Courtney-Smith v The Queen

[1991] HCATrans 69

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney	No S80 of 1990
B e t w e e n -
GEORGE ANTHONY COURTNEY-SMITH

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ
BRENNAN J
DEANE J
TOOHEY J

GAUDRON J

Courtney-Smith 1 12/3/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 12 MARCH 1991, AT 11.43 AM

Copyright in the High Court of Australia

MR J.C. PAPAYANNI:  May it please the Court, I appear with

for the appellant in this matter.	(instructed by
Jeffreys & Associates)

MR M.S. WEINBERG, QC:  May it please the Court, I appear

together with my learned friend, MR T.L. BUDDIN, on
behalf of the respondent. (instructed by the

Commonwealth Director of Public Prosecutions)

MASON CJ: Yes, Mr Weinberg. Mr Papayanni.

MR PAPAYANNI:  I think the Court has copies of the outline

of written submissions.

MASON CJ: Yes, I have a copy. I think the other members of

the Court have.

MR PAPAYANNI:  The question of character is the matter that

I intend to deal with first as being a matter of general importance in New South Wales and also a matter that in New South Wales, in relation to

special provision, has not been decided by this

Court.

The references in relation to character -it

was brought by the applicant. In his statement he

referred to character on pages 156 and 157 and set

out a general history in relation to his activities

and his association with the Langton clinic and his

war service. The association with the Langton

clinic, of course, was the most important matter.

MASON CJ: Yes.

MR PAPAYANNI:  I have not dealt with the facts because they

are only brief. I think the Court would be aware of what the facts are in relation to this matter.

MASON CJ:  We have read the judgment of the Court of

Criminal Appeal.

MR PAPAYANNI:  Yes. Well, then on page 166 a Mr Roth was

called and on page 167 he said he was a property

developer and real estate investor. He gave

evidence as to good character. Then, on page 170,

he was asked a question about:

From what you know about him is he the sort of

person who would have been involved in any

drug importation?

And the answer was:

I think that would be the least thing that he

would be involved in because he was actually

working in this hospital in his own time which

Courtney-Smith 2 12/3/91

I saw a very nice plaque, and to be associated

with it is just beyond comprehension.

Then Mr Looker gave evidence also and he was a

developer - on page 170.	On page 172, at line 12,
he was asked the question:

From your knowledge of him, what can you say about his involvement?

A. Well, it just would seem to me to be

totally - it is just unbelievable that the

George that I know would be involved with

something like that. It is just not

conceivable to me that he would be involved.

I just can't see any reason for it.

On page 174 was Dr Salemann who was a medical

practitioner. At page 175, line 13:

I think you and Mr Courtney-Smith had

differing views about some drugs, is that

right? A. Yes, I have a somewhat, had and

still have a more liberal attitude towards

cannabis and he was strictly opposed to my

liberal views.

And then at line 20 that the applicant is:

Dead against it.

And that was about legalizing.	And then at
line 33:

What do you say about that? A. I think it is

completely incompatible with the character of

the man as I know him.

That was Dr Salemann. Dr Salemann was- the Crown

addressed in relation to his evidence to some

extent to say that the applicant could have changed

his views because the applicant believed that

cannabis was not as bad as cocaine or heroin. That

was referred to later. And that, of course, was

not what Dr Salemann said.

Then Mr Byron, QC from the New South Wales

Bar, page 178, gave evidence of general character,

association with the Langton Clinic and at

page 181, at line 26, he was asked:

Having regard to his character and general

reputation, what can you say in relation to
his involvement in the particular offence in relation to importing of drugs? A. Oh well,

he has always told me that he has a full

Courtney-Smith 3 12/3/91

explanation of course, that is not guilty of

any wrongdoing and I accepted it.

Then, on page 182, was Mr Jones, retired bank manager of the New South Wales Bank, and he said a

similar thing on page 183, at line 40:

What was his attitude? A. He was very much

against it and in fact he worked hard the

other way.

Page 186:  Mr Cleaver, who was an associate,

really, and had met the applicant on Anzac day.

Page 186 at line 37:

Knowing the sort of man he is, what can you

say about his being involved in importing
drugs into Australia? A. To say I was

astounded just wouldn't describe it because

knowing the man as I did, he is more anti - he

is more likely to give people up if he thought
they were involved in anything to do with

drugs or anything like that.

And then at 188, Mr Cleaver gave evidence;

Mr Knight on 188, at line 32:

Q. And what was that? A. He was completely

against all types of drugs, in my opinion, and

spoke very strongly against them.

That were the seven witnesses that were called in relation to character. In the summing up on

page 229, line 11, His Honour said:

You have been told, and told correctly, that this fact of his being a man of good

character is an important matter for you to

take into account not only on the question of

whether you should believe him in what he says

but on the question of whether you should find

him guilty or not guilty.

MASON CJ: Before you leave it you ought to read the next

sentence, should you not?

MR PAPAYANNI:  Yes, I am just going to read that.

He is entitled to have you take that into

account.

Now, we say that "entitled", of course, does

not come within the terms of the section in any

case. The terms of the section, section 412 of the

Crimes Act are -

Courtney-Smith 4 12/3/91

shall, in all cases, be received and dealt

with as evidence on the question of his guilt.

The question is that if that section is read, well then the jury would be made aware that "shall, in

all cases" be accepted ''as evidence on the question

of guilt". You get a person who is entitled - I

might be entitled to two tickets to the cricket by

reason of being a member, or a ladies' ticket; it

does not mean to say that I take those.	You have a
choice.	The word "entitled" means that you have a

choice to take it into account or not to take it

into account.

That is not the full story in relation to this

matter because what is complained about is the fact

that - and I will come to the authorities later -
the way that His Honour told the jury in this

passage is the only passage where he gave a

direction. When he referred to it later on

page 237 it is by way of argument rather than a

direction. At line 8:

People from a number of walks of life,

business life and personal life who spoke very

highly of the accused and you may think -

which is according to argument rather than a

direction -

it cannot be doubted that this man is a man of

good character, not only insofar as he has had

no prior convictions but he comes before this

Court as a man who has lived not only a

blameless life up to the present time but a

man who has contributed a great deal to the

community. Indeed, he has a certificate of

appreciation to show that.

Then he goes on to say:

entitled to ask you to take that into account, He says "This is one time when I am

put it into the scales -

and we say in relation to that, of course, there

are no scales in a criminal trial. There may be in

a civil trial, but not in a criminal trial, and

that was a wrong direction in that respect -

as it were, on my side when you are

considering whether you should find me guilty

or not guilty. "

Of course there are other references on page 243 at

line 25:

Courtney-Smith 12/3/91

The Crown says the accused was a punter and this was very much a punting transaction

because on the one side not only were you
paying out or investing some money, a few

thousand dollars plus the other costs that

were involved, but you were risking being

caught, being brought before the Court and

sent to gaol.

And on page 244:

The Crown says the accused was a punter

and this was a betting transaction as far as

he was concerned.

Then he goes on to say:

The Crown says admittedly this seems to be

against everything he has ever stood for but

bear in mind that Dr Salemann says that

cannabis resin was something that he felt was

a drug in respect of which we should be more

liberal.	Remember his evidence, he said that
the accused had different views from him.	We
are not dealing with heroin or cocaine, Dr
Salemann said this is cannabis resin. The
Crown says perhaps the accused was able to

rationalise, justify his own actions by
saying: well, it is not as bad as heroin or

cocaine.

His Honour went on to say:

Members of the jury, I am just putting

submissions to you trying to put the Crown's
submissions, the accused's submissions and

some submissions the Crown would have put if

the Crown had had the chance to answer the

accused's submissions.

Then on page 249 His Honour was referred to that

too far in relation to the Campbell Parade situation and at line 16 was talking about going incident. On line 19 I said:

The other point, the Crown on no occasion said

that this bringing of the cannabis in would be

a fair bet, which Your Honour has put to the

jury and that is much further than the Crown

ever suggested.

HIS HONOUR: Well that's true, the Crown

didn't say anything about that but it was you

who brought up this question of punting in
your address, you implied as a punter that you

would have thought he would have said

something about horses and things like that.

Courtney-Smith 6 12/3/91

You mentioned it quite a few times in the

course of your address.

I said:

Your Honour put it as though dealing with this cannabis was a fair bet.

HIS HONOUR:  I said it was a punt, something

to that effect and that your client was a

punter.

I said:

"Could be looked upon as a good or fair bet"

as I understand it, in relation to it the

Crown has never said -

HIS HONOUR:  I note your submission. I am not

bound of course only to the Crown's

submissions, I did not put that as a Crown

submission.

Well, he had, of course, put it as a Crown

submission. And then, on page 255, at line 14, a

question of pre-concert, and then:

Before that, I might just deal with good character, your Honour has given one instance

where the statement of the accused, good

character can be used in relation to that on

the basis of credit but the second point that

your Honour has not mentioned, the main

matter, that he is not likely to be the sort

of person who would be -

HIS HONOUR:	I did say that.
PAPAYANNI:	But not in relation to character.

So then His Honour went on, in the next part, in

relation to that but that did not appear to be

relevant.

The Court of Criminal Appeal, their judgment

is set out in page 334 to 339 and I will not read

all of it, and some of the cases are quoted.

MASON CJ: Bear in mind we have read it. If you could just

identify the passages that you say are wrong, the

critical passages.

