Giretti v The Director of Public Prosecutions

[1988] HCATrans 52

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M98 of 1986

B e t w e e n -

MARIO GIRETTI

Applicant

and

THE DIRECTOR OF PUBLIC

PROSECUTIONS

Respondent

Application for special leave to

appeal

BRENNAN J
DEANE J

DAWSON J

Giretti

TOOHEY J

GAUDRON-J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 23 MARCH 1988, AT 10 .16 AM

Copyright in the High Court of Australia

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MR R. RICHTER, QC:  May it please the Court, I appear with

my learned friend, MR W. TOOHEY, on behalf of the

applicant. (instructed by Pryles and Defteros)

MR L.W. FLANAGAN,, QC:  May it please the Court, I appear with

my learned friend, MR G. SILBERT, on behalf of

the respondent. (instructed by J.A. Coldrey, QC,

Director of Public Prosecutions)

BRENNAN J:	Mr Richter.
MR RICHTER:	May it please the Court, this is an application

out of time for special leave to appeal - - -

BRENNAN J:	We need not trouble you about the question of time, Mr Richter.
MR RICHTER:	Yes, it .is by consent, really, Your Honour.

It is an application for special leave to appeal against a decision of the Court of Criminal Appeal

in Victoria rendered on 6 November 1986 dismissing

an application for leave to appeal against a

conviction by the applicant Mario Giretti. The

applicant was convicted in May 1986 on four counts

of trafficking in heroin. There were five counts

on the presentment, there was a directed acquittal
on the first count and I shall refer to the counts
in the numerical order that they bore at the time

because that is the way the Court of Criminal Appeal

referred to them, in fact, although the first one

was a directed acquittal.

The count~ other than count No 4, all alleged

trafficking between dates and the span of time

covered in the presentment varied from a matter
of 16 months to a matter of some 3 months in terms

of the span of time covered. Count No 4 was a

specific count relating to a specific date, namely,

26 April 1985 and the allegation with respect to

that count was that the applicant trafficked in

heroin at North Geelong. That count was laid on

premises on 26 April 1985 and in the wardrobe in	the basis that the police raided the applicant's
the bedroom they found a quantity of heroin which
was greater than the trafficable quantity specified
in the DRUGS POISONS AND CONTROILED SUBSTANCES ACT
of 1981, so that the Crown, having proved that
the applicant was an occupier of the premises,
he was deemed to be in possession pursuant to
section 5 of that Act unless he could satisfy the
jury that he was not in possession.

(Continued on page 3)

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MR RICHTER (continuing):  The matter went on on the basis

that section 73(2) of the Act provides that where

a person is in possession of a quantity of a

restricted substance which exceeds the trafficable

quantity that is sufficient to found a prima facie

case of trafficking, and the applicant was convicted

on that basis.

The reason I mention it is because, although

there is no problem with the appeal out of time

with respect to the special leave application
for counts 2, 3 and 4, upon a reading of His Honour's
charge there is a very, very significant misdirection

in relation to the burden of proof in count .. ~ 4

which, in our submission if we will be permitted

to pursue it, is so clear cut as to warrant the

making of ~n application to add an additional ground

with respect to that count.

I had drawn the additional ground and given our learned friends a copy by way of notice of

it and, perhaps, it might be wise if I hand up

copies of that proposed additional ground to the

Court, together with the summary of the submissions

in relation to it, if leave would be granted to

add that ground. The assertion is quite simple
and rather than take up a great deal of the Court's

time I shall endeavour to simply put it in a nutshell.

The proposed new ground is that the learned trial

judge misdirected the jury with respect to the

burden of proof on count 4 of the presentment in

that he reversed the burden by directing the jury
that if the applicant failed to satisfy the~ on

a balance of probabilities, that he had no knowledge

of the heroin in his bedroom then he was guilty

of trafficking.

Now, the reason the matter was probably overlooked

by everyone, including the trial judge, is, undoubtedly

this: that the section, section 73(2) which creates

the prima facie case of trafficking upon a finding

in possession of a trafficable quantity has from

time to time been construed by a number of people

to, in fact, create a deemed trafficking offence.

(Continued on page 4)

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MR RICHTER (continuing): What the learned trial judp-e did was that he	charged accurately on the meaning of possession and
the deeming provision in section 5 with respect to
possession. And that accurate charge is set out at
pages 1425 to 1436 of His Honour's charge.

