Cruzado v The Queen

[1993] HCATrans 330

•

.

,.

•

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S30 of 1993

B e t w e e n -

MIGUEL GARRALON CRUZADO

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
GAUDRON J

McHUGH J

Cruzado(2) 1 27/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON WEDNESDAY, 27 OCTOBER 1993, AT 9.31 AM

Copyright in the High Court of Australia

MR I.C. BARKER, OC: If the Court pleases, I appear with

MR A.M. MARTIN, for the applicant. (instructed by

Hovan & Co)

MR T.L. BUDDIN:  May it please the Court, I appear on behalf

of the respondent. (instructed by the

Director of Public Prosecutions (Commonwealth))

DEANE J:	Mr Barker.
MR BARKER:	If the Court pleases, in an attempt to distil

the argument further, I have committed some of it

to writing which I hand to Your Honours.

DEANE J: Yes, Mr Barker.

MR BARKER:  Your Honours, if I could take you to pages 66

and 67 of the application book.	We propose to
argue only ground 7(a) on page 66.	We do not wish
to be heard in respect to the other grounds.	The

real issue here, Your Honours, is whether there was

evidence of intention sufficient to make a prima

facie case and whether the treatment by the Court of Criminal Appeal in the case was correct in the light of He Kaw Teh; thirdly, if there was a case,

whether the trial miscarried because of the
judge's directions about the use the jury might

make of lies possibly told by the applicant.

I should point out, Your Honours, that there

was a no-case submission made at the trial, neither

was His Honour asked to make any redirections.

Notwithstanding that, our submission is that there

was a miscarriage of justice, and the fact that no

proper application was made at the trial should not

be an impediment to this application.

Put briefly, Your Honours, this was a case

where the applicant, a 60-year-old Spaniard, came

to Australia with 11 sealed tins. One of them can

be disregarded because it contained asparagus.

The others were a combination of heart of palm tins

and preserved fig tins. Perhaps I could hand to
Your Honours a photograph to show you the articles,

that is, of course, after they were opened by the Federal Police. The tins were entirely sealed in

the ordinary commercial way in which preserved food

cans are sealed and on the face of the tins they

were no more than they purported to be, that is,

tins of figs or tins of heart of palm, which one

could buy at any supermarket in Rio de Janeiro.

The applicant has consistently denied that he

knew that there was cocaine in the tins.	In fact
there was.	He, of course, could not explain how

the cocaine happened to be in the tins, if one

Cruzado(2) 2 27/10/93

assumes his innocence.	The tins were completely
sealed.	The only way he could have known of the

contents was either if he had been a party to

sealing the tins in the first place or he opened

them or he was told what was in them, and there is

no evidence of any of those things. Very briefly,

what he said was that he had succumbed to the

allurements of a young woman in Rio de Janeiro who

was on the aeroplane from Madrid to Rio. He spent

some time with her. Shortly before leaving for

Australia she told him that she was going to
Australia and they arranged an assignation at the

Oxford Hotel in Australian in Sydney. She asked

him if he could carry 11 tins, because she wanted

to give to some friends in Australia some fruit

which was representative of Brazil and she did not

have room for them. He said, yes, he would. There

is no evidence that he questioned her or even

turned his mind to what might have been in them,

beyond what was on the label.

McHUGH J: This is the male version of the Michael Johnson

story. There were a series of cases in the late

70's where female couriers said they met a man

called "Michael Johnson", who asked them to carry

something back.

MR BARKER:  Yes. It is certainly not the first time, I

suppose, in history that a 60-year-old man has

succumb to the allurements of a young woman.

GAUDRON J:  Is not a difficulty with your case that the

trial judge said, "You do not have to accept the

story, but if you have got a doubt about it, you

must quit." Is that not where your application

falls down? If you look at page 37, the case was

clearly left to the jury that even if they had a

doubt about his story they should acquit.