MR PAPAYANNI:  I am referring to the parts, yes. On

page 336 is the complaint there, at lines 5 to 10;

that is the complaint. And then, on page 337, it

refers to the fact that nowhere does the judge give

a direction that he was not:

Courtney-Smith 12/3/91

the kind of man who would have committed -

that type of offence. That is lines 16 to 20. And
then, at lines 28 to 30. First, this question of

"figurative scales" et cetera.

The reference to "scales" may in that

connection have a tendency to mislead.

And then it goes on, on page 338, the paragraph

beginning line 14, is the question of argument,

down to 339, at line 8, where the court said:

At least in the second direction given by Loveday J, is Honour did not, in our view,

properly instruct the jury on the applicable

law.

And then deals with what the judge said from then
on and down to line 9 down to line 24, that there

was no substantial miscarriage of justice.

Now, the authorities, in my submission, are

set out, really, in Lawrence's case,

(1984) 3 NSWLR 674. At page 675, at the bottom of

that, G refers to - this is the judgment of

Mr Justice Lee with whom the Chief Justice agreed:

The first ground of appeal to be

considered relates to his Honour's directions

in regard to character evidence which had been

called on behalf of the accused. In all, the

accused called ten witnesses to give evidence

as to his good character, and it is proper to

say that some of the witaesses gave impressive

evidence as to his good character.

At 676D, referred to a misdirection in that particular case and then it refers to:

It is perhaps appropriate at the outset to make reference to the use to which

character evidence may be put. In Attwood v

The Queen, 102 CLR 353, the High Court, in a

unanimous judgment, stated (at 359):

" ... The expression 'good character' has of

course a known significance in relation to

evidence upon criminal trials; for it denotes

a description of evidence in disproof of guilt

which an accused person may adduce. He may

adduce evidence of the favourable character he

bears as a fact or matter making it unlikely

that he committed the crime charged. The

limitations upon the description of evidence

admissible under this head are the subject of

the much discussed decision in Reg v Rowton -

Courtney-Smith 12/3/91

and quotes the reference.

Probably the limitations are not observed in

practice, but that is not the aspect of this

case that concerns us here. What does concern

us is that the reasons of the judges show

clearly enough that evidence of good character

is regarded as really bearing on the

probability or improbability of guilt.	As
Cockburn CJ said:	'The fact that a man has an

unblemished reputation leads to the

presumption that he is incapable of committing

the crime for which he is being tried'."

And refers also to Thompson's case:

'The object of laying it before the jury is to induce them to believe, from the improbability

that a person of good character should have

conducted himself as alleged, that there is

some mistake or misrepresentation in the

evidence on the part of the prosecution, and

it is strictly evidence in the case.'

Then, refers to Cross:

the appellant's good character in the present case was a yardstick by which the credibility of the testimony against him should have been

measured. The importance of the evidence was

enhanced by the fact that there were

considerable discrepancies in the evidence of
the prosecution and that the story of the
appellant was in itself by no means

farfetched.

Then, the Crimes Act, of course - quotes the Crimes

Act:

"Evidence to the character of the accused

shall, in all cases, be received and dealt

with as evidence on the question of his

guilt."

We stress the fact that "shall" is the word there.

Then, deals with Murphy's case in relation to what

was said in that case and goes on - - -

MASON CJ: Before you leave Murphy's case, what about the

last sentence in Chief Justice Cullen's statement,

immediately after he quotes the words of the

section:

It is one of the facts which the accused, if

he has such evidence, is entitled to have

taken into consideration by the jury on their

Courtney-Smith 9 12/3/91

pronouncement on the question of guilt or

innocence."

Is that different from the statement made by

Judge Loveday at page 229 of the application book?

MR PAPAYANNI: That was in 1913. Section 412 was brought in

in 1876, I think, but it	was not a direction then
that had been given by a	trial judge, as I
understand it.

The complaint here is in the form of what was

said, in the first place saying, "The direction

only was entitled to take it into consideration".

There was no direction as into what way they should

take it into consideration other than in the

credit. Now, the main matter that we say - and all

the authorities that support it, in my submission,
are that the unlikelihood of guilt is the main

matter on which it should be put.

In a case of Farquhar, which is not quoted,

the question there was whether in that particular
case a direction as to credit was not given in
relation to character and because no objection was

taken to it, rule 4 was applied in relation to

that. But this is the opposite. This is a case

where all authorities here stress that the

important matter is the unlikelihood of guilt.

When we read through these authorities - - -

MASON CJ:  But if you come back to this passage of 229, is

not His Honour saying that it is to be taken into

consideration on the question of guilt or

innocence? Now, admittedly, he does not seem to

have elaborated it, but is he not plainly telling

the jury that?

MR PAPAYANNI: Well, he has told them that they are entitled

to take it into consideration but, in my

submission, that is not sufficient.	By reason of
the wording of the Act, section 412, which says it

shall be taken into consideration, when you say

"entitled to somebody", you are giving them a

choice, saying, "Well, look, you can take this into consideration if you want to". The situation is in

relation to character. Now, it is very often said

that the weight of that is for the jury but the

jury must take it into consideration.	They must
give some weight to it.	They may not give very

much weight to it but they must take that into

consideration and give some weight to it. They

cannot say, "We're not going to give any weight to

it" because it is a question then for them, the
question of good character - shall be taken into

consideration. They cannot say, "Look, we don't

care. This is a drug case", or "This is a case of

Courtney-Smith 10 12/3/91

murder, we'll throw it aside and not take good

character into consideration". They cannot do

that.

BRENNAN J: But the direction did not say that the jury were

entitled to take it into consideration. The jury

direction was that the accused was entitled to have

the jury take it into consideration.

MR PAPAYANNI:	Yes.
BRENNAN J:	The direction was one which the jury was told to take it into consideration - take it into account.
MR PAPAYANNI:	You see, as I say, "entitled" is not

sufficient in relation to the section itself.

BRENNAN J: It is not "entitled" to the jury. It was not

giving the jury a discretion about it. It was

telling the jury to take that into account.

MR PAPAYANNI: Well, the words, in relation to that, in my

submission, were giving them a choice. But the

complaint here is that when you look at all these

authorities - Lawrence's case - when you look at

the authorities there, there are two factors that

you must tell the jury, in my submission. One is

that they can - juries do not know how to take

character into consideration. The first factor is

they take into consideration, you say, "Well, look,
the accused has given evidence, or he has made a

statement, you can take character into

consideration on the question of credit as to how

much weight you give to what he said in his

statement and how much weight do you give to his

evidence".

But the second point that you must put to them

- especially in this case as evidence was led from different witnesses - the important matter is they must take it into consideration on the unlikelihood

effect, well then there is a misdirection. of guilt. Now, if there is not a direction to that

TOOHEY J:  I am just having difficulty with the submission,

Mr Papayanni. There are at least two places where the trial judge refers to the evidence as relevant

to the question of guilt as opposed to credibility.

One is on page 229, the passage that you just read

to us, about line 13 and the other is on page 237

at about line 16, where character is directly

related to the question of guilt or otherwise, is

it not?

MR PAPAYANNI:  Yes, but you see, that part there where he is

talking about:

Courtney-Smith 11 12/3/91

put it into the scales -

and before that he is putting that by way of

argument. Even the Court of Criminal Appeal said

that and that there was no direction in relation to
this question of the unlikelihood of guilt. So you

get the situation - on line 10:

you may think it cannot be doubted -

which is an argument there that has been put. Then

he says, by way of argument - he is putting what

the applicant is saying:

"This is one time when I am entitled to ask

you to take -

this into consideration. That is only an argument

that the accused is putting. He is not giving them

a direction of law that they must take that into
consideration - or shall take it into

consideration.

See the authorities, really, here all stress

this fact right throughout Lawrence's case that it

is the unlikelihood of guilt. Mr Justice Lee, in

his conclusion, in relation to that, in

Lawrence's case, he said at page 680, between D and

E:

A direction which relates character to

credibility when an accused gives evidence,

assigns a much more limited role to character
evidence than s 412 permits and misdirection
on character may easily result unless the
judge takes pains to bring home to the jury

the full extent of the requirement of the

s 412 by making unequivocally clear that

character evidence is, like the other evidence

in the case, to be weighed on the overall

question of whether the accused is guilty or

not guilty. Of course, even on the limited

view -

and he refers to the English decisions.	And then
in the next paragraph he says:

But the complaint that the direction as

to character was defective does not rest

there. As I have said, the accused called ten

witnesses as to his character, and it was

clear that he was seeking to have the jury

regard him as a man whose character was such

that it would be most unlikely that he would

involve himself in a drug importing

conspiracy.

Courtney-Smith 12 12/3/91

And, of course, that is the main matter that - on

page 681, he goes on to say:

In my view his Honour's directions sought

to take from the jury the right of the jury to
give such weight to the specific character

evidence before them as they saw fit - the

authorities previously cited make plain that

this is the jury's right. The jury was

entitled to take the view that there was a

vast difference between a case where a man

claims he has a good character and has no

prior convictions, and the Crown concedes that

he is of good character, and the case where a

man calls a number of witnesses to speak

directly to his character; a jury might well

give greater weight to character evidence of

the latter kind than that of the former - it

would certainly be entitled to, if it saw fit

to do so. It was for the jury to assess for

themselves the weight of the character

evidence, and its bearing on the matter of the

probability or improbability of the accused's

guilt, and the direction under consideration,

to the extent that the jury may have thought

it suggested that calling character witnesses

was really unnecessary when the Crown was

prepared to concede that the accused was a man

of good character, should not have been given

because that was a specific case in relation to that matter, but there His Honour stresses this fact.

