Cheung v The Queen

[2001] HCATrans 114

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S200 of 2000

B e t w e e n -

YING-LUN (GARY) CHEUNG

Appellant

and

THE QUEEN

Respondent

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

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 3 MAY 2001, AT 11.54 AM

Copyright in the High Court of Australia

MR A. SCRIVENER, QC:   If the Court pleases, I appear with my learned friend, MR J.I. DORIS, for the appellant.  (instructed by Stephen Hodges)

MR J.V. AGIUS, SC:   May it please the Court, I appear with my learned friend, MS S.M. McNAUGHTON, for the respondent.  (instructed by the Director of Public Prosecutions (Commonwealth))

MR D.M.J. BENNETT QC, Solicitor‑General of the Commonwealth:   May it please the Court, I appear with my learned friends, MS C. TRAILL, MR J.S. STELLIOS, and MS S.A. LOVETT, for the Attorney‑General intervening.  (instructed by the Australian Government Solicitor)

GLEESON CJ:   Yes, Mr Scrivener.

MR SCRIVENER:   Your Honours, the appellant faced a single charge which was in these terms.  You will find it in bundle 1, page 1:

between about the 1st day of August 1988 and the 12th day of May 1989 . . . was knowingly concerned in the importation into Australia of . . . a quantity of heroin being not less than the commercial quantity applicable to heroin.

He was convicted on 19 May 1993.

KIRBY J:   Can I just ask you, to the end, I have not seen any suggestion from you as to what you contend should have been the form of the alternative counts?  I hope at some stage you will put that before us.

MR SCRIVENER:   I am going to do so.  I have it all ready to put before you when I get to that particular point.

KIRBY J:   Good.

MR SCRIVENER:   He was convicted and sentenced to life with a non‑parole period of 21 years and 11 months, I think it was.  I will obviously make more submissions about the facts a little later on, but all the submissions we make are based on one core set of facts.  They are these, that the prosecution were in fact relying on two alternatives.

GLEESON CJ:   And all the submissions that you make are aimed at the success of an appeal against sentence?  We are not dealing with an appeal against conviction?

MR SCRIVENER:   No.  Just sentence.  The first alternative was based on the evidence of Cheung Siu Wah – I will call him Cheung, if I may, during these proceedings – who was an accomplice.  If his evidence was accepted, then the appellant was involved in all aspects of the offence.  And I will expand on that a little later on.  It would have covered the full period in the one charge.  The alternative was based on the proposition that the jury could convict without the evidence of Cheung.  That made it a much more limited role in a much more limited period.  The jury returned a verdict on the one charge without, of course, distinguishing upon what facts they had relied. 

KIRBY J:   That is all they could do.  They only had one charge. 

MR SCRIVENER:   That is right.  So therefore the trial judge decided to try the issue himself, and he found in favour of the Cheung alternative.  Hence the substantial sentence which was passed upon him. 

HAYNE J:   In what sense are these cases alternative, given that the prosecution case was:  accept the evidence of witnesses A, B, C - we establish knowing involvement from date 1 to date 30; accept the evidence of only witnesses B and C - we establish knowing involvement from date 15 to date 30.  Why are they alternatives? 

MR SCRIVENER:   They are alternatives because of the result.  Your Honour may have had the opportunity of looking at the summing up where the facts are stated, and his Honour split up the periods of involvement.  The first period was in August and September 1988.  The second period was 13 December 1988 to 24 April 1989.  That was only covered by Cheung, all the preparations for the offence and everything else.  The last period, mid‑April 1989 to 12 May 1989, was the third, the alternative period.  So, the repercussions were quite different between the two and I will elaborate upon that a little later on.

I would like to take your Honours straight away to the seminal case on the point which is the Isaacs Case, (1997) 41 NSWLR 374. Before I turn to the point of principle which arose in this case, it should be noted at page 376D that during the course of the trial the trial judge had given an opportunity to counsel for the defence to agree that he would raise a question with the jury designed to discover the basis upon which they reached the conclusion that the case was one of manslaughter rather than murder, and what was the basis of the manslaughter verdict.

KIRBY J:   Was this to ask for a special verdict, was it?

MR SCRIVENER:   Yes, I think it was.  Trial counsel for the appellant argued against the adoption of such a course.  You will see that just below D.  So, on the facts the judge had no alternative but to decide the issue himself, as it turned out.

KIRBY J:   He could, if the law required him to pose alternatives, have taken that course notwithstanding the opposition of the accused.

MR SCRIVENER:   That is true.  It seems that judges at this time, certainly, I think, probably still do.  I think if an objection is taken to that course by the defence, then they will not pursue it.  I notice that in English authority exactly the same was followed.

KIRBY J:   Well, it certainly would be a reason for caution.

MR SCRIVENER:   The principles are at 377, and I want to turn to those early to isolate the points which are common and we do not attack and concentrate on the one that we do.  At the bottom of the page, the court said that:

1.  Where, following a trial by jury, a person has been convicted of a criminal offence, the power and responsibility of determining the punishment to be inflicted upon the offender rest with the judge, not with the jury.

We accept that, of course.  The jury have no further function to perform once they have returned their verdict.

2.  Subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing.  Some of these facts will have emerged in evidence at the trial; others may only emerge in the course of the sentencing proceedings.  The fixing of an appropriate sentence ordinarily involves an exercise of judicial discretion, and it is for the judge to find the facts which are material to that exercise of discretion.

No issue about that at all.  It obviously has to be the judge who decides the facts.

3.  The primary constraint upon the power and duty of decision‑making referred to above is that the view of the facts adopted by the judge for purposes of sentencing must be consistent with the verdict of the jury.

Now that is the issue in this case.  There is that duty imposed and we would seek to examine in this case what that, in fact, involves.

4. A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.

We accept that.

5. There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender: R v Harris.  However . . . because the judge is required to resolve any reasonable doubt in favour of the accused, then the judge will be obliged, for that reason, to sentence upon a view of the facts which is most favourable to the offender.

Again, no dispute about that.  So the real issue is the primary constraint being consistent with the verdict.  On a plea of guilty, it is much easier in a way for the prisoner to be sentenced because a great deal of care has gone into deciding what are the actual facts to which a defendant is pleading guilty and a Newton inquiry can take place if necessary.

HAYNE J:   Newton inquiries are not favoured in this country.  You should not assume that they are.

MR SCRIVENER:   I have read the law on that.  That is one remedy which is available.  But leave that on one side, the court takes great care to ensure that the defendant knows what he is admitting, what he is conceding, what he is pleading guilty to.

Our submission is that if there is a duty to be consistent with the verdict of the jury, then it requires an effort to be made, reasonable steps to be taken to discover what the effect of the verdict is.  Can I just refer to two cases which are just examples ‑ ‑ ‑

HAYNE J:   Just before you come to the cases, you might begin with the indictment.  How do you understand a between dates count?  Is a between dates count an allegation that at all times between the dates specified, conduct was being engaged in, or is a between dates count an allegation that a time unspecified within the outer limits thus identified, offending conduct occurred?

