Chekeri v The Queen

[2001] HCATrans 433

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S134 of 2001

B e t w e e n -

RAHIMULLAH CHEKERI

Applicant

and

THE QUEEN

Respondent

Applications for a stay and expedition

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 7 NOVEMBER 2001, AT 10.29 AM

Copyright in the High Court of Australia

MR P. LOWE:   If your Honour pleases, I appear for the applicant.  (instructed by Barclay Benson Lawyers)

HER HONOUR:   Your instructions have been reinstated, have they?

MR LOWE:    Yes, they have, indeed.

MR A.M. BLACKMORE, SC:   If the Court pleases, I appear for the respondent.  (instructed by the Director of Public Prosecutions (New South Wales))

HER HONOUR:   Yes, Mr Lowe.

MR LOWE:   Does your Honour have the amended summons that has been filed recently in these proceedings?  It seeks a ‑ ‑ ‑

HER HONOUR:   The one seeking a stay as well as expedition?

MR LOWE:   That is so.

HER HONOUR:   Yes.

MR LOWE:   There is a similar item which I wish to correct in my instructing solicitor’s affidavit of  ‑ ‑ ‑

HER HONOUR:   I do not think that you can correct errors in affidavits.

MR LOWE:   It relates to a date.  By leave of the Court and with leave of my friend, there are some typographical errors which I just wish to bring the Court’s attention to.  The first is at paragraph 7, instead of “18 October” it should be 19 October.

MR BLACKMORE:   That is accepted, your Honour. 

HER HONOUR:   Yes.

MR LOWE:   And in paragraph 10, it refers to “29 January 2001”; that, in fact, is a trial date.  It should be 29 October this year.

MR BLACKMORE:   That is also accepted, your Honour.

HER HONOUR:   Yes.

MR LOWE:   Those are the only erratum which I wish to ‑ ‑ ‑

HER HONOUR:   Thank you.

MR LOWE:   Your Honour, pending in this Court is an application for special leave to appeal in relation to the applicant’s third trial.  At that trial a permanent stay was granted by Judge Finnane on the basis of res judicata.  In relation to that there was before Judge Finnane one count on the indictment which is that on 4 February 1999 did supply a large commercial quantity of heroin.  Now, it being the third trial – there were previous trials which had led to acquittals.  The first trial had three counts in the indictment and that led to an acquittal in relation to the first count and at the second trial there was two counts, both on the same day, 4 February 1999.

HER HONOUR:   But different locations of heroin?

MR LOWE:   One was in a basement of a premises at Emu Plains and the applicant was arrested a few minutes later driving away from those premises and inside the boot of his BMW was a quantity of heroin, approximately 2 kilos or so.  But in relation to the 18 kilos of heroin that was found in the basement, that was the subject of a verdict by direction by Judge Bellear at the second trial.

In relation to the grounds of appeal that have been filed in this Court where application for special leave is sought, there are six grounds to be agitated:  that the Crown pursuing the current trial would deny him the full benefit of an acquittal ‑ ‑ ‑

HER HONOUR:   Yes, one is aware of the grounds and the history of this but, ordinarily, this Court does not involve itself in these matters – well, in matters of this nature at this stage of proceedings.  If you are right, the evidence in question will be inadmissible.  Is that not correct?  Is that not what was decided in, I think it is, Ferguson?

MR LOWE:   The situation is that we have sought on numerous occasions to agitate the issue that it is an abuse of the Sydney District Court’s process to proceed with a trial on the basis that it would deny him the full benefit of his acquittal.

HER HONOUR:   Yes, but the same argument, if correct – and I am by no means persuaded that it is even arguably correct – would result in the inadmissibility of evidence of the finding of the heroin, I imagine, in the boot of the BMW car.

MR LOWE:   If an abuse of process argument is upheld – and, of course, there would not be ‑ ‑ ‑

HER HONOUR:   Yes, of course, I know that but this is not a court of general jurisdiction.  It intervenes only in matters of public importance or where there is a miscarriage of justice.  There cannot be said to be a miscarriage of justice in your case or even the possibility of miscarriage of justice that cannot be corrected because the same issues will go to the admissibility of evidence.

MR LOWE:   I will take your Honour to my instructing solicitor’s affidavit, of Henrich Isaac dated 2 November 2001.  Your Honour will see that at the pending trial of the applicant, which is his fourth trial, there was a change of position of the Crown Prosecutor which is that they resiled from what they had previously indicated to the court at the third trial which is that they proposed to selectively tender the accused’s sworn evidence in his defence.

