Caruso v The Queen

[1988] HCATrans 184

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A4 of 1988

B e t w e e n -

CARMINE CARUSO

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J

BRENNAN J

DAWSON J

TOOHEY J

Caruso (3)

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON THURSDAY, 25 AUGUST 1988, AT 12 .18 PM

Copyright in the High Court of Australia

AlT 7 / 1 /ND 1 25/8/88

MR G.D. WENDLER: If_the Court pleases, I appear with my

learned friend, MR C.P. LEMERCIER, for the

applicant. (instructed by Stephen Macfarlane)

MR J.J. DOYLE, QC, Solicitor-General for South Australia:

If the Court pleases, I appear with MR P. RICE for the respondent. (instructed by the Crown

Solicitor for South Australia)

MASON CJ:  Yes, Mr Wendler.

MR WENDLER: If the Court pleases, I submit a summary of

argument.

MASON CJ:  Thank you. Mr Wendler, what are you asking

us to do?

MR WENDLER:	In short, to set the sentences aside and to remit the law. There has been procedural	matter back to the Court of Criminal according to
impropriety in this matter. That is the fairest
way out.
MASON CJ:	But I have understood	from some of the materials

before us that you were suggesting that at least

one of the convictions should be set aside.

MR WENDLER: Yes, that can be done. It is not a complex

leave argument but I am prepared to make a
submission concerning that. In my submission

the JUDICIARY ACT, section 37, can cope with

the submission concerning the fact that there

has been no appeal to the Court of Criminal Appeal

against the conviction. That is because the

scheme of the CRIMINAL LAW CONSOLIDATION ACT

in South Australia, together with Rules of Court,

give the Full Court power to, in the interests

of justice, set the conviction aside even though

a party has not appealed against a conviction.

This Court has at least the same power

that the Court of Criminal Appeal has, or ought

to have, then the mechanism of remitting this

matter -

MASON CJ:  But why should we take on board an appeal against

conviction that has never been presented to the

Court of Criminal Appeal?

MR WENDLER:  It is an alternative submission. I am mindful

of the practicalities of it.

MASON CJ:  There seems to be no practicality attaching

to it at all.

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MR WENDLER: It is an argument open on the scheme of

section 37 of the JUDICIARY ACT. It is just

one of our submissions. I do not expect to pursue

it with great vigour but I mention it because

it is a mechanism which is available. And as

I read RYAN V RYAN, an earlier decision of

this Court, it is something that would assist

in bringing about that sort of result because

it may be that on the factual basis that the

applicant was processed in the district criminal

court would not amount in law to a conviction

to the charge on the first count, you see.

MASON CJ: It seems to me, at the moment, that if you are

holding up your sleeve some challenge to one

of the convictions it would be idle for us to

consider any matters affecting sentence because

I take it you have the opportunity of presenting

an appeal to the Court of Criminal Appeal out

of time?

MR WENDLER: That is possible. That is one way round it.

But now that we are in this forum we can attach

this other submission and may be able to resolve
the whole lot in this forum by, in the end, a

remitter.

MASON CJ: That, at the moment, seems to me to be a most

unlikely course.

MR WENDLER:  I will leave it alone for a moment but if

I am successful on the issue of sentence, the

matter would, in the end, have to go back to

the Court of Criminal Appeal, then a submission

could be made seeking leave to appeal out of

time in that environment so, as I have said,

I am not going to pursue the appeal against

conviction with so much vigour.

MASON CJ: It seems to me you had better present to us

immediately whatever the submission is that goes

to the matter of conviction.

MR WENDLER:  Can I invite Your Honours to - the starting

point, of course, is section 37 of the JUDICIARY

ACT.	I need to supply Your Honours with a number
of cases and some legislation.	I am doing that
now.

WILSON J:	What is the basis on which you would challenge
the conviction? It is the conviction for aiding
and abetting the cultivation of hemp: ·

MR WENDLER: It is only that charge.

WILSON J:  And what is the essence of your attack on the

conviction? You pleaded guilty, did you not,

f for your client?

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MR WENDLER:  That is right. Can I just hand these up as

well, otherwise~

WILSON J:	Can you ans~er the question?
MR WENDLER:	I will answer Your Honour's question in a moment if I can just supply this material.
Your Honours have the case, REG V GIORGI -
WILSON J:	Your client pleaded guilty to a charge of aiding

and abetting the cultivation of hemp. It would

assist me to know on what basis you wish to

challenge that conviction.

MR WENDLER: Well, that the factua basi's that he pleaded guilty

in the district criminal court, upon that factual

basis that would not sustain, in my respectful

submission, a plea to that charge. The facts

that he pleaded guilty would not amount to a

justifiable plea in law to that charge. The

starting point, of course, is the NARCOTIC AND

PSYCHOTROPIC DRUGS ACT which identifies the charge

of cultivation of Indian hemp. Do Your Honours

have that piece of legislation amongst the papers?

MASON CJ: Yes, we have that, evidently.

MR WENDLER:  Section 5 is the charge. Have you got

section 5? Section 5(2)(b) is the charge. The

word "cultivate" is the critical word in the

section. What does that mean? The law has given

us the answer to that and that is in the decision

entitled REG V GIORGI AND ROMEO.

Your Honours would have a copy of that now.

That case, a decision of the Full Court of South

Australia, defines the word "cultivate", at

page 303 of that decision, 31 SASR 299, at

page 303, it is a decision of the Chief Justice

of this State.

