criminal Appeal correctly found so.  In my submission, it does not, as my friend suggests, somehow make it somewhere below recklessness because apart from those three words it is not suggested that the concepts and the reasoning process is any way inappropriate.  Indeed, it is the reasoning process spoken about by this Court in Kural and approved obviously on many occasions thereafter.  If the reasoning process is valid to form an intent, the missing words “you may find” does not reduce that mental element from intent to less than recklessness.

In my submission, leave ought to be refused.  Really, in a nutshell, this Court has considered the issue of the proviso on many occasions in the last 12 months.  In my submission, this is not an appropriate vehicle to reconsider it.  Secondly, this is a factual argument.  My friend has to, in effect, get over the proposition that the mental element was not taken from the jury and that is what the Court of Appeal found.  Third, the error here was categorised as technical and in my submission it was in the context of this trial.  It might not have been in other trials as the Court of Criminal Appeal recognised, but in this trial on the facts and in light of the other circumstances it was regarded as technical.

At the end of the day, number four, in the Crown’s submission, the Crown case was overwhelming and no other inference was open.  The Court of Criminal Appeal properly found so.  Indeed, this Court in Kural said ordinarily it is the irresistible inference and in my submission it clearly was the only inference open here.  In those circumstances, there is no risk of a miscarriage of justice.  In my submission, special leave ought to be refused. 

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

MR ODGERS:   Your Honours, every time that in his summing‑up the judge referred to the defence case about an innocent dupe, every time he put it as the obverse of the elements of guilt so that what he was saying to the jury was if you find, if it is possible, he was an innocent dupe, that is, he was not aware that it was likely that there were drugs there, as he had defined it, then you would find him not guilty.  That is not qualifying in any way the directions which he gave on several occasions that he would be guilty if he was aware of the real chance that there were drugs there.

So, with respect to my friend, none of the summaries of the defence case in any way qualified the directions of law that he gave them about the mental element of the offence.  This is not a technical error.  This is a fundamental error.  I know I am using the word and I am trying to produce a result, but it is like saying it is technical to tell a jury that recklessness is enough when intention is required.  That is not technical, that is what a criminal trial is all about. 

My friend seeks to rely on Kural, the proposition ordinarily you would infer that if somebody is aware of a real chance you draw the inference ordinarily.  In many cases that is true but, in essence, that only has two implications:  one, if you give a proper direction to a jury they can take it into account and make up their own mind; that did not happen here, or, an appeal court can say “We think we are going to draw the inference, we think it is irresistible”.

That is precisely what I am submitting to this Court was not open in these circumstances.  As Justice McHugh said, it does not matter that the appeal court thinks that they do not think any alternative scenario is plausible or feasible or open.  It is for a jury to determine that.  I have put to your Honours the “stupid dupe” scenario.  That is the alternative.  That was in his own account to the police.  He said at 155, as I have summarised it, he had suspicions, he was told to do things which were strange ‑ ‑ ‑

GLEESON CJ:   There is a bit of an inconsistency internally in what he said.  He said he had suspicions and then he said “I did not think about what was inside the box”.

MR ODGERS:   Yes, your Honour.  I would put that down to somebody whose skills with English are not so fabulous, who is really saying “I did not want to think about it”. 

GLEESON CJ:   Anyway, he obviously did not think he could improve on that by giving evidence at trial.

MR ODGERS:   That is a matter of inference, your Honour.  That is again a matter for juries to determine.  Thank you.

GLEESON CJ:   Thank you.

We think there are insufficient prospects of success of an appeal of this matter to grant special leave and the application is dismissed.

We will adjourn to reconstitute.

AT 12.02 PM THE MATTER WAS CONCLUDED