Cheng, Cheng, Chan v The Queen

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A8 of 1999

B e t w e e n -
YU SHING CHENG
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Adelaide No A9 of 1999

B e t w e e n -
GANG CHENG
Applicant
and
THE QUEEN
Respondent

Office of the Registry
Adelaide No A25 of 1999

B e t w e e n -
BACH AN CHAN
Applicant
and
THE QUEEN
Respondent
Applications for special leave to appeal

GLEESON CJ
GAUDRON J
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 5 APRIL 2000, AT 10.16 AM

(Continued from 4/4/00)

_____________________

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: If your Honours please, I have handed up two documents which answer questions your Honours asked me yesterday. The first is one your Honour the Chief Justice asked at page 93. That is the fatter of the two documents.

GLEESON CJ: Thank you.

MR BENNETT: It should have some documents attached to it. Yes, your Honour now has that.

GLEESON CJ: Thank you.

MR BENNETT: And your Honour asked me whether there were any indictable offences triable otherwise than by a jury at the time of Federation. It seems unlikely, your Honour, that there were. We have not found any. We looked at the bankruptcy legislation but that seemed to create indictable offences which were tried by a jury although they were described as misdemeanours. If your Honours look at section 332 of the Criminal Law Amendment Act 1883 in New South Wales, which certainly was carried forward in New South Wales - we have not checked it in the other States - your Honours see that is the first document annexed to this bundle:

If any person arraigned on an indictment pleads thereto “not guilty” he shall without further form be deemed to have put himself upon the country for trial –

That rather seems to suggest, assuming that that had equivalents in other States, that probably by the time of Federation all indictable offences were triable by jury.

We stress that that does not mean that the definition of “indictable offence” was an offence triable by jury. First of all, the history of jury trial – and we have given your Honours an article by my namesake about that – which shows that certainly there were early periods, as one would expect, where one did not have juries but one had indictable offences. There are definitions in various State Justices Acts which show that the adjective “indictable” and the noun “indictment” related to the manner of commencement and the signatory rather than the mode of trial. They tended to define “indictable offences” as proceedings brought by the Attorney‑General or matters of that sort.

In Lowenstein’s Case in the dissenting judgments of Justice Dixon and Justice Evatt, that is discussed and the history of the phrase “indictment” is discussed. I will not take your Honours to that but the passage is there. The origin of the word seems to have been that it was the work product of a grand jury. At the end of the grand jury proceeding one had an indictment, and that is still the meaning in the United States. So the conclusion from all this is that, although it is probable that by 1900 all indictable offences were heard by juries, it was open to any colonial government, as in England, to define particular offences as indictable or summary. The distinction did not correspond, we stress, to the distinction between “felony” and “misdemeanour” which was based on the penalty that could be awarded.

Then the submission is on page 2 that the deliberations at the convention debates fit well with that history. I will be coming to the debates. But the decision to make indictable offences triable by jury but to leave it to the legislature to determine what was to be indictable was exactly the regime which existed in the States. It is true they added little to the law, as Mr Evatt said in his article, but it was, as is demonstrated elsewhere, something fully understood by the participants.

Your Honour Justice Gummow asked me a question at page 88 in relation to the suggestion that section 80 is self‑executing. We have given your Honours a single page dealing with that question.

GUMMOW J: Paragraph 6 on that page does not quite meet, I think, one of the things I had in mind, which was the question whether in this case these applicants have ever undergone a trial of any description to attach section 80 at all.

MR BENNETT: They have not, your Honour, they pleaded guilty and therefore, we would say, they pleaded guilty to the elements and to the relevant elements. I will take your Honours to authority on that which shows that what you plead to when you plead guilty ‑ ‑ ‑

GUMMOW J: All I am saying is there has been no trial.

MR BENNETT: There has been no trial, no.

GLEESON CJ: Their application to quash the indictment depended upon the proposition that section 80 rendered sections 233B and 235 of the legislation invalid.

MR BENNETT: Yes, your Honour.

GLEESON CJ: That proposition, in turn, depends upon the assumption, or the conclusion that section 235 mandates trial without a jury of the issues raised by section 235.

MR BENNETT: Yes, your Honour, that is so. It involves that proposition. That is why we have answered ‑ ‑ ‑

KIRBY J: That, Mr Solicitor, requires a comparison of the Constitution and the statute in the normal way; it is not looking at the particular mode of trial of these particular parties. In other words, the Constitution attaches to the section to strike down the validity of the section and what the particular parties did does not really matter.

MR BENNETT: Depending on severability, that is so, your Honour.

GLEESON CJ: Yes, but unless the applicants can demonstrate that, quite apart from what occurred in the present case, the legislation is invalid, because it demands trial without a jury of offences against a law of the Commonwealth when they are tried on indictment, the applicants get no where.

MR BENNETT: Yes.

GLEESON CJ: This is not a particular case in which there was a trial on indictment to enliven the constitutional requirement of section 80.

MR BENNETT: No, precisely, your Honour, and putting ‑ ‑ ‑

KIRBY J: That was only because of the overruling of a demurrer whereby they tended before trial the issue for judicial determination.

MR BENNETT: But the issue did not arise, your Honour, because the issue was only relevant to them if there was a trial. If there was no trial – well, perhaps I can go back a step. The invalidity, if there be invalidity, could not extend either to a case where the offence is heard summarily, unless one overrules the whole line of authorities about the Commonwealth’s right to determine what is indictable, unless one goes that far; if one does not go that far, the section must be valid where the offence is tried summarily. So it is only partially invalid. It must also be valid where the accused pleads guilty, because there, there is no question of a trial by jury and the accused admits all the relevant elements including ‑ ‑ ‑

KIRBY J: But in the history of this case, they only pleaded guilty because their demurrer was overruled and their application to have the indictment quashed was dismissed.

MR BENNETT: Yes, your Honour, they did.

KIRBY J: And, I mean, we can ignore the history of how the proceedings came to this Court, but if we do it seems to me we enter into a realm of unreality. They took the procedures that were proper to raise the constitutional point. They sought to get the demurrer upheld and to quash the indictment. It was only when that was overruled that they proceeded as they did.

MR BENNETT: If your Honours are against me, they should have taken one further step. They should have pleaded not guilty and on the plea of not guilty, tended alone the issue which they sought to raise as to mens rea of whether there was a commercial quantity.

GLEESON CJ: How do we know why they pleaded guilty? They might have pleaded guilty because they were guilty.

MR BENNETT: Your Honour, the ‑ ‑ ‑

KIRBY J: Of course, one other possibility is that they saw the list of 147 witnesses, that they would have been locked in a trial for weeks, maybe months, and they thought this was the quick way to raise the issue for determination by this Court, ultimately.

MR BENNETT: Your Honour, we are not concerned with why they pleaded guilty. What we are concerned with is the legal effect of their plea of guilty.

McHUGH J: But your argument depends – and I am not saying it is wrong – on the proposition that section 80 is simply like section 92 and section 117 and it gives one a personal right to insist on it being applied in a particular factual situation, but does not affect the validity of legislation as such. So, it is very much a question of standing, is it not? Your argument really depends upon the fact that it is only when somebody is subjected to a trial that one is entitled to invoke a section 80.

MR BENNETT: Your Honour, that was the question Justice Gummow generously put to me and which I am perhaps not accepting, although it would be in my favour. But what I am submitting is that one can understand that if a section of a Commonwealth Act says “The offence of X shall be dealt with on indictment and shall be dealt with by a judge alone” – now, I am prepared to accept that such a section would be invalid.

GUMMOW J: Because it mandates a process which does not answer section 80.

MR BENNETT: Yes, precisely, your Honour, but in this case that is not what occurs for all the reasons we have put in this document which I was about to go through.

GLEESON CJ: When you say such a section would be invalid, an interesting question of severability would arise. If a section said anyone who does a certain act is guilty of an offence and, paragraph (b), that offence will be triable on indictment and paragraph (c) says the trial will be by judge alone, it is not self‑evident that that section would be wholly invalid.

MR BENNETT: Only subsection (3) in that example.

KIRBY J: That is assuming severability.

MR BENNETT: Assuming severability.

GLEESON CJ: That is what I said. The question would be a question of severability. It is not self‑evidently entirely invalid.

MR BENNETT: No, and here what my learned friend needs to say is that the whole of the provisions are brought down because of the possibility that in certain cases, on the construction of the section for which certainly we contend primarily, certain aspects of what he says are part of the offence would be determined by the judge.

GLEESON CJ: But to take up Justice McHugh’s question about standing, that case of Sabapathee that we looked at yesterday provides an excellent example of the way in which the question that is around can bite in different ways, depending on the circumstances. That was a case where there was legislation very similar to our legislation, where there was a practice identical with our practice and the accused complained about the practice that he was deprived of his right to silence. because following the practice produced the result that he was not able to take his chances on acquittal without giving any evidence and then later, give his explanation about his state of mind in relation to the trafficking aspect of the matter after conviction before a judge alone.

So, you could have a case in which somebody could complain about the practice that is followed in Australia at the moment, not on the ground that it deprives him of his right to a jury trial, but on the ground that it deprives him of his right to silence because it takes away from him the opportunity to remain silent on the question of guilt or innocence and then give his explanation only after conviction on sentencing proceedings.

MR BENNETT: Yes, that is so, your Honour.

