Fragnito v The Queen

[1993] HCATrans 241

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No A21 of 1993

B e t w e e n -

ANDREW BEN FRAGNITO

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

BRENNAN J
GAUDRON J

McHUGH J

Fragnito 1 25/8/93

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON WEDNESDAY, 25 AUGUST 1993, AT 2.40 PM

Copyright in the High Court of Australia

MR S.W. TILMOUTH, QC:  May it please the Court, I appear

with MR o.v. KAPETAS for the applicant.

(instructed by Zackaroyannis Luppino & Eckermann)

MR J.J. DOYLE, OC, Solicitor-General for South Australia:

If it please the Court, I appear with MS J. PANDYA

for the respondent. (instructed by

P.J.L. Rofe, QC, Director of Public Prosecutions

(South Australia))

BRENNAN J: Yes, Mr Tilmouth.

MR TILMOUTH:  Your Honours, the cross-examination in this

case related to assets which predated the charge,

which of course was 6 May 1992, and on any view

predated the purview of the charge in so far as

time and circumstance goes. As a first step,

therefore, in our submission, it is clear that the

question of pre-existent assets and their

acquisition had no relevant nexus in time or

circumstance with the· charge and were inadmissible.

I do not need to go through the cases. That, in my

submission, is quite a plain principle. There

being no nexus, there was prima facie no relevance.

Therefore, if there was to be any other basis for admissibility, a threshold question arose as to

what that basis was and that, in our submission, is

plainly a question of law. On the established

authorities, the evidence was prima facie
inadmissible. If it was to be admitted, the

question arose as to whether probity clearly

transcended prejudicial value and, in our

submission, when this material was admitted to the

jury, all that it came to was that there some

unexplained prior wealth which was not related to

this charge and therefore could only have been used

in the sense that he might have sold drugs before,

therefore he could have sold them again in this

case.

The only basis, in our submission, to that, on

the Crown's case, unexplained wealth would be on
the footing that there were previous offences or a
course of conduct. Now, there was no evidence at
all, if the Court pleases, apart from the finding

of a relatively small amount of cannabis in the

yard - the plants, 600 grams - of any prior conduct

whatsoever. There was nothing to link this

occasion with any earlier occasion, or to prove any

course of conduct, so the evidence of assets stood

alone in that respect.

BRENNAN J:  What do you say about the direction of page 12?

Fragnito 2 25/8/93

MR TILMOUTH:  It was a direction to the jury which was a

comment on the facts. It was not a direction of

law, it was not binding on the jury, and it was

really in an isolated passage which says, in

effect, in my submission, "Well, I do not think it

would have helped you very much," but, of

course - - -

BRENNAN J:  He says furthermore than that:

That will not get you anywhere at all, ladies

and gentlemen.

MR TILMOUTH: But, that is simply a comment on the facts, if

the Court pleases. My answer to that is: what

counsel had wanted, and what was argued in the

Court of Criminal Appeal, that a direction in law

was required, making it plain that the jury were

bound by it, to ignore the evidence which had been

elicited. So, the answer is, in my submission,

that is a comment on the facts. What was required

was a clear direction as a matter of law to ignore

it.

BRENNAN J:  So that the special leave point is that the

paragraph on page 12 may have been interpreted by

the jury as a comment on the facts only?

MR TILMOUTH:  No, if the Court pleases, that is my answer

to, as it were, whether this is a suitable vehicle.

The special leave point, Your Honour, in my submission, there are two of them, comes from the

Court of Criminal Appeal per the Chief Justice at

22 and 23 where His Honour says, at the bottom of

22, that the cross-examination was permissible -

this is line 25 on 22:

to establish facts which, by way of
circumstantial inference, might lead to the

conclusion that the appellant was deriving

profit from trading in drugs -

In other words, on this occasion, and on earlier
occasions.	And the error is further exemplified,

if the Court pleases, at the bottom of 23, where

Chief Justice King said:

It seems to me that the cross-examination

in the present case was directed towards

establishing a continuing commercial activity

which, if it existed, would throw considerable

light upon the purpose for which the appellant

possessed the particular cannabis which is the

subject of this charge.

