Chick v the Queen P80/2000

[2001] HCATrans 538

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P80 of 2000

B e t w e e n -

ANTONIOUS PETER CHICK

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY, 24 OCTOBER 2001, AT 3.04 PM

Copyright in the High Court of Australia

MR S.W. O’SULLIVAN:  If your Honours please, I appear for the applicant.  (instructed by Cannon Bowden & Co)

MR S.P. PALLARAS, QC:  If the Court pleases, I appear with my learned friend, MS J.A. GIRDHAM, for the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

MR O’SULLIVAN:   Your Honours, the special leave point in this particular matter has its real commencement point, I suppose, well prior to the Court of Criminal Appeal’s dealing with the matter but, of course, the special leave point itself arises out of the use or, we would say, misuse of the proviso to section 689(1) of the Criminal Code in Western Australia in this particular case because we say that the court asked itself the wrong question, and not only asked itself the wrong question, but got the wrong answer, even to the wrong question.

To follow it through, one needs to go back to the genesis of it which is in an accepted misdirection by the trial judge in relation to the trial itself.  The effect of that misdirection was really twofold.  Firstly, it effectively meant that there was a trial of an offence that was not, at the time, known to the law and very possibly arising from that, a conviction for an offence which was not known to the law.  That arose because there are a number of - six, in this case - charges of possession of prohibited drugs with intent to sell or supply to another and the definition of supply was different, as between the definition given by his Honour, which was a definition which was provided in ‑ ‑ ‑

GLEESON CJ:   I am sorry, I did not follow your submission.  You said he was convicted of an offence not known to the law?

MR O’SULLIVAN:   Not known to the law in the sense that he was convicted of an offence of possession with intent to sell or supply when the meaning of supply was not the meaning of supply given by the trial judge.

GLEESON CJ:   I do not understand your submission.  You might say that there was a misdirection at the trial, and I understand that, but I thought you submitted that he was convicted of an offence that was not known to the law.

MR O’SULLIVAN:   He may have been convicted of an offence that was not known to the law because the meaning of “supply” at the date at which he did the conduct, which was the subject of the charge, was different from the meaning of “supply” that was given by the learned trial judge because the learned trial judge was using a definition which had been put into the Act later and which did not have retrospective effect.

GLEESON CJ:   I am terribly sorry to hold you up on this point, but when you said he was convicted of an offence that was not known to the law, you made a submission of very serious legal import if you meant it to be taken literally.  Which of the grounds of appeal raises that ‑ ‑ ‑

MR O’SULLIVAN:   We would say, your Honour, that it comes out of the ground which is the ground that the judge misdirected the jury by directing the meaning of the word “supply”, was as set out in the amendment which did not apply at the time.

GLEESON CJ:   Do you propose, if you were granted leave, in your draft notice of appeal, do you have a ground of appeal saying that he was convicted of an offence that was not known to the law?

MR O’SULLIVAN:   Not in those words, your Honour.

GLEESON CJ:   That would be a very serious thing to say.

MR O’SULLIVAN:   Yes, the way ‑ ‑ ‑

GLEESON CJ:   You seem to have tossed it off fairly lightly, Mr O’Sullivan.

MR O’SULLIVAN:   I am not, your Honour, not at all.

GLEESON CJ:   If that is your point, why is it not in your draft notice of appeal?

MR O’SULLIVAN:   Well, the draft notice of appeal does not set out, I suppose, the chronology of what occurred, but the effect of what ‑ ‑ ‑

GLEESON CJ:   To say that a person was convicted of an offence not known to the law means that what the person was found to have done was not a crime.

MR O’SULLIVAN:   I am putting it on the basis that you cannot be sure, in the light of the direction, that he was not convicted of an offence of being in possession of a prohibited drug with an intent to return it to the owner and ‑ ‑ ‑

GLEESON CJ:   I think you may be using a technical expression in a way that is unintended.  Do you really mean to say that the jury, in following the judge’s direction, may have reached a decision in the case on the basis of a misunderstanding of what the law was?

MR O’SULLIVAN:   Well, on the basis of what they were told the law was, yes.