GAUDRON J: Perhaps, Mr Solicitor, that raises the question, although it does not seem to have been debated, is really about the construction, not of these sections as individual sections, but in combination. If one were to read the sections together, that is to say section 233B together with section 235, you could read them as creating three separate offences, if you read them together, in which the question of quantity, being a matter relating to the circumstances of the offence and not something personal to the accused, was an element of the crime and “the Court” in 235 would be the court in sentencing having regard to the jury’s finding on the quantity. If you read them that way, it seems to me, the only – I really ask you whether it is possible to read them that way – if you read them that way, the only debate is about the form of the indictment.

MR BENNETT: Yes.

HAYNE J: If the practice is followed, the consequence of following the practice is that the trial of any feature of conduct or intention which engages the particular maximum penalty is a trial by jury.

MR BENNETT: Yes, your Honour.

HAYNE J: If that is so, the constitutional command of section 80 which is engaged by “trial on indictment of any offence against any law of the Commonwealth” is met even if the combination expression or the composite expression “trial of an offence” is understood as trial of any issue about features of conduct or intention which may lead to the engagement of a different maximum sentence.

MR BENNETT: Yes, that would be so, your Honour. That would be inconsistent with the Kingswell approach but it would ‑ ‑ ‑

HAYNE J: Just so and that thus the practice has meant that in cases past, if it has been followed, there has as a matter of fact been trial on indictment of an offence against a law of the Commonwealth even understanding the composite expression “trial of an offence” as being defined in the way in which I have.

MR BENNETT: Yes. That is so, your Honour. The only problem with that is that I still need to get over what we submit is a very small hurdle in cases where there is a plea of ‑ ‑ ‑

HAYNE J: But if there is a plea, there is no trial. Trial presupposes plea of not guilty and joinder of issue and thus the constitutional command is engaged only upon plea of not guilty.

MR BENNETT: Yes, that is what I submit, your Honour, but the problem which I have still to overcome arises in this situation – it is the situation which arises here to some extent – where the accused says, “Yes, I did it but I dispute the quantity.” Now, we say in that situation ‑ ‑ ‑

HAYNE J: No, no.

GUMMOW J: Well, ambiguity is in the words “the accused says”.

HAYNE J: Yes, yes.

GLEESON CJ: That is a problem that might arise in a Sabapathee situation, for example, where a person wants to plead guilty with an explanation but wants to have the right to remain silent until his guilt is determined.

MR BENNETT: In that situation it is open to the accused and, indeed, we would say on one view mandatory for the accused to plead not guilty if he wishes to raise that issue or she wishes to raise that issue because the quantity of the drug is something which is stated in the indictment as well as the elements of the offence.

GAUDRON J: Well, it is not.

HAYNE J: But come back one stage logically prior. If section 80 is a constitutional command rather than something limiting legislative power, at least in its primary operation, and the accused pleads not guilty, then the command is engaged. There must be a trial.

MR BENNETT: Yes.

HAYNE J: The content of that trial may be a matter for debate about whether the trial ought as a matter of constitutional requirement include the 235 elements.As a matter of practice apparently in the past it has.

MR BENNETT: Yes.

HAYNE J: But if the accused pleads guilty, then the way in which that accused is dealt with is not regulated by section 80 and, more importantly, in this case, as I understand the contention, although there was a demurrer or motion to quash, that would have succeeded if, but only if, on your contention, the statute mandated trial otherwise than by jury of an offence against the law of the Commonwealth and, as I understand it, you say it did not.

MR BENNETT: Yes. Your Honour and I are at ad idem.

GAUDRON J: There are perhaps two practical aspects to that. One, that in circumstances similar to those in this case where there is a demurrer to the indictment, the indictment would be amended to allege an ingredient of the offence as distinct from particulars. But there is this problem in this case, it seems to me: you had a demurrer, and if one came to the view that the quantity should have been an element of the offence rather than a particular, then you might say – but for the second problem I am coming to – “Well, the indictment could have been amended so there is no particular difficulty”.

The second problem is, it really is difficult, it seems to me, Mr Solicitor, to identify precisely what was involved in that plea in the light of the decision in Kingswell. That is if you come to the view that section 233B and section 235 should be construed together to make three offences, it is really difficult to know the content of that plea.

MR BENNETT: May I take your Honour to page 1 of the appeal book, to the indictment.

KIRBY J: You accepted the fact that it is called information, did you not?

MR BENNETT: Yes, that seems to be common ground. Your Honours see “STATEMENT OF OFFENCE - BEING KNOWINGLY CONCERNED IN THE IMPORTATION OF A PROHIBITED IMPORT”, then “PARTICULARS”, and various matters are put. In fact, the particulars are not mere surplusage – some of them may be, some of them are not. Suppose, for example, the instructions that the accused gave his solicitor were, “Yes, I had some marihuana in my pocket when I arrived in Sydney two years ago so I am knowingly concerned in the importation of a prohibited import but it is nothing to do with what is alleged in these particulars”. Clearly the plea is not guilty and if the Crown proved only those facts, no one would suggest the Crown would get a conviction on this indictment.

So when the accused pleads guilty to this, we submit that covers the particulars as well as the statement of offence. Perhaps not the mere surplusage like the date – the date may be arguable, or “at Adelaide” may be arguable ‑ ‑ ‑

KIRBY J: Is there authority that supported that?

MR BENNETT: Yes, your Honour.

KIRBY J: I thought the plea is to the elements of the offence.

MR BENNETT: Yes, it is, your Honour, and the elements certainly include that it was heroin and certainly include that it was a commercial quantity and probably include - the date and the place may or may not be included.

KIRBY J: You say the commercial quantity is an element of the offence?

MR BENNETT: As charged here, yes, your Honour.

KIRBY J: Why can you dissect it and provide that that be tried by judge alone? Why does not section 80 require that it be tried by the jury? This is on indictment, this is the offence, and you say the quantum is an element of the offence. Section 80 seems to bite.

MR BENNETT: Your Honour, when I said it is an element of the offence, what I said was that the way this offence is charged, an element of the offence charged is that, that may not be the statutory offence, but the element of the offence charged is that the accused imported a commercial quantity of heroin. If the accused’s instructions ‑ ‑ ‑

KIRBY J: I am not disputing with you. I think you are right. I think it is an element of the offence and I think that is your problem.

MR BENNETT: It is only that your Honour may be using it in a different sense to the sense I am using it. That is what I am concerned about.

KIRBY J: Look, it is either an element of the offence or it is not an element of the offence. The word in the Constitution is “offence”.

MR BENNETT: It is an element of the offence ‑ ‑ ‑

KIRBY J: An element of the offence, if it is tried on indictment, as this is, it has to be before the jury.

MR BENNETT: It is an element of the offence charged in this case and it is covered by a plea of guilty. May I just take your Honours to the authority on that straight away. It is the case of Collins (1993) 67 A Crim R 104. It is a decision of the Court of Criminal Appeal of Western Australia in 1993. This did not involve a question of aggravating circumstances. It simply involved mitigation in general. But what happened was that the accused pleaded guilty to an indictment which charged him with the possession of cannabis with intent to sell. The accused then said to the judge through his counsel on the plea of guilty, “Well, actually, I only intended to sell some of it or dispose of some” – actually, it was not even to sell. I think it was, “I intended to supply some to friends but smoke the rest myself”.

What the Court of Criminal Appeal said was that that argument was inconsistent with his plea because by pleading he had pleaded to the relevant intent to sell or supply as to the whole of the amount involved. One could not say, “Yes, I pleaded because I was guilty as to some part of it”. If one wishes to dispute the intent to sell or supply as to some part of it, one has to do it, if one cannot persuade the Crown to charge a lesser amount, on a plea of not guilty.

KIRBY J: But this is an entirely different case. This is a wholly State offence where they are not worried in the slightest about a provision like section 80.

MR BENNETT: I am sorry, your Honour, this case also does not involve aggravation but the point of the case is – and I am only using it for this purpose – that a plea is a plea to the material particulars alleged in the indictment which are pleaded as part of the offence.

McHUGH J: But it cannot possibly be part of the offence, can it, because if that argument is right, if the commercial quantity is part of the offence, then if one is charged under section 235(2)(c)(ii), then the previous conviction of the accused in respect of narcotic goods is also part of the offence and I would want a lot of convincing to hold that Parliament intended to make, as part of an offence, the fact that a person had been previously convicted of the same sort of charge that that person is now being charged.

MR BENNETT: I am not making that concession, your Honour. I am not making the concession that it is part of the offence in that sense; that was the difference between myself and Justice Kirby. What I said was, not that it is part of the offence in the sense of the offence under section 235 or the offence for the purposes of section 80, I do not make that concession, although I understand that is what Justice Kirby was putting to me. What I was putting was, that when one uses the word “the offence” in the context of the phrase “one pleads guilty to the offence”, one means the offence as charged, and that includes certain of the particulars. I mean, that is why I put the example here of the accused who says, yes, I had some marihuana in my pocket two years ago when I came through Sydney airport; that does not mean I should plead guilty to this indictment.

KIRBY J: So it is part of the offence for pleading purposes, but it is not part of the offence for the constitutional purpose. Very convenient.

MR BENNETT: No, your Honour. The word the “offence” is being used in two different senses: there is the offence in the sense that there is an offence of murder, there is an offence of importing drugs, that is one meaning of the word “offence”. There is another meaning of the word “offence” when one says, John Smith committed an offence by murdering someone or John Smith committed an offence by importing drugs. The words “the offence” is used in two quite different senses: one is, the offence created by the law, the other is, the offence committed by a person.