HER HONOUR:   That has nothing to do with the question whether or not the Court of Criminal Appeal was right or wrong and that is the only basis on which this Court would be concerned in the special leave application or a subsequent appeal if there were one. 

MR LOWE:   On that issue, your Honour, if I might take your Honour to the decision of the Court of Criminal Appeal in R v Chekeri at paragraph 31 which is at pages 11 and 12, his Honour Justice Howie said:

The acquittal of the Respondent –

who is the applicant here –

on the basement count recognised that the prosecution could not prove beyond reasonable doubt both that he had knowledge of the existence of the heroin and at the same time had an intention to exercise control over it.

That is the first issue.  The next ‑ ‑ ‑

HER HONOUR:   Now, that is the heroin in the basement?

MR LOWE:   Basement.

HER HONOUR:   Yes, we are not concerned with that.

MR LOWE:   Well, the issue here is that the way that the Crown proposes to use the evidence of heroin found in the basement in proof of its case that the accused had knowledge that what was in the BMW boot was heroin.  So, they are, in all of the proceedings, trying to use what was found in the basement, for which the applicant was acquitted, in aid of proof of its case.

The next quote from Justice Howie is found at paragraph 40 which is at page 15, down the very bottom of the page and on to page 16, his Honour says:

The evidence did not prove that the Respondent –

applicant –

had knowledge of the heroin in the remaining packages –

which is in the basement –

or, if he did, that he intended to exercise control over it.

So, these are findings that his Honour has made in delivering judgment.  We say that the issue, that is the subject of the acquittal, goes to both knowledge of the heroin and its possession.  Hence, the Crown’s use of that evidence in proof of its case directly contravenes ‑ ‑ ‑

HER HONOUR:   He may know of the existence of heroin without being in possession of it.

MR LOWE:   Yes, but that sort of contravenes what his Honour has said here:  “it does not prove that the applicant had knowledge of the heroin.”

HER HONOUR:   All right.  I do not see what the point is.  The question is whether he was in possession of the heroin in the back of the car.

MR LOWE:   That is so, your Honour.

HER HONOUR:   Yes.  There is no doubt it was in the car.

MR LOWE:   That is not controverted at all.

HER HONOUR:   There is no doubt he went to the house and got it from the house.

MR LOWE:   He was observed.

HER HONOUR:   Well, there you go.  The only question is did he think it was a pound of butter, I suppose.

MR LOWE:   Well, that is an evidentiary issue at trial.  But, your Honour, in so far as the Crown seeks to rely on any evidence of what was found in the basement, we say that there is a res judicata that flows as a result.

HER HONOUR:   I understand the argument.

MR LOWE:   Thank you, your Honour.

HER HONOUR:   Well, you have not said a word about why it should be expedited.

MR LOWE:   On that issue, your Honour, there is a pending fourth trial in ‑ ‑ ‑

HER HONOUR:   Has no date been fixed?

MR LOWE:   The date to be fixed is on Friday.  These are issues which, in the applicant’s submission, warrant consideration by this Court because now what we have, what the applicant is facing is from the third trial the Crown indicated it proposed to tender the applicant’s sworn testimony from the first trial and at the fourth trial the Crown resiled from that. 

Now, in my respectful submission, your Honour, this case warrants expedition.  The matters are quite old.  If there is any merit to his case in relation to the application for special leave, that would mean that he would not have to stand trial at all.  I have dealt with that in my written submissions, and I rely on those.  In those submissions, it also addresses each of the issues that Justice Brennan referred to in Jennings Construction.  Those are found in my submissions ‑ ‑ ‑

HER HONOUR:   I think the real issue is, is it not, whether there is sufficiently arguable merit for your application to displace somebody else’s in the list?

MR LOWE:   That is so.  They are contained in the applicant’s summary of argument, your Honour.

HER HONOUR:   Yes.  Thank you, Mr Lowe.  Yes, I need not trouble you, Mr Blackmore.

I am not persuaded that the application for special leave has sufficient merit or raises an issue of sufficient importance as would justify displacing some other matter from the special leave list.  The application is refused.

I take it you do not seek costs, it being a criminal matter?

MR BLACKMORE:   No, your Honour.

HER HONOUR:   Thank you.

AT 10.40 AM THE MATTER WAS CONCLUDED