MR SCRIVENER:   Your Honour asked for particulars, or else you will get your particulars in counsel’s opening, and in counsel’s opening, we got the alternatives, which indicated precisely how the charge was made up in three sections, as the learned judge identified.  Can I just turn to, as I say, two cases, just to examine the steps that are taken as a matter of routine often by judges to discover what the verdict really meant.  The first is Jama 52 Cr App R 498.

GLEESON CJ:   Just before you pass from Isaacs, Mr Scrivener, would you care to comment on the paragraph quoted on the top of page 379, beginning with the words “The only instance”?  It is a quotation from an English ‑ ‑ ‑

MR SCRIVENER:   Yes, I have it.  I am much obliged: 

The only instance we have been able to find in which it might be said to be common practice to go behind the general verdict and to enquire from the jury the basis on which it was reached –

in this case is manslaughter.  I do not think that is right.  There are other examples where questions have been asked.  I can give an example of Warner, in England.  That was the knowledge of possession case, when the judge took the view, quite rightly, as upheld by the House of Lords, that you do not have to prove knowledge that you have possession of the drugs, but obviously knowledge was a very important issue for sentence.  What the trial judge did, having received a verdict of guilty, he then asked the jury to decide whether they believed that the defendant had knowledge, to which they replied “Yes”.  That helped the judge on sentencing.  So I think that, with respect, that paragraph is too wide.  There are examples of cases where questions, special verdicts, have been sought in other circumstances. 

KIRBY J:   I am still a little troubled by an answer you gave a long while ago to the Chief Justice, and that is the record bears it out, that your only appeal is against sentence.

MR SCRIVENER:   Yes.

KIRBY J:   If your complaint is that the procedures at trial failed to properly differentiate counts of the indictment, then does not the problem of which you complain arise before sentence, that is to say, in terms of the conduct of the trial and the indictment and the conviction on the, as it were, integrated indictment?

MR SCRIVENER:   Your Honour, no.

KIRBY J:   I realise you have not taken this point.  It is probably too late now for you to take it.

MR SCRIVENER:   We did not get leave on it.  We tried.

KIRBY J:   Well, you raised it trial, but your appeal to the Court of Criminal Appeal was only against sentence and your appeal to this Court is only against sentence, but the logic of your argument seems to attack the process at the trial because you are saying if you face an undifferentiated indictment, then there cannot be the determination of an issue which has to be determined by the jury by the Constitution and/or by the common law.

MR SCRIVENER:   We did apply for leave and I think, with respect, quite rightly it was refused because ‑ ‑ ‑

KIRBY J:   You applied for leave to whom?

MR SCRIVENER:   To this Court.

KIRBY J:   Against conviction?

MR SCRIVENER:   Yes.

KIRBY J:   I see.  I was not aware of that.  I am merely looking at your notice of appeal on 954.

GLEESON CJ:   You did have an unsuccessful appeal against conviction in the Court of Criminal Appeal.

MR SCRIVENER:   Yes.  With the greatest respect, which must be right, for reasons which I will explain and concede now.  We could not say there was more than one charge in the same count, in the same charge.

KIRBY J:   I am thinking of the case in this Court – you may not be familiar with it – of De Simoni, which relates to where there are a number of offences of which a person can be guilty.  Now, here it is only the one offence, but there this Court has laid down principles relating to what has to be done in that sort of case.  Now, I am just a little troubled.  I do not know what the answer is, but, in any case, we have to deal with the record and the issue that is before us.  But it must be very clear to you, therefore, that the only issue we have before us is an appeal against sentence, and as far as I am concerned at the moment, that may preclude some of the arguments that you are seeking to raise.

MR SCRIVENER:   I do not think so, with respect, because we could not have argued the count was bad for duplicity because it was all one matter.  I have looked at the recent cases on it in this jurisdiction.  It would be impossible to claim this was a duplicitous count.  It was all one activity within a defined period, and so there was one offence as such, and, quite rightly, it could be pleaded in that way.  The danger was that it was pleaded in that way when the prosecution were, in fact, approaching their case in two ways, in an alternative way, and that caused the complication.

KIRBY J:   But that creates a problem for you in the logic of your argument.  I am not going to say anything more after this, not for a while, anyway, because if your complaint essentially is that the trial judge should have presented the jury with two counts and acceded to that request at trial ‑ ‑ ‑

MR SCRIVENER:   Well, he did.  He did.

KIRBY J:   ‑ ‑ ‑and if you do not press that now, because you say that the count of the indictment did charge the one offence which your client faced, then I wonder if you are not foreclosed of making the complaint in this Court that what happened at trial, as distinct from what happened after verdict of guilty and the order of conviction, is available for you to take here.

MR SCRIVENER:   The trial judge very clearly left the matter to the jury on the two alternatives.  He put the two alternatives to the jury.  He explained it very carefully to them.  He explained how, in fact, that the different dates applied.  In the first two sections, only Cheung’s evidence could be relied upon.  It was only in respect of the third section where other evidence apart from Cheung was available, and he explained all that.

GLEESON CJ:   As I understand it, you are leading up to an argument that this is a special circumstance in which the trial judge was bound to sentence on the more lenient alternative because of the fact that your client was tried on one count.

MR SCRIVENER:   That is right.  I have no possible objection - any argument against the conviction.

GLEESON CJ:   But may I ask you this, Mr Scrivener - it relates back to a question asked earlier by Justice Hayne - is the sense in which you say “the case”, if I can use that expression, against your client was in the alternative, this, that on the second of the two ways in which the Crown put its case your client was guilt of precisely the same offence but the extent of his culpability was less?

MR SCRIVENER:   Exactly.  It would have a knock-on effect also as to whether the jury would find the relevant intention proved.

KIRBY J:   Did you, unlike counsel in the case before Justice Newman, ask for a special verdict from the jury?  Counsel at the trial of your client?

MR SCRIVENER:   Counsel at the trial did not ask for a special verdict and, in fact, as you will see in a moment, I accept that there is a lot of law on special verdicts and it is widely disliked and there are many decisions which say that it is inadvisable to ask a jury to return a special verdict.

GLEESON CJ:   One of the reasons why they are disliked is you can get a very embarrassing answer if you start asking questions.

MR SCRIVENER:   Yes, exactly, and the remedy we will advocate later was the amendment of the indictment.

KIRBY J:   But that is at trial and we are dealing with post-trial.  That is the problem I have with the logic of your argument.

MR SCRIVENER:   Yes, we are, but if the indictment were amended it would enable the judge to know whether Cheung’s evidence had been accepted or not.  A very simple amendment would have achieved that result.

KIRBY J:   Yes, but that is a complaint to what has happened leading to the verdict.  You make no complaint against the verdict, you complain only about what the judge in the premises then did.  That is what you have to confine your argument to.