GLEESON CJ:   That is something different from saying the person was convicted of an offence not known to the law.

MR O’SULLIVAN:   If I have taken it too far, then I apologise.  But that is - the thrust of what I am trying to get over is that when the judge told the jury that possession of a prohibited drug with intent to sell or supply included the return of the prohibited drug to someone who had provided it to him, then that was not the law at the time when the activity actually took place and there was no retrospective operation of the law which is accepted.

GLEESON CJ:   But that would only be important if, on the facts of the case, there was a reasonable basis on which the jury might have come to the conclusion that the form of possession in which he was engaged was that.

MR O’SULLIVAN:   Yes.

GLEESON CJ:   That is what the case is about, is it not?

MR O’SULLIVAN:   Yes, it is, but there are two sides to it, we would say, your Honour.  One is that the direction that was given by his Honour effectively made what was to him a defence, an element of the offence.

CALLINAN J:   Where do I find the direction by the trial judge?

MR O’SULLIVAN:   The direction by the trial judge, your Honour, is at the top of page 12.  His Honour gives “Possession” at line 5, and then:

To “supply” includes to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied.

CALLINAN J:   That is precisely in terms of section 3 which was introduced after your client was charged, or after the events, is that right?

MR O’SULLIVAN:   Yes.

CALLINAN J:   Now, in what way does that then, that direction, deny your client the benefit of a possible defence?

MR O’SULLIVAN:   Because it says that to “return” the drug to somebody is part of “supply”.

GLEESON CJ:   What aspect of the defence case, in the present case, was related to that returning?  He never said he was intending to return this, did he?

MR O’SULLIVAN:   It depends upon how you look at that evidence, your Honour, but if you go to page 50 of the application book, his Honour Justice Anderson, who was delivering the decision, with which the other two judges in the Court of Criminal Appeal agreed, sets out what he says is the evidence of the then accused person on this point.

GLEESON CJ:   But his case was that he was acting under duress, as I understand it.

MR O’SULLIVAN:   That is right.

GLEESON CJ:   And his case was that, under duress, he was being compelled by these thugs to deliver this drug to some third party, not to return it to them.

MR O’SULLIVAN:   But he goes on to say that is certainly what he thought was going to happen to it in terms of his intent because he says at page 50 at 14:

He gave evidence . . . a big blue bag which was obviously dropped over and it was - the top of the bag was open, you know, and [there] was cannabis on the ground.

He goes on down at about 48:

What were you told to do with the bag?---I was told to keep it in my - till they let me know what to do with it, where to drop it, or when they’re going to pick it up, and ‘Just do as you’re told, c-, or else you’ll find out’.

Then again, over the page at 51 point 30-odd:

The only evidence I had then, it was that I was in possession of the drugs, and I didn’t know who they bloody belonged to.

Just below that:

but on a later day I got another call to take those drugs and everything down to my place . . . Because they would be picked up from north of the river.

That is the evidence that the Court of Criminal Appeal looked at and we say applied the wrong test to because they should have been looking to see whether he was deprived of a fair chance of acquittal.  What the court simply looked at was the issue of whether or not the court considered that that added up to proof on the balance of probabilities of a very narrow view of something being supplied by an owner and then returned back to the owner, which is perhaps narrower than the case of ‑ ‑ ‑

CALLINAN J:   Was there a statutory definition of “supply” which did apply to this offence?

MR O’SULLIVAN:   No, your Honour, no, there was not.

CALLINAN J:   No statutory definition?

MR O’SULLIVAN:   No.

CALLINAN J:   So “supply” just meant whatever it meant in ordinary language.

MR O’SULLIVAN:   Yes, that is the way it had been interpreted up until then and then Manisco’s Case came along, and that followed Carey’s Case in New South Wales ‑ ‑ ‑

GLEESON CJ:   But, rightly or wrongly, at page 52, between lines 25 and 30, Justice Anderson gave his reason for saying that there was no miscarriage of justice.

MR O’SULLIVAN:  

The appellant did not give evidence that he believed that he was merely holding the drugs on receipt from the owner with a view to returning them to that same person.