MR BARKER:  Yes, but the problem is, Your Honour, that it

was left to the jury on the basis that it was open

to them to find that his account of the transaction

was a series of lies and that the jury could then

use that fact as proof of his guilt.

GAUDRON J: That may have been more favourable than you were

entitled to in the circumstances.

MR BARKER:  The problem was it was almost entirely circular

because it invited the jury to commence reasoning

from the proposition that he was guilty, that he

knew what was in the tins and therefore he was

telling lies. Now, our submission is that that

direction was wrong but, in any event, the account

he gave was not capable, in the absence of evidence to the contrary, of being categorized as a story so

Cruzado(2) 3 27/10/93

fanciful that it should necessarily be incapable of

belief.

McHUGH J: But why is not the fact that he is in possession

of the tins themselves enough evidence in a case to

go to the jury?

MR BARKER:	Your Honour, as was said in He Kaw Teh, there are many cases where mere importation is adequate
to found the inference of an intention to possess
but it is, in each case I would submit, a matter of circumstance. Justice Brennan, for example, pointed out that there was no such rule of law; it
is a matter of circumstance and there must be circumstances where more is required than the mere
fact of importation. In this case, where we have
sealed tins and no evidence that he knew what was
in them, my submission is that it is not a case
where the fact of importation can itself take the
Crown home.

McHUGH J: That means, on your case, that if he had said

nothing, there was never a case against him?

MR BARKER:  Yes, our case says that if he had kept silent

there would not have been no case to answer.

GAUDRON J: But if he had kept silent, why would not that

have been analogous with the situation where a

person is found in recent possession of stolen

goods?

MR BARKER:  Because there would have been no evidence to

show that he was aware of what was in the tins or

could have been aware; there was no evidence that

he knew or he knew of a likelihood.

GAUDRON J: Possession itself is evidence, the unexplained

possession.

MR BARKER:  But if he was innocent, Your Honour, he could

not explain. He could explain how the tins came

into his possession, but he could not explain how

the cocaine was in the tins. So he could not

explain how the cocaine came into his possession.

Now, if it is the law, if the Court of

Criminal Appeal was correct in saying that if his

story was regarded as a lie and the jury could

treat the facts as being importation without

explanation, therefore he was guilty, if that be

the state of the law, in my submission, it

substantially erodes the effect of He Kaw Teh

because it, in effect, reverses the onus of proof

and it places upon the accused the evidentiary

burden of demonstrating that he had a reasonable

excuse for possession. That was the state of the

law when this Court considered He Kaw Teh.

Cruzado(2) 4 27/10/93

Your Honours, the material parts of the

summing up are firstly at pages 5 to 7 and a

curious feature of this case is this, that the way
the Crown put it, the Crown did not rely upon
importation alone; the Crown relied upon the

importation plus the nature of the explanation, and

that is quite clear from His Honour's directions.

Whereas, in the Court of Criminal Appeal,
Their Honour said, "What the Crown really set out
to do was to prove the importation and then if the
jury disbelieved the appellant, they were left with

the fact of the importation and no explanation and

therefore they could convict." In my submission,

they could not convict, in the circumstances,

simply founding the conviction upon the

circumstances of the importation.

His Honour at page 5 of the application book

gave the jury some examples of how intention might be proved. At line 15 at page 5, he said it might be "by admissions", and there were none in this

case. At line 27, he said:

a guilty mind can be proved by inference, from

what the accused actually did. The intention

to do the prohibited act with a guilty mind

may be inferred from the doing of the act -

and he gave examples of where that might be

appropriate:

There may be cases in which a passenger is

searched at the airport and it is found that

he has, strapped around his middle in a belt,
such prohibited imports.