And, of course, you will find in two cases

that are quoted in Lawrence's case in

Falconer-Atlee and also in Frost's case where this question of talking about scales in a criminal matter was dealt with and those directions were

held to be incorrect.	Now, one .... for another
reason.

BRENNAN J: Mr Papayanni, the trial judge, at page 229, gave

the weight of his office to support what had been

told to the jury "and told correctly". Who had

told them what appears in that paragraph?

MR PAPAYANNI:  Which part is Your Honour referring to?

BRENNAN J: Page 229, line 11.

MASON CJ:	You had told them, had you not?
MR PAPAYANNI:	I had told him?
MASON CJ: Yes.

Courtney-Smith 13 12/3/91

MR PAPAYANNI:	What, in the objection?
MASON CJ:	No, no, in your address.

MR PAPAYANNI:  Yes. But as Your Honour knows, when it is

not backed up by what the jury say, well then, you

find that juries do not take much notice of it.

MASON CJ:  You mean, the judge, do you not; not backed up by

the judge?

MR PAPAYANNI:  What the judge says, yes.

MASON CJ: But His Honour was putting to you that in the

passage at 229, His Honour was lending the weight

of his office to what the jury had been told.

MR PAPAYANNI:  Yes, but that was the only direction, really,

by His Honour, in my submission. You see,

His Honour refers to the question of whether you would believe him, the question of credit, but he does not really refer - you see, to say that you

are entitled to take it into consideration on the

question of guilt, does not go far enough because

it is a specific Act that says, "It shall be taken

into consideration". Now, the jury cannot say, "We

are going to toss that aside and not take any

notice of it".

MASON CJ:  I think we are seized at this point,

Mr Papayanni.	We seem to be descending into
repetition.

MR PAPAYANNI: Yes. Well, I refer to Murphy's case also and

the authorities referred to there and there was

also a case of Stalder which refers to Lawrence's

case.

DEANE J:  Mr Papayanni, was there anything said about the

trial judge's direction on character in discussions

with His Honour and counsel, other than what you

have referred us to?

MR PAPAYANNI:	No, that was all, but the part there where His Honour cut me off when he said he had dealt
with that part.  Now, I read that, and His Honour
said he had dealt with it. But, in my submission,
in relation to that there should have been a more
full direction in relation to that.

The question of importation and what it means

in relation to being knowingly concerned in the

importation is a matter that, in my submission, has

been decided in Bull's case, 131 CLR 203.

BRENNAN J:  Mr Papayanni, having regard to the nature of the case made by the Crown against the applicant and

Courtney-Smith 14 12/3/91

the statement from the floor of the court made by
the applicant, does it matter as to where

importation starts or finishes in this case?

Because if there was any knowingly concern about

anything it must have extended to the whole

transaction, must it not?

MR PAPAYANNI:  The difficulty is, of course, when one looks

at the section in relation to this matter as to

what exactly "knowingly concerned" means and in

view of what the Court of Criminal Appeal has

decided that it is not an accessary-type situation.

Now, the "knowingly concerned", in our submission,

is important having regard to Goldie's case because even though you may lead evidence of something that

happened earlier or something that happened later,

it is the fact at the time of the importation that

he has to be "knowingly concerned". The

importation and the "knowingly concerned" must

occur at the same time. Now, the difficulty about

that is that Bull's case shows that it is at the

time of landing, or the time of reaching port with

the intention of landing - that is importation

under section 233(l)(b). Now, if it is importation

under that section, why does not the same apply to

(l)(b).

Now, in Bull's case, the Chief Justice, in

relation to 233A, which was using a ship in
relation to the importation, he decided that in

relation to that that it was the process of

importation. The rest of the Court were against

that and held that there was no offence under

section 223A because of that.

The same situation applies here. You see,

what is relied upon against the applicant here is

very little, in a way. There were four letters

with cheques in them which were sent to Container

and General Forwarding Company. Then there was an

application to Northside Secretarial Service in

relation to answering the phone and taking

telephone messages.

Then, there was the situation that on 7 June,

which was eight days after the landing of the cargo, which was on 30 May, that evidence was

alleged to show - and His Honour said in his

directions that everything that happens up to that

time was relevant to show that he was knowingly

concerned.

If he had gone on to say, in relation to that,

"You can take those matters into consideration'' - I

do not say that you could myself but even if he had

said that, "You can take those into consideration

in endeavouring to ascertain whether, at the time

Courtney-Smith 15 12/3/91

of importation, the 12 :.Lng or sufficiently

proximate to that, he ~~3 knowingly concerned",

then you probably wou.Lc:. not have any objection.

But the point here is that really, in relation to the matter, you have got 7 June, which is eight

warehouse there and where this other person,

days later, when the applicant goes down to this

Hamill, unloaded or received the container and

could not get it into the warehouse and left it

later, this association, where the applicant

there and later on it was transported out to Lane days

was seen with Hamill, was relied upon.

That was what the Crown relied upon to a large

extent. The difficulty about that was that that

was the first occasion on which the applicant had

come into it.	He had not been seen or known of
before that.	So the situation then was that he had
given these letters.	He said it was a loan, that

he had lent this money to Brian Walker to bring

this because he was running short of money.	If it
was a loan, the question is, "Was he knowingly

concerned in the importation?", because the money

that was given was given after the actual

importation.

The difficulty about this section is you have

got, in section 5 of the Commonwealth Crimes Act:

aids, abets, counsels, or

procures ..... directly or indirectly knowingly

concerned -

which applies to all Commonwealth offences. In

section 236 of the Customs Act you have got another

section which is:

aids abets counsels or procures ..... directly

or indirectly concerned -

in any matters in the Customs Act, deemed to be

offences. Then, you have got a section in

233B(l)(d) which gives:

aids, abets, counsels, or

procures ..... knowingly concerned -

Now, you have got "knowingly concerned" there.	You
have got "directly or indirectly concerned" in section 236 and you have got "directly or indirectly knowingly concerned" in section 5.

Courtney-Smith 16 12/3/91

It is said in Shin Nan Yong that this is not

an accessary situation but the present Act says

that:

aids, abets, counsels, or

procures ..... knowingly concerned in, the

importation, or bringing, into Australia -

There is no offence of "bringing into Australia".

The offence under 233(1AA), I think it is - is

"without lawful excuse bringing into Australia".

Then it says, "that is an offence, knowingly concerned in the importation into Australia or

knowingly concerned in the bringing into

Australia". You have got now, "knowing concerned

or bringing into Australia", which is an offence

but "importation into Australia" is not an offence.

That is under the present Act. Now, if we go

back - that was amended in 1986. It does not apply

here in relation to this particular case. At that

time the Act was only "importation" but to look at

the later Act we get an idea what was intended.

If we say that that is a specific offence

because it says "shall be an offence" and I will

read the sections in a moment, then you get the

situation that if that is an offence, "knowingly

concerned in the importation or bringing into

Australia", then you can have an attempt. Or you

can have, under section 236, "directly or

indirectly concerned", in the knowingly concerned

in importation into Australia, which is absurd.

So it cannot be an offence because you have

got the situation where you have got "aids, abets,

counsels, or procur~s", these are words that go
with a principal and second degree or an accessary

before the fact. So you have got those four words

that go with something that happened before or

something that happened at the time.

Then, you have got "knowingly concern". Now,

does "knowingly concern" apply to all those

situations, or not? You have got to have something

different in relation to "knowingly concern"

otherwise it is redundant. Why not charge a person

who counsels or procures as an accessary before the

fact of the importation. If he does something

before the importation he can be charged with that.

If he helps to carry a suitcase through the

customs, he is a principal in the second degree and

he can be charged as aid and abet. So, you have

got those two situations and then you have got

knowingly concern. Now, can either of those people

be charged with knowingly concern? It must mean

something more, something less, something different

in relation to that.

Courtney-Smith 17 12/3/91

The only situations that really apply are in

relation to, say, a partner who is not present, so

he cannot be charged as an aid and abettor and who
has not really done anything in relation to the

importation. Somebody else, as in one of the

cases, put up some money in relation to the matter,
but you cannot reconcile all these different

situations unless you define what "importation"

means because if "importation" means the whole

process from the beginning to the end, how far does

it extend? After it has landed, does it apply to

eight days later or not? If it does, and a person

is still knowingly concerned in the importation

eight days later, there is no such thing as an

accessary after the fact to importation. There is

no such thing then, really, as conspiracy to

import. There has to be some difference. It has

to mean something different and it cannot be made

to mean an offence because it is an offence at

present to be knowingly concerned in the

importation to Australia whereas it is not an

offence to import into Australia, so it has to mean

something different.

That is why, in my submission, the question in

Gunn's case? is very important. Why it is

important in Goldie's case also to look at the

question as to what was decided in that case in

relation to the stowaway as to the actual fact of

what had to be proved. In Goldie's case, it was

the fact of him being knowingly concerned - it was

under section 5 - in being found in the

Commonwealth whereas he was not charged with being

knowingly concerned in the stowaway - who became an

illegal immigrant - entering into the Commonwealth.

Three of the Court held that there was no evidence.

The same situation applies here in relation to this

matter, in my submission, but there is no evidence

to connect the applicant with the fact of the

importation if it is strictly defined.