MR SCRIVENER:   I do, but it would not have affected the conviction, but it would have produced a result whereby the charge was specifically defined which enabled ‑ ‑ ‑

GAUDRON J:   Of course you might not have got an answer, Mr Scrivener.  You might, in the relevant sense - in this case, it is quite possible that three members of the jury took one view of the facts and the others took another view.  All they had to be satisfied beyond reasonable doubt of, was guilt, not the facts.

MR SCRIVENER:   May I defer the answer to that because I am coming on to it after a bit more build up first?  The answer is that they would have to be satisfied.  If you are looking at the three sets of facts, they would indeed have to be satisfied ‑ ‑ ‑

KIRBY J:   You would have to have unanimity of one of the sets of facts.

MR SCRIVENER:   Yes, you would.

GAUDRON J:   Yes, if you had separate indictments, but not by questions.

MR SCRIVENER:   If your Honours are interested in the point now, if, in fact, the indictment was split in this way, that count 1 would have covered those two first periods of fact, to which his Honour referred in great detail at the trial, August and September 1998 and 13 December 88, 24 April 89, if that were in one count and the second count covered the third area of facts, mid-April 89 to 12 May 89, then that would have cured the problem.

HAYNE J:   I rather suspect you would have had a bad indictment, too.

MR SCRIVENER:   I do not quite understand why, your Honour.

GAUDRON J:   Duplicity.

MR SCRIVENER:   No, it could not possibly be duplicitous at all.  I think the problem is I have not yet got to the facts, and I do think I need to take you to his Honour’s judgment to explain this.

GLEESON CJ:   Yes.

MR SCRIVENER:   You will see how he deals with it and how the alternative arises and how it could be simply cured in the way I suggest.  I was anxious, in order to get a legal setting for this ‑ ‑ ‑

GUMMOW J:   You were taking us to Jama.

MR SCRIVENER:   Jama 52 Cr App R 498, if I may, yes. It is just an anecdotal example of how judges seek to ensure that their sentencing is consistent with the verdict of the jury. It was a manslaughter case and the real issue was whether the defendant had killed the deceased with a weapon or had merely struck him with fists. You will see that at the bottom of page 500:

So that when the jury came to retire there was no argument but that the blow which had caused Reeves to fall had been struck by the appellant.  There was a clear issue as to whether the appellant had used his fist or the tongs in regard to that blow.

The jury had asked a question at the bottom of the page and it was in these terms:

“The question I have to put on the instructions from the jury is, it is felt there was no intent to murder, but there was intent to do wilful bodily harm under provocation, which unfortunately resulted in death.”

So, that was additional material which the judge had at the trial to try and discover why it was and on what basis the verdict of manslaughter had been returned.  On the last page, page 502, in the paragraph in the middle of the page, the Court of Appeal –Lord Justice Widgery giving the judgment said:

The Court thinks that the only way to interpret this case is to treat it as one in which the jury considered that there was no intent to do grievous bodily harm, although intent to do some bodily harm clearly, and furthermore that there was provocation, and there was an unfortunate element which in some way injected itself and gave rise somehow to the death of Reeves.

So, that was an inference which the court was prepared to develop from the verdict and what was said.

KIRBY J:   Because there was a clue.

MR SCRIVENER:   There is a clue, yes.

KIRBY J:   We have no clue.

MR SCRIVENER:   Exactly.  You have got a clue if you had done the case a different way.  Can I also turn to Ajit Singh [1981] Crim LR 724 – again, an anecdotal example.  This is a case where the defendant had run a defence of self‑defence but had been convicted of unlawful wounding, not the charge which was wounding with intent.  So, it was very hard to appreciate how it was the jury had arrived at this rather merciful verdict:

the judge in sentencing the appellant had stated that he abided by the jury’s finding but referred to the attack as a deliberate attack with a knife, involving the infliction of a dangerous injury.

It was held by the Court of Appeal that:

the Court had every sympathy for the judge, who had a difficult problem in finding a logical basis on which he could sentence the appellant while still giving effect to the jury’s verdict, but it seemed that the judge had sentenced the appellant on the basis of facts which would clearly establish that we was guilty of the more serious offence.

Therefore, the sentence was reduced.

What these cases show – there are many other examples – is that, as your Honour put, if there is a clue available, then it helps you on your way to discussing what the basis was.  But it is not simply a question of saying, “Guilty of unlawful wounding”.  That is enough.  You look at any reasonable inference that you can deduce from it.  So the question really is:  to what extent must active steps be taken during the trial where you have got a case which is capable of two interpretations by a jury to make sure, if it is at all possible, that you have some insight as to the verdict given by the jury.

I need then, if I may, to turn to some extracts of the facts.  Can I turn first of all to the summing up, which is in volume 3 at page 488.  I will skim through this so your Honours will have the whole passage in mind.

GAUDRON J:   Can you tell me was there – I mean, I presume there was – an accomplices warning to the jury that it would be dangerous to convict on the uncorroborated evidence?  I mention it only because it seems to be a matter that may bear on the sentencing process.

MR SCRIVENER:   Yes, impeccable directions on corroboration, and a very detailed resume of the evidence capable of corroboration.  There were many good points to be made against the accomplice, Cheung.  His Honour lists them in one part of the sentencing exercise – which I will take your Honours to in a minute – not least of which was that there were two packets of heroin found in a car later after he had been returned back home, which the judge had to say he must have forgotten about and left there.  Another more uncharitable view was that he kept it for himself, that they were extremely valuable commodities.

His Honour started the relevant part of the evidence at 488 and in this passage beginning at 10 he is indicating that the first group of facts, three groups:

The first group comprises things allegedly done by the accused in Hong Kong between about August or September 1988 and the time when the shipment of heroin left Hong Kong on or about 13 December 1988, consisting of his several meetings with and conversations with Cheung Siu Wah and also the accused’s dealings, during the same period, with other persons identified and unidentified, who participated in the shipment.

The only evidence of the accused’s meetings with and conversations with Cheung Siu Wah is the evidence of Cheung Siu Wah himself.  As to the accused’s dealings with others involved in the importation during that period, there is no direct evidence at all.  The only evidence that he had any such dealings is in the form of inference, which you are invited to draw, from certain events which occurred.  Of the occurrence of those events, again, there is no evidence other than the evidence of the witness Cheung Siu Wah.

It follows that you could not find proved against the accused any of the alleged acts between August/September 1988 and 13 December 1988 unless you accepted the evidence of Cheung Siu Wah about them.

