Elfar v The Queen

[2001] HCATrans 327

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S292 of 2000

B e t w e e n -

KARIM JOHN ELFAR

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 14 SEPTEMBER 2001 AT 2.24 PM

Copyright in the High Court of Australia

MR P. KINTOMINAS:   May it please the Court, I appear for the applicant.  (instructed by Michael Croke & Co)

MR A.M. BLACKMORE:   May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

GLEESON CJ:   Yes, Mr Kintominas.

MR KINTOMINAS:   May it please Court, section 24(2) of the New South Wales Drug Misuse and Trafficking Act provides, in effect, that a jury can, if it is not satisfied where there is a prosecution for a commercial quantity of the drug, manufacturing, that is, that they can return a lesser verdict, that is, for a non-specific amount. 

Now, your Honours, if I could begin by putting this proposition, that it cannot be the case that that section was merely intended to cover a situation where the accused turned up and said, “Yes, I admit that I was involved in manufacturing an illegal drug, but I do not admit that it was a commercial quantity”.  It could not have been the legislature – for that section to be there for only those kinds of situations.  It must be that it was to have applicability also where there was some reasonable doubt available on the evidence about the quantity of the drug because, as a matter of public policy, if somebody was involved in the manufacture of an illegal drug and the jury was otherwise satisfied about the Crown case ‑ ‑ ‑

GLEESON CJ:   Am I right in thinking that there was no dispute about the quantity of chemicals found; the dispute was whether your client had any involvement in the manufacturing process?

MR KINTOMINAS:   Yes.

GLEESON CJ:   You would have had to have spilled a lot of those chemicals to end up manufacturing less than the quantity in question, would you not?

MR KINTOMINAS:   Your Honour, the evidence of the expert was that something like 56 kilos could have been manufactured and I concede that where the commercial quantity is only a quarter of a kilo that there has to be something else in the evidence which is going to create a doubt in the jury’s mind.

GLEESON CJ:   What is the sort of argument that trial counsel for your client would have put in address to the jury in support of this alternative verdict?

MR KINTOMINAS:   Well, bearing in mind that he understood that prior to commencing his address that the alternative verdict would not have been put ‑ ‑ ‑

GLEESON CJ:   No, if it had been left, what sort of argument would he have put in support of it?

MR KINTOMINAS:   Well, that raises two issues.  The first issue is that he was obviously in a great tactical difficulty in – he would have been traversing his own case if he was going to suggest that something less than the commercial quantity could have been manufactured.  But the position was this.  The chemicals in question were delivered to the premises where the manufacturing took place.  They were under surveillance almost from the start of the delivery of those chemicals to the factory and, indeed, the premises were penetrated on a number of occasions by police.  They took the analyst, Mr Murtagh, with them.  There were photographs taken.  There were listening devices put in.  There were cameras installed.  There were photographs taken of people leaving and entering, et cetera. 

Now, it was remarkable in one sense that with all this police surveillance from the start to the finish that no quantity of amphetamines was ever found, none at all.  It may be that it was not an argument that counsel could have put himself ‑ ‑ ‑

GLEESON CJ:   What instruction would the judge give the jury about it, if the judge had left it to the jury?  What is the process of reasoning he would have indicated to the jury was open to them to reach such a conclusion?

MR KINTOMINAS:   He might have instructed the jury along these lines, that they might have been satisfied that a quantity amphetamines were produced, not because of Mr Murtagh’s evidence, that is, the chemist, but because of the tape recording which indicated the accused using the words “speed” and “go”, which are slang words for this particular type of drug. 

Now, there could have been a situation where they were satisfied that the drug was manufactured because of these terms that were being used.  There was some explanation given in a previous dock statement about what this meant, but if one assumes for the moment that the jury just thought, “Well, no, that must mean they were manufacturing amphetamines”.  Now, the situation is that they may not have necessarily been impressed with Murtagh’s evidence and, in any event, the previous dock statement that was put before the jury by the Crown – my client gave a dock statement along these lines, that originally there was some proposal that they manufacture some kind of perfume which would lessen the smell of a particular liniment and after this had been in operation for some time there then was put a proposal ‑ ‑ ‑

GLEESON CJ:   I thought that the common ground was that everybody was going around smelling like cat’s urine.  Your client’s defence was this was a perfume manufacturing operation?