Now, if the Court pleases, the special leave point in that is that it has permitted - and may I

Fragnito 25/8/93

remind the Court that this is a binding judgment

giving directions to trial judges in drug cases,
fraud cases and the like, where any question of

unexplained wealth arises. In my submission, what this is saying is, this evidence can be put up and

it is a question for the jury to resolve whether or

not it has any influence in the guilt-finding

process. The errors, if the Court pleases, is that

where there is no evidentiary foundation for a
course of conduct or any evidence that there was

deriving of profit from trading in drugs generally,

as distinct from this one occasion, or where there

was, to put the other words of the Chief Justice in

context, a continuing commercial activity,

evidence like this cannot be admitted for the

purpose of trying to prove a case here of prior

dealing when the only evidence is of the prior

accumulation of assets.

BRENNAN J:  It must depend upon the circumstances of the case, must it not?

MR TILMOUTH: It does, of course, to a point.

BRENNAN J: Well, then, where is the special leave point? I

mean, the question of the admissibility of

questions in cross-examination, depending upon the

circumstances of each case, and in this case with a

direction to a jury such as we have seen on

page 12, where does this case get us in terms of a

special leave point?

MR TILMOUTH: With respect, there is a conflict between this

decision and Lewis, the Northern Territory Court of
Criminal Appeal. Lewis was distinguished by the

Court at page 23, second half of that page, without

saying why. If anything, if the Court pleases, the

decision in Lewis was stronger for admission

because there cash was found contemporaneously with

the drugs. So, in our submission, there is a real

difficulty here in trial courts in other

jurisdictions apart from South Australia and the

Northern Territory - - -

BRENNAN J: But it depends very much on the circumstances,

surely. If you have got a person who has no

visible means of support but is found to be growing

marihuana in some quantity, could you not inquire

as to whether or not that person's apparent

affluence is to be accounted for by the previous

conduct in relation to marihuana?

MR TILMOUTH:  Yes, with respect, of course you could. But

to say that some time in the distant past there is,

on the face of it, apparently, or maybe, an

unexplained acquisition of assets and to say you

might conclude from that there was some criminal

Fragnito 25/8/93

activity which gave rise to profits from which

those assets were bought, is another question.

BRENNAN J: But if you say it is unlikely that you could

conclude anything from it, it would be mere

speculation.

MR TILMOUTH:  The point about that, if the Court pleases, is

Hoch's case says that if there is a reasonable hypothesis inconsistent with guilt, that that evidence should not be admitted in the first place. That is the other error, in my submission, in that passage.

McHUGH J: Surely counsel for the Crown is entitled to

for the defence.

conduct a probing cross-examination, is it not? counsel

MR TILMOUTH:  No, I accept that there is legitimate forensic

scope, even for counsel for the Crown, if the Court

pleases. But this Court's decision in Chin and

Lawrence, so far as it went before it, demonstrates

that there are limits on the scope that Crown

counsel has which are essentially governed by

circumstances of fairness. In this case, if it was

to be a part of the Crown case that there were

these unexplained assets which were obvious, if the

Court pleases - there were photographs of cars and

so on, and the house was known to be the

applicant's - all of that could have easily been

dealt with in the Crown case. There could have

been a tender of a certified Land Titles Office

search showing the house was unencumbered, there

could have been certified extracts from Motor

Vehicles Department proving date of purchase of

car, and so on. It could easily have been

anticipated and dealt with in the Crown case.

McHUGH J: But that argument will not run, will it,

Mr Tilmouth? Objection would have been taken that it goes to no issue and the Crown would have had to

not the purpose of this cross-examination, was it?	say at that stage, "I cannot link it up". That was
The purpose was to determine whether or not your client had this cannabis for his own use or whether
it was for the purpose of sale, and a vehicle had
been acquired in October 1991, one had been
acquired at the beginning of 1992 and this police
raid was on 6 May 1992. And, in that context,
counsel for the Crown set out on a difficult task
to explore just what the source of this was. Now,
counsel may have had to abandon it. He may not
have got anywhere with a cross-examination, but as
the Chief Justice said, you do not test the admissibility of the questions by the end result.