The second group of acts which the Crown alleges against the accused as amounting to knowing concern of importation consists of his dealings with Cheung Siu Wah between the time when the drugs left Hong Kong on 13 December 1988 and the date when Cheung Siu Wah, having returned from Hong Kong to Vanuatu, left Vanuatu on 24 April 1989 to travel to Sydney.  These dealings include the meeting which is alleged to have taken place between the accused and the woman Amy.  This is the only one of the events relied upon by the Crown over the whole period from August 1988 to April 1989 of which there is any direct evidence other than the evidence of Cheung Siu Wah.  In respect of that meeting alone there is evidence from another witness, namely, the wife of Cheung Siu Wah but she can give evidence only of the fact that a meeting took place.  As to the nature of the meeting, the purpose of it and the identity of the woman whom Cheung Siu Wah claims to have introduced to the accused, there is no evidence other than the evidence of Cheung Siu Wah himself.

I just pause to say that in his findings of fact, his Honour could not find on the burden of proof that such a meeting ever took place.  So we have the first two groups of facts entirely depends on the evidence of Cheung.  His Honour then passes to the third:

The third group of acts of the accused which the Crown alleges amount to knowing concern in the importation comprises acts alleged to have occurred between a date in mid April 1989, which the evidence does not precisely fix and the date of the accused’s arrest, 12 May 1989.  The acts which the Crown alleges consist of, firstly, the three telephone calls which the accused made from Hong Kong to Cheung Siu Wah in Sydney and second, the accused’s decision not to report to his superiors his contacts with Cheung Siu Wah –

and two other accomplices –

between mid April 1989 and 12 May and his giving effect to that decision by, in fact, making no such report.

He goes on to say, his Honour, that “the accused does not dispute” making the phone calls.  What he says further on is the issues are quite different.  In respect of the first two periods, the issue is whether the acts ever took place.  If the acts took place, easy to infer intention because there could be no honest intent if the acts were proved.  In the third group the issue was quite different because the acts were admitted, were agreed.  There it was a question as to whether the necessary intent could be proved.  His Honour at 490 gives a very full definition of intent, and at page 492 he makes the point to which I have just made reference, at line 6:

The point is that, in very many circumstances, the doing of a particular act will itself demonstrate the intention with which the act was done.

Then in that page and onto page 493 and 494 he makes the point I have just mentioned, namely that the acts themselves would speak for themselves as to intent.  But on the third, which was not Cheung only, it was a question of intent.  So there was a clear distinction between the last set of facts and the first two.

Now, that being the position, as it stands at the moment, it is quite possible for the jury to have decided to find the appellant guilty on the basis of the third group of facts, a period of a few weeks, with a limited number of acts in it.  If that were right, one would have anticipated a more modest sentence, a much more modest sentence.  But the judge has convicted the appellant on the basis of acts 1, 2 and/or 3.  Well, we know it was 3 as well because he says so in terms.  So the judge may well have sentenced the appellant in a way which was not consistent with the verdict.

We simply say that that situation, when the prosecution indicated they were, in fact, relying on an alternative, at that moment warning signs should have gone up and some thought should be given to amending the indictment in order so that the judge would know in due course if the jury were to find the appellant guilty upon what basis they have found him guilty because it would be manifestly unjust if he had been found by the jury to have been guilty only of the third set of facts and he is sentenced on the basis of them all. 

In our submission, the most realistic way of dealing with a problem of this sort is to consider amending the indictment.  The indictment ought to be framed in such a way that the judge will be able to sentence. 

KIRBY J:   I just do not see how that is open to you in this appeal, because you do not appeal against the conviction.  An indictment was found; it was presented; your client was tried on that indictment and you do not complain about the verdict and the conviction, so that we have to take that as the premise.  I can understand the argument that, in that premise, in the direction that were given, that certain approaches should have been taken by the trial judge, but I just do not see how you can tell us what should have been done in terms of the indictment.  That is just not relevant. 

MR SCRIVENER:   Because I do not challenge the validity of the verdict on the count.  That is not my point.  I accept it was a valid verdict on the count.  In fact, it was the fact that it was a valid verdict which has caused the problem.  I do not challenge the verdict in any way at all, what I challenge is the fact that the trial went in this way with the judge not being able to know whether his decision, which he made on the facts, was consistent with the verdict or not. 

GAUDRON J:   But this aspect of your argument is just, in a sense, being helpful, saying:  well, it may not occur in other cases because there may be this process available.  But it did not occur here ‑ ‑ ‑

MR SCRIVENER:   It did not occur.  It could have done. 

GAUDRON J:    ‑ ‑ ‑ and nobody asked for it.  No? 

MR SCRIVENER:   No, they did not.  My submission on that would be it is a duty upon the prosecution to ensure the indictment is in proper form. 

GUMMOW J:   Subject as a ‑ ‑ ‑

GAUDRON J:   Well, that has an ambiguity in it.  I mean, clearly, the indictment was in proper form as such. 

MR SCRIVENER:   It was. 

GAUDRON J:   Yes.  The question is really whether, I suppose, the prosecutor should have seen the potential disadvantage to the accused in proceeding in the manner in which he did. 

MR SCRIVENER:   The minute you mention alternative, as happened in this case, the minute - as the judge picked up very early on, as you have seen, that it was obvious to all concerned that, if you have the three sets of facts and the first two are quite different from the third, the acts themselves would prove the intent, and in the third version you have to prove the intent in addition, because the facts themselves were admitted.  The minute you have that situation, then although you may think well, this is not duplicitous, clearly, it is going to cause problems on sentence, because of the reason which I have said:  that the appellant may well have been convicted on the basis of the third, a modest degree of culpability, but he has been sentenced to life imprisonment on the basis of the more serious. 

GAUDRON J:   Or he may have been convicted by some on one basis and some on another.  As things presently stand. 

MR SCRIVENER:   I am not sure I can take the helping hand on that.  I think the judge gave them proper directions ‑ ‑ ‑

GAUDRON J:   Yes.  But ‑ ‑ ‑

MR SCRIVENER:    ‑ ‑ ‑ about being unanimous and I think that they would have had to find a unanimous ‑ ‑ ‑

KIRBY J:   But did he say “unanimous” on particular subsections of the facts? 

MR SCRIVENER:   No, he did not.  That is quite right. 

KIRBY J:   Well, this leaves open Justice Gaudron’s possibility. 

MR SCRIVENER:   Yes, it does.  That is right. 

GAUDRON J:   That is to say, it is quite possible that in this case six members of the jury found only on a third group of facts, and six on the other. 

MR SCRIVENER:   That is right.  I am much obliged. 

KIRBY J:   This was the problem that arose in this Court in a case of KBT, I think it was, or Crofts, where there were sexual offences. 

MR SCRIVENER:   Yes.  I am going to refer just very briefly to some of those cases because in those cases members of the Court have indicated that when you are looking at an indictment, it should be drafted in such a way that the criminality can be seen and sentencing can be carried out properly.

GLEESON CJ:   Mr Scrivener, matters affecting the extent of an accused person’s culpability often emerge for the first time only in the sentencing proceedings.  It may be that an accused, for example, has said nothing in the course of the trial and then in the sentencing proceedings the accused will either give evidence or will call evidence which has a bearing on the extent of the accused person’s culpability.  The findings of fact about that necessarily are made by the trial judge.