He said that was not the case here, and he appears to have dismissed that as a means of approaching

the matter. He then got on to the question of

actual knowledge or knowledge of a likelihood, and

then put the Crown case, at the top of page 7,

where he said:  The Crown case here is that the Crown

says you would conclude beyond reasonable doubt that this accused had a guilty mind because of the circumstances in which these

goods were brought into the country, together

with the explanation that he gave. The Crown

says the explanation which he gave, that he

obtained them from someone he had met for a

short period of time in Rio de Janeiro, that

it would be quite fanciful to believe that

anyone would use him as an innocent agent to

bring these goods into the country, having

regard to the substantial amount of property

involved, over three kilograms, that it is an

Cruzado(2) 27/10/93

affront to common sense to suggest that that

could have occurred. The Crown says that you

would reject the explanation given by the

accused to the customs officers, the police at

the airport and also at the police centre,
that you would conclude that the accused was

giving a false account as to how he came to be

in possession of these items, and that that

would lead you to the conclusion that quite

clearly he had a guilty mind.

Well, Your Honours, to get to that point, to find

the lie, of course, in the way it is put there, suggests that they firstly have to find that he

knew cocaine was in the tins, therefore anything he

said to the contrary was a lie.

At the end of the summing up - it was not a

very long summing up - he said again, at page 36 of

the application book, line 7:

Again I emphasise members of the jury,

that the Crown must prove that the accused had

a guilty mind at the time of the importation,

and this may be proved when an intention on

the part of the accused to do the forbidden

act, is proved beyond reasonable doubt, that

is the importation of narcotic drugs.

The Crown says here, is that you would be

satisfied of this state of mind, as a matter of inference, from what the accused has done

and said. It is put to you that you would

reject the accused's account of how he came to

be in possession of the drugs, as being

fanciful and unreal. If you were of the view

that the accused gave an untruthful account of

the circumstances of which he came into
possession of those items, and how he came to

bring them into Australia, that could form the

basis for a conclusion that he had a guilty

state of mind. I emphasise however, that it

is not a matter of saying the accused is
lying, therefore he had a guilty state of

mind. You must look at all the circumstances

and consider as a matter of inference, whether the only reasonable conclusion to be drawn, is

that the accused had a guilty mind, and this

must be a view which you arrive at beyond

reasonable doubt.

The Crown must prove beyond reasonable

doubt, that the accused intended to import the

narcotic drugs, that is that he knew that the

ten tins contained narcotic drugs, or that he

so believed, or was aware of the likelihood -

Cruzado(2) 6 27/10/93

then he goes on to talk about the accused account:

if you are simply left in doubt about what the

accused has said ..... then again the verdict

would be one of not guilty -

Now, as to that we say this, Your Honours, that if

they were left in doubt as to the accused's

account, certainly they should have had to acquit.

If they did not believe the accused, in my

submission, they still had to acquit, because there

was nothing left and it was not a - - -

McHUGH J: What you are are saying is that mere rejection of

his evidence does not prove any positive

proposition?

MR BARKER: Precisely, Your Honour, and it was not a case

where it was appropriate to tell a jury they could

build on a rejection of his evidence by finding

that what he said was said from fear of a

revelation of the truth. In the Court of

Criminal Appeal - - -

McHUGH J: This is the whole difficulty with this, all this

question of lies being used as evidence, whether of corroboration or - the whole law on the subject has

always struck me as unsatisfactory.

MR BARKER: It causes considerable complications. Here it

is not so much corroboration, in the ordinary sense

but - - -

McHUGH J:	I know.
MR BARKER:	a positive making of the Crown case.
McHUGH J: Yes.
MR BARKER:	One might infer, from the way the case was put,

that the Crown and, indeed, His Honour, took the

view that without the added factor of the so-called

lies, there was, in fact, no case.

GAUDRON J:  I would remain to be convinced that there was no

case, even if he remained silent.

McHUGH J:  I must say that is my thinking as well although

that does not seem to be the way the Crown

conducted its case, as you said.

MR BARKER:  No, it is not.

McHUGH J: If there was just one tin, one could understand

it, but the fact that you have got so many tins and

there is cocaine in it, I do not see why a jury

Cruzado(2) 7 27/10/93

could not infer that he would have had knowledge of

it; that in some way he was involved in it.