I have put it generally, but I can refer to

all those situations and point them out and I have

given the Court copies of the sections that apply

but when you have a situation in Bull's case,

under 233(l)(b), that it says importation is this,

well then, under 233(l)(d), one would say that that

must be the situation also. The headnote to Bull's

case refers to the fact of:

importing into Australia prohibited imports

contrary to section 233(l)(b), and knowingly

allowing a ship to be used in the importation

of goods contrary to section 233A.

That second section is important because, as I

mentioned before, that in relation t6 that matter

Courtney-Smith 18 12/3/91

that four of the Court held that there was no

offence committed under 233A.

The Chief Justice there, at page 220, about

the fourth line:

I am of the opinion that, in order to commit
the offence of importing created by
section 233B(l)(b), the goods in question must
have been brought within the limits of a port

with the intention of landing them or must

have been landed in Australia.

That was quite clear, what His Honour said

there. The only person on the High Court who dealt

with any other - it is a question of attempt. In

that case, of course, the people were arrested

before they had, in fact, been landed, but the only

person who dealt with that was Mr Justice Gibbs as
he then was, as to this question whether he could be charged with attempt or not and because he had

not been convicted in a lower court he said he

would not go on with that.

When we deal with section 233A, what was said there, the Chief Justice who was dissenting in

that, held on page 224:

Thus, given the proximity of the vessel to the

port, it could be held that he was knowingly

allowing the ship to be used in the process of

importation of the cannabis. In my opinion,
there was evidence to support a conviction of

the master of the vessel under s.233A of the

Act by a competent court even though, due to

the boarding of the vessel, the cannabis was

not imported.

Now, that was a dissenting judgment in relation to

that, and His Honour there referred to the fact of

process of importing. Justices Menzies, Gibbs,

then were, at page 273 - Your Honour dealt with the	Stephen and Your Honour Mr Justice Mason as you
question of territorial limits but did not deal with the question of this matter specifically,
because Your Honour agreed with what was said by
Justice Menzies. That was at page 273. The
judgment of Justice Stephen was at page 266 and
Justice Gibbs at page 255. That was in relation to
section 233A and all those four Judges held that
there was no offence under section 233A.

In relation to the importation the Court all

agreed with what was held in relation to B -

landed or within the limits of a port with an

intention of landing -

Courtney-Smith 19 12/3/91

The Chief Justice, Mr Justice Menzies, Justices

Gibbs, Stephen and Your Honour the Chief Justice agreed with that, and Your Honour agreed with

Justice Gibbs.

So you get the situation there that it was the

importation under section 233(l)(b), the actual
landing, that was the important matter under that

section.

TOOHEY J:  But that surely was only because of the facts in

that particular case; the goods had not been landed

at the time of arrest and therefore it was said

there had been no importation.

MR PAPAYANNI:  Yes, I understand that, but I mean -

TOOHEY J: But could I just take it a step further. Are you

suggesting that once goods have been landed that

evidence that bears upon the transaction prior to

landing, contemporaneous with landing and

subsequent to landing, may not all go to show that

a person has been knowingly concerned in the

importation of the goods?

MR PAPAYANNI:  That is correct. You could have some of it;

some might go to knowledge, some might go to the

fact it may assist in relation to other matters

that may go to a knowingly concerned. But the

factor that is important, and must be told to the

jury, is the fact that the jury have to decide that
at the time of landing, in this particular case 30

May, or as there was no proximity to any of those

dates, in this particular case 30 May was the vital

day and it was 30 May the jury had to decide that

at that time that he was concerned in the

importation of the cannabis because that was the

charge, under that section.

TOOHEY J: But the charge is the charge being knowingly

concerned in the importation of goods on a

particular day?

MR PAPAYANNI:  Not in this case it was not; it was between

two days but on a day and that is the situation as

otherwise it would be bad for duplicity or

multiplicity if it related to more than one day.

So, on this particular case, the importation happened on 30 May and, therefore, on that

particular day it was that there must be knowledge

and there must be concern and both must be at the

same time.

TOOHEY J:	I am not sure that the second step follows though, does it? I mean, it is one thing to say
that the importation must be identified, but if
someone is involved in a transaction aimed at

Courtney-Smith 20 12/3/91

importing goods into Australia and it is shown that

that person has been actively involved or has

sufficient knowledge to be "knowingly concerned",

is it vital then that it be shown that the person

had that knowledge on the particular day on which

the goods were imported. For instance, they may

have been due on 1 January but there was some

holdup so they did not arrive until 2 January.

MR PAPAYANNI:  In this particular case, they had been landed

on 30 May, that is why I say that. Now, on 7 June

if the container had been opened and the applicant

had seen the cannabis there and he would say, "What

is this?" and they said "It is cannabis", would he

have been guilty in this case? The answer is no,

if that were the only evidence of his knowledge

because the fact that he knew it was cannabis did

not go with the concern in the importation. It

happened a long time after it. If you have got a

conspiracy to import, if you look at Shin Nan

Yong's case, in that particular case there were two

charged, there was Hew and the Chinese - the charge

in that case was, that is on 7 ALR 272, the charge

there set out about point 4:

It is material for present purposes to

quote the terms of the indictments against the

two men, they having been indicted together

and their trials having proceeded concurrently

before the same jury. Hew was charged: "for

that he on or about 26 December 1974 in Sydney

in the State of New South Wales did import in

to Australia prohibited imports to which

section 233B of the Customs Act ... .. applied,

to wit narcotic goods consisting of a quantity

of morphine ..... The appellant was charged:

"for that he on or about 26 December 1974 in

Sydney in the State of New South Wales was

knowingly concerned in the said importation in

to Australia by Hew Len Yon of prohibited

imports to which section 233B of the Customs

Act -

applied.

So you get a specific date there - on or about that date - that was on that date that in fact they

were landed or brought through the customs on that

date. So you get a situation here where that form

of that indictment is in the form of an accessary;

not in the form of a principal. The second form is

is, in effect, in a form that A did commit the

certain crime and that B did assist him in that

crime or was knowingly concerned in that crime.

That is in the form of an accessary. The situation

in relation to that is that if he is an accessary,

well then the situation in relation .to accessary is

Courtney-Smith 21 12/3/91

applied and you must prove, in my submission, that

the principal offence did occur.

Now, in this particular case, there is no

evidence of anybody having imported or being said

to have imported the container and there is no

evidence as to who started it all off, in effect.

No evidence was given as to - it was brought from

Cyprus by various ports and so on and transferred

from one ship to another and so on and eventually

it was landed by the "Zim Melbourne" on 30 May at

Botany. So that situation then applied that the

police knew all about it - the Federal Police - and they went down there and they saw the container and

they identified it. So it was on that date that it

was in fact landed.

Now, if you are going to say that somebody

assisted or procured or counselled somebody to

commit that crime of importation, that would have

to happen before that. And if you have an aider

and abetter, a person who is a principal in the

second degree, he would have to be present at that

crime when it occurred. You get this situation

that applies in relation to people that bring

suitcases through the customs.

Now, if it is alleged that a person is the

actual importer, it is like alleging that the

person is the principal in a murder. You cannot

say that and find him guilty of an accessary when

the evidence points to him being a principal in the

first degree.

BRENNAN J:  Do you say, Mr Papayanni, that the evidence here

would not have established that the applicant was

knowingly concerned in the importation of a

container? Forget all about the - - -

MR PAPAYANNI: That is correct. You see, the judge said, on

one occasion that it was conceded and then I

correctly ..... and he told me that it was not

conceded but then he told them that to advance

money was, in effect, to be involved in the

importation anyway. That is at page 267 and that

was the whole case of the applicant which was

thrown out the window, really, because he said that

if you believe the applicant then he is knowingly

concerned and the only question you have to decide

here is whether he had knowledge.	The knowledge
was relied on in relation to lies and so on.	Of

course, the lies, in our submission, applied - on

13 June he had seen the TV when Hamill and the

White brothers had been arrested. Then he was interviewed after that by the police and denied any

knowledge of it. Of course the guilty knowledge -

Courtney-Smith 22 12/3/91

he already had that from the TV but it was not

guilty knowledge; it was knowledge from the TV.

But that is not a point for special leave, it

is just one of the facts of this situation.

TOOHEY J:  But you seem to be putting the matter as if there

was no evidence to link the applicant with this

transaction and for some days after the goods had

landed, but is that in fact the case - - -

MR PAPAYANNI:  No, it is not strictly correct, no.

TOOHEY J: Because there were dealings with the forwarding

agent, both before and after.

MR PAPAYANNI: Yes, that is right. Yes, well that comes to

my next point. The position was, in relation to

this, the judge said that there was a common

purpose in relation to the importation. Now, the

difficulty about that is that he was charged with a

single charge of "knowingly concerned in the

importation". Hamill was charged in a separate

charge, "knowingly concerned in the importation".

Now, you have got the situation where you have

got two charges: Hamill leased the factory where

this container was - could not get into the factory

there. Hamill accepted delivery from the people,

from the Container and General - from the wharf,

and did other certain things, and the applicant was

supposed to do other matters. Now, the difficulty

about that was the judge said there is a common

purpose in relation to the importation, so Hamill's

acts are the acts of the applicant, which means

that in that case the applicant could have been

convicted on what Hamill did, not on what he did

himself, because by view of this saying that there

is a common purpose, there was no common purpose in

this case, at all, because he was charged with a

separate charge that he, in effect - the Crown

conceded in relation to this matter that there was

no common purpose in relation to a "knowingly

concern" situation. Now that was incorrect, there

can be a "knowingly concerned" in a joint

enterprise in relation to "knowingly concerned",

but not in this particular case.