BRENNAN J: Before you develop the argument too far, perhaps

we should hear what Mr Flanagan has to say about

the application.

MR RICHTER:	Indeed.
BRENNAN J:	But before you resume your seat, could I ask,

was an appeal instituted to the Court of Criminal

Appeal against the conviction on count 4?

MR RICHTER:  There was a notice of appeal which compendiously

covered all grouns, but count 4 was simply not dealt

with on the basis of submissions made with respect
to it. There was some objection to admissibility

of evidence but it was not specified to go directly

to count 4, although one of the grounds took

objection to a tape-recording which related to ground 4

in a sense. But the straightford answer is,

no, it is novel ground. Antl I appreciate that it is

straining the Court's indulgence but what I seek to do

is simply to put the proposition as shortly and

clearly as I can so that the Court can apprize

itself of whether or not it is a matter that the Court

ought to entertain.

BRENNAN J:  Was it open to the Court of Criminal Appeal to set

aside the conviction on count 4 on the notice of

appeal that was instituted to that court?

MR RICHTER:  No, Your Honour, not on the notice.

BRENNAN J: Well then, how does this Court come to have

any jurisdiction with respect to the conviction on

count 4?

MR RICHTER:  I am sorry. I withdraw that, with permission.

The notice of appeal whilst not adverting directly to

ground ~ would have enabled the Court of Criminal

Appeal to quash the conviction on ground 4 had a

specific amended ground been put before it to draw

attention to ground 4.

(Continued on page)

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MR RICHTER (continuing):  That is because, as I say, one

of the grounds before the Court of Criminal Appeal

related to the admissibility of a piece of evidence

which, in fact, went to count 4. So that had that

ground succeeded, which it did not, it would have

resulted in the quashing of the conviction on ground 4.

BRENNAN J:  Do we have the notice of appeal to the Court of

Criminal Appeal?

MR RICHTER:  Yes, Your Honours, it is in the appeal book and

it is page 243 of the appeal book, and it is the

first ground to which I refer. Perhaps if I could just briefly say what that was about. That ground is that:

The Learned Trial Judge erred in admitting

into evidence a Tape Recording of a

conversation between one GILLIAN DUNSTAN

and another person, apparently conducting

a drug transaction.

Now, there was no merit in that ground, and the court

so found, but what that ground attacked was this

proposition;	the date upon which count 4 is founded
~s 26 April 1985.	On that occasion the quantity of

heroin was found in the applicant's premises. His

defence was that he knew nothing of it and what he

told the police was tHat someone must have put it there.

As the evidence unfolded it transpired that a woman by

the name of Gillian Dunstan had been living at those

premises from time to time and had the run of the place,
as it were, and the notion that it was her heroin
concealed in the house was a live issue in the trial

as part of the defence that the applicant said, "I didn't

put it there. I don't know anything about it."

What happened after that arrest, between that arrest and

the subsequent arrest which gave rise to count 5

was that Gillian Dunstan had trafficked in heroin.

The applicant's case was that he was very suspicious

of her and arranged for her car to be bugged, to use

a colloquialism. (Continued on page 6)

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MR RICHTER (continuing): That eaves:1.ropping on the conversation

in the car revealed that Gillian Dunstan had

trafficked on her own account, as-it were, to some

other person. That tape-recording was retained by

the applicant and ultimately made its way to his

solicitors. It was then seized by the police because

Gillian Dunstan, who had at an earlier point of time

signed a statement saying that the heroin in the

applicant's premises was, in fact hers, reneged on

that and, by some means which is not clear from the

evidence, the police got to find out about the tape

and went and seized the tape from the solicitor's

office and it was led in the trial as evidence of a

consciousness of guilt by the applicant because

Dunstan's account came to be, "The applicant gave me a capsule of heroin and told me to go and sell it

to someone" so that, as it were, it was a staged

performance on the tape.

Now, in that sort of sense, in the sense that

she is being attacked, count 4 is being attacked,because

she had claimed responsibility for it in a statement

after the applicant's initial arrest.

DAWSON J:  But it is not being attacked on the basis of a

misdirection as to onus of proof.

MR RICHTER:  No, no, precisely. That is what I said.

His Honour Mr Justice Brennan asked me whether the

conviction on count 4 could have been quashed on the

grounds. Well, if that ground had been upheld,

ground 1, I suppose the conviction on count 4 could

have been quashed but that is why I said that - - -

DAWSON J:  That ground has no relation to the point you are

now trying to put.