MR BARKER:  Your Honour, the number of tins is probably an

indifferent circumstance because one could argue

that if he had a small amount concealed on him,
that would be proof of guilt because it was

concealed. When he came in loaded with tins, nine

in his suitcase and two in his duty free bag,

without the slightest attempt of concealment, one

might argue that that points to an ignorance on his

part of what it was he was carrying.

McHUGH J:  Can you divorce from this issue other pieces of

evidence, small though they may be, such as the

computer search of people, as to whether anybody

with this woman's name was coming into the country,

or whether he was staying at the Oxford Hotel?

MR BARKER: Nothing, we submit, that would lend much weight

to the case. There was evidence that no one with

that name came to Australia, but that itself is,

again, I submit, neutral. There was an issue

raised by the Crown as to the weight of these cans

as opposed to the weight shown on the label. It

seems to have been an entirely false issue because

the weight on the labels was the net weight of the

contents, whereas, apart from two tins, what was

weighed was the full tin unopened, and there is no

evidence as to the weight of the cans.

Can I give Your Honours a schedule just to explain that briefly. This is taken from the

transcript. The weights on the right were those

printed on the label and those on the left were

those found by the chemist. The first weight was

the cocaine and wrappings, without the tin and
without the liquid, and the second one was a full
tin, but with no liquid, and then the rest of them

were the full tins unopened. So one can hardly deduce from that that he should have been aware

that what he was carrying was a lot heavier than
what is suggested by the labels.	If we use the

tine of asparagus as a guide, and that was a

legitimate tin of asparagus, the total weight of

the asparagus was 602.5 grams - that is the weight

of the tin and all - whereas the label showed the net weight at 320 grams. The total weight of the

tins numbered 3 to 10, that is, the full tins, was

7629.5 grams and the net was 3750 grams.

So the total weight of the cocaine tins, as

opposed to the net, when you compare it with the

total weight of the asparagus tin as opposed to the

net, was only 15 per cent more. Now, if that is

any guide, it only meant that it made a difference

Cruzado(2) 27/10/93

of two or three ounces per tin, so it is not really

a material matter.

Something was made of the fact that he said on

his disembarkation card that he had come for a

holiday and he told the jury in his statement that

he had come for work. Of course, our submissions

are at the point where His Honour had to decide
whether there was a case or not but, in any event,

it is perfectly explicable, when one considers the

evidence of the immigration officer at the airport,

who had difficulty communicating with him, who

corrected his form and indeed, filled in some of

the blanks that he had left. My submission is that

these are peripheral matters which do not bear upon
the central issue sufficiently to make a Crown
case. In any event, the jury having been

instructed that they could treat his evidence in

this way, in my submission, is itself sufficient to

bring the trial undone.

What was said in the Court of Criminal Appeal,

which judgment starts at page 42, treats the Crown

case as being not the case that was put. On

page 51, line 15, His Honour deals with some

submissions that were made about "wilful

blindness" which really did not arise in the case.

It was not suggested that he should have been

suspicious and closed his eyes. At line 25,

His Honour said this:

the Crown case at the trial was not based on

any "wilful blindness" of the appellant. It

was not the Crown case that the appellant,

having received possession of the tins from

the young woman in Brazil, had notice of

suspicious circumstances which aroused in him

a suspicion that the tins might contain

drugs ..... The Crown case at the trial was that

the appellant's account of how he had received the tins from a young woman in Brazil as gifts

for her friends in Sydney, was a concoction

and should be rejected by the jury.

Consequently, on the Crown case, the appellant

was a person who had entered Australia in

physical possession of goods in which drugs
were concealed, and who had offered no

explanation of the presence of the drugs which
might reasonable be true, and that in those

circumstances it was at least open to the jury

to infer that he knew the drugs were in the

tins.

