Cufari v The Queen

[1994] HCATrans 116

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
              Melbourne     No M49 of 1994

B e t w e e n -

PASQUALE CUFARI

Applicant

and

THE QUEEN

Respondent

Second Respondent
  Application for special leave to
  appeal

MASON CJ
DAWSON J

TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON TUESDAY, 6 DECEMBER 1994, AT 11.32 AM

Copyright in the High Court of Australia

MR M.L. ABBOTT, QC:   If the Court pleases, I appear with my learned friend, MR H.I. PATSOURIS, for the applicant. (instructed by Grace Partners)

MR G.L. FLATMAN:  May it please the Court, I appear on behalf of the respondents. (instructed by P. Wood, Solicitor to the Director of Public Prosecutions (Victoria)).

MASON CJ:   Mr Abbott.

MR ABBOTT:   If it pleases the Court, the grounds of our application for leave are in the main set out in our outline of argument and are based upon what we maintain are identifiable errors of the Victorian Court of Criminal Appeal.  This application requires a consideration of the Court of Criminal Appeal’s approach to section 5 and sections 70 to 73 of the Drugs Poisons and Controlled Substances Act 1981 of Victoria and also the learned trial judge’s directions to the jury thereon.

There are also some four other matters that we wish to ventilate, being the views of the Court of Criminal Appeal, which we say contain identifiable error, and they are: firstly, the onus of proof as to issues of intent and the Court of Criminal Appeal, we say, reversed the onus; secondly, as to the interaction of section 5 with section 73(2) and how that may create or may not create the offence of trafficking and the fact that the Court of Criminal Appeal in essence failed to deal with that problem; thirdly, as to the adequacy of the directions on occupation and the interaction of the concept of occupation with the concept of possession - and that primarily is a consideration of section 5; and fourthly, as to whether or not a jury needs to be directed on all the elements of an offence when there are, as there were in this case, diametrically opposed positions of Crown and defence.

If I could take the Court to the application book to the judgment of the Court of Criminal Appeal, where they deal with ground 1 at page 174, the Court of Appeal correctly identified at line 27 that:

The Crown chose to prove the element of possession by using the provision of section 5 of the Act.

And the Court will observe that the relevant part of section 5 provides that:

’possession’, any substance shall be deemed for the purposes of this Act

(a)  to be in the possession of the person so long as it is upon any land or premises occupied by him -

omitting surplusage.  So the prosecution sought to proceed on that way of proving possession and also, as is set out at line 40, at common law.

The Court of Criminal Appeal acknowledged that the directions by the learned trial judge to the jury on common law possession were, to use the Court of Criminal Appeal’s expression, “technically incomplete”; that is a reference to page 175 line 32, but it is not primarily to the technically incomplete directions on possession under the common law to which I turn, but to the way in which trafficking, which was the first count on the presentment, could have been a conviction for trafficking, which was the first count on the presentment, could have been arrived at by the jury.

The Crown case was that the applicant, Cufari, was in possession of the land on which the marijuana was growing.  They said he was in possession of it primarily by virtue of section 5, because they said they could prove that he occupied the land; occupation being, it was suggested correctly, a question of fact.  From that the Crown leapt to the provisions of section 73(2) and that provides effectively that once possession is proved of the relevant quantity of Indian hemp, that is prima facie evidence of trafficking, and the real vice in what happened, we say, is this, that the jury could have come to the view, for the purposes of section 5, that they found possession proved beyond reasonable doubt, because it was deemed by virtue of section 5 merely upon a finding beyond reasonable doubt of occupation, and they could have found trafficking by virtue of section 73(2), because possession of the requisite quantity - the quantity was undisputed, the marijuana was growing there - so trafficking as a prima facie case could have been arrived at by virtue of section 73(2).