In that paragraph is a definition of the

word "cultivate". Your Honours will note it

is a fairly generous definition but one thing

was left out. It does not suggest or state when

cultivating something but it does not say

the act or the behaviour of cultivation ends. with

when the cultivation ends - when that piece of

behaviour ends. This case has never been challenged.

BRENNAN J: It includes harvesting the crop.

MR WENDLER: That is right. "Harvest" has various meanings,

it is a word which has various meanings, capable

of being construed in various ways. His behaviour

in law would have to amount to something that

came within that formulation in GIORGI's case.

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This case has never been challenged

in this Court. "When is it not cultivation?",

perhaps, is the most appropriate question to ask. He states that his only involvement in the matter was to arrive on the scene and then

he was given a direction to follow a truck which

he then helped unload.	Does that amount to
cultivation?	No one knows because GIORGI's

case does not really assist us.

So it would have been encumbent on his

legal advisers to say, "You could plead justifiably

not guilty to this charge and then challenge

GIORGI's case. You may be found guilty by a

direction consistent with that case at your trial

but that would not stop you proceeding further

and challenging the direction."

MASON CJ:  The question remains: why should we be troubled

with this? The normal course to pursue in a case

of this kind is to apply for leave to appeal

against the conviction to the Court of Criminal

Appea 1.

MR WENDLER:  As I said, right from the outset, there are

mechanisms available.

MASON CJ:	Why are they not pursued?
MR WENDLER:	At the domestic level there are mechanisms

available but there are also mechanisms available

in this Court.

MASON CJ:  But this Court does not take on matters of this

kind before they have been looked at at courts

below.

MR WENDLER:  We are in this environment now and because

we are complaining of procedural irregularity

it may be we can absorb the other issue, namely

whether the conviction was safe in law.	I am
not going to pursue it much further.	I have
not come here to agitate the conviction. It is

a ground of appeal, I would be prepared to argue

it with the other issues in this appeal.

MASON CJ:  Yes, but this Court is not prepared to look

at matters when you are keeping something up

your sleeve.

MR WENDLER:  Right. I am not going to pursue it any further,

in fact I will abandon this issue of the conviction

and concentrate solely on the sentence and the

procedural irregularities concerning the sentence.

MASON CJ:  But there is a problem about that, Mr Wendler,

is there not? You are saying to us that the

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Caruso(J)

conviction should not be sustained and you are

saying to us that on the facts as you know them

there is a case for challenging the conviction. that here but there still may remain the

possibility that your client wishes to challenge

the conviction. If that is so, it seems to me

that there is very considerable difficulty in

your merely blandly saying to us you are abandoning

that challenge and you want to proceed now with

the appeal so far as it relates to sentence only.

MR WENDLER:  I am held hostage, to a certain eY~~nt by the

procedural mechanisms in this Court and if they

cannot cope with i~ then there are ways of resolving

i t .

WILSON J:  The alternative, Mr Wendler, perhaps would be

that the Court should simply adjourn the application

for special leave and await the outcome of your

efforts elsewhere.

MR WENDLER: Indeed. In fact, that is why we have tried

on a number of occasions to activate interlocutory

mechanisms in this Court. Indeed, we tried to

utilize the remitter jurisdiction of this Court
to try and remove the matter back to the Court
of Criminal Appeal. In that way, that did not
work,so now we are left with the possibility

of trying to collect up everything in the

application for issuing special leave to appeal.

That, of course, still leaves the second count

where there is no contest over the conviction.

The only contest there is the basis upon which he was sentenced.

MASON CJ:  Yes, I know, but the two matters of sentence

are interrelated.	You cannot isolate one from
the other.	Mr Wendler, the present view of the

Court about this matter is: in the light of what

you have told us, in the light of some indication

that there may be a case for challenging the

conviction in so far as the convictions relate

to cultivation - or one of them relates to

cultivation - that the appropriate course for

us to pursue is that you should apply for this

matter to stand over to enable your client to

pursue such rights as he may have in the Court

of Criminal Appeal in relation to the convictions.

It would be quite premature for this Court to

deal with the matter of sentence if there is

still outstanding any matter of challenge to

one of the convictions.

MR WENDLER:  I agree with that. My application now 1s

to stand the matter over.

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MASON CJ:	Mr Solicitor, what do you have to say about
this?
MR DOYLE:	Nothing as to that, Your Honour.  I ~ccept what

Your Honour said. It would seem appropriate to applv

for an order extending the time within which

the applicant might seek leave to apply against

his conviction an~ also in the light of some

of the things he said, apply to have his appeal

against sentence reinstated and have those matters

dealt with in the Court of Criminal Appeal and

then see where the matter goes from there.

MASON CJ:  Very well, the matter will stand over to a date

to be fixed to enable the applicant to pursue

such rights as he may have in relation to the

conviction in respect of cultivation in the Court
of Criminal Appeal bu½ in standing the matter

over on that basis,nothing that the Court has

said is to be taken as indicating that it has

any view on the question whether the applicant

has any rights to approach the Court of Appeal

in the circumstances. Is that understood,

Mr Wendler?

MR WENDLER:	Yes, I understand that.
MASON CJ:	Very well, the Court will now adjourn until

9.30 tomorrow.

AT 12.36 PM THE MATTER WAS ADJOURNED

TO A DATE TO BE FIXED

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