In this particular case there were two -

Hamill did a, b, c, d; the applicant did f, g, h.

Hamill could have been convicted, or was convicted,

and then pleaded guilty on a second occasion, in

relation to a, b, c, d, but the applicant could not

be convicted on a, b, c, d because there was no

common purpose. If you have a simple situation of

Tripodi's case where the acts of the co-offender are the acts of the accused, well then, you can be

Courtney-Smith 23 12/3/91

convicted on the acts of the other person, but not

in this case which was a single count.

MASON CJ:  Mr Papayanni, it is a quarter to one. We will

adjourn at this stage and resume at 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.15 PM:

MASON CJ: Yes, Mr Papayanni?

MR PAPAYANNI:  If the Court pleases. I would just like to

deal with Goldie's case which shows a strict

application in relation to a case of knowingly

concerned although that was under section 5 of the

Crimes Act, and that is reported in 59 CLR 254.

That was in the headnote, the charge of being:

knowingly concerned in the commission of an

offence by Win that W, being a prohibited

immigrant, was, contrary to the Immigration

Act 1901-1935, found in the Commonwealth in contravention or evasion of the Act.

The charge is set out on page 258 in the

Chief Justice's judgment:

"that on or ab6ut the second day of July 1937,

at divers places in the said State you were

knowingly concerned in the commission of an

offence against a law of the Commonwealth,

namely, an offence committed by one Gee Kee

Way in that the said Gee Kee Way being a

prohibited immigrant was contrary to the said

Immigration Act 1901-1935, being a law of the

Commonwealth, found in the Commonwealth in

contravention or evasion of the said Act, to

wit, at Burwood in the said State on the said

second day of July 1937."

Then, on page 259, it refers to section 5 of the

Crimes Act at about point 5. It says:

"Any person who aids, abets, counsels, or

procures, or by act or omission is in any way

directly or indirectly knowingly concerned in,

or party to, the commission of any offence
against any law of the Commonwealth, whether

passed before or after the comme~cement of

Courtney-Smith 24 12/3/91

this Act, shall be deemed to have committed
that offence and shall be punishable

accordingly."

Of course, that is slightly different to the
section 233B(l)(d) which at the time of this charge

was in the form of:

aids, abets, counsels, or procures, or is any

way knowingly concerned in, the importation,

or bringing, into Australia of any prohibited

imports -

et cetera, being different in the sense that

section 5 refers to directly or indirectly

knowingly concerned. The section, as it now

stands, as I pointed out previously, is on the

second of those documents that I supplied:

aids, abets, counsels, or procures, or is in

any way knowingly concerned in, the

importation, or bringing, into Australia of

any prohibited imports -

et cetera.	Of course, the difference there being
that:

or is in any way knowingly concerned -

had been added in 1986 and section (aa) had also

been added in 1986 which was subsequent to the Act

which was applicable at the time and under (aa), it

says:

without reasonable excuse (proof whereof shall

lie upon the person) brings, attempts to

bring, or causes to be brought, into Australia

any prohibited imports to which this section

applies.

Of course, in that section the section (d) does not

refer to "without lawful excuse", it only refers
to:

bringing into Australia -

so, you get under (d), and it says at the end of

that section, of course:

shall be guilty of an offence -

that is under 233B. So, you get the situation

there, as I pointed out previously, that at present

you get aids and abets the bringing into Australia

is an offence, but bringing into Australia is not

an offence. It has to be without reasonable

excuse, bringing into Australia. So, you get a

Courtney-Smith 25 12/3/91

different situation there. In relation to the

section that was added,(aa), and, of course, if:

aids, abets, counsels, or procures, or is in

any way knowingly concerned in, the

importation -

is an offence, well then, section 236 applies and

section 236 says:

Whoever aids abets counsels or procures or by

act or omission is in any way directly or
indirectly concerned in the commission of any

offence against this Act shall be deemed to

have committed such offence and shall be

punishable accordingly.

So, you get a nonsensical situation there, that if

section 233B(l)(d) is an offence, well then,

section 236 could apply to it and:

Whoever aids abets counsels or procures

or ..... is in any way directly or indirectly

concerned -

so you could have an offence that a person is

directly or indirectly concerned in the knowing

concern of a person in relation to the importation:

into Australia of any prohibited imports.

MASON CJ:  What conclusion do you say ought to follow from

all this? .

MR PAPAYANNI: That it is an accessary offence and that the

only procedural effect of that is that the "knowing

concerned" is still a procedural offence and that

it is necessary to prove the principle offence in order to bring it within the section and for that reason, as I pointed out previously, you have got

aid and abet which is a principal and second

degree, or:

aids, abets, counsels, or procures -

which is an accessry before the fact, those would

be applicable to an importation and would apply to

all those acts leading up to the actual importation

which, in this particular case, was 30 May 1985, I

think - - -

BRENNAN J:  Mr Papayanni, I must be missing something, I do

not understand where this is leading - - -

MR PAPAYANNI:  It is only in the meaning of "importation".

I am going to quote two cases Shin Nan Yong - - -

Courtney-Smith 26 12/3/91

BRENNAN J:  And why are you going to quote any cases? What

is the point that you wish to make?

MR PAPAYANNI: 

The point is that - see those two cases point

to the fact that "knowingly concerned" applies to
the whole venture and not only to the actual
importation and for that reason - if that were the

situation and that were correct, and these cases, I

would submit, are wrongly decided for that reason

because if "knowingly concerned" applies to the

whole venture you cannot have an aid and abet and

counsel and procure and an accessary before the

fact and you cannot have an aid and abetter, there
would be no point in it. That section would only
need to say, "knowingly concerned in the

importation" that would be sufficient because that

would cover all those situations.

BRENNAN J: 

What are you saying are the elements of the offence in this case?

MR PAPAYANNI: 

The elements of the offence in this case are

first, that there was an importation by someone,

person or persons unknown, and that the applicant

was "knowingly concerned" in that importation.

There are three elements: the importation by a person or persons unknown; that he was concerned in

that importation; that he was "knowingly concerned"

in that importation of the prohibited goods.

BRENNAN J: There is no doubt that this container with the

cannabis in it was imported into Australia?

MR PAPAYANNI:  That is correct, yes. But the difficulty

here, as I pointed ~ut, is that you have got a

situation on 8 June which was the first time the

applicant came under the notice of the police which

was eight days after the actual importation or

landing - - -

BRENNAN J:  That may be so but that may be evidentiary. established, that is that there was an importation. The

first element of the offence is clearly

MR PAPAYANNI:  There is no doubt about that. The

importation of prohibited goods was established.

BRENNAN J:  The second is, whether the accused was concerned

in it.

MR PAPAYANNI:	Yes.
BRENNAN J:	And he had been in touch with the people who

were involved in the clearing of it from customs

and in the office in North Sydney and he provided

money.

Courtney-Smith 27 12/3/91

MR PAPAYONNI:	Yes.
BRENNAN J:	So he was concerned in it?
MR PAPAYANNI:	No, not in the - that is the whole point,

Your Honour, that what I say is he has to be

concerned in the importation.

BRENNAN J:  What was he about in doing those things?

MR PAPAYANNI: If he becomes concerned after the importation

it does not come within the section. For

argument's sake, let us take the situation here

where you have -

TOOHEY J: Could I just interrupt you? Do you not have to qualify that by the word "only" when you say, "if he becomes concerned"? But if the evidence points

to an involvement that predates the importation and

postdates it, where is the difficulty in the

conviction assuming the evidence will sustain it?

MR PAPAYANNI:  The difficulty is that direction has to be

that at the time he was, in fact, concerned. Some

of these acts were after the landing, if I can put

it that way. Now, the jury may have found that one

act or two acts were after the landing, but they

were told that they were, in fact - if they found

those acts that was sufficient to establish

"knowingly concerned".	They may have found any
other act - - -

TOOHEY J: Are you saying that they were told that it was

enough to convict the applicant if the only conduct
that they could find with which the applicant was

associated was conduct that occurred after the

goods had been landed?

MR PAPAYANNI:  No, they were not told anything. They said,

"From the time the whole venture, preceding and

after, up to the time of 7 June". That is what His Honour said.

TOOHEY J:	What is wrong with that?
MR PAPAYANNI:	Because 7 June is eight days afterwards.

TOOHEY J: Yes, I know you keep saying that, Mr Papayanni,

but to say that is to ignore the conduct that had

occurred earlier.

MR PAPAYANNI: Well no, the situation really here is that as

well as the acts of the accused you have the acts

of Mr Hamill. Now, the way the Crown addressed the

Court in Tripodi's case and so on, was that those

acts became the acts of the applicant. Those acts

Courtney-Smith 28 12/3/91

were largely in relation to leasing a factory.

Now, that leasing of the factory commenced by

Hamill before 20 May before the landing occurred.

They occurred by Hamill.

TOOHEY J: Yes, but forget about what Hamill did. There was

evidence that the applicant had been involved in

correspondence with the forwarding agent, that he

had drawn a cheque for the purpose of meeting

charges connected with the importation of the

goods, and that these events had occurred before

the goods had been landed.