GLEESON CJ: If a person has pleaded guilty, what is the operation of section 80 in the case?

MR BENNETT: No, your Honour. The only relevance of section 80 is if my friend succeeds in saying it invalidates these sections and therefore is charged under invalid sections.

KIRBY J: And do you dispute that section 80 bites on legislation?

MR BENNETT: It bites on legislation, your Honour, only when the legislation mandates a result contrary to it and then, subject to the law of severability.

KIRBY J: Why does not a law which requires a separate form of trial mandate a course of legislative conduct which is designed, in the case of a trial on indictment as this otherwise would have been, to circumvent the protections which section 80 of the Constitution provides?

MR BENNETT: Your Honour, that involves putting all my arguments in answer to one question – but first, because we do not accept that circumstances of aggravation are part of the offence for the purposes of section 80 and ‑ ‑ ‑

KIRBY J: It is not just mere circumstance of aggravation, it is part of the essence of the criminality which is separate from other forms of criminality. I mean, I accept that different minds have taken different views of this, but it seems where something attaches, a consequence which can lead to the highest penalty that our law provides, it is pretty difficult to say that it is simply a matter peripheral to the offence itself. It is part and parcel of something of a different order. It lifts it from one type of offence which the Parliament treats severely but no such punitively to something which is the most severe form of criminality that our nation knows.

MR BENNETT: Your Honour, we submit that Parliament is entitled to define what is the offence which will be tried by jury for the purpose of section 80 and what is something which goes to penalty but is not an element of the offence, and ‑ ‑ ‑

KIRBY J: And deprive the subject of the charges of the benefit of the jury’s verdict on a matter that so profoundly affects the consequences of the criminal trial.

MR BENNETT: Yes, your Honour, in the same way as it could do it by saying that, as Mr Isaacs said, that murder is a summary offence.

KIRBY J: Well, that is another question.

MR BENNETT: But in the same way, your Honour. Indeed, yes, there is a specific answer to your Honour’s question put by the majority, I am reminded, at page 277 of Kingswell where they point out that, if one accepts the last leg of my argument which is that Parliament can determine what is an indictable offence, the sole effect of requiring section 80:

to include in the definition of any offence any factual ingredient –

which might increase –

the maximum punishment…..would serve no useful constitutional purpose –

and, indeed, might oblige the Parliament –

to provide that some offences, which would otherwise be made indictable, should be triable summarily.

That is one of the propositions put by the majority in defence of that conclusion.

GLEESON CJ: Sabapathee provides an illustration of the way two rights may collide. One person might want to assert a right to a jury trial and another person might want to assert a right to silence and the assertions of those respective rights might produce absolute opposite practical results as to the way in which they would wish to be treated in a situation such as this.

MR BENNETT: Yes, precisely.

KIRBY J: That could be, of course, be dealt with by ordering separate trials, taking a plea from the person who demands the right to silence in his trial and dealing with the other matter as the Constitution mandates where a trial proceed.

MR BENNETT: There are devices one can adopt in some cases ‑ ‑ ‑

KIRBY J: It is not a device. It is simply permitting the two to have their rights and preventing them from colliding.

MR BENNETT: Yes. Your Honours, I think I have dealt, in answer to the various questions, with each of the propositions I have put in this document with the possible exception of paragraph 5. I am just making clear that paragraph 5 is put as a fall‑back position. The fall‑back position does involve difficulties of construction but if one took the word “offence” in section 80 in the strict way that it is construed against us, then one would construe section 235 to the maximum extent possible to make it valid and one could do that in the manner we have suggested.

GLEESON CJ: How long do you expect to require to complete your submissions, Mr Solicitor? I only ask that for the benefit of counsel in the next case.

MR BENNETT: I would hope, your Honour, now not much more than 15 minutes to 25 at the most.

GLEESON CJ: How long do you expect to be in reply, Mr Gray.

MR T.A. GRAY: Perhaps half an hour, if the Court pleases.

MR M.F. GRAY: I would like ten minutes, if your Honour pleases.

MR BENNETT: Your Honours, I should also just say this in relation to paragraph 6, that it may be that one does have to draw a distinction on the fall‑back position between an aggravating issue directly concerned with the offence, like quantity or whether it is heroin or marihuana and an aggravating issue such as prior conviction and one might have to devise procedures to deal with that. That is discussed in Meaton and we have referred to it there.

Now, the other thing I wish to do was to take your Honours briefly to the constitutional debates to make good the proposition that I put in general terms yesterday and may I just very quickly show your Honours what occurred in the constitutional ‑ ‑ ‑

GUMMOW J: What do the constitutional debates have to say that bears upon any issue in this application?

MR BENNETT: Well, your Honour, what they bear on is the proposition which in a sense was the underlying proposition in Kingswell that Parliament can at will determine what is an indictable offence and that then becomes a factor in determining whether Parliament can also say what is to be part of the offence determined by the jury and what is something merely going to sentence to be determined by the judge.

HAYNE J: And the argument you seek to advance is because section 80 has no effective content in one respect we should conclude it has no effective content in any respect. That is the nub of it, is it not, Mr Solicitor? A rather bold argument.

MR BENNETT: Well, your Honour, there is a less derogatory way of describing it.

HAYNE J: No doubt and we are about to hear it, Mr Solicitor.

MR BENNETT: Your Honours are. Your Honour, we put it as an answer to something put against us. We start by saying when you look at section 80 on its own without looking at anything else, one sees the words:

The trial on indictment of any offence against any law of the Commonwealth shall by jury ‑

One then says if you have a trial on indictment of an offence against the law of the Commonwealth with a statute that says, “When you are convicted, the sentence shall be X if fact one is proved to the satisfaction of the judge; Y if fact two is proved to the satisfaction of the judge; and that will be determined by the judge after conviction,” is that invalid because one takes a very strict meaning of the word “offence” and says anything that has a maximum penalty is an offence in its own right or does one say, as we say, that the word “offence” is something that Parliament can define in the same way as it can define an indictment and, if it defines the offence narrowly and then says certain matters affect penalty, they are not part of the offence.

So that is the ultimate question. In answering that question it is very relevant to say, “Well, in any event Parliament can define whether the offence is indictable at all, so what constitutional safeguard is lost if Parliament could also define what is an element of the offence and what is something merely going to penalty?” And the classic example might be a statute which says, “In relation to any third offender or higher, the maximum penalty of any offence shall be double.” If one had that provision in the Crimes Act and they were in issue in a particular case as to whether a person had a prior conviction or not, it would be surprising if that had to be determined by a jury and ‑ ‑ ‑

HAYNE J: But that may mean that one defines “offence” by reference to the features of conduct or intention rather than features that mark one offender out from another.

MR BENNETT: That is an intermediate position which disposes of the analogy I just put, but we would submit that it is open to Parliament to say, “The offence is X and there is a range of penalty depending on factors A, B and C.” And, as I say, we say in support of that, in answer to the proposition, that enables Parliament to render nugatory the effect of section 80, we say Parliament can do that anyway. So if Parliament can define what is indictable, why can it not define what is an offence?

The words “offence against any law of the Commonwealth” rather suggests that it is the Parliament which is determining what the offence is. That is why I am putting these submissions.

In the 1897 convention, all that occurred was – this is at page 990 and it is attachment 1 to our principal submissions. Your Honours see that at the end of page 990, the clause was proposed and the only opposition to it was by Mr Higgins who said, “I will vote against it”. He then said he thought trial by jury was a wonderful thing but Parliament should not be fettered. That was all that occurred in 1897, the clause was then agreed to.

In 1898 in Melbourne it was dealt with twice, once in January and once in March. At the January meetings, your Honours see at page 350 the clauses there. There was an amendment suggested by Mr Glynn half way down the first column after a short drafting amendment which your Honours need not be concerned with. What he proposed was to omit the whole requirement in relation to juries, so the section only dealt with questions of venue. His argument was, similar to Mr Higgins’ argument, it should be left to Parliament. Mr Wise, at the end of the second column, pointed out:

It is only for indictable offences committed under laws passed by the Federal Parliament.

Mr HIGGINS. - But why should we make it a matter for the Constitution –

and that goes on. Mr Higgins also says, at the end of the first column on page 351, about eight lines from the bottom:

I can tell honorable members that under a similar provision in the American Constitution there has been a great deal of embarrassment, because they have not been able to alter the criminal procedure in order to suite the exigencies of modern times.

Then there is a discussion about majority verdicts, assessors in commercial cases. They actually discuss long criminal trials for fraud, so that is not necessarily an invention of the late 20th century.

McHUGH J: They arose out of the land boom in Victoria in the 1890s.

MR BENNETT: Yes. Going over to page 352, Mr Isaacs, at the bottom of the first column for the first time points out what he repeated a number of times in relation to this action. He says:

I do not think there is any safeguard at all such as the honorable and learned member (Mr Wise) has stated. He says it is to safeguard the right of every person charged with an indictable offence to have a jury. To my mind, it is a very proper thing to do.

He was advocating a tighter clause which would have the effect contended for by our learned friends.

KIRBY J: Well, is that correct? In earlier conventions, Mr Isaacs, I thought, was opposed to entrenching the right to jury.