MR SCRIVENER:   That I accept, but this is why this case is different.  What we are looking at here is a verdict on a charge which embraced all the facts which I am considering, all of them.  They are all within the four corners of the indictment.  That is what the verdict entailed.  The only question is the judge seeking to make sure that his decision on sentence is consistent with the verdict.  It is doing the detective job which the Court of Appeal did in those two cases we looked at a short time ago.  These are not matters relevant solely to sentence.  They are relevant also to liability, to guilt and conviction.

KIRBY J:   Yes, but you have no appeal before us.  We can only deal with matters and the matters must be as defined by the record.

MR SCRIVENER:   I do not challenge the conviction.  The count was valid and the verdict was valid.  But the question is, on the basis that this was a valid ‑ ‑ ‑

GAUDRON J:   It is a question of fairness in the trial process.

MR SCRIVENER:   Absolutely.  On this part of the argument, before I turn to the constitutional points, is is it possible in this case for the appellant to have been convicted or being sentenced on the basis of the most grave view of the facts when, in fact, the jury could have, in fact, found him guilty on the most favourable view of the facts.  The answer is:  it is possible.  As this case turned out, exceptionally, and the factors with which the Court is concerned are not just matters of character which the judge would take into account on his own, but they are all tied up with the facts in the indictment, the very matters from which ‑ ‑ ‑

KIRBY J:   But you have no appeal against the conviction.

MR SCRIVENER:   No.

KIRBY J:   There is no relief we can give addressed to the order of conviction.  We are limited, effectively, to say, “Accept the order of conviction and in those premises the judge was bound, or ought to have approached the matter on a basis more favourable to the accused than he did”.

MR SCRIVENER:   Yes, that is exactly what we are saying.  We say there is plenty of scope for that bearing in mind he got life imprisonment.  That is exactly the point, your Honour.  Because all the statements of principle – and I have taken you to Isaacs, which is one of the important cases – always they say it is very important that the judge’s decision on sentence must be consistent with the verdict.  If you pose that question in this case, bearing in mind it was presented in an alternative way, and the facts were so different, as his Honour pointed out in his summing up ‑ ‑ ‑

KIRBY J:   But it is consistent with the verdict, the verdict on the most unfavourable view of your client that was available, which was the view the judge took.

MR SCRIVENER:   Well, he decided the matter for himself.  Those findings may be or may not be consistent with what the jury found.

GLEESON CJ:   You gave us a reference to Ajit Singh.

MR SCRIVENER:   Yes.

GLEESON CJ:   Could I direct your attention to the commentary on that case and the very last line on page 724?  I have in mind the word “necessarily”.  It is the facts “that are necessarily involved” in the decision that constrain the sentencing judge.

MR SCRIVENER:   Yes.  In other words, as a good example in this case, in order to arrive at their verdict the jury would have had to decide whether they accepted the evidence of Cheung.  That is part of the fact.  That would determine whether they found him guilty on all three sections or just one and two.  We have there the trial judge doing exactly the same thing later and he may well have come up with a different view.  There is machinery available, we would suggest, which will enable light to be shed on the jury’s verdict.

HAYNE J:   Well, would it have been open to this jury in accordance with the directions they were given for them to engage in their deliberations by saying “The first section looks hard.  Let us look only at the last section of involvement.  Are we agreed that that is established?  Answer, yes.  Are we therefore agreed on the verdict?  Answer, yes.  Let us return a verdict without coming to consider first and second elements.”

MR SCRIVENER:   Yes, it was.  That was quite possible, because it was run in the alternative, that is one of the dangers.

GLEESON CJ:   Then if the trial judge had asked them a question about whether they had believed Cheung, the answer to the question would have been, “We do not know.  We have not decided that.”

MR SCRIVENER:   Maybe.  Maybe this is not a proper case for a special verdict.  I think special verdicts are very dangerous.  I accept that, and I accept all the criticisms that have been made.  The answer to a case like this where cases are being put in the alternative, and I do emphasise that that is what I am looking at, they are rare.  If you have one count and you are asking the jury to look at an alternative, warning bells should ring out.

GLEESON CJ:   I am not sure that they are all that rare, Mr Scrivener.  This is just a particular example of a situation in which there are different possible views of the extent of the culpability of a person who is found to be guilty of an offence.  That problem could arise in a wide variety of situations, could it not?

MR SCRIVENER:   I was thinking of a situation where we have one charge when there are not separate counts recognising the alternatives.

HAYNE J:   But it commonly arises in homicide.  You charge the accused with murder and, commonly enough, there will be two, three, four ways in which the case might have to be put to the jury.

MR SCRIVENER:   Well, you might have to do that.  It is conceivable, but, again, in my experience, murder/manslaughter you would not bother to have separate counts, I accept that.  If you are going down to GBH with intent, you would have a separate count on it because there is not an alternative to murder or manslaughter.  What is, as I say, very unusual here is ‑ ‑ ‑

GAUDRON J:   I am not too sure how unusual it is, but that does not matter.  One can well imagine similar situations in conspiracy trials which may be a little more common here than in England, but it could certainly happen there.

MR SCRIVENER:   There is a great deal of law on how specific you should be in conspiracy cases, and it is to try and avoid these – if you can break a conspiracy up into parts, you should do so.

GLEESON CJ:   Let me take a case where motive is alleged by the Crown.  The judge will direct the jury commonly that the fact that the Crown alleges a motive does not mean they have to prove one.  The circumstances of the case may affect that.  But the jury may give a verdict in circumstances where nobody knows whether or not they have accepted the Crown case on motive but where a finding on motive is very relevant to the extent of the culpability.

MR SCRIVENER:   Motive is not something the prosecution have to prove in the indictment.

GLEESON CJ:   No, but it bears on the extent of the culpability commonly.

MR SCRIVENER:   It may well do, but it is not something you will find within their verdict because they are not concerned with motive.  Motive is a matter for the trial judge.

GLEESON CJ:   It is a matter for the sentencing judge.

MR SCRIVENER:   Sentencing judge, yes, it is, but it is not part of the indictment.  What I am talking about here was all part of the indictment.

GLEESON CJ:   But one would never know whether or not the jury or some of the individual jurors accepted the Crown’s case on motive with all the consequences that might have, or the view that would be taken of the culpability of the offender.

MR SCRIVENER:   Because it was never within their province to consider matters of motive.  It was always a matter for the sentencing judge.

KIRBY J:   Yes, but the suggestion being put to you is that therefore, when it comes to sentencing, somebody has to decide this and under our system, that is the trial judge, the sentencing judge.

MR SCRIVENER:   Of course, but what I am dealing with are matters within the four corners of the indictment.  I am not concerned with matters like motive, which are always matters solely for the sentencing judge.  The issues I am concerned with, for instance, the acceptance or otherwise of Cheung, was an issue within the indictment.  That is what distinguishes this case from cases of that sort.