MR PAPAYANNI:  The difficulty about that was that the whole

defence of the applicant was that this was a loan.

His Honour directed the jury that if it was a loan

he was knowingly concerned. That, in my

submission, was wrong, because that was not

"concerned in the importation".

It is the same situation as a person in relation to land.	He may be interested in the land
by reason of a mortgage.	He may advance the money
on a mortgage.	He may even attend on settlement in

relation to a mortgage. But he is not concerned in

the sale of the land which occurs some time before.

He may be interested to the extent that he has a

mortgage, but he is not concerned in it. And that

is the difficulty in relation to this matter, and

that difficulty is shown in Goldie's case.

TOOHEY J:  Can you just point us to the page on which

His Honour directed the jury that if the money was a loan that was enough to amount to knowingly

concerned.

MR PAPAYANNI:	Yes, page 267, I think it was.
MASON CJ:	But did not His Honour withdraw that direction to

the jury and correct it?

MR PAPAYANNI:  No. You see, the other way was that he said

during his summing up there was no contest about

the fact that he was knowingly concerned in the

importation of the container.	And I pointed out to
him that that was not the situation.	He withdrew
that but he did not withdraw the direction.	I am

sorry, it is page 267, yes, at line 10 - I will go

before that, line 9:

The Crown's case of course is what he was

doing, even on his own case, is advancing

money for the purposes of paying duties,

including customs and import duties and things

like that, and if that is the case then he is

involved in the importation.

Courtney-Smith 29 12/3/91

So, I mean, the situation is made quite clear to them then that that was the situation; that he

is involved in the importation by reason of that.

His Honour then should have said, "That is not

sufficient at law to justify being knowingly

concerned". That was the whole case of the

applicant.

BRENNAN J: But as far as that goes, is there an error in

what His Honour said there?

MR PAPAYANNI: Yes.

BRENNAN J:  What is the error?

MR PAPAYANNI: Well, the error is that by reason of those

facts that he was involved in the importation.

BRENNAN J:	Not knowingly concerned but involved in.
MR PAPAYANNI:	Yes, well he had already directed them that

concerned meant involved.

BRENNAN J: Well, concerned in the importation but not

knowingly concerned in the importation.

MR PAPAYANNI: Well the "knowingly" was a different

situation. He went on to direct them about that.

BRENNAN J:  What is the error then in saying if he did those things he was concerned in the importation?

MR PAPAYANNI: Well because, in my submission, that if you

advance money to someone who is going to import

goods you may be interested in that situation to

recover your money but you are not concerned in the

actual importation. I mean, in this particular

case, the applicant said that he had advanced that

money and he was to recover it out of the profits

later on of the sale of the furniture which did not

have anything to do with the importation at all.

So all he was interested in was the sale of the

furniture.
So, you get a situation there where His Honour
had directed incorrectly, in my submission.	He was

asked to correct that and His Honour would not

correct it. On page 159 at line 22, the applicant,

in his statement:

He said that he was going to have some

difficulties financially in paying for the

sales tax and the other expenses associated

with it. I said to Peter Hamill at the time

"Well what do you think?" and he said "Well,

I've been talking to Brian -

Courtney-Smith 30 12/3/91

that is Brian Walker -

Would you be happy - "remember that I have got

4600 in our punting bank which had accumulated

from these winnings on Scitchem. "Would you

be happy if we were to make a loan to cover

these other expenses on the basis that we

would recover that loan as soon as the whole

lot of the furniture was sold and that as far

as profits were concerned, Walker would be

entitled to 60 per cent and we would be
entitled to 20 per cent each, so I couldn't

see at that stage where there was a downturn

risk thing. I thought it was a bet to

nothing, that we would recover our money from

the first sales and then we would be included
in the profits. That was at that point in

April 1985.

So you have got a situation there that all he

was interested in by reason of the loan was the

fact of the sale of the furniture which is a

totally different matter by saying that by

advancing the money he was interested in the
importation.

That difficulty, in my submission, as I say,

in relation to being a criminal trial and being a
criminal charge, the strict application of the

charge as it is laid was pointed out in Goldie's

case in which - there was a majority in that case.

And on page 259, the Chief Justice said there, at

about point 8:

The alleged offence committed by Gee Kee

Way was that he, being a prohibited immigrant,
was found in the Commonwealth in contravention

or evasion of the Act. His presence in the Commonwealth was the essence of his alleged

offence. The offence alleged against Picklum

was that he was concerned in Gee Kee Way so

being in the Commonwealth. In my opinion, the

evidence did not establish that Picklum had

been in any way directly or indirectly

concerned in Gee Kee Way being within the

Commonwealth. The evidence showed that

Picklum was concerned in Gee Kee Way being at

Burwood, but not that he had anything to do

with him being in the Commonwealth. In order

that a person may be concerned in an immigrant

being found within the Commonwealth, it is

necessary to show that he had something to do

with him being in the Commonwealth instead of being in some place outside the Commonwealth.

It is not enough to show that he is concerned

in him being in one place in the Commonwealth

rather than in another place in-the

Courtney-Smith 31 12/3/91

Commonwealth. Transportation within the
Commonwealth of a person already in the
Commonwealth does not amount to being

concerned in him being in the Commonwealth.

In the same way here transportation of the goods,

say, from the wharf or somewhere else, say, from
the factory premises in Campbell Street, Manly

Vale, transportation from there to another place would not be sufficient, in my submission, to say

that a person was knowingly concerned in the

importation. So you have got a strict application

of that particular matter in relation to being

knowingly concerned and the actual offence.

At page 266, Justice Dixon, as he was, about

point 5, said:

The information does not specify the precise

act or omission by which the appellant was
alleged to be knowingly concerned in Gee Kee

Way's offence. But it may be taken that it covered accompanying that Chinaman upon this

journey from the Victorian border in the

tourist car, his transfer to the taxi-cab at

Liverpool and the journey therein that was

abruptly brought to an end at Burwood. Gee

Kee Way's offence, that is, the principal offence, laid in the information is

constituted by sec 7 -

and so on. He went on about that. And then he

referred to another offence being "entering the

Commonwealth" and that was not charged in the

information and he has pointed out about stowaways

and so on and that the offence had been committed.

And then, on page 267, about point 4, he said:

The offence of the immigrant consists in being within the Commonwealth. Here again, however,

the prosecution encounters a difficulty. How,

by any act or omission in New South Wales, was

the appellant knowingly concerned in Gee Kee

Way being within the Commonwealth? The

offence is not being at Liverpool, or being at

Burwood, or being in a taxi-cab. It is being within the territorial boundaries of

Australia. Movement or other activity within

the territory is no part of the offence.

Concealment is no part of the offence.

And then, at the bottom of the page, he said:

How can it be said that the appellant was

knowingly concerned by acts and omissions

during that period in Gee Kee Way's existence

within the geographical area called the

Courtney-Smith 32 12/3/91

Commonwealth? It is nothing to the point that

at an earlier time the appellant may have

facilitated Gee Kee Way's entry and,

therefore, shared in the responsibility for

his presence in Australia.

He goes on about him being an accessary or the

aiding and abetting section which, in my

submission, would be the same here.

At the top of page 277 Mr Justice McTiernan

referred to the application of sections 5 and 7,

dealt with that part down there about the offence

of Gee Kee Way, and then at about point 5, he said:

The section attacks his presence in the

Commonwealth.	By being here he commits the
offence.

Then at the bottom of the page he said:

There is no evidence to show that the

applicant was concerned in his landing here.

The fact that the applicant drove him from one

place to another, although furtively, does not

establish that the applicant aided, abetted,

counselled, procured or was concerned in this

alleged prohibited immigrant being found in

Australia. That was a state which was fully

established when he was met by the applicant

and nothing that was done by him can fasten

him with any responsibility.

Now, in Shin Nan Yong's case, 7 ALR 271, it

was held there in (ii) in the Court of Criminal

Appeal in New South Wales:

(ii) The offence under s.233B(l)(d) is not an

accessory offence. All that need be

established is the fact of the importation of

a prohibited import in which the accused was

knowingly concerned. Whether or not the

importer has been convicted is irrelevant.

The fact that the indictment referred to the

"said importation" did not mean that there had

to be a proven criminal importation.

Then at (iii):

(iii) It is not an essential part of the

offence under s.233B(l)(d) that the "concern"
be made manifest in a physical sense whilst

the importation is in progress. It is

sufficient if the "concern" is manifested in

the venture which centres upon the

importation.

Courtney-Smith 33 12/3/91

In both of those, it is submitted they are wrong

decisions.

I pointed out before that the indictment in

that case was "as an accessary" and then it was pointed out in relation to Hew at the bottom of

page 272 that Hew was acquitted on the basis of his

mens rea, and that was taken as being established.

Then His Honour referred at page 273 at

line 15:

The next ground with which it will be

convenient to deal is the second; that is

that the learned trial judge should have

directed the jury that the charge against the
present appellant was in the nature of an

accessory offence and that in the event of

acquittal of the principal, Hew, then the

accessory, Yong, must also be acquitted. A

more direct way of stating this ground is that

the two verdicts, one of not guilty and the

other of guilty, are inconsistent.

And on the same page, line 40

Clearly enoughs. 233B(l)(d) is not of the same character in an accessory sense as is

s. 236. The section does not depend for its

operation upon what might be described as a

principal or primary conviction. It is

capable of operating in any circumstances

where there has been an importation into

Australia or any prohibited import.