So His Honour says, importation, no explanation,

equals proof of intention. And he said:

Cruzado(2) 9 27/10/93

This way of putting the Crown case is

supported by a passage in the judgment of

Gibbs CJ in He Kaw Teh.

And he cited that well-known passage:

Further I am by no means persuaded that it is

virtually impossible, or even particularly

difficult, to prove the state of mind of an

importer of narcotic goods in the absence of

admissions. If a person enters Australia

carrying a suitcase which has narcotics

concealed in it, and offers no convincing

explanation of the presence of the narcotics,

I should be surprised if a jury would draw any

inference other than that he knew that the

narcotics were in the case.

Well, His Honour there, with respect, was

postulating a factual situation, which the Court of Criminal Appeal has transported into a principle of

law as though it were applicable to every case.

His Honour went on to say:

That this was the way in which the Crown

case was put at the trial is shown by a

passage in the summing up.

And he recounts the passage at page 53, where the

judge said to the jury:

It is put to you (by the Crown) that you would reject the accused's account of how he came to

be in possession of the drugs, as being

fanciful and unreal. If you were of the view

that the accused gave an untruthful account of
the circumstances in which he came into

possession of those items, and how he came to

bring them into Australia, that could form the

basis for a conclusion that he had a guilty

state of mind.

Now, clearly what His Honour was putting was that	the jury could extract positive evidence of guilt
from the lies and not simply ignore them.

DEANE J:  Was there any evidence, Mr Barker, of the

wholesale value of all this cocaine? I do not mean

the ordinary police evidence of when it is broken

up into little packs, but what was the value in

terms of wholesale quantity?

MR BARKER:  No, there is no evidence. The Court of Criminal

Appeal went on to say, at page 53:

Any absence of evidence that would have

caused the appellant, if he had innocently

Cruzado(2) 10 27/10/93

received the goods, to suspect that the goods

in his possession contained drugs would have

been very relevant if the Crown case had been
based on wilful blindness, but was not

relevant, or only marginally relevant, to the

way in which the Crown case was actually put.

It follows that His Honour did not err in not

directing a verdict of not guilty -

Your Honours, could I take you briefly to some

statements in He Kaw Teh about what inference might

be derived from the mere fact of importation?

There is the statement of the Chief Justice which I

have just read. At page 581, Mr Justice Brennan

dealt with the problem at point 5 of the page.	He
said:

In Gardiner, where the majority imposed

strict liability on a charge of

importing ..... their Honours may have thought

the difficulties of proof to be greater than they are. Knowledge of a thing that is in a

bag or packet imported by a person into

Australia and of the nature of that thing may

be inferred from the fact of importation.

He referred to Irving v Nishimura.

in reference to some opium that was found in

the bottom of some tubs brought ashore by the

defendant, Griffith CJ said that he thought

that:

when goods are imported the fact of

importation is sufficient prima facie

evidence -

of knowledge. Mr Justice Brennan went on to say:

Of course, whether an inference of knowledge can properly be drawn in a particular case and

whether an evidential burden has passed to an	accused to raise a reasonable doubt as to his
knowledge depends on the state of the evidence
in the case. There is no rule of law that in
all circumstances proof of importation of a
container in which prohibited imports to which
section 233B applies are found is sufficient
to support an inference beyond reasonable doubt that the accused knew of the existence and nature of the prohibited imports that are
found in it ..... The nature of the container,
the place and circumstances of its consignment
to an Australian port, the opportunities of surreptitious interference with it, may affect
the strength of the inference or prevent it
from being drawn. If the relevant mens rea

Cruzado(2) 11 27/10/93

were the absence of an honest and reasonable

belief, the accused would have to adduce

evidence or be able to point to something in

the evidence tending to show his belief and
reasonable grounds for his belief that there
were no prohibited imports ..... in the

container -

Now if this case could be made by no more than the

evidence of the circumstances of importation, my

respectful submission is that the findings in this

great case are substantially eroded, because the

law would be as it was before the case was decided

and, in this case, Cruzado would have borne an

evidentiary onus of showing a reasonable excuse for

being in possession.