CALLINAN J:   Mr Scrivener, could counsel have asked for particulars of the indictment?

MR SCRIVENER:   As your Honour knows, you can.  Your answer normally will be, “Wait to my opening.  You’ll get all the particulars you require in my opening”.

CALLINAN J:   Well, no, because could not counsel have asked for particulars of the respects in which your client was knowingly concerned in the importation?  It seems to me that it might not be a sufficient answer to that to say, “Wait for the opening”.

MR SCRIVENER:   I think the normal practice – certainly, when I am prosecuting I say, “Wait until the opening and then tell me afterwards if you want more particulars”.

KIRBY J:   I do not think that is the law in this country.

GLEESON CJ:   Not in New South Wales with Mr Justice Badery‑Parker.  There would have been extensive pre‑trial proceedings, I should think, in this matter.

MR SCRIVENER:   Yes, I am sure.

GAUDRON J:   But, in any event, if you had asked for particulars you would have got particulars something like, involvement as principal throughout the entire period such-and-such; in the alternative, involvement in his capacity as a person in possession of information which he deliberately withheld for the latter period.

MR SCRIVENER:   Or I might have got exactly what counsel said in opening, which is exactly what I am talking about.

CALLINAN J:   With respect, I do not know whether you would have necessarily got that.  But say whatever you got was put in the alternative, as her Honour has suggested, that would at least have thrown up in a very clear way the possibility of the problem that in fact has arisen.  For myself, I do not see why you would not have been entitled to particulars of the actual respects, not simply to get a response, involvement in as a principal – involvement by, doing or performing certain acts, or the alternative case, abstaining perhaps from doing certain acts.

MR SCRIVENER:   That will be another possibility.  What I have got is the fact that there was an opening which immediately put out the alternatives and the case developed exactly as his Honour indicated in the summing up.  This was a case – always was an alternative.

HAYNE J:   The form of the case against your client was that he knowingly participated by the commission of any or all of the following acts, A to Z.  That was the nub of the case against your client, was it not?

MR SCRIVENER:   In the alternative.  The answer as – the nub of the case against my client exactly was that and if I pose the question rhetorically, “Did the jury accept one alternative or the other?”, the answer is, “No one can tell”.  And you needed to know that if you are going to sentence consistently with the verdict.  As it so happened, the way this case developed, the judge had no idea, and he may well have been deciding matters differently on the very same issues which the jury had to decide their verdict.

HAYNE J:   It may be important to distinguish between consistency with a verdict and consistency with a jury’s reasoning process to a verdict.

MR SCRIVENER:   One leads to the other.  I think you look at the final result.  It is the final result, I think, would be sufficient here.

KIRBY J:   The verdict is not speculation, the reasoning is speculation.

MR SCRIVENER:   No.  It is the result, I think, which is important.  So what we say is that there was a remedy available and the obvious way around the problem, if one had been alerted to it, was to amend the indictment.  I think I was, not challenged, but asked to reveal earlier on how the indictment would go, and it is very simple.  Because you have Cheung involved in the first two sections, you have one count involving those two sections and the second count involves the third section, which is not Cheung on his own.  Now, there could be no objection to that ‑ ‑ ‑

KIRBY J:   Do you have a document with what you say ought to be ‑ ‑ ‑

MR SCRIVENER:   I have not.  I will make sure it is written out over the short adjournment.

GLEESON CJ:   And that if he had been convicted on both counts, what would have been the maximum penalty?

MR SCRIVENER:   The maximum would have been the life ‑ ‑ ‑

GLEESON CJ:   On your basis, he could have been convicted on both counts, could he not?

MR SCRIVENER:   Absolutely, yes.  That is the strength of my position because ‑ ‑ ‑

GLEESON CJ:   Count No 1 is between whatever were the Cheung dates, he was knowingly involved, and count No 2 is between two later dates he was knowingly involved.

MR SCRIVENER:   Yes.

GLEESON CJ:   Now, if he is convicted of both of them, what is the maximum penalty?

MR SCRIVENER:   He gets life, exactly, he gets life.

GAUDRON J:   But now that just discloses the difficulty in that process because at some stage it is the one – it has to be faced up to the fact – it is the one importation that is concerned.  Now, at least it has been said in this Court that one has to be very careful that one is not charged with separate offences for what in essence is the one importation – and I forget the name of the case – but you could have done it this way, could you not:  the prosecutor could have charged between 1 August and 12 May “knowingly concerned”, in the alternative, between April and May “knowingly concerned”, and the jury could have been directed that it must consider the first charge first and only if it found your client not guilty on the first would it consider the second.

MR SCRIVENER:   Yes, that would be another alternative.  The only reason I turned against that as a possibility was because of the arguments which say that one half of the jury may have agreed one thing and the other half may have agreed something else.

GAUDRON J:   Well, no, it would have to be explained that between the first – you would say throughout the period, you might say, instead of between, throughout the period 1 August to 12 May and suitably directed that they had to find, at least at the beginning and the end.  Yes.

MR SCRIVENER:   The way I would formulate it at the moment was simply to make count 1, 1 August 1988 to 24 April, 1989, which is all the Cheung only part of the case, and count 2, the last period, which is not Cheung only, and you tell the jury exactly that, why you have done it.

GLEESON CJ:   If you introduced the concept throughout, you would be severely limiting the Crown’s case, would you not?  You would be making them prove something much greater than they had to prove.

MR SCRIVENER:   Not at all, because within that first count there are two periods of time.  As long as they found one, that would be quite enough.  They have not got to find both.

KIRBY J:   This was a commentary on the substitution of “throughout” for “between.”

MR SCRIVENER:   Yes.  The facts as they emerged show that these periods were precise.  They were identifiable periods.  Although, of course, dates are not essential to the indictment, on the facts in this case ‑ ‑ ‑

KIRBY J:   Your theory does introduce - and it maybe what the Constitution requires or what is proper and fair by the common law, but it does introduce an element of interrogating the jury as to the basis of their verdict.

MR SCRIVENER:   No.  With respect, what it does it insures that the judge has sentenced on the same basis as the verdict.  That is the aim.

GLEESON CJ:   Mr Scrivener, there is one other difficulty I have tentatively at the moment with your suggested alternatives in the indictment.  The Crown may be required and commonly is required to particularise, but the Crown is not required to pin itself to a particular view of the evidence which is expected at the commencement of the trial.  The evidence often turns out to be different from what anybody thought it was going to be in the course of the trial, and it is a little unlikely, is it not, that any trial judge would have pinned the Crown or the prosecution down to a case which depended upon all the witnesses coming up to their proofs and nothing unexpected turning up in the evidence in the course of the trial.

MR SCRIVENER:   As a generality I would accept that but here it was a very clear distinction between the Cheung evidence where only Cheung could satisfy and the other evidence which was something extra than Cheung.  That was always there from the beginning, remained throughout and was there at the end.  That is why his Honour directed the jury as he did.  That was never in dispute and never in doubt.