There was still, as the Crown conceded, the element of possession for sale, but the Court of Criminal Appeal - I do not think I am doing them an unkindness - tended to brush that aside by saying, “That was another technically incomplete direction”, and I refer the Court to the appeal book at page 180 and following.  This deals with the reliance by the Crown and I read from line 15:

Counsel submitted that the reliance by the Crown upon section 5 and section 73(2) of the Act had the potential to mislead a jury and cause a miscarriage of justice.

The court then set out section 73(2), and it will be seen I suggested it has the effect to which I have attributed to it.  Line 29:

The Crown relied upon this provision.  It is to be noted that it merely creates prima facie evidence and does not, unlike section 5, create a rebuttable presumption.

Counsel submitted that a trial judge must be very careful to ensure that a jury does not use the combination of those provisions wrongly.  In this case, the Crown case was that the trafficking was constituted by having cannabis in possession for sale.  It was put that a trial judge in that situation should explain to the jury that the trafficking is possession for sale and, even though possession may be presumed, the Crown must still prove intention to sell and do so beyond reasonable doubt.

With respect, we adopt that, and what the Court of Criminal Appeal said about it is at page 182.  We learn that the jury retired - at the top of the page - the jury came back because they:

did not fully understand the full context of..... trafficking.  His Honour then essentially repeated the original charge.

and it was not put to His Honour at that age, and we accept that is so, that he should have drawn the jury’s attention to the fact that before convicting the applicant it would need to be satisfied - - -

MASON CJ:   So this point was not the subject of an application for a direction to the trial judge?

MR ABBOT:   That is so, Your Honour.  It was not a point taken by counsel, but a similar point was, and that is a point in relation to occupation and how that affected possession.  Now, it was not gone further and a second point such as this taken, but it was raised fairly and squarely before the Full Court and the Court of Criminal Appeal said, at line 12:

Technically the charge was incomplete but the question whether the applicant could be shown to have intended to sell the marijuana was not an issue.  The applicant led no evidence directed to the issue.  This was understandable because the applicant’s case was that he did not have any knowledge of the crop and did not have possession of it.  If the jury found that he had knowledge of the crop and was in possession of it, the inference that he intended to sell it was inescapable in the absence of contrary evidence.

TOOHEY J:   Mr Abbott, what role does section 73(2) play in all of this?

MR ABBOTT:   Only this, that the way the prosecution pitched their case was that by virtue of section 5 they proved possession, by virtue of section 73(2) in proving the quantity of marijuana found on the land they proved a prima facie case of trafficking ‑ ‑ ‑

TOOHEY J:   What does that mean?  What does “trafficking” mean?

MR ABBOTT:   ““Trafficking” is defined ‑ ‑ ‑

TOOHEY J:   I know it is defined, but in this particular case, does that not close the gap in terms of possession for sale, so long as it is explained in terms of prima facie evidence?

MR ABBOTT:   We would say not, because there was no direction to the jury as to what the requisite elements of trafficking were, and there was no direction to the jury that they were required to find the elements of trafficking beyond reasonable doubt, because there was no proper explanation to the jury as to what those elements were.

TOOHEY J:   Trafficking includes having in possession for sale.

MR ABBOTT:   That is so.

TOOHEY J:   If you properly directed as to section 5, is it, in relation to possession, and section 73(2) in relation to trafficking, and the prima facie case that that gives rise to, where is the error?

MR ABBOTT:   The error is that the prima facie case is a prima facie case that still requires direction as to elements beyond reasonable doubt.

DAWSON J:   No doubt the judge told them, generally at any rate, that they had to be satisfied with the commission of the offence beyond reasonable doubt.

MR ABBOTT:   Yes, but he did not tell them what they had to be satisfied beyond reasonable doubt of.

DAWSON J:   But if he instructed them in terms of the two sections, which he did as I understand, and there being no evidence to the contrary, what more is needed?

MR ABBOTT:   Well, as I have said, the vice about which we complain ‑ ‑ ‑

DAWSON J:   Before you answer that, could I just ask, the Crown put its case fairly and squarely on the basis of section 5 and section 73(2).  Somewhere it is said that they set out to prove common law possession, but ‑ ‑ ‑

MR ABBOTT:   Yes, they did.