MR BENNETT: He seems in these speeches to be in favour of it, your Honour, as best one can read it. I will show your Honours what he says. He says:

I think, in our present state of development, a man is entitled to have a jury in a case; but it is no fetter on the Federal Parliament, because, when it creates an offence, it may say it is not to be prosecuted by indictment, and immediately it does it is not within the protection of this clause –

and he refers to the corresponding American clause. Then half way down that column after a discussion in which Mr Wise expresses amazement that a magistrate can impose a sentence of imprisonment at all, and Mr Barton seemed surprised by it too, Mr Isaacs says ‑ ‑ ‑

GLEESON CJ: Well, you will remember that in those times most magistrates were not lawyers.

MR BENNETT: That is so, your Honours, they were justices of the peace. After the first sentence, Mr Isaacs says:

Whether it is right or whether it is wrong, I think a man should have, for what are known as criminal offences, a right to a jury. But this clause as it is framed will not conserve that right. It does not use the word “crime” – it uses the words “indictable offence”; and all the Legislature has to do is to say that an offence shall be prosecuted by information, or shall not be tried by indictment, and there is no right to a jury at all.

Then again on the next page in his first ‑ ‑ ‑

McHUGH J: That distinction that Mr Isaacs makes is an important distinction – at least it is to my mind – because the indictment was always the product of a presentment by the grand jury, whereas the information was presented in the Kings Bench by the Attorney. It was a document in similar form, but there was this real distinction between the information and the ‑ ‑ ‑

MR BENNETT: Although by this time, of course, indictment did not relate to grand juries any more. Grand jury hardly ever got to a start in Australia, except in a very shaky and minor way in some places, and by this time “indictment” was used to mean something signed by the Attorney.

McHUGH J: Well I am not sure. I think in New South Wales there was a statute, maybe at the end of 1820s or the 1830s, in which information was defined to include indictment or vice versa; I think it was information, was it not?

MR BENNETT: We have not got back that far, your Honour.

McHUGH J: Yes. I think if you go to the Australian Courts Act ‑ ‑ ‑

MR BENNETT: Yes, in 1828.

McHUGH J: Yes.

MR BENNETT: And then Mr O’Connor says:

You may trust the Parliament not to increase the list of offences to be dealt with by summary jurisdiction.

And Mr Isaacs says:

Then you may trust the Parliament not to wipe out the right to a jury? I am not arguing against the right to a jury, because I think that, except in certain cases of summary procedure, a man has a right to have a jury, and public sentiment would not at this day allow the right to be swept away. If this is intended to fetter the Federal Parliament it partly fails in that intention.

But then the clause stands. Now, then they come back to it ‑ ‑ ‑

HAYNE J: …..take a moment to indictment. Bills of indictment were the product of a grand jury, were they not?

MR BENNETT: Initially, yes, your Honour.

HAYNE J: And the last grand jury to my knowledge in Victoria occurred in my practising lifetime and it returned a true Bill. They exist.

MR BENNETT: That is why I qualified my answer. There were, I think, five cases – I think that was the number – of indictments by grand juries in Victoria’s history in this century.

HAYNE J: Yes.

McHUGH J: Well we had a case that came up here as a result of a grand jury, of finding a Bill against police officers; a whole lot of police officers. It came up here within the last decade.

MR BENNETT: Well it is more recent than I had thought. Certainly it has existed in Victoria. It existed in the last century in New South Wales, but was either not used or hardly used, and certainly the procedure never had the widespread application it had and still has in the United States.

KIRBY J: I suppose the comment that it partly failed indicates that it partly would succeed.

MR BENNETT: I am sorry, your Honour.

KIRBY J: It says in the passage you have quoted, “partly fails”; that means partly succeeds and that is the essence of the debate.

MR BENNETT: Partly succeeds for the reason just given by the previous remark by Mr O’Connor, that you can trust the Parliament. Partly succeeds for that reason, we would submit, your Honour. It is the context of the statement ‑ ‑ ‑

KIRBY J: Well, the Constitution is often there because you cannot trust the Parliament; at least it needs to be reminded of the language and requirements of the Constitution.

GLEESON CJ: But where is this heading, Mr Solicitor? Nobody has ever suggested, have they, that the construction placed on section 80 by this Court subverts the intentions of the framers of the Constitution? People argue about the relevance of the intentions of the framers of the Constitution, but nobody has suggested, have they, that the construction that the Court has placed on section 80 subverts the intentions, if that matters.

MR BENNETT: No, your Honour, it is because I am going to go further, because in the last bit that I am about to take your Honours to, there is an amendment made to make clear that the section does not have the effect that my learned friend seeks to give it and that Mr Isaacs would like to have given it.

McHUGH J: As the clause stood when this debate was going on in March 1898, once the Parliament had said an offence was indictable, that was the end of the matter.

MR BENNETT: Yes.

McHUGH J: No offence of that character could be dealt with summarily; stealing, for instance. If you made stealing indictable you could not have any summary offences, because it would then be stealing with an indictable offence. So to get around that they amended the draft.

MR BENNETT: Well, I would put it even more highly. Mr Barton who moved the amendment was worried because he saw the words “any indictable offence” and said to himself there is some risk that some future court will say, this means offences of a certain type rather than offences described as indictable. Let us therefore make it 100 per cent certain.

McHUGH J: That was the point I was seeking to make.

MR BENNETT: Yes, your Honour, and that is what now appears at page 1894 where Mr Barton moves in the middle of the second column his amendment – and this is now March 1898 in Melbourne. It is the last of the three passages. He strikes out the words “of all indictable offences” and substitutes “on indictment of any offence” and he says:

The object of this amendment is simple. As the clause stood it provided that the trial of all indictable offences against any law of the Commonwealth “shall be by jury.” This meant that –

so he actually took this very strict view of those words –

however small might be the offence created by any Commonwealth enactment, supposing an offence that should be punishable summarily, it would, nevertheless, have to be tried by jury.

It is not quite clear where he got that view from and it is probably not correct, but that was his fear.

GUMMOW J: He was worried about contempt too.

MR BENNETT: Yes, he was worried about contempt. He goes on to deal with contempt and then at the top of the next page, after referring to contempt, says:

There will be numerous Commonwealth enactments which would prescribe, and properly prescribe, punishment, and summary punishment; and if we do not alter the clause in this way they will have to be tried by jury, which would be a cumbrous thing, and would hamper the administration of justice of minor cases entirely.

Now his fear was probably misplaced, but it was to avoid any argument that “indictable offences” referred to a type of offence rather than the election of Parliament to make it chargeable on indictment.

CALLINAN J: Mr Solicitor, this is all covered in Colina, is it not?

MR BENNETT: Yes. Your Honour deals with this last section of it in Colina. What I am putting is very largely what your Honour said in Colina. Mr Isaacs then repeats what he said before. He said:

When the clause was before us previously, I pointed out that I did not think it would have any real effect at all…..The Parliament could, if it chose, say that murder was not to be an indictable offence…..
MR BARTON. – It might drive the Commonwealth to deal differently with this class of offences.

MR ISAACS. – It might. If you say “on indictment of any offence,” if it means proceedings by means known technically as indictment…..The alteration here proposed prevents the difficulty Mr Barton refers to, but I must say –

he repeats –

that I do not see much effect in the clause as it stands in regard to preserving in all circumstances trial by jury.

Then the amendment is agreed to.

So, your Honours, one has not merely a general statement of intention as to what it should mean, not merely a general statement of belief as to what it means, but a deliberate choice of words so as to prevent a construction now argued in this Court today, a deliberate choice of words for the purpose of preventing that construction being accepted.

KIRBY J: The major premise in your argument is that if that was their deliberate intention and belief of those who moved in that way, that we are bound forever to construe the Constitution in that manner. That is just a major premise I reject.

MR BENNETT: Well, your Honour, at the end of the day, one still has to come back to the words of the Constitution, and ‑ ‑ ‑

KIRBY J: That is true, the words of the Constitution, not the words in the convention debates.

MR BENNETT: No, your Honour, but in construing words, whether in a Constitution or in any other document, one very relevant factor is that the draftsmen or those deciding on the words have deliberately chosen a particular form of words to create a result and have said so, and it goes a little further, we would submit, than mere intention.

Now, I will not, in view of the time, take your Honours through –your Honour Justice McHugh asked me about the word “indictment”. In the Criminal Law Amendment Act of 1883 in New South Wales, section 3, paragraph (a), it is at No. 17 of 46 Vic, and it was handed up with our submissions:

The term indictment shall include any information presented or filed as now provided by law for the prosecution of offences.

McHUGH J: Is there a side note to that section? I am certain it was in one of those earlier Acts.

MR BENNETT: The side note is just “Interpretation of terms”, “Indictment”.

McHUGH J: Yes.

KIRBY J: I think Justice McHugh is right, I think it was the 1828 Act which said that entitlement would be given to the law officer to proceed by way of information and that that was the practice. I think we looked at all this in Colina.

MR BENNETT: Yes. Your Honours, I am not going to take your Honours right through the cases in this Court, we have dealt with them in some detail in our submissions, but we do submit it is a consistent line of authority, and the only dissentients from it have been the judgment of Justices Dixon and Evatt in Lowenstein where their Honours, certainly Justice Dixon was party to refusing to reopen that later, and of course they were not entitled to look at the debates and the dissenting judgments which your Honours have heard about in the cases of the 1980s. Otherwise, there

is a consistent line of authority which we have referred to and, as I have said, a line of authority which has been acted on.