GLEESON CJ:   How long did this trial last? 

MR SCRIVENER:   I have to take instructions.  With the greatest respect, it was done with commendable speed because it could have been an extremely long case and it was done very quickly.  My recollection is eight weeks.  My learned friend who was in the trial thought it may even be less than that – five or six weeks. 

GUMMOW J:   Mr Scrivener, I have taken it that you have been dealing with your fifth submission on page 10, is that right?

MR SCRIVENER: Yes. I deal with the common law part first before I deal with the Constitution part.

GUMMOW J:   That is right.

MR SCRIVENER:   I am simply saying that the trial was unfair because the charge ‑ ‑ ‑

GAUDRON J:   Not the trial itself?

MR SCRIVENER:   The sentencing.  The sentencing, we would submit, is part of the trial.

GAUDRON J:   Yes, but in the circumstances which happened there was an unfairness?

MR SCRIVENER:   Yes.

GLEESON CJ:   But unless you can get to the point of demonstrating that in the events that occurred the trial judge was obliged to sentence on the basis that the jury did not accept the Cheung evidence, there is no alternative remedy available now, is there?  We cannot ask anybody any questions now.  The jury cannot be brought together again, and the trial judge was confronted at sentencing with going ahead and finding the facts himself or taking this alternative course.  May I ask you whether it was submitted to the trial judge on sentencing that in the events that had occurred he was obliged to sentence on the basis that Cheung’s evidence was not accepted?

MR SCRIVENER:   No, neither way.  The prosecution never said that they should assume that Cheung’s evidence was accepted and the defence is not saying it should assume it was not accepted.

GLEESON CJ:   So this is not an argument we find Justice Badgery‑Parker considering because it is not an argument that was put to him.

MR SCRIVENER:   No.

KIRBY J:   You just say that in fairness of the common law he ought to have proceeded on that basis in these facts.

MR SCRIVENER:   If that criteria that you must ensure that your sentence is consistent with the verdict, then that presupposes, as a corollary to that, that if there is machinery available within the court’s processes, that they should be used to detect that.  In some cases ‑ ‑ ‑

GAUDRON J:   Did the sentencing judge remind himself, in terms, in the sentencing that he would need to be satisfied beyond reasonable doubt of the truth of this accomplice?

HAYNE J:   At some length, I think.

MR SCRIVENER:   Yes, he did.

GAUDRON J:   He reminded himself.

MR SCRIVENER:   He certainly did.

GAUDRON J:   Not the jury.

HAYNE J:   No, at some length, in the sentence.

MR SCRIVENER:   He did.  I would not criticise it at all, but can I just show you the two passages which are of relevance, is in volume 4, page 696, just between 40 and 45.  This is during the litigation:

It is not my function to decide what the jury decided.  It is my function to see of what facts I am myself satisfied.

That is correct within Isaacs, and it is 727, at the top of page 727, the learned judge said:

Cheung Siu Wah in fact gave evidence which, as it seems to me, the jury probably accepted.  That, however, is not the relevant question for me because, as will appear, the jury’s verdict was ambiguous as to the basis of it so that it is incumbent upon me to find what facts are proved to my satisfaction beyond reasonable doubt, consistently with the jury’s verdict.

KIRBY J:   Well, that is impeccable.

MR SCRIVENER:   Impeccable.

GAUDRON J:   Well, I am not too sure that it is.

HAYNE J:   And at 732 and following his Honour gave himself explicitly the accomplice - - -

GAUDRON J:   Yes, but having found that the jury probably accepted your client – is that your client or the other client?

MR SCRIVENER:   No, that is the witness, that is the accomplice.

GAUDRON J:   That is the accomplice, thank you.

MR SCRIVENER:   Yes.  What the learned judge does is to recognise what the authorities say.  If you are faced with an ambiguous verdict there is no way you can go, so you have to decide the facts.  What we are submitting here is that the minute the prosecution began with one charge and alternative cases which were so different, one requiring only the act and one requiring the intent and which have enormous differences on sentence, it became incumbent to say, “Well, I had better try and find a way around that”.  The obvious way was to amend the indictment.

GLEESON CJ:   Mr Scrivener, may I interrupt you to ask how long do you expect to require to complete your argument?

MR SCRIVENER:   Well, I was going to say it depends on the questioning.  I would have thought I would probably be another hour

GLEESON CJ:   How long do you think you will be, Mr Agius?

MR AGIUS: Perhaps an hour and a half. I propose to adopt my friend’s submission in relation to section 80, largely, and that will shorten by submissions considerably. That is the intervener’s submissions.

GLEESON CJ:   How long do you think you will be, Mr Solicitor?

MR BENNETT:   I would think half to three‑quarters of an hour, your Honour, at the most.

GLEESON CJ:   Yes, they are very length estimates.  We will adjourn until 2 pm.

AT 12.57 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.01 PM:

GLEESON CJ:   Mr Scrivener, we will be sitting until 4.15 today.  If we do not finish today, the matter will be stood over til the first day of the next Canberra sittings of the Court, which is the 22nd May.

MR SCRIVENER:   Thank you, I am very much obliged.

I would now like, if I may, just to draw your attention to two cases - there is a third but that case is referred to in the other two - of where justices have, in fact, emphasised the importance of the indictment or the charge with respect to sentencing.  Can I first of all turn to a case called Khouzame (1999) 108 A Crim R 170. I think we provided copies this morning. I hope they managed to get through.

GUMMOW J:   Yes, we have it.

MR SCRIVENER:   Thank you.  It is a duplicity case, but if your Honours would turn to page 178, this is a joint judgment of Justice Ireland and Justice Kirby ‑ ‑ ‑

GUMMOW J:   Not the same one. 

MR SCRIVENER:   A different one, I have checked.  The bottom line on that page:

The rule against duplicity is easily stated.  Its application is rather more difficult.  Each count in the indictment should charge only one offence.  The broad basis of the rule was identified by Gaudron and McHugh JJ in S in these words:

“The rule against duplicitous counts has also long rested upon a basic consideration of fairness, namely, that an accused should know what case he or she has to meet.”

Their Honours elaborated in the following passage –

and this is the part I had in mind –

“One important consideration is the orderly administration of criminal justice.  There are a number of aspects to this consideration:  a court must know what charge it is entertaining in order to ensure that evidence is properly admitted, and in order to instruct the jury properly as to the law to be applied; in the event of conviction, a court must know the offence for which the defendant is to be punished – ”

KIRBY J:   But the key word is the “offence”. 

MR SCRIVENER:   Yes. 

GLEESON CJ:   Not the conduct. 

MR SCRIVENER:   No.  But is it enough to say:  you have been convicted of the most heinous offence deserving of life, in the facts of this case, from the case presented in the alternative? 

KIRBY J:   That is the strength of your argument.  It seems to me, at the moment in this case, that it is not as if this is a marginal difference of a small degree.  This is a very big difference, touching a very large amount of liberty. 