GAUDRON J: But is it really correct, Mr Barker? Assume

that the jury rejects the account of the elegant

young lady on the plane. It is then left with

virtually only one inference: accident, mistake,

in the circumstances of this.

MR BARKER:  That would be mere speculation, with respect.

GAUDRON J: Well, that is right, either he knew what he was

doing or there was an accident, fortuitous

intervention.

MR BARKER: 

Your Honour, that, with respect, would be the

material consideration if the cocaine was, for
example, found inside his slippers in his suitcase
or inside a book he was carrying or somewhere where

he could be said to have access to, but the problem

here is the sealing of the tins.

GAUDRON J:  The account has been rejected. We are starting

on the assumption - whether or not it is used as

evidence, it is merely rejected. There must be

sufficient, in this case, to base an inference,

because the only other explanation would be

fortuitous intervention, presumably in the canning
establishment, which he happened to buy.	The

coincidences would be too great, you see, which is

why there is an inference available from the

possession.

MR BARKER: In my submission, that is not permissible

reasoning. What Your Honour is saying is that

rejection of his story necessarily believes the

inference that the only other inferences which can

be drawn are consistent with guilt.

GAUDRON J: Possession by itself, in the circumstances of

this case, in which you outlined, give rise to two

inferences only, without an explanation: that is,

Cruzado(2) 12 27/10/93

knowledge or fortuitous intervention somewhere

along the line.

MR BARKER:  Knowledge of the containers, with respect, but not what they contained.

GAUDRON J: Yes, knowledge of what they contained. Either

this was a coincidence, out of the blue, or he

knew.

MR BARKER: Well there may be other inferences: he was set

up by someone else. You see, let us assume his

innocence, as the jury had to before deciding the

question. There was no explanation he could give,

because if he did not know what was in there, if he

assumed that what was in there was tinned fruit,

how could he possibly give any rational explanation

of why cocaine had been substituted for tinned

fruit. He could only give that explanation if he

knew, if he was guilty. And if the evidence were

such that he had access to the contents, that lids

would come off and could be put back on again, or

that he had any reason to think, because of what he

was told, that they were not what they appeared to be, well then, perhaps the case would be made but,

in my respectful submission -

GAUDRON J: But you see, what you have then, if the

explanation is rejected, that is, the lady was not

on the scene, she was not there, is a man arriving

at Kingsford Smith Airport with tins of cocaine and

he has not even got the version that he is giving

them as presents to someone; you have got nothing

but the possession, the unexplained possession, of

tins containing cocaine.

MR BARKER:  Your Honour, the problem with that, in my

submission, is that if that be right there was no

need for the decision in He Kaw Teh, because guilt

will be inferred for mere possession - - -

GAUDRON J:  No, there is a reason for the decision in

He Kaw Teh, and it appears in what was said by the

trial judge at page 37, if you are left in doubt,

you acquit; if you have got a doubt, if you think

it was a reasonable possibility, you acquit.

MR BARKER; But Your Honour would convict because of the

fact of possession and no more.	If he had kept
silent Your Honour would convict.

GAUDRON J: In these circumstances.

McHUGH J: Looking at the totality, if somebody arrives in

the country with 11 tins, or whatever the number

was, and they contained cocaine, you would say to

yourself, "Well, unless there is some innocent

Cruzado(2) 13 27/10/93

explanation for this, he is a party to this; he

knows that cocaine was in this tin."	Now, he
purports to give an innocent explanation.	You
reject it. So, you have now got no

innocent explanation. Surely it is open to the jury to say, in that situation, "He, not having proffered an innocent explanation, we can draw the

other inference that is available; we do not have

to, but we can."

MR BARKER:  Your Honour, then, is drawing an inference

consistent with guilt from the mere fact of

importation.	Now, if that can be done in this
case, it can be done in almost every case.	It is

difficult to imagine what case it could not be done

in, if the container in which the drug is contained
is found on the person or in the luggage of the

importer.