Fragnito	25/8/93
MR TILMOUTH:	No, with respect, that is true, but you test

not so much the admissibility, but the question of

when it arises, first of all by whether it is fair

to say that up until cross-examination or whether

you do the fair thing and put it in the Crown case,

enable the accused to deal with it in-chief and

form the proper foundation for which inferences

like those -

McHUGH J: Well, that is what I am suggesting to you, that

the Crown could not have led it in-chief because

the Crown would not have enough evidence to link it

with any issue of the case. Simply to prove a

person had those assets by itself proves nothing.

You have got to go further. It is not that you

have got the assets; it is the source from which

you have got them which was the relevant point

here.

MR TILMOUTH: With respect, where was the source from these

assets, distant and earlier in time, related to the

- - -?

McHUGH J: Supposing your client had admitted that these

assets were obtained from drug deals, surely that

evidence was admissible.

MR TILMOUTH: That is true, under proper direction, of

course. But can I add this, may it please the

Court. The other special leave point, in my

submission, is the very wide statement of the

Chief Justice about - and this is the procedural

rather than substantive point - when these matters

can be raised, and on page 24, in the passage

Your Honour Justice McHugh was just referring to,

but continuing, His Honour the Chief Justice made

the point:

That, however, is not a ground for disallowing

cross-examination.

And then His Honour went on:

When an accused person gives evidence he

subjects himself to cross-examination and
counsel for the prosecution is entitled to
elicit in that cross-examination any facts
which tend to prove the guilt of the accused,

whether or not those matters have been made

the subject of evidence as part of the case
for the prosecution.

Now, in my submission, whatever the ambit of

Chin's case, that is much too wide, with respect.

It is binding in South Australia and it is very

persuasive in other jurisdictions and, read

literally, in my submission, it goes far too wide.

Fragnito 6 25/8/93

Special leave is sought to correct what is
otherwise a basis for allowing cross-examination

for the first time of an accused person of material

which might legitimately be called, and which

should have been called, in the Crown case. Here,

as I have said, it could have been called. It was

a matter of simple searches of publicly available

records.

McHUGH J: But every judgment has to be read in the light of

the issue with which it is dealing, and the

Chief Justice is dealing with the sort of issues

that are raised in this case. He is not making

some general statement intended to be binding in

every case.

MR TILMOUTH: 

I understand that, and it is accepted as well,

of course, that it is an extempore judgment.
Nevertheless, if the Court pleases, the words are

wide, they are unqualified and, with respect, do

not represent the law, irrespective of differences of opinion and emphasis by various of Your Honours

in Chin's case.

The final thing, if the Court pleases, there

is an element of unfairness as well in all of this

because, if it is proved properly in the Crown

case, an accused person can then meet it,

effectively, if he or she can, by dealing with it

in-chief and producing the relevant documents to

show this material was quite unconnected.

The final point I would make, Your Honours, and it is a further answer to Your Honour

Justice Brennan, is that the direction that you referred me to straight away should have gone on to

say, "As a matter of law, I direct you that if you

do not think this has any relevance to the case you

should ignore it, and you should not reason

prejudicially from it unless you are satisfied that

there is a proper link between the unexplained

wealth earlier and this charge". In other words,

the direction should have gone on to tell the jury

what permissible and impermissible use could be

made of the material.

BRENNAN J: That would have been, perhaps, not altogether in

your client's favour in the dynamics of the trial

because what he in fact got was a direction telling

them, had no regard at all to that evidence. It

got you nowhere.

MR TILMOUTH:  I have made my answer to that, if the Court

pleases, and there is a lot of difference between

telling a jury, "I direct you as a matter of law

and you're bound by it to do such-and-such", and a

side comment which is a comment on the facts; all

Fragnito 25/8/93

the difference in the world, may it please the

Court.

BRENNAN J:  We need not trouble you, Mr Solicitor.

Whether or not the trial judge ought to have

excluded the prosecutor's cross-examination of the

applicant as to his acquisition of assets in the

circumstances of the present case, the summing up

was sufficient to remove any risk of a miscarriage

of justice.

Accordingly, special leave will be refused.

AT 2.55 PM THE MATTER WAS ADJOURNED SINE DIE

Fragnito 25/8/93