Your Honours, I formally put all the matters in my submissions. As I say, I will not go through them, in view of time. We submit that once one accepts the conclusion we have put about the convention debates, for the reason I gave, the inevitable conclusion is that Parliament can also define what is to be an offence and that it has done so in this case. May it please the Court.

GLEESON CJ: Thank you. Yes, Mr Gray.

KIRBY J: Could I just ask you, do you know from the Commonwealth’s materials any other cases where the statute has, as it were, split up what, on one view, might be thought to be the elements of the offence?

MR BENNETT: Yes. We have prepared a list, your Honour, of ones which we found.

KIRBY J: Has the document been sent in on that, Mr Solicitor?

MR BENNETT: It has been prepared, your Honour, but not handed up. It is a very short document. The Acts we have, and I can have this handed up, but there is the Crimes (Traffic in Narcotic Drugs and ‑ ‑ ‑

KIRBY J: If it is on a piece of paper, that might be helpful if the Court could it.

MR BENNETT: Yes, I will have that handed up and might I have leave within seven days to file a further affidavit in the special leave application dealing with the various matters discussed yesterday by way of breakdown of the offences concerned.

GLEESON CJ: Yes.

MR BENNETT: We have ascertained that approximately two-thirds of them were pleas of guilty at some stage but more information is required as the questions of Justices Hayne and Gummow yesterday indicated. May if please the Court.

GLEESON CJ: Thank you. Yes, Mr Gray.

MR M.F. GRAY: May it please the Court. In paragraph 17 of our written submissions, I sought to deal with the question of mens rea in relation to this matter in terms of mens rea as to the commercial quantity on the basis that there was a question if this Court considers that, on the constructions of sections 233B and 235 of the Customs Act, they created offences of varying seriousness, but put that unless this Court determines contrary to Kingswell that it does, the issue does not arise and I took that to be really an issue related to what his Honour Justice Brennan said in Kingswell in relation to the construction of the section. He said that at pages 293 and 294 of Kingswell and if I may take your Honours to that ‑ ‑ ‑

KIRBY J: Could you help me with this? Is it your understanding that the arguments relating to mens rea are put as a fall back position by the appellants? That is to say, if they succeed in their constitutional argument, the Court does not come to those points because the matters have to be disposed of in accordance with their constitutional argument, but that if they fail in the constitutional argument the mens rea points are then presented for decision.

MR M.F. GRAY: Yes. Well, that was the way I took it, your Honour.

KIRBY J: Now, why, therefore, as you are primarily arguing that the Court should adhere to Kingswell and, therefore, not uphold the constitutional arguments, do you not deal with, in a little more detail, providing the Court with more help in case it decides that the issue of mens rea is one which warrants special leave or would otherwise require the attention of this Court, the application having been treated as the appeal?

MR M.F. GRAY: It is only on that basis, your Honour. The mens rea point, as I understand it, was not canvassed before your Honours in relation to the initial application for special leave.

KIRBY J: No, but it is before us now. It is argued, and we have to dispose of it one way or the other. I mean, if the constitutional point is upheld, presumably we do not have to. I may have this wrong but if the constitutional point is rejected, then those who reject it may have to grapple with the mens rea point.

MR M.F. GRAY: And for that reason I would like to just put these points in relation to them. His Honour Justice Brennan observed in the last paragraph on page 293 that:

As the facts prescribed by s. 235(2)(c) and (d) are not intended by Parliament to be elements of offences distinct from s. 233B offences, Parliament does not intend them to be treated as elements of an offence at all. If the facts prescribed by s. 235(2)(c) and (d) were to be treated as elements of an offence, each external element would be accompanies by a mental element, just as each external element in a s. 233B offence is accompanied by a mental element: He Kaw Teh v The Queen.

So, fundamentally, this goes to the construction of section 233B and section 235 of the Customs Act. He goes on to say:

However, as the Parliament did not intend the quantities of narcotic substances in the narcotic goods to which s. 233B offences relate to be elements of an offence, it may be wrong to presume that Parliament intended an offender’s liability to greater maximum penalties to depend on his knowledge of, or the absence of any honest and reasonable mistake about, the quantity of narcotic substance in the goods imported or possessed. It would be a curious result indeed to find that a mental element applies to each of the external elements prescribed in s. 233B but not to any fact which attracts maximum penalties greater than the basic penalty, even when the fact attracts the greatest maximum penalty, imprisonment for life.

He then deals with the effect of section 80 on that. Now, putting that to one side though, the construction, of course, that we have been contending for is that section 233B creates the one offence and the penalties in relation to that are those as prescribed by section 235.

He Kaw Teh v The Queen, in determining the mental element, we say, does not support the imposition of a particular mental element going to those matters which are not elements of the offence. He Kaw Teh, as your Honours appreciate, was really a construction of the mental element in section 233B, the offence in 233B, predicated on the gravity of the offence because of the punishments provided in section 235. It was the fact that section 233B carried imprisonment for life which was one of the factors which either was the reason for not departing from or strengthening the presumption that section 233B had mens rea in it in relation to each of the activities proscribed by section 233B. That that is so, without going to them, is in the judgment of Chief Justice Gibbs at 535, Justice Brennan at 583 and Justice Dawson at 597.

This particular aspect was dealt with by Justice Bleby in the application book at pages 95 and 96 and some of the justification for considering that it should be so, that there is no mental element in relation to the matters or the circumstances which invoke the penalty, is in the passage that is in our written submissions in paragraph 17. Now, all that we are saying is that the construction that so far has been afforded to section 233B, together with its penalty component in 235, is supported by the history of the section itself as well as the construction that the majority came to at page 273 of Kingswell and that construction does not give any cause to say that circumstances governing penalty are anything other than objective circumstances.

In relation to the history of the section, if I may just touch briefly on that, the original section was inserted in the Customs Act in 1910 and was one offence and carried a penalty of between three months and two years imprisonment. It became, in 1967, a penalty section which distinguished between whether or not it could be dealt with summarily or on indictment. It, in 1971, introduced a two‑tier system, for the first time referred to the court, referred to a trafficable quantity and provided penalties on that two‑tiered system of trafficable quantity and other and then, it was in 1979, the concept of commercial quantity, trafficable quantity and other was introduced as a three‑tier penalty system, including for the first time the concept of trafficable plus previous conviction becoming part of the tier of the system, being the number one tier system, that similar to commercial quantity.

KIRBY J: Was the 1971 amendment such as to render the question of trafficability or non‑trafficability triable by the jury or was that separately tried by the judge?

MR M.F. GRAY: No, your Honour. Your Honour, I have got copies of each of those ones that I have referred to and they can be handed to your Honours.

KIRBY J: Yes, thank you.

MR M.F. GRAY: But the point I make with respect to it, that all of those were in terms of a penalty section attaching to what was an offence and in each case there is not anything where you can easily extrapolate out of those amendments some form of a requirement of mens rea in relation to the circumstances and that, of course, must be particularly so with respect to the circumstance of a previous conviction.

KIRBY J: A previous conviction, you would just look it up, but whether it is trafficable or commercial is at least possibly a matter of evidence.

MR M.F. GRAY: It is a question of whether you know as to whether or not it ‑ ‑ ‑

KIRBY J: And is it your contention ‑ ‑ ‑

MR M.F. GRAY: Or whether you know you have been convicted to import that ‑ ‑ ‑

McHUGH J: The question of conviction is not merely a matter of looking it up. It has to be tendered, even if it is by record. When I was at the Bar I remember at least one case where there was a dispute as to whether or not – this was on sentence, of course – the accused was the person that had been convicted according to the records. So I assume that happens from time to time.

MR M.F. GRAY: From all of that, what I am putting to your Honours is that the mens rea in relation to section 233B is that which was found in He Kaw Teh v The Queen as being applicable to section 233B as an offence, and nothing more, and that is that the person was knowingly concerned in a quantity of a narcotic drug. I say “narcotic drug” your Honour Justice Kirby, because I think at one stage you were suggesting it was all prohibited imports. There is a very convoluted history of this provision which has really been a provision directed to narcotic drugs not prohibited imports generally. It is in Williams Federal Criminal Law that there is a neat explanation of a rather complex way that section 233B deals with narcotic drugs. We have some extracts of that which we will hand to your Honours. On that analysis, really, we are saying that belief in the quantity is relevant to penalty but not in reducing the maximum provided, but rather as some form of mitigating factor in relation to the penalty within that penalty range.

KIRBY J: I appreciate that is your submission but we have a contrary submission here and a possible interpretation of the Act may not uphold your submission. The applicant has descended into the engine room with separate submissions in relation to Yu Shing Cheng, Gang Cheng on the one hand, and the other offender on the other. I have not absorbed all of this, Mr Gray, but the time will come when I will have done so and I am just saying that you have not descended to the engine room. It is your election and it may be that you take your stand on the big picture. At some stage somebody is going to have to turn their attention to the submissions on pages 14 to 20 of the applicants’ written submissions and your submissions will be silent on those points, except in relation to the general proposition that you advance.

MR M.F. GRAY: Perhaps I should ask for the opportunity of putting in – the submissions I would put in relation to that are those that were in effect dealt with by the Court of Criminal Appeal in the application book, and I would be doing no more than that.