McHUGH J:  I know the dangers of it and one has to be very

careful, because it is drugs that are involved,

there is not an illegitimate process of reasoning, if there was some prohibited disease or something else, one brought in some food and it happened to be in it, one might feel very difficult saying that

somebody would know about it, but we are dealing

with a commercial operation. A fellow flies from

another country, brings these tins in, there is a

sizable quantity of them and they contain cocaine.

MR BARKER: All those facts, of course, are admitted; the

goods were imported, so they came from another

country but, really, with great respect,

Your Honour is putting an onus on the accused to

give an explanation which was the state of the law

before He Kaw Teh; at least an evidentiary onus to

give an explanation of his possession.

GAUDRON J: But I think the passages in He Kaw Teh, to which

you have so far referred us, allow that, in any

event. They say, "depending on the circumstances."

All that is in issue, by reference to those passages, are the circumstances of this case; no question of principle as such.

MR BARKER:  Indeed, but my submission is that the

circumstances of this case, whilst giving rise to
suspicion of a greater or lesser degree, are not

capable of making a Crown case because one cannot

infer, from the possession of sealed tins, that the

possessor knows what is in them, particularly when

they are perfectly ordinary tins which presumably

could be bought in any supermarket in

Rio de Janeiro or anywhere else. You can actually

buy them at David Jones. There may be a run on

them after this case, I do not know.

Cruzado(2) 14 27/10/93

GAUDRON J:  But he did not suggest he had bought them in a

supermarket.

MR BARKER:  No, he did not, but why should he have to, with

respect.

GAUDRON J: The reason is simple: because the possession

gives rise to an inference that you were party to

some arrangement or you were the principle in

importing cocaine.

MR BARKER:  Your Honour, that really does take us back to

where we were on 11 July, 1985.

DEANE J: But the suggestion that he might have bought them

all in a supermarket - I mean, it would be more

credible explanation to say he won them all in

lotto, you would think. If it was just one, you

might listen with a bit of interest to that

suggestion, but - - -

MR BARKER:  Your Honour seems to be saying that he was

obliged to give an explanation.

DEANE J:  No, you were suggesting a possible explanation,

that he could have bought them all in a supermarket

and they all happened to have large quantities of

cocaine in them, and one presumes very valuable

quantities of cocaine.

MR BARKER:  No, what I mean is that he would know that they

were available in supermarkets and he would,

therefore, have no particular reason to be

suspicious of what was in them. That was the point

of the comment.

DEANE J:  I follow that.

GAUDRON J: Yes, but that, again, assumes the non-rejection

of the account, and the matter was left to the jury

on the basis that even if you have got a doubt

about it, acquit.

MR BARKER:  We submit that in the absence of any explanation

he should have been acquitted by direction. If the

Court of Criminal Appeal's treatment of the case is

right, it is not a case where the inference might fairly be drawn, but Your Honour is against me on

that, I have no doubt.

The problem with this case, I submit, is that

Their Honours in the Court of Criminal Appeal have

used the dictum from the Chief Justice's judgment

as though it were a formula applicable to all such

cases, whereas His Honour was doing no more than

postulating a factual situation from which the

inference might be derived.

Cruzado(2) 15 27/10/93

~

In my submission, there was a miscarriage of

justice and the conviction should be set aside and

special leave should be granted.	Thank you,
Your Honours.

DEANE J:  Thank you, Mr Barker. The Court need not trouble

you, Mr Buddin.

The Court considers that there was no

miscarriage of justice in this case. Accordingly,
the application for special leave to appeal is

refused.

Now, Mr Barker, can I hand you back your

photographs.

MR BARKER:  Thank you, Your Honour.

AT 10.15 AM THE MATTER WAS ADJOURNED SINE DIE

Cruzado(2) 16 27/10/93