DAWSON J:   Well, how did they do that?

MR ABBOTT:   Well, they said that the requisite elements of common law possession were present on the facts, but really ‑ ‑ ‑

DAWSON J:   The facts were really relying on section 5, were they not?

MR ABBOTT:   Yes.

DAWSON J:   I mean, if the jury did not find that the accused was in occupation of the relevant land, that would have been the end of test, would it not?

MR ABBOTT:   Yes.  But the problem was that the jury - because the two views were diametrically opposed, that is, the prosecution saying, “He was in occupation, he knew about the marijuana, therefore by virtue of the combination of section 5 and section 73(2) he has committed the offence of trafficking, the applicant denying that he was in occupation ‑ ‑ ‑

TOOHEY J:   Not, he has committed; there was prima facie evidence from which you can conclude that he committed the offence.

MR ABBOTT:   And, if you accept that and disbelieve what he says, then you must find that the offence of trafficking has taken place.

TOOHEY J:   Did the judge say that?

MR ABBOTT:   Well, that is the effect of what the judge said.  If I could take Your Honour to the direction of the trial judge, he said, at page 121, the last line:

Now, as I understand it, the case for the Crown is this:  First, the accused man was in occupation of the land upon which the cannabis was found, and should be deemed as a consequence of a provision of the Act to be in possession of the cannabis.

Secondly, the cannabis has a total weight in excess of 1,000 kilograms; third, the accused man was therefore in possession of not less than 250 grams of cannabis and by reason of another provision of the Act, possession of that quantity of cannabis is prima facie evidence that he trafficked in it.

And that:

he was in financial difficulties -

et cetera.

TOOHEY J:   That is not good enough for the purposes of the proposition that you just expressed, is it, that he told the jury that they must convict if they were so satisfied?

MR ABBOTT:   Only this, that he put the defence case, at page 123 line 20:

The accused man says that he was not involved in any way with the cultivation of marijuana on the land.

And the judge invites that to be, as it were, evidence on which they can convict.

The problem for the applicant is that he failed to advert to any possibility, which we say is a real possibility, that the jury could have come to a half‑way house, if you like, of not accepting what the applicant had to say about it, but on the other hand, not being satisfied beyond reasonable doubt that the applicant was guilty of trafficking as distinct from one of the other offences to be found in company with sections 73 and section 70, that is, possession or cultivate.

TOOHEY J:   That is really a complaint that the judge did not explain prima facie evidence and the effect of that on the jury.

MR ABBOTT:   Yes.

TOOHEY J:   Well one would have thought, if that is right, that called for a request for redirection.

MR ABBOTT:   It did.  He redirected them on occupation only, because apparently defence counsel had been making a rather muted criticism of the occupation directions and how that could lead to possession or not lead to possession and ‑ ‑ ‑

MASON CJ:   As I read it, I did not think the defence counsel was at all muted in what he had to say, although perhaps he may not have directed his submissions to the appropriate points.

MR ABBOTT:   I am sorry, that is correct, Your Honour.  But by the time the learned trial judge came to give the jury a redirection on occupation, the jury had already arrived at a verdict, and as a result there was some discussion and it was decided the jury would hear the redirection and go out and reconsider their verdict.  If you look at page 166, the jury in fact refused to reconsider their verdict.  His Honour at line 10 said:

Gentlemen, there is some uncertainty arisen.  My Tipstaff tells me when he opened the jury room door and said, words to the effect, “Members of the jury, we will all proceed back to the 8th Floor” -

that is, to the jury room -

It was indicated to him emphatically that they did not want to.

So His Honour said:

My Tipstaff is uncertain whether by that they are indicating that they have arrived at a verdict, or whether they simply did not want to go back to the 8th Floor.

So, there was apparently, we would suggest, a lack of any proper deliberation on the redirections on occupation, and the directions on occupation should have been given during the course of the charge proper.