MR KINTOMINAS:   Well, the defence was, if I can put it that way – because he called no witnesses and did not make a dock statement.  What happened was that a dock statement that was made at a previous trial was put as part of the Crown case and what my client told that previous jury was that there was some proposal to manufacture something which would reduce the upsetting smell of a liniment.  However, halfway through that operation, another proposal was put to him that with these chemicals they could manufacture something which would have the same sort of effect as amphetamines but which was not illegal.  Now, I concede that the jury may well have been entitled to treat that, particularly having regard to the conduct of the whole case, with a lot of scepticism.

GLEESON CJ:   Or they might have been entitled to accept it.

MR KINTOMINAS:   Yes.

GLEESON CJ:   But what was the basis on which they might have come to the conclusion that the quantity involved was as you would have it for this alternative account?

MR KINTOMINAS:   Well, if your Honours are with me that they could have come to the conclusion independently of Murtagh that the illegal drug was manufactured because of what was heard on the tape, what they may have had some regard to was the fact that no quantity of it at all was ever found and if they focused their minds on the fact that no quantity at all was ever found, they might have come to the view that it was a reasonable possibility that, for example, it may be that the perfume to offset the smell of the liniment had been manufactured at the beginning, but instead of this legal drug that resembled amphetamines being manufactured, that amphetamines was manufactured at a point in time after the beginning. 

Now, once that is the case, if that is a reasonable possibility that they started off doing something else with it but some time down the track started manufacturing amphetamines – and it is difficult to say how much amphetamines were actually manufactured.

HAYNE J:   Now, the jury were told that they had to be satisfied it was not less than commercial quantity, were they not?

MR KINTOMINAS:   They were but ‑ ‑ ‑

HAYNE J:   And they returned a verdict of guilty?

MR KINTOMINAS:   Undoubtedly.

HAYNE J:   How does the point then arise?  Why does it arise?  They are told they have to find it on that basis.  The Crown tells the judge it is “an all or nothing” case.  We are to assume the jury ignored the direction, are we?

MR KINTOMINAS:   Your Honour, it would be human nature, in my submission, if the jury – it is not as if the jury was told in a forceful way, “If you are satisfied that they were involved in the manufacture of amphetamines, but you are not satisfied that it was at least a quarter of a kilo, you must acquit”.  I concede the directions that they were given would have, on a proper analysis, led to that, but it was not as if it was focused in that way.  There were two dangers, in my submission ‑ ‑ ‑

HAYNE J:   That may owe much to the way in which the case was conducted at trial. 

MR KINTOMINAS:   There are two problems, that, firstly, by failing to leave the alternative verdict, one cannot really be certain that the jury focused their mind on the question of the significance of the quantity.  But more importantly, it would be human nature, in my submission, that if the jury was satisfied as to the Crown case, but there was still some residual doubt in their minds about the quantity, that they would still convict.

GLEESON CJ:   But the problem is, is it not, that the quantity of chemicals that was involved, if used for the purpose of manufacture of a prohibited drug – and I understand your perfume point – would produce a quantity so far in excess of the commercial quantity that this was not a question in the case?

MR KINTOMINAS:   Your Honours, I cannot put it that there was some overwhelming probability that the jury would have acquitted had they been given the direction but, in my submission, it is not the test.  The test is whether there is a reasonable possibility that they might have returned a lesser verdict.  The Court of Criminal Appeal seemed to have a lot of difficulty with the propositions that were put forward by the Queensland Court of Criminal Appeal in Rehavi.  However, it appears that the Court of Criminal Appeal at the end of the day said that they just believed it was a fanciful possibility only that the jury could have acquitted.

In my submission, although it was a strong case and although it was defended with a certain amount of passivity by counsel at trial, nevertheless,

this was a situation where the one difficult fact in the whole Crown case for all of this was the fact that no amphetamines were found at any stage, which was just remarkable having regard to the surveillance.

Now, my proposition is simply this, that that fact may have caused the jury to have a doubt about the quantity and if they had been left the alternative verdict to consider, they may have focused their minds on it.  One cannot say any more than that if they had, they may have returned a different verdict, but they were not given that opportunity by his Honour.  I do not know that I can put it any further than that.  Thank you.

GLEESON CJ:   All right.  Thank you, Mr  Kintominas.  We do not need to hear you, Mr Blackmore.

Having regard to the way the trial was conducted, the failure of the trial judge to leave an alternative charge to the jury gave rise to no miscarriage of justice and the Court is of the view that the application for special leave to appeal should be refused.

We will adjourn for a short time to reconstitute.

AT 2.38 PM THE MATTER WAS CONCLUDED