MASON CJ:  Mr Papayanni, can I interrupt you to ask you, can

you identify for us, in the application book, where

the trial judge directed the jury on importation.

Now, you say that the Court of Criminal Appeal was

wrong in giving this extended meaning to

"importation". Now, can we find out how the jury

was directed on the point by the trial judge.	You
may be able to help us, Mr Weinberg.

MR PAPAYANNI:  Page 197, at the top of that page:

knowingly concerned in the importation. The

word "importation" here means simply bringing

the goods into Australia. Not only landing

them at the Port of Sydney but also the

processing of the goods through customs and

quarantine and their transport to their

location in Australia. The processes which

are involved in the bringing of the goods from outside the country into the country, not just the point at which it lands on the wharf in

Sydney or Botany Bay.

Courtney-Smith 12/3/91

Here there is no dispute that the

container was landed and that it went to

various places, as you will see, in and around

Sydney before it finished up at Manly Vale,

its location in Australia.	You will probably
have little -

difficulty about the importation.	Then he goes on
to say, at line 21:

Concern here means involved in, actively

participating in and the participation, the

act of participation may be either a large

part of the importation or it might be a very

small part of the importation.

Then at page 266, at the bottom of the page, the

last sentence:

You will recall I gave you directions about

what concerned was - involvement in the sense

of bringing the goods into the country, not

just the landing at the port but the extended

meaning.

The Court of Criminal Appeal decision was on page 323. That went on to deal with Bull's case,

Shin Nan Yong and Tannous' case and others.	And
that bring to - - -

MASON CJ: Well, the Court of Criminal Appeal relied on what

Chief Justice Barwick said in Forbes' case.

MR PAPAYANNI:  Yes.

MASON CJ: Well, now, what do you say about Forbes' case?

MR PAPAYANNI: Forbes' case was - there were two decisions

only out of the five that decided importation.

Mr Justice Owen decided conveyancing and the other

two judges decided against in relation to that.

And, in any case, the Chief Justice decided that it

had to be approximate to the landing. There was
no-one, in that court - I have not got the case

with me at the moment - who decided that it

extended during the whole of the procedure from the

moment it was exported to the moment it was stopped

and was taken out of the container. So, there was

no majority in Forbes' case in relation to that.

MASON CJ:  Do not worry about it, Mr Papayanni, we can look

at it for ourselves.

MR PAPAYANNI:  Mr Justice Owen's decision is on 447,

126 CLR, and he said there:

Courtney-Smith 35 12/3/91

I have had the advantage of reading the

judgment of my brother Windeyer. He is of

opinion that the motor car, the subject of the

present proceedings, was when seized by the

Customs officers being "used in the unlawful

importation" of the prohibited imports and was

also being "used in the unlawful conveyance"

of those goods. I prefer to express no

opinion on the first point but I am of opinion
that, for the reasons my brother has given,

the car was being "used in the unlawful

conveyance" -

and he decided it on that point. So you had two

deciding the importation but even in the decision

of the Chief Justice that he referred to - - -

MASON CJ: That is at 432.

MR PAPAYANNI:  Page 432, yes, that it was proximate to, as I

understand it, so there was no majority decision
even in relation to importation in relation to that
matter but, in any case, in my submission, that

case did not go any further than saying that it was

not just the actual time it landed but sufficient

to be proximate to it to be connected with the

landing.

BRENNAN J:  What were the acts that were charged against

your client? What did he do? There was the

correspondence with the Customs agent.

MR PAPAYANNI:	The four letters that were sent -
BRENNAN J:	The four letters, cheques.
MR PAPAYANNI:	- - - there was the letter that - including

the cheques on occasions and the first one sent the

certificate or origin and the bill of lading and

another document and they were exhibits P, Q, R, s,

T, U and X, I think.

BRENNAN J: These are the communications between the accused

and the customs agents?

MR PAPAYANNI:  Yes, that is right.

BRENNAN J: Then there is the communications between the

accused and the office in North Sydney?

MR PAPAYANNI:  The office, no. The only evidence there in

relation to that was that he signed an agreement in
relation to Northside Secretarial Services and

forwarded that to him. His explanation in his

statement was that that had been left by mistake at

his place by Hamill and Hamill had asked him to

send it on. Then there were the cheques which are

Courtney-Smith 36 12/3/91

enclosed in letters. There was also the letter in relation to a certificate of origin and so on, but

the cheques were sent afterwards. They were

received on 3 June and 7 June which was after, in

fact, the landing.

TOOHEY J: Yes. There was one before and one after.

MR PAPAYANNI: That is right, there was one on 20 May. That

enclosed the invoice, exhibit Q, exhibit Rand

exhibit Sand then that was not in relation to the

container that was only in relation to the

furniture because subsequently to that -

BRENNAN J: Well, whatever it was in relation to, I am just

looking to see what the acts are. There are those

communications with the customs agents; there was

the forwarding of something to the North Sydney

Secretarial Service and there was mere presence at

Manly.

MR PAPAYANNI:  Yes, but the important point about that was

that the original letters were about the furniture.

BRENNAN J:	I appreciate that.
MR PAPAYANNI:	But the only letters that were sent in

relation to container were sent after the landing
because they found out it was a consignor's own
container and they had to get a telex to somewhere

or other in Limassol or somewhere else and find out

what the value was and then the customs duty was

assessed on that and then that was paid. All that

was done after the landing. That was the container

which was the important matter because the drugs are

in the container, not in the furniture.

BRENNAN J:  My question is, if there was too wide an

interpretation given to "importation" in the sense

that it extended a notion of importation for the

movement and possession of the container at Manly,

was there any act which was attributed to your client which might have been looked at as relevant only to that extended activity?

MR PAPAYANNI:  In relation to the container or the furniture

as well?

BRENNAN J:  The container and the furniture, or the

container.

MR PAPAYANNI:  The furniture was the letter of 20 May which

forwarded the certificate of origin and copies of

bills of lading and so on, but there was no act in

relation to the container before 30 May.

MR WEINBERG:  We do not agree with that, with respect.

Courtney-Smith 37 12/3/91

MR PAPAYANNI: Well, that may be right but so far as I can

ascertain, the cheques were paid in relation to the

container after 30 May.

DEANE J: But, on your client's own account, while the

container was on the voyage to Australia, he

entered into an arrangement under which he got a

20 per cent share of the profits of the sale of the

furniture in the container.

MR PAPAYANNI: That is why I say the difference here is that

in relation to the loan that whole case of the

applicant was not put. Let us accept, for the

moment, that there was evidence in relation to -

that it could be found to be knowingly concerned in
relation to the container before the landing - let

us accept that for the moment. The point was that there was never any direction to the jury that the

loan itself, being his defence, was not sufficient

in itself, or taken with anything else, to

constitute being knowingly concerned in the

importation of the container into Australia.

That was the defence case and for that reason

it had to be that there had to be a strict

interpretation given - as in any criminal case - to
this question of knowingly concerned in the

importation. If there was not, and if there was an

in globo direction that anything that happened

between the time before the importation and after

the importation up until the time when the

container was at Campbell Parade, anything that

happened during that period of time was sufficient

to show that he was knowingly concerned, well then,

in our submission, that was a misdirection and a

gross miscarriage of justice.

It even went further than that because when

one looked at what Hamill did - see objection was

taken to the evidence - Hamill was identified as

being the person who dealt with Mr Mullane in

relation to Mitol Holdings and he got the lease of
these premises at Campbell Parade.	Now, he had

been in touch before the container landed on

30 May. He had been in touch with Mullane before

that. Objection was taken to all that evidence of

the conversations that occurred between Mullane and

Hamill. Some of those conversations referred

indirectly, or the Crown relied upon them as

referring to the applicant as being a retired

gentleman and so on, on one occasion and

descriptions.

The evidence in relation to the container in general forwarding, there was a Mr Alijagic, a

Mr Hogan, a Mr Perry and a Mr Creighton.	They all
gave evidence and they all gave their

Courtney-Smith 38 12/3/91

conversations. That evidence, in our submission,

was not admissible as to the conversations and that

took in a number of matters, especially in relation

to Mr Hamill, that occurred after the importation.

The point about that was, in relation to the -

you see, Tripodi's case, 104 CLR 1, at pages 6

and 7, makes it very clear that in a conspiracy it
is the common object that is important, that in a
substantive offence it is the ingredients of that

offence that are important and it is only in

relation to the ingredients of the offence that

evidence is admissible.

At the bottom of page 6 - it is the

application of that case which is important here

because Hamill was charged with a single offence of

knowingly concerned on different acts to the acts

of the applicant. At the bottom on that page it

says:

For upon a charge of conspiracy the proof of

the crime may well consist in evidence of the
separate acts of the individuals charged

which, although separate acts, yet point to a

common design -

and "common design" is important there -

and when considered in combination justify the

conclusion that there must have been a

combination such as that alleged in the

indictment.

That is conspiracy.

When that is so evidence may readily be let in

of what each party to the conspiracy alleged

may do or say in furtherance of the common

purpose.

And, this is the important part: 

But when a substantive crime, not a

conspiracy, is charged in the indictment it is

the ingredients of the substantive crime that

must be proved, not combination for a common

purpose.