TOOHEY J:   The trouble with this sort of argument, Mr Abbott, is that a lot depends upon how the case was run; it may have suited defence counsel to have a direction in the terms that were given, having regard to the way in which the accused was explaining his position.  He simply denied being involved in any way with the cultivation of marijuana, denied that the cannabis seeds were in the Holden utility, and so on.

MR ABBOTT:   Yes.

TOOHEY J:   Now it may have suited him to have a clear‑cut disagreement on the evidence.  I am not suggesting that relieves the judge of responsibility to direct on important matters, but it may explain the absence of a request for redirection.

MR ABBOTT:   It may, Your Honour, I accept that.  The other ‑ ‑ ‑

DAWSON J:   I am not sure I am following what you are saying what the judge did not do, precisely.

MR ABBOTT:   Your Honour, the learned trial judge, in effect, directed the jury that they could arrive at a verdict of guilty of trafficking on the basis that all the jury need to have proved beyond reasonable doubt was that the accused was in occupation of the subject property and that on the subject property there was growing marijuana in excess of the prescribed amount.

TOOHEY J:   But that is right, is it not?  I mean, they could find him guilty.

DAWSON J:   What appears at page 46 - I think it is, the numbers are indistinct - seems to be a correct direction.

TOOHEY J:   I thought your complaint was that the judge told them they had to find him guilty, in effect, on that footing, but that is a far different cry from saying, “Well there is evidence upon which you can properly conclude that he was guilty, but you are not bound to”.

DAWSON J:   See, he has told them about section 5, and then he says:

If you are satisfied the accused man is in possession of the cannabis the Crown relies on another special evidentiary provision -

that is 72(3), and he says:

However, though uncontradicted prima facie evidence may be used by you to convict the accused you would only be entitled to do so if in fact the prima facie evidence either by itself or in conduction with other evidence satisfied you beyond reasonable doubt -

as to his guilt.

MASON CJ:   That is at page 16.

DAWSON J:   I am sorry; my numbers are indistinct. Mr Abbott.

MR ABBOTT:   It is true that on that page there was a direction on what prima facie evidence is and I cannot get away from the fact that he did tell the jury what is prima facie evidence, but as I have said, the main criticism that we make of this is that there was a failure to tell the jury of the elements of the charge of trafficking, one of the elements being possession for sale ‑ ‑ ‑

DAWSON J:   But he does direct them as to that.  He refers them to the definition of trafficking in the Act.  Page 30.

MR ABBOTT:   Yes, the ordinary concept of trafficking is this, and it is extended by the Act.

DAWSON J:   And then he sets out what the Act defines trafficking as.

MR ABBOTT:   Yes, and the Crown contends that the accused may have these cannabis plants in his possession for sale, but when he comes to deal with the Crown case in summary form at the end of his charge, the passages to which I have already referred, at pages 121 and 122, there is nothing mentioned whatsoever about the additional element of having the cannabis plants in his possession for sale, and the Court of Criminal Appeal at page 180 and 182 in particular, said at line 12:

It appears to us that this ground -

that is, the failure to direct the jury that they should be satisfied beyond reasonable doubt that the applicant had an intention to sell the cannabis -

raises issues similar to those raised on Ground 1.  Technically the charge was incomplete but the question whether the applicant could be shown to have intended to sell the marijuana was not an issue.  The applicant led no evidence directed to the issue.

So that ‑ ‑ ‑

MASON CJ:   Mr Abbott, your time has expired.

MR ABBOTT:   Well, I can only add, Your Honours, that we argue that there was a reversal of the onus.

MASON CJ:   Yes, well you made that pointedly.

MR ABBOTT:   If the Court pleases.

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

Having regard to the way in which the case was conducted at the trial and the absence of an application for precise redirections, we are not persuaded that there was any miscarriage of justice in this case.  The application is therefore refused.

AT 11.54 AM THE MATTER WAS ADJOURNED SINE DIE