MR RICHTER:  None at all. I appreciate that. The point that I

am raising is a completely new point and I do so -

DAWSON J: And you are attempting to raise it for the first

time in this Court.

MR RICHTER:	Yes, Your Honoui:s, and I appreciate that it must be a matter of most extreme exceptionality but I raise it
because, if the Court were minded to grant special leave to appeal on counts 2, 3 and 5 and, if perchance
that application were to meet with some success, the
notion of looking at count 4 would arise in a
different context for this Court because this Court,
in setting aside convictions for counts 2, 3 and 5,
would need to look at the sentencing for count 4 as
well, because there were concurrencies.

DAWSON J: And you are not putting it forward as a special leave

point.

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MR RICHTER: If I am granted leave to add it I will put it

forward as a special leave point because it is

a matter of the most immediate impact and general

importance as to whether the combination of those

legislative provisions in section 5 and section 73(2)

of the DRUGS POISONS AND CONTROLLED SUSTANCES ACT

in fact create anything other than a mere evidentiary

burden on an accused person and that would be a

special leave point, in our respectful submission,

because there is a history of some misunderstanding

of the conjunction of those two sections, in

particular in a case called CLARKE AND JOHNSTONE,

which is referred to in our list of authorities.

BRENNAN J:  You can develop that after we hear what

Mr Flanagan has to say.

TOOHEY J:  Mr Richter, could I just ask you this: does

count 4 stand outside the argument addressed by

the Court of Criminal Appeal as to the notion of

trafficking?

MR RICHTER: 

Yes, it does, because it relates to a single

instance which is encapsulated by the notion of
trafficking being inferred from possession.

DEANE J: 

But if you were to succeed on count 4, would it

not then carry through to the convictions on

counts 2, 3 and 5?

MR RICHTER: 

We would argue that it may well although the

learned trial judge - in complete fairness to him -
was scrupulous in telling the jury that they must - - -

DEANE J: 

You have answered my question.  I should have said:

would you argue?

MR RICHTER: 

I would argue that there would be a tendency

since the other charges are laid in the sense of

the conducting of a business of trafficking no

matter how scrupulous the learned trial was in isolating the evidence relating to count 4	nevertheless being a reverse burden offence as
it was put to the jury, the jury finding the
applicant guilty of trafficking, it would have
been impossible really in reality to put out of
their minds the notion that they find him guilty
of trafficking when the question that they are
really asked is, "Is he a trafficker?" If the
Court pleases.

(Continued on page 8)

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BRENNAN J:  Mr Flanagan?

MR FLANAGAN:  May it please the Court. We do oppose the

application at this stage. The point that my learned

friend really refers to was a point that was not

taken upon trial to start with; there was no exception

to the judge's charge in relation to this particular

matter on count 4. When the grounds of appeal

were drafted and the accused was represented on

that occasion, again no ground was taken in relation

to this particular matter nor, indeed, in the course

of argument was any complaint or reference made

or addressed to the matter at all.

The Full Court or the Court of Criminal Appeal

in determining the question of whether there was

any substaptial miscarriage, having looked at the

first point about whether the trafficking amounted

in a sense to a continuing offence as against an

offence relating to a specific incident on a specific

occasion, they found some misdirection and, I

suppose by implication, non-direction. But they

then went on to consider the application of the

proviso and, in the course of their consideration

of the application of the provis~ they had no

opportunity at all of considering in relation to

the counts which were complained about at the trial,
counts 2, 3 and 5, any argument or any impact which

that misdirection now complained about, if it occurred

and if it was a misdirection, would have had upon

their consideration of the real question as to

whether the proviso should apply or not.

In that sense my learned friend comes here

today to ask this Court, reall3/, to look at a matter
that the Court of Criminal Appeal has never looked

at when he still wants to challenge the application

of-the proviso on matters that the Court have never

considered at all and, indeed, he really seeks,

because the matter has never been taken before,

to ask this Court to act as a court of original	jurisdiction in terms of original appellate
jurisdiction rather than the general policy
considerations which are said to apply by this
Court in the authorities in relation to applications
for special leave.
If I might refer the Court to one part of the transcript in support of what I am saying -
in His Honour Mr Justice Crockett's judgment.
Would Your Honours pardon me, I will just get a page reference.

BRENNAN J: Perhaps you could read iton to the transcript.