Is that the passage?

GLEESON CJ:   Yes.  It is pretty easy to understand, if I may say so, why no Manisco defence was run at the trial.  Counsel for the appellant, amongst other people, would appear to have been under the impression that the statutory definition of “return” applied.

MR O’SULLIVAN:   Did apply, yes, that is the problem, your Honour.

GLEESON CJ:   But one of the consequences - some of these misapprehensions can sometimes even lead to the truth emerging and there was no attempt, as I understand it, on the part of your client, to make out a case that, in truth, he was setting about returning this.

MR O’SULLIVAN:   There are two things to say about that, with respect, your Honour.  One is that the whole case seems to have been run, certainly by defence counsel, on the basis that your Honour has just suggested.  Had it been known that this defence was available ‑ ‑ ‑

GLEESON CJ:   It might not have occurred to him to suggest that he was going to return it.

MR O’SULLIVAN:   No, but what he might well have done - I was not going to take it that far, your Honour - was to have actually addressed in a more direct way that particular issue in that exchange in the evidence that I have just read to you.

GLEESON CJ:   But this was a case about duress, was it not?  That was the defence.

MR O’SULLIVAN:   Well, because, one might think - and there is certainly the danger - that it was about duress, because it was thought by everybody that the other defence that was really available was foreclosed.  Now, that makes a fair difference to the way you conduct the trial.

GLEESON CJ:   It makes it sound very meritorious.

MR O’SULLIVAN:   It may well be meritorious.  I mean, I am not suggesting that someone has put to the man that he should claim duress for a situation that otherwise was existing voluntarily, but it is quite open for the jury, on the way this particular trial was run, had they been properly directed, to say, “All right, we are not satisfied that he meets the test for duress”, which is quite a strict test, “but we are satisfied that he meets the test that he either had in mind simply giving it back to the people who provided it to them, unknown as they were, or that he simply had not made up his mind at that particular point of time as a positive thing.

GLEESON CJ:   Mr O’Sullivan, where do we find this balance of probabilities direction that you have mentioned?

MR O’SULLIVAN:   The balance of probabilities direction is ‑ ‑ ‑

GLEESON CJ:   Not a direction, a statement by Justice Anderson, a test, if I could put it that way.

MR O’SULLIVAN:   Justice Anderson simply does it by - at page 52, your Honour, that is what he is saying at line 17:

In my opinion, there was no occasion for the trial Judge to give a Manisco direction and his failure to do so has not produced a miscarriage of justice.

GLEESON CJ:   But you have attributed to him, in your argument, an erroneous test as to the proviso and, as I understand your argument, you said the test he applied was whether or not - he asked himself whether, on the balance of probability, something was the case, and I just want to pick up where he used that expression.

MR O’SULLIVAN:   I am sorry, he did not use that expression, but that is what the test is, and what he has said in his ruling is that there is not, on the evidence, a defence.  In other words, there is not that ‑ ‑ ‑

GLEESON CJ:   But he has just addressed the facts.  I do not see any test at all in that paragraph.  I see him say something about the facts and then express in the following paragraph a conclusion about the proviso.  I am trying to see where he applied the wrong test.

MR O’SULLIVAN:   What he has looked at there, and at 49, I think it is, he simply says at 49 35 again:

There was no factual basis upon which a Manisco direction was called for.

Now, the point of it is that, at that particular time, the law said that you were presumed to have the proscribed intention of being in possession with intent to sell or supply unless you proved the contrary.  Proving the contrary has always been taken to be establishing on the balance of probabilities.

CALLINAN J:   But the Crown would not have had to, pre the amendment, would it, prove beyond reasonable doubt that your client did not intend to return the drugs?  There has to be some basis for it, it has to be raised, and there is no basis for its being raised at all on the facts as they were brought out at the trial.