MR SCRIVENER:   Your Honour, that is right.  It is not whether there was a banging of a head with a weapon or a fist.  It is a huge difference.  Can I just indicate another case, Walsh v Tattersall (1996) 188 CLR 77. The facts do not matter; it is a duplicity argument again. At page 90, in the joint judgment of Justice Gaudron, Justice Gummow, the first paragraph, four or five lines down:

Moreover, as Kirby J points out in his reasons for judgment, the giving to par (a) of the specificity which it bears on its face assists in the determination, upon conviction, of the sentence appropriate to the offence –

So two more judges agree that that really is one of the functions of the indictable charge.  At page 106, you will see that their Honours, in fact, again cited that passage in S v The Queen with approval – the passage I have read already.  And then at 111, in the judgment of Justice Kirby, by No 2: 

The rule of strictness is also desirable for the fair trial of the accused, basically for the reasons identified long ago in Johnson v Miller and restated in S v The Queen.  The rule helps to address the attention of the accused (and any legal representative the accused may have) to the elements of each alleged offence.  It assists in decisions about how to plead.  It clarifies contested questions about the admissibility of evidence relevant to the offences so specified.  It contributes to accurate sentencing where a conviction is recorded upon those offences. 

So I think I managed to include four members of this Court who all ‑ ‑ ‑

KIRBY J:   In its elements of the offence.

MR SCRIVENER:   In its elements of the offence.  But if, in fact, on the peculiar facts, as they are in this case, there are two possibilities:  how can that duty be fulfilled, and if it cannot be fulfilled, how is then the court to deal with it?  Can I then pass up the copy of the draft indictment which we were suggesting this morning would be a suitable one which would cure the faults?

GLEESON CJ:   Thank you.

GUMMOW J:   We already have it.

MR SCRIVENER:   Now, the object of the exercise is to ensure that the evidence which is only supported by Cheung can be identified in the indictment.  So count 1 contains within it the first two sections, the first two periods, which are only supported by Cheung.  Now, the jury can convict on that count if they accept one or other, or both.  That leaves the second count to deal with period three.  There is no overlap between the two so you do not get any confusion or the possibility of the jury taking number three into account in count 1 and reaching a different verdict on count 2.  That is why we have done it separately.

HAYNE J:   That the consistency required is no controverting.

MR AGIUS:   That is right, of anything that is implicit in the verdict.  There is nothing here that controverts a finding which is the barest minimum finding to sustain the charge.  Of the very least, counts of their very nature present this sort of problem to juries every day.  Every time someone is charged with a “knowingly concerned in an importation” count, unless the person is no more than the bare courier, there is always an issue as to the extent of their culpability, or the extent of their role.

GLEESON CJ:   Yes, whatever might be the proper outcome of this case, for my part, I have a lot of difficulty with the notion that it is unusual.

MR AGIUS:   Your Honour, we would suffer from the same difficulty.  Importations, of their nature, are a continuing enterprise, particularly importation of drugs.  People have to organise the drugs to get them together so that they can be forwarded.  People often have to shepherd them here.  People have to receive them here and the importation is not over as soon as the drugs land on the shore, they need to be extricated.  Now, the offence is “knowingly concerned in” an importation.  Of its very nature, that is an offence which carries with it some continuing activity.

GAUDRON J:   Were there any other offences – any greater offences that could have been charged?

MR AGIUS:   Not to reflect the criminality.

GAUDRON J:   No, higher offences, greater offences.

MR AGIUS:   No, there was no other offence that could have been charged.

GAUDRON J:   He could not have been charged with importation?

MR AGIUS:   Well, only on the basis of common purpose and as ‑ ‑ ‑

GAUDRON J:   That is what I am just wondering.  Could you have charged him with importing through his agent, the accomplice, and then added in the alternative a “knowingly involved”?

MR AGIUS:   On the minimalist view, he was guilty of importing as an accessory or in complicity with the informant.

GAUDRON J:   So he could have been charged with importation on the prosecution case in the way you put it?

MR AGIUS:   On any view he could have been charged that way.  We would have been criticised if we had charged him in that way.

GAUDRON J:   I am just wondering would you have been criticised in the circumstances of this case.  I mean, what the Chief Justice says is right.  There is nothing unusual in the nature of the legal problem.  What is unusual in this case, however, are the factual circumstances where, on one view at least, so long as the jury found intention to advance the importation his involvement was of a lower level than as the recruiter and mastermind, or may have been of a lower level.

MR AGIUS:   Your Honour, one must bear steadily in mind the overriding principle that the question of resolving guilt is a matter for the jury and the way in which ‑ ‑ ‑

GAUDRON J:   But what I am really coming to is this:  is there perhaps a De Simoni point here?  When his Honour Justice Badgery‑Parker went through and said, “I accept the evidence of the accomplice in its entirety.  I accept that the accused recruited him, organised it, masterminded, et cetera”, he was not sentencing for importation rather than being knowingly involved.

HAYNE J:   Now, that may invite attention to whether you are right to say that he could have been charged with importation where the section does not have the usual aid, abet, procure means that you are guilty of the principal offence.  Rather, it says “aid abet counsel or procure”; “be knowingly concerned in” is a separate offence.

MR AGIUS:   Your Honour, that is so, with respect, but there is also section 236 of the Customs Act, which is a separate accessorial offence.

GAUDRON J:   But even the definition of the offence really suggests possibilities in this case.  On the evidence of the accomplice, you could have charged him “procure the importation”.

MR AGIUS:   It was not the Crown case that he necessarily only procured the importation or, indeed, that he necessarily did procure the importation.

GAUDRON J:   I know it was not necessarily the Crown case, but that may have made alternative charges of “procure” and “involved in the importation”, may have elicited the crucial factual significance of the accomplice’s evidence, namely, that he had been solicited to undertake it.  So, although Mr Scrivener has presented one form of indictment, the very words of the section may have provided another means of doing it. 

MR AGIUS:   Your Honour, we would argue that those words “aid abet counsel or procure” are all subsumed in the words “or otherwise knowingly concerned”.

GAUDRON J:   No, I think that ‑ ‑ ‑

HAYNE J:   That is a very bold submission, given the way 233B(1) is structured.

GAUDRON J:   ‑ ‑ ‑ I would have thought not.

MR AGIUS:   Your Honour, there are separate aiding and abetting offences in section 236.

HAYNE J:   Yes, 236 was there since 1901; 233B was introduced much later and 233B very carefully segregates the several elements.  Now, if that is the position the Director wishes to maintain, I will be interested on the resumption to hear how it is maintained.

MR AGIUS:   Your Honour, it is in any event our argument that that would not resolve the issue in this case.

GLEESON CJ:   We will perhaps come back to that when we resume.  We will adjourn further hearing of this case until 10.15 am on 22 May.

AT 4.17 PM THE MATTER WAS ADJOURNED
UNTIL TUESDAY, 22 MAY 2001