And that is in this case where the evidence let in of Mullane, Alijagic, Creighton, Perry and Hogan

all went to some acts by other people. There was

no evidence to connect the accused, other than by

some sort of inference, with any of those - any

contact. He denied having any telephone

conversation with anybody, Creighton or anybody

Courtney-Smith 39 12/3/91

else from Container and General.	And then it goes
on to say:

When the case for the prosecution is that in
the commission of the crime a number of men
acted in preconcert, reasonable evidence of
the preconcert must be adduced before evidence
of acts or words of one of the parties in
furtherance of the common purpose which

constitutes or forms an element of the crime

becomes admissible -

and the important part, in our submission, there is
in relation to that question of, "It's the

ingredients of the offence and not the common

purpose." Now, objection was taken right

throughout to a number of matters and Tripodi's

case was argued in relation to this. But

His Honour's directions to the jury, at page 208 to

209:

However, it is permissible to look at

what is done by other persons engaged in the

importation to interpret the actions of the

accused but before we do so it must first be

shown that those other persons - in this case

Mr Hamill, one other person - had a common

purpose with the accused, a common purpose in

bringing the container with the drugs into the
country.

Now, that is not in accordance with Tripodi's case because there is no common purpose alleged in

relation to the particular crime. In fact, as I

said earlier, the Crown had conceded - in this

particular case they conceded generally which is

not correct but they conceded that there was no

common purpose and that was on page 11. At line 26

there was objection:

to any evidence to show any joint enterprise.

Further the substance of the charge is not a

joint charge ..... relied on -

Sperotto's case, that should be. And then, the

Crown prosecutor went on, at line 40:

He submitted that there is no offence in law

of being knowingly concerned jointly with

others -

that was the Crown prosecutor. Of course, he was

wrong in that. But, in this particular case he was

right. You can have a common purpose in relation

to or knowingly concerned if the same acts are

relied upon and those acts are done jointly. So

that was argued earlier on and then His Honour here

Courtney-Smith 40 12/3/91

is talking about a common purpose which is not in

accordance with Tripodi's case.

On page 209, it goes on to say, here:

The Crown says that this is demonstrated

actions before the arrival of the goods and in preparation for the arrival of the goods. The

by the evidence of Mr Courtney-Smith,

Crown says that those actions demonstrated

that they must have agreed on a common

purpose.

It goes on to say he was with Brian Walker and so

on.	And then, at line 15:
It is the Crown case that at some stage before Mr Courtney-Smith used the name
Brian Walker there must have been some sort of
meeting between Mr Hamill and
Mr Courtney-Smith relating to this importation
in which there were tasks allotted to
Mr Hamill and to Mr Courtney-Smith.
Then, on page 212 - that was a conversation.	Then

at page 155, argument had been put up in relation

to Tripodi's case at the end of the Crown case.

And then again at page 268, His Honour said - there
was argument there in relation to - about line 16

on page 268, where I said:

The second matter is the common purpose is not

to import drugs.

And His Honour said:

Well it is to be involved in the importation,

it is to be involved in the imports.

I said:

I know it is a difficult matter but my

submission is that as the indictment only

alleges a single crime, your Honour knows that

argument, then any actions by -

His Honour said:

I think you are technically correct but I

don't propose to bring them back to alter

that. That is the nature of the charge, you

are quite correct, it is not importation -

I think it means -

Courtney-Smith 41 12/3/91

but the common purpose is the importation and

he is involved in it, so to that extent it

seems to me the charge is correct. He is not

the importer but the common purpose is the

importation of drugs I think.

Then it went down to the next page where His Honour

finished up at about line 6 to 8, His Honour said:

You will have it noted that my view is that

the common purpose here was the importation of

drugs, the charge is being involved in the

common purpose.

Tripodi's case, of course, makes it quite clear that in the individual case, as this was -

substantive case - of being knowingly concerned,

the Crown is restricted to the acts of the accused.

Now, the difficult situation arises in this

particular case - Hamill is alleged to have

contacted Mr Mullane on 20 May in relation to the

leasing of the factory and then it is all the

conversations that were let in with Mr Mullane.	So
you have got Hamill does a, b, c, d.	Now, some of
those are before and some are after.	The accused
does e, f, g.

You have got the two charges. Hamill's case

relates to separate incidents.	The applicant's
relates to other incidents.	The accused is charged

and told that those incidents that he has, plus

Hamill's incidents on which there has been no

contest about that because, in fact, he pleaded

guilty but the jury did not obviously know that.

He had pleaded guilty to the fact of being involved

in this, or knowingly concerned. His acts were in

relation to the housing of the container.

Now, the jury was told by the Crown in the

address and His Honour has given the common

purpose, that the acts of Hamill which constituted

being knowingly concerned in a different charge

could be used to convict the applicant on his

separate charge.

The jury, as I said before, could have come to

the conclusion as there was no dispute - Hamill was
not there - that Hamill's acts in relation to the
fact of his leasing the factory, being there when
the container came in and accepting the receipt of
the container in a fictitious name, the name of

Dowse I think it was, that he was therefore

involved in the importation of this container.

Now, if they came to that conclusion they

were told that his acts were the accused's acts by

reason of Tripodi's case, the accused could have

Courtney-Smith 42 12/3/91

been convicted solely on what Hamill did without

any jury having to decide anything in relation to

the actual matters of the loan, whether it was a

loan or not. That was the substance of the

submission in relation to that, that none of that

evidence in relation - perhaps I should give you

the references to it, Your Honour. There were a

number of conversations on page 20 with Mullane;

there is page 23 with the answering service; there

is page 30 with Russo; page 36 with Creighton;

page 69 with Alijagic; and there are objections

taken in relation to all those matters on pages 24,

27, 30, 61, 64, 70, 80, 122, 99, 100 and 101.

The substance of the applicant's case - the

Crown case was to the effect that it was the

accused that spoke to Mr Creighton and all these
people from Container and General Forwarding.

There was no evidence to support that except that

it sounded like an elderly voice or something of

that kind, but the evidence that showed that it was

Hamill or could have been Hamill was that after

that container was delivered at 8.05 pm on 7 June,

Mr Hamill went to a telephone box - he was seen by

the police - and the conversation lasted about a

minute and he made a phone call. At the same time,

about 8.05 pm, Mr Alijagic received a phone call in

the same voice as the person who had been making

all these other telephone conversations with him

calling himself Walker. That was timed at round

about 45 to 50 seconds.

So the accused's case was that this was

evidence which supported the fact that it was

Hamill who had been making these conversations with

Creighton and Alijagic and Perry and Hogan.

His Honour admitted later when His Honour got

somewhat carried away in relation to his address,

as he admitted, and went too far in relation to

that, but that was in trying to write that down.

But that was the case, and our submission was that

as there was no evidence to establish that it was

the accused who made those telephone conversations,

then that evidence should not have been admitted.

If, in fact, it was Hamill then it should not have

been admitted because Hamill's acts were in

relation to a different act of being knowingly

concerned.

So, it all came back to the fact that the

disputed matters were the telephone conversations
with Mr Creighton, Alijacic, Hogan and Perry. They

were disputed.

The evidence in relation to Hamill was that in

April 1985 he had set up an answering service with
All Type giving the address at Rushcutter's Bay

Courtney-Smith 43 12/3/91

which was a flat that he owned; that he had

arranged the lease and all the conversations with

Mr Mullane in relation to that and that had been commenced on 7 May and continued through until it

was completed; and that on 7 June 1985 Mr Hamill

was seen to go to Container and General Forwarding

at Mascot, to enter the premises and leave and he

is identified; and Hamill also was seen at Manly

Vale with a container and it was inferred that he

was the person who received delivery for that.	As
against the applicant the matters that have been

put already or the matters that have been referred

to, plus the fact that he was seen with Mr Hamill

and he had his dog, I think, with him at the time

and on 7 June in the vicinity of this container and

had a short conversation with Mr Hamill. He

explained that by saying that Hamill had rung him

and said that he was having difficulties about the

matter and could he come down and assist him. He

said, he went down there and he was there a short

time and then left.

But Hamill was the person who stayed there

and, of course, the container had to be taken from

the delivery truck, put on to another truck - a

side truck, I think it was, and then taken around

in relation to the front of the premise and

delivered in front of the premise. Hamill was the

person who supervised all that.

They are the only matters that I wish to put

in relation to this matter. There are a number of
other matters, a number of matters which go

probably to showing the unsatisfactory nature of

the way that His Honour conducted the trial, but

those matters would go probably only together with

to show that there was some general injustice in

relation to it but I could not put it as a matter

of special leave.

MASON CJ:  Yes. Thank you, Mr Papayanni. The Court will

take a short adjournment in order to consider what

course it will take in this matter.

AT 3.15 PM SHORT ADJOURNMENT

UPON RESUMING AT 3.29 PM:

MASON CJ:  The Court need not trouble you, Mr Weinberg.

Courtney-Smith 44 12/3/91

We are not persuaded that any of the evidence

which counsel for the applicant contends should

have been rejected at the trial was wrongly

admitted.

The question whether the word "importation" in

section 233B(l)(d) should bear an extended meaning
is a question of some difficulty but we are not
persuaded that, in the circumstances of this case,
the direction given by the trial judge on the point

constituted an error which could have given rise to

a miscarriage of justice and we do not consider

that there was any other error in the trial judge's

directions which could have given rise to such a

miscarriage.

In the circumstances, therefore, the

application for special leave is refused.

AT 3.31 PM THE MATTER WAS ADJOURNED SINE DIE

Courtney-Smith 12/3/91