KIRBY J: If that is enough, that will be enough, but I am just making the comment again, as I did yesterday afternoon, that you have not descended to the miniatures. There are a couple of little miniatures here at the end of your opponent’s submissions and somebody is going to have to address them.

MR M.F. GRAY: Yes, your Honour. Can I add this on the question of severance, that if it is a construction which gives rise to three separate offences, it would seem, in my submission, to be a severable proposition in

relation to it if that is the construction that is given to section 233B taken in conjunction with section 235.

GLEESON CJ: Thank you, Mr Gray. Yes, Mr Gray.

MR T.A. GRAY: May it please the Court. It was put against us by the learned Solicitor that the issue of the rule of practice did not fairly arise in this matter. In particular, the transcript of argument, page 79, line 3500, he put that “the issue was determined by the judge”, a determination favourable to two of the applicants, so they can hardly complain. He was there referring to Justice Debelle’s acceptance of the applicants Cheng and Cheng’s version of their state of knowledge.

The difficulty with that submission is that this an application in respect of the intermediate court judgment, and the intermediate court judgment overturned that finding of the sentencing judge. So, with the greatest respect to my learned friend, he has rather missed the point that what we are concerned with is the intermediate court, having not only said that Justice Debelle was wrong in his acceptance of the version of facts that the first two applicants put and acquiesced in by the Crown, that they then proceeded to make their own findings contrary to the applicants’ contentions.

GAUDRON J: This only arises, does it, if you lose on everything else, but you wish to obtain special leave to appeal against sentence?

MR T.A. GRAY: Yes, in regard to the mens rea aspect of the matter.

GAUDRON J: Well, I think you really ought to put some argument, to me at least, as to why if you failed on everything else, you would be granted special leave to appeal against sentence, and I do not think that was a matter that was in the special leave hearing either.

MR T.A. GRAY: It was raised in the special leave and in the written outlines, but in the events that took place, the matter was not advanced orally, but it was certainly taken as a point of special leave, because what in fact has happened here is that the accused’s account has been rejected without there ever being a dispute of facts and we say that is contrary to this Court’s ruling in Anderson’s Case, if it be judge alone, and it contrary to Hietanen, if there should have been a jury trial in regard to that aspect of the matter.

KIRBY J: This is entirely separate, but you say important, if the constitutional argument is overruled as to the practice that must be followed in the elucidation of sentencing facts.

MR T.A. GRAY: Yes, with one qualification, if the Court pleases, that it does demonstrate the unworkability of the rule of practice.

GLEESON CJ: But Kingswell did not establish the rule of practice. It was pointed out in argument yesterday that on the matter of the practice, the Court in Kingswell was evenly divided. The rule of practice was established by the decision in Meaton.

MR T.A. GRAY: Yes, if I could put a short submission in that respect.

GLEESON CJ: Well, let us get one thing clear. You asked us to overrule Kingswell. Did you in your written submissions anywhere suggest that we should overrule Meaton?

MR T.A. GRAY: We do suggest, if the Court pleases, that – we do raise the matter of Meaton and ‑ ‑ ‑

GLEESON CJ: Where do you submit in your written submissions that we should overrule the decision in Meaton?

MR T.A. GRAY: It is in the reply, if the Court pleases. Not in those precise words, but we point up what we call the paradox and the problems that follow.

GLEESON CJ: I understand that, but I want to be clear. You are submitting to us, and I think we have always understood this, that we should overrule Kingswell. Is that correct?

MR T.A. GRAY: Yes.

GLEESON CJ: Are you submitting to us that we should also overrule Meaton?

MR T.A. GRAY: Yes, we are.

GAUDRON J: Can I clarify that a little further. I can understand a submission that if we overrule Kingswell, Meaton might go, but are you also suggesting that if we do not overrule Kingswell, Meaton should go? If so, how does it really arise in the circumstances of this case?

MR T.A. GRAY: We put just the former position ‑ ‑ ‑

GAUDRON J: The former, yes.

MR T.A. GRAY: And it is in paragraph 10 of our reply. What we put was that the position in Meaton confirmed the majority position in Kingswell and the reason ‑ ‑ ‑

GLEESON CJ: Well, Meaton assumed the correctness of Kingswell.

MR T.A. GRAY: Yes, it did. The difficulty with Kingswell is that it was effectively a 3:2 split on that issue because, on our reading, Justice Deane did not consider that point. Justice Brennan’s position was clear, so was Justice Mason, they formed the two. So it was a 3:2 split in ‑ ‑ ‑

GLEESON CJ: Is it the case that if we are not prepared to overrule Kingswell, you do not wish us to consider overruling Meaton?

MR T.A. GRAY: No.

GLEESON CJ: I am sorry, do you agree with me?

MR T.A. GRAY: I am sorry, yes, we agree, and we say that the application of Meaton in South Australia must be coupled with Hietanen, a case that your Honour the Chief Justice we took as approving in Lee’s Case, where your Honour makes reference to Hietanen ‑ ‑ ‑

GLEESON CJ: At all events, if we overrule Kingswell, Meaton will fall with it because it assumed the correctness of Kingswell. But if we do not overrule Kingswell, you do not invite us to overrule Meaton?

MR T.A. GRAY: No, we do not.

GLEESON CJ: Thank you.

MR T.A. GRAY: If the Court pleases, if one goes to Kingswell one finds a very full treatment of the rule of practice in the joint judgment and the judgment of Justice Brennan, and all the essential reasoning that is picked up by the respective sides in Meaton is simply adopting that reasoning and really do take it little further. The core reasoning one will find in Kingswell is then, with respect, embellished a little on both sides in Meaton.

GLEESON CJ: Is your application to us to overrule Kingswell affected by the fact that within the last year or so, subject to one presently irrelevant qualification, it appears to have been approved and followed by the Privy Council?

MR T.A. GRAY: Yes. Yes, it is. Now, if the Court pleases, the point I wanted to make about Mr Bennett’s submission and why this is a very real issue in this case is that at the end of the day the two applicants Cheng put a version of facts that was accepted by the sentencing judge and acquiesced by the Crown. There was no issue joined, no need for a trial or a disputed fact hearing at all. There was no appeal by the Crown on that. There was no notice of contention. In the course of the appeal hearing the intermediate court took it on itself to go into that issue and ‑ ‑ ‑

GAUDRON J: Were you heard on it or did it just come out in the judgment or was it raised in the course of argument?

MR T.A. GRAY: It was raised late in the course of argument and my learned friend, Mr Stretton, dealt with that matter and the submission he put to the court was what has happened here is that the sentencing judge has accepted the version of the accused, it has been acquiesced in by the Crown and is not a matter that can be reopened and he objected to the matter in his reply and the court went ahead and not only said – they took the view that Justice Debelle was in error, but they then proceeded to simply express their own view.

KIRBY J: Of the facts.

MR T.A. GRAY: Of the facts, without hearing evidence, when the accused have the opportunity to give sworn evidence in regard to that issue. Now, that directly offends this Court’s ruling in Anderson’s Case and that is all detailed in our written submission. I might say, if the Court pleases, that we had treated our submissions as speaking to our written submission and we rely on every word in our written submissions both in primary submission and in reply and the oral submissions we have put have been on the assumption they are to be read with every word in the written submissions.

KIRBY J: Have I missed something? But the Crown does not seem to deal with this except at the level of generality. Have I missed something or not?

MR T.A. GRAY: Because, with respect, the Crown had chosen not to join issue on these matters in the written reply, we had elected to treat it as being an appropriate case not to advance any detailed oral submissions about it, and they still do not, with respect, join issue on any of these factual matters. So we would say, if the Court pleases, if I might just summarise the position, that a demurrer was taken that raises fairly and squarely the correctness of Kingswell, the demurrer ‑ ‑ ‑

GUMMOW J: Yes, now I wanted to ask you about that. Paragraph 10 of the judgment of the Full Court, which is on page 80 of the application book, explains how it is that you got into the Court of Criminal Appeal to raise the question of conviction even though you pleaded guilty. Right?

MR T.A. GRAY: Yes.

GUMMOW J: And it refers to fraud and there is a later decision of Parsons in Victoria where it says that “upon a plea of guilty” an appeal may “be entertained…..if, upon the admitted facts” the person in question “could not in law have been convicted of the offence charged.” You have to say in the language of section 80 that, having regard to Meaton, you nevertheless could not have been convicted in a fashion which complied with section 80. That is just not right, it seems to me.

MR T.A. GRAY: Our primary point is, and the point taken on the demurrer, is that Kingswell had been wrongly decided, that the Customs Act ‑ the interpretation of the Customs Act could not stand and that ‑ ‑ ‑

HAYNE J: The interpretation could not stand or the sections could not stand. Which? It is very important.

MR T.A. GRAY: Both. The demurrer challenged the entire scheme. Section 233B and 235 were challenged.

GLEESON CJ: Well, on the demurrer you argued that there was no offence known to the law of the kind with which you had been charged.

MR T.A. GRAY: Yes, and the demurrer is set out in the application book at pages, I think it is about 12 to 19, and it specifically challenges section 233B and when one goes to the reasons it is because of section 235, the interpretation in Kingswell given to that, and what is said to be – that the whole scheme fails.

GLEESON CJ: But once we get past that point, once we get to the point of deciding that there was an offence known to the law, created by statute, of the kind with which you were charged, you having pleaded guilty, what has section 80 to do with the matter?