MR O’SULLIVAN:   With respect, your Honour, when the man says:

I was told to keep it in my - till they let me know what to do with it, where to drop it, or when they’re going to pick it up, and ‘Just do as you’re told -

Now, he was doing it under direction but, nonetheless, that is what he was doing.  He does not have any intent.  If that is believed by the jury, he does not have any intent to sell it or supply it in any other sense of the meaning of “supply”, if he is believed on that.  But the way the trial was run, that was never an issue which was permitted to go to the jury because of the nature of the direction, because to do that would be a “supply” under the new definition, irrespective.  That is what he has lost.

CALLINAN J:   You are saying that that laid a foundation for a direction that he might have intended to return it, but that direction was not given because of the misapplication of the non‑applicable statute.

MR O’SULLIVAN:   Yes, that is the second part of it.  Not only was it not brought to the jury’s attention as a possible defence, they were told positively that that sort of thing is not a defence.

GLEESON CJ:   Well, it was not part of his case.  The direction was not asked for because the trial counsel, like everybody else at the trial, was under the misapprehension that returning it was not a defence.

MR O’SULLIVAN:   Yes, that is right, your Honour.

GLEESON CJ:   And why he did not set out to make it a case that he was returning it.

MR O’SULLIVAN:   But it was there in the way that he made out the case that he was being led through and, without meaning to trivialise it, the applicant sits in prison without having had the opportunity of having this ventilated because nobody at the trial knew that it was available.

GLEESON CJ:   But if his intention - the real defence was that he was being forced to do this.  Put that to one side at the moment.  If his intention was to retain these drugs in his possession and then to comply with whatever direction he had from the third party as to where to deliver it, either to deliver it to somebody else or to let them come and pick it up, that is an intention that amounts to an intention to supply.

MR O’SULLIVAN:   Not if it is an intention to give it back to the person who provides it ‑ ‑ ‑

GLEESON CJ:   But that is my point.  That is not the totality of the intention.  The totality of the intention is to deal with these drugs by handing them over to whoever he is instructed to hand them over to.  Now, the Manisco defence is a defence on the basis that you only intended to hand them over to the true owner of them.

MR O’SULLIVAN:   Yes, although it is probably a little wider than that: the provider to you.

GLEESON CJ:   Yes, but that is why that concept of return did not constitute supply.  But if your intent is to hand them over to whoever you are instructed to hand them over to, then that is an intent to supply, is it not?

MR O’SULLIVAN:   If you intend that to be someone different from the person who gave it to you, yes, but that is surely a jury question.

GLEESON CJ:   You intend it to be “whomsoever” may be identified as the person to whom you are to hand it over.  It does not matter to you whether it is the true owner or not.

MR O’SULLIVAN:   The true position may well be slightly different, your Honour, and it may just be that until you are told, there is no intention, as a positive circumstance.

CALLINAN J:   The fact that the drugs might end up back in the hands of the person who originally provided them to the accused does not, of itself, necessarily mean that there is not a supply.  It may be in some cases that it would not be a supply, but there may be cases in which it is.

MR O’SULLIVAN:   That is really something as a matter of fact that has to be run, I would have thought, your Honour.

CALLINAN J:   In the example given to you by the Chief Justice, the fact that the drugs might end up back with the original supplier does not mean that there has not been a supply.

MR O’SULLIVAN:   It depends upon how you look at it.  One can look at this situation and say, “Well, it is going to go back either to the person who put it over the fence”, which may be too narrow a view of it anyway, “or certainly to that person’s agent”.

GLEESON CJ:   It might be very bad luck that he chose to give this version of the facts but he gave a version of the facts and a version of his intention as to what he was going to do with this drug that was not an intention, solely, to return them to the true owner.

MR O’SULLIVAN:   He has not given it in a formula sense, which seems to be what Justice Anderson seems to require in the portion that your Honour took me to.  But what he is doing is raising that as something that he thought he was going to be doing with it.  Now, it should be a jury question from there.

GLEESON CJ:   Yes, thank you, Mr O’Sullivan.  We do not need to hear you, Mr Pallaras.

The Court is of the view that there are insufficient prospects of success of an appeal to warrant a grant of special leave in this matter, and the application is refused.

AT 3.25 PM THE MATTER WAS CONCLUDED