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MR FLANAGAN:  I am sorry, Your Honours. I am looking at

page 114 of the reported decision of this case

in the Court of Criminal Appeal in Victoria,

(1986) VR 114. His Honour there sets out the

grounds relied upon in the support of the applications

and he refers to the same three which Mr Richter

has directed the Court's attention to. Then he

says - - -

TOOHEY J:  Page 314 of the appeal book.

MR FLANAGAN:  Thank you, Your Honour. I am sorry we could

not hand that up so readily.

Counsel for the first-named applicant

announced that, whilst he did not abandon

the first ground, he did not press it. In

my opinion, there is no substance in it.

The circumstances in which the tape came into

existence and its subsequent history have

already been described. They demonstrate

beyond argument that the tape and its contents

were relevant to the prosecution case against

the first-named applicant.

I do not want to go on reading further but that

is really what the true situation was before the

Court of Criminal Appeal. There was a challenge

to the tape; there was no real argument submitted

pressing that there was inadmissible evidence thereby
but, certainly, it is patently clear that there

was never any argument at all addressed on the question of the onus of proof or the direction of the onus of proof given in relation to count 4,

and for those reasons we would object to the proposition

that the ground be added at this stage because,

in effect, if we are going to come ultimately to

the question of looking at the application of the

proviso by the Court, it would be submitted that

it is an untenable proposition to suggest to this

Court that the appellate court below has proceeded

on wrong principles in relation to matters that

were never addressed and they were never asked

to consider at all. Because the application of

the proviso, of course, is challenged in this Court.

(Continued on page 10)

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MR FLANAGAN (continuing):  We would put it that it is

legitimate, of course, to expect the State to

provide an appeal to an intermediate court to

guard against the possibility of error at trial

but it is going a long way to ask the State to

provide a second appeal to protect the private
interests of a citizen or the parties by guarding

against error at the appellate level and the

justification for the second appeal in this Court

is normally said to be that it is in the public

interest,that the application for special leave

must illustrate some need to clarify the law or

to maintain procedural regularity or promote the

harmonious and uniform application of the law on

matters which go beyond the particular interests of the parties and are founded upon questions of general principle.

It is submitted here that for my friend to

come to this Court saying, in effect, "We have had

a right df an appeal to an appellate jurisdiction.

There were matters open to us which nobody, counsel

at the time or anybody else, saw fit to take, nobody
at the trial saw fit to take". The appellate court

to which you are entitled has proceeded on the basis

of the powers given under the Act. It has applied

the proviso on the basis that it did find a
procedural irregularity in the sense of a misdirection

but it never had put to it all this particular matter

and, in effect, as I have put it and I suppose I am
only being repetitive, my learned friend in those

circumstances is really asking this Court to be the

original appellate court and I do not think I can

take the matter further than to say we oppose it on

those grounds.

DEANE J:	Mr Flanagan, the grounds of appeal,if leave is granted,
are at page 335 and there seem to be two of them. the conclusion of the Full Court on matters of law?
MR FLANAGAN: Well, in the first instance, Your Honour, they

make no reference whatsoever to what my learned

friend is asking this Court now to consider and that

is count 4.

DEANE J:	I appreciate that.
MR FLANAGAN:	And, of course, something that has not been mentioned here is that count 4, I think, attracted
the largest penalty in this particular case. I
think it was eight years.
DEANE J:	But the Full Court held that the trial judge was in
error in failing to direct the jury that it was a
continuous offence which means the Full Court, in
effect, held what is said in (i).

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MR FlANAGAN: Yes, Your Honour.

DEANE J: Well, now, (ii) is apparently an argument that

they were not allowed to rely on individual

transactions to find a continuous offence.

Perhaps I should not be asking you but is that

what you understand the basis of the attack on

the Full Court as a matter of law is and anart

from the proviso? ·

MR FLANAGAN:	Somewhat hesitantly, I say yes, Your Honour. I am not absolutely certain but the objection as
I understood it was that in counts 2, 3 and 5 the
Victorian Full Court for the first time - because
there was no decided decision on this particular point that trafficking could include dealing in or running a business- and the argument was over
whether the definition in the Act is now an inclusive or exclusive definition.

DEANE J: Well, we are taking a while but what I was leading up

to is, subject to that point, is this essentially an

appeal about the application of the proviso?

(Continued on page 12)

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MR FLANAGAN:  Well, I thought it was when I arrived here,

Your Honour, but I really cannot answer that myself

at the moment. What we do say, though, Your Honour,

is that even