MR T.A. GRAY: Well, it will depend on the reasoning of the Court. If the Court rejects the argument put against Kingswell, then obviously the demurrer failed and my client has pleaded guilty to a charge known to the law.

GLEESON CJ: And once we have got to that point, we can forget about section 80.

MR T.A. GRAY: Yes we can, but if on the other hand the Court upholds our challenge to Kingswell, well then the demurrer is good.

GUMMOW J: It depends what you mean by “challenge to Kingswell”, you see.

MR T.A. GRAY: Yes. If the Court were to take the view that the position of both Justices Brennan and Deane was correct, it would follow that the count that we would charge was not an offence known to law, but that would then turn on a question ‑ ‑ ‑

HAYNE J: Well how? Why would that be so if you go to the indictment? Except the minority view in Kingswell, how is it you say that this indictment did not charge you with the offence as their Honours understood it?

MR T.A. GRAY: The question of severance was not debated in Kingswell at all and our argument is that because of the wording of subsection (e), in other cases, that one cannot engage in a severance here and as a ‑ ‑ ‑

HAYNE J: But that is a challenge to validity of the legislation, not a challenge to whether you were charged with the offence identified by the minority in Kingswell.

MR T.A. GRAY: Well, the argument of severance was not raised there, so Kingswell just did not address that particular point. Our reasoning is twofold: it adopts the minority position in Kingswell and it adds to it an argument there cannot be severance. As a result there is no section 233 offence; as a result this indictment must be bad. The alternative argument is that there could be severance and if that be so then there is a count to which we would be able to plead, but it would lead to a maximum penalty of two years. The third alternative is the matter we raised as a possibility at transcript 44 paragraph, identity 5, picked up in paragraph 3 of Mr Bennett’s submission this morning, and your Honour Justice Gaudron has dealt with it. That is, the interpretation of “Court” in section 235 is incorrect in Kingswell, and we have in fact here three separate offences. Now, if the Court adopted that position, there would be a charge, but it would not be the count that appears in page 1 of the application book.

HAYNE J: What would take it outside that?

MR T.A. GRAY: Because the count does not allege the relevant 235 element as part of the count. It only raises it as a particular.

KIRBY J: That is a point that has been raised in argument in this Court, but was it one that you moved the judge at trial to quash the indictment on or not?

MR T.A. GRAY: Counsel then appearing as I understand did not argue that point.

GLEESON CJ: And it could have been cured by amendment.

HAYNE J: And assumes a distinction between “statement of offence” and “particulars of offence” which is a distinction that I am not alive to since it seems to work on a South Australian practice with which I am not familiar. You should not assume in my case that the particulars of offence given are not the relevant and operative statement of that which the accused faced.

MR T.A. GRAY: If I might deal firstly with your Honour the Chief Justice’s question. Before there could be an amendment, it would have involved Justice Debelle upholding the demurrer in the sense of saying that aspect of Kingswell that said there was one offence was wrong. It is only when that decision is taken that there could be an amendment to the indictment. So the matter of amendment sensibly could not have arisen here because Justice Debelle, with respect, was not going to be in a position to say that aspect of Kingswell was wrong.

GAUDRON J: But would not the only question on that analysis at the end of the day be a miscarriage of justice?

MR T.A. GRAY: Indeed.

GAUDRON J: And would it not be relevant to that that the indictment could have been amended?

MR T.A. GRAY: Yes, the miscarriage of justice would arise in this way: that were the indictment amended, the issue as to that element of the offence, namely what I call the 235 element, the aggravation, which would then be an element of the offence, would be a matter for the jury to decide in ‑ ‑ ‑

GAUDRON J: Except that, in practical terms, there was never any dispute as to the objective quantity.

MR T.A. GRAY: No, it related to the issue of knowledge.

GAUDRON J: And it related to the issue of knowledge, so you would have to establish, before you could get to miscarriage of justice, you would have to establish, on this construction approach, that mens rea is imported into the 235 element of the offence?

MR T.A. GRAY: Yes, going to the issue of – yes, yes.

GAUDRON J: Yes, yes.

MR T.A. GRAY: And the reasoning there would be this, once one construes section 235 as raising an element of the offence, the reasoning in He Kaw The would apply directly to it and there would be a need to establish the requisite intent.

GAUDRON J: Well, I would have thought that argument was not self-evidently correct, Mr Gray. I would have thought that if you took that construction approach, you would say that the point of the legislature having put it in a separate section was to make it clear that that was simply an objective consideration and not a matter to which mens rea was applicable.

MR T.A. GRAY: If the Court pleases, we accept there could be debate about it. We have set out in our written submission our argument in that respect. We do say this, that if one was to say that intent was not relevant, the ‑ ‑ ‑

GAUDRON J: Well, it is really knowledge, is it not, or absence of honest belief?

MR T.A. GRAY: Yes, I am sorry, but what I am saying is knowledge was not relevant to be proved, it would follow that a person was being exposed to life imprisonment in regard to what one would describe as a crime in respect of which there was not knowledge, on that ‑ ‑ ‑

GAUDRON J: But in a context in which, according to ordinary sentencing principle – and this does not seem to have been disputed by the prosecution – actual knowledge is relevant.

MR T.A. GRAY: Now, if the Court pleases, if that be the position in the case at Bar what has happened is that the intermediate court has sentenced the applicants on the basis of assumed knowledge, in other words, the lack of knowledge. That issue has not been dealt with here on sentencing appeal because Justice Bleby’s finding adopted by the other members of the court is that there was knowledge. So on the very issue that ‑ ‑ ‑

KIRBY J: And this was in the face of the assertion of your client at sentence, the acceptance of that by the Crown at sentence and the acceptance of it by the sentencing judge?

MR T.A. GRAY: Yes, and that appears in the learned judge’s remarks at page 63 of the application book where he says, “I accept what your counsel said on this issue.” At page 63, Justice Debelle at line 15:

With some diffidence, I am prepared to accept what has been said on your behalf –

in regard to Yu Shing Cheng, and in regard to Gang Cheng at line 36:

I am prepared to accept your explanation, although I add it must have been obvious to you that a substantial quantity of drugs was involved once you had seen the pedestals.

And, of course, we do know that once he had seen the pedestals it was now down to 25 grams but ‑ ‑ ‑

KIRBY J: But that was only the substitution.

MR T.A. GRAY: Yes.

KIRBY J: That was not an inference to be derived from the size of the pedestals, but in any case you say, I suppose, that if the Full Court had its doubts on the objective facts, then it might have been entitled to set aside Justice Debelle’s finding but it could not then substitute its own opinion. It had to give your clients the opportunity to advance the issue at trial or at sentence before a judge who was going to resentence.

MR T.A. GRAY: Indeed, in accordance with the rule of practice in Meaton’s Case, which would have in South Australia, had Hietanen’s Case been followed, involved a jury trial.

GLEESON CJ: I am sorry, are you saying the Full Court should have sent it back for ‑ ‑ ‑

MR M.F. GRAY: For determination of fact.

HAYNE J: By a jury?

GLEESON CJ: How does a hearing before a jury arise where there is a plea of guilty?

MR M.F. GRAY: Because, if the Court pleases, an application of Meaton and Hietanen. Meaton says if there is a guilty plea, then a dispute about a matter of aggravation, that is to be determined according to the practice of the local State. Hietanen, and Chief Justice King, speaking for the majority of the CCA, said in that circumstance there had to be a hearing before a jury.

GLEESON CJ: Is that a submission that was put to the Full Court?

MR M.F. GRAY: No. Because the way the events occurred in the Full Court was that counsel putting the submissions on this topic said to the Full Court, “This matter is closed. Justice Debelle has accepted the matter. The DPP have acquiesced in it, the matter is closed”.

GLEESON CJ: But did anyone submit, either as an additional submission or an alternative submission, that the matter ought to go back for a hearing before a jury on any issue?

MR M.F. GRAY: No. As I understand it, no submission was made in that respect at all.

GLEESON CJ: As I understand it – correct me if I am wrong – at no stage of this proceeding before this Court, either at first instance or in the Full Court in South Australia, has either party suggested to any judge that the jury had any role to play in relation to the resolution of any issue in this case.

MR M.F. GRAY: That is correct.

KIRBY J: But I assume that that is against the context that you had a finding by the sentencing judge in your client’s favour and you would not have conceded that the Full Court would substitute its own finding on the facts in the face of the assertion by your client, the acceptance of that by the Director of Public Prosecutions and the finding by the primary judge, without at least seeing your client or hearing what your client had to say on the matter.

MR M.F. GRAY: Indeed, particularly in light of Anderson’s case, which was a decision of this Court, on appeal from South Australia, applying earlier authorities of South Australia of law indeed. So that, as it were, all this happened in that environment. But there was no occasion for the first two applicants to be seeking a jury trial at first instance because there was no issue joined. As far as Mr Chan was concerned, his then counsel, Mr Vadasz, acquiesced in the sentencing judge hearing evidence on the disputed matter of fact. That was not then appealed to the intermediate court. So as far as Mr Chan is concerned, this point does not arise. It is only in regard to the first two applicants, who throughout have maintained lack of knowledge and without ever being heard on that, they have suffered a verdict against them on that. We say that is a miscarriage of justice in this case. That is how we put it.

Might I say to the Court that the submissions that have been put to this Court about Hietanen’s Case and Meaton’s Case were not put, as I understand it, to the intermediate court. The problems with Meaton’s Case were put. On the constitutional argument that I presented, we did, in fact,

raise all the problems with Meaton’s Case and the problems with the paradox arising. That is dealt with in the intermediate court judgment of Justice Bleby, in particular, at page 89, paragraph 32:

The appellants attacked the reasoning in R v Meaton as being confused and inconsistent.

Then proceeds, 88 to 89, in fact, setting out the very parts that we have raised before this Court.

KIRBY J: You have been more polite before us.

MR T.A. GRAY: If the Court pleases, I was slightly embarrassed to see that description put.

KIRBY J: I should hope so.

MR T.A. GRAY: I do not recall using those words but it may have been the substance of the submission put. Could I just return to the point that your Honour Justice Hayne raised with me? In South Australia the practice is to treat the plea as being only to the minimal elements necessary to give rise to the offence and Justice Bleby sets out that practice. I respectfully adopt that and the authorities he refers to. I cannot advance it beyond that. So, the three points taken, and they are alternatives, one is the demurrer, and if that succeeds we will discuss the consequences. The second is, if the demurrer fails and there is a dispute of fact, the question is how that is to be resolved and that then raises the Meaton question and the Hietanen question or, alternatively, your Honour, called the Anderson question.

GLEESON CJ: Mr Gray, may I ask you to which of the grounds of appeal appearing on pages 159 and 160 of your application book, the argument that you have been talking about concerning the procedure adopted by the Full Court, is directed?

MR T.A. GRAY: Yes, if your Honour pleases, your Honour is there dealing with Mr Chan’s application and he is the one ‑ ‑ ‑

GLEESON CJ: He is the one that does not matter.

MR T.A. GRAY: Does not matter – page 125, your Honour, and it is paragraphs 6 and 7 on page 125, and there is a parallel provision in regard to Mr Gang Cheng’s application at page 142, and paragraphs 6 and 7 are missing in the case of Mr Chan’s application because of the different courses followed.

GLEESON CJ: Thank you.

GUMMOW J: Which is the ground referred to in the Cheng application?

MR T.A. GRAY: I am sorry, your Honour.

GUMMOW J: Which is the ground of appeal?

MR T.A. GRAY: Number 3, page 124.

GUMMOW J: Yes, thank you.

MR T.A. GRAY: And there is a parallel ground in Mr Gang Cheng’s application.

GUMMOW J: Thank you.

MR T.A. GRAY: If the Court pleases, on the question – if I move to a different topic, on the question of definition of “offence”, my learned friend, Mr Bennett, continually referred to the construction we contended for as involving a technical meaning to the word “offence”. Could we just say this, that the majority in Kingswell spoke of the Lord Diplock test as being a sanitary definition, only defeated by the wording of the Customs Act, and they speak of it as being a broad definition in contrast to a technical definition and we would reject my learned friend’s description of the approach we have taken and it does not accord with the majority position. They are the points in reply, if the Court pleases.

GLEESON CJ: Yes. Mr Gray, could you just remind us where we find your submissions in relation to ground 3 of the draft notice of appeal in the case of Cheng and to ground 3 in relation to the draft notice of appeal in the case of ‑ ‑ ‑

MR M.F. GRAY: Bach An Chan – no, Cheng. You do not, your Honour, because I must say I have not addressed that in those specific terms and I should and may I have leave to put submissions in relation to that. They will be quite short.

GLEESON CJ: Is that opposed, Mr Gray?

MR T.A. GRAY: Yes, it is, if the Court pleases.

GLEESON CJ: Yes, we will hear argument on your application to do that. Go ahead.

MR M.F. GRAY: I can only say that I took all of this to be related to the Kingswell point and the mens rea point and, indeed, specifically, if there is any fault then I have overlooked any substantive argument relating to a substitution of facts by the Court of Criminal Appeal.

GAUDRON J: But is it not a matter we could deal with here and now in about three minutes?

MR M.F. GRAY: Yes, your Honour.

GLEESON CJ: Well, let us have it.

MR M.F. GRAY: The Crown has always maintained that as far as the state of mind of Yu Shing Cheng and Gang Cheng is concerned, that may have been their state of mind. In the case of Yu Shing Cheng, when he arrived at the airport in order to pick up the parcels, he may well have had a view that it was two small parcels of cocaine, rather than the heroin that was actually found. His state of mind, though, immediately after he got the truck to fetch the bigger thing and the conversation that he had with a person after that, which is repeated in the judgment of Justice Bleby, indicated quite clearly that at that point when he got to the airport, he was appreciating that he was involved in a much greater importation than the two small packets of cocaine.

GLEESON CJ: I might have misunderstood the argument that was being put against you, but I did not think we were being invited to pass upon the reasonableness of the fact finding of the Full Court as compared with the reasonableness of the fact finding of the Justice Debelle. I apprehended, perhaps mistakenly, that we were being asked to consider the procedure that was adopted by the Full Court, and I still have not heard a word from you about that.

MR M.F. GRAY: The procedure in ultimately sentencing on the view that that took in relation to the matter?

KIRBY J: Yes, without hearing him, and reversing a finding which the primary judge may have made.

MR M.F. GRAY: Well, they did not reverse the finding that the primary judge had made.

KIRBY J: They said he ought not to have made it.

MR M.F. GRAY: No, they did not, your Honour, they do not say that in terms. What they say is that notwithstanding that at the time that he attended at the airport, there was material upon which they could make a finding that he expected a much greater quantity subsequent to his attending on the airport.

KIRBY J: This is contrary to what Justice Debelle said he was prepared to accept.

MR M.F. GRAY: No, he said he was prepared to accept that up to the point of time that he went to the airport; he does not say anything about what his state of mind might have been, although he does say that it was apparent that there would have been a much greater quantity, once he appreciated that there were pedestals there and he would need a truck to transport them away. So his finding is not that, at all times, there was a belief in the two small packets of cocaine.

GLEESON CJ: Do you remember I asked you a question yesterday about whether there was some statutory provision – it is just in the back of my recollection and my memory might be playing tricks with me – that produces the consequence that when you substitute some other substance for a drug it is deemed to be the drug, for the purpose of this legislation.?

MR M.F. GRAY: Yes. I could not find such a provision, your Honour. I would have liked to.

GLEESON CJ: I see.

MR M.F. GRAY: I think in relation to this you go back to the mens rea related to the offence and that is why this is tied up with what is said to be the mens rea related to the offence, and the mens rea is a belief in some narcotic drug which will ultimately sustain your intent to participate in whatever the proscribed activity is, or whatever the activity is that is ultimately proscribed, and it is ‑ ‑ ‑

KIRBY J: I do not want to be rude, Mr Gray, but I did raise this at the end of yesterday because I was concerned that the Crown was not addressing these issues and I hoped that the issues would be addressed overnight and the Court assisted on that, but it seems to me ‑ ‑ ‑

MR M.F. GRAY: I addressed them overnight in terms of the mens rea point rather than in terms of the substitution point. Can I go back and say that Court of Criminal Appeal determined that the penalties that were imposed were excessive. That is the reason why they then enter upon the reassessment, as a Court of Criminal Appeal does, of penalties in relation to appeals against sentence and in so doing they, I say, are entitled to determine the sentencing questions afresh and they stand in the position of a Court of Criminal Appeal redetermining the appropriate sentences. That, in its own terms, does not call for any particular procedure, any aspect that needs to be redetermined by the Court. There was no application for them to do anything other than to determine the question of whether the sentences were manifestly excessive or not in the matter before them.

KIRBY J: We were told, but do you accept, that the applicants who are affected by this made it plain that their submission was that the issue was closed? It was closed by the decision of Justice Debelle.

MR M.F. GRAY: No, your Honour, our submission in relation to this before the Court of Criminal Appeal was the submission that although that intent may have been there up until the time of the attendance at the airport, subsequently his intent must have involved knowledge of a much larger quantity.

KIRBY J: But when is the offence – does not the offence occur when the goods are brought over the border of Australia?

MR M.F. GRAY: No, well, the offence is an offence which occurs both prior to ‑ ‑ ‑

GLEESON CJ: It continues until they reach their destination.

MR M.F. GRAY: It is the transaction of importation. Thank you, your Honour.

GLEESON CJ: It continues until they reach their destination, which is usually not Mascot.

MR M.F. GRAY: No, your Honour, and here, as far as Yu Shing Cheng, he was the person who was, in effect, transporting it out of the airport to somewhere in the State, so that it was that process ‑ and his involvement in that process was the provision of his address and the provision of the truck and transportation to his address. Now, his mens rea in relation to that is not a mens rea related to what was actually there but to the fact of a narcotic drug and the fact that there was a substitution has no effect on that as far as the offence is concerned.

What it does have some effect on perhaps is the question of the penalty that might be imposed, and that may be lessened by reason of the fact that his initial involvement in this was with respect to a much smaller quantity. But when he comes to the determination where it is plain that it is a greater quantity, that is where the offence is made out. Those were the issues that were before the sentencing court, so it is not a question of substitution.

GLEESON CJ: Thank you, Mr Gray. Is there anything you want to say in response to that, Mr Gray?

MR T.A. GRAY: No, if the Court pleases, except we maintain the position that Mr Stretton putting argument to the Full Court made it very plain as to the basis of the plea.

GLEESON CJ: Thank you. Very well, we will reserve our decision in this matter.

AT 12.07 PM THE MATTER WAS ADJOURNED

[2000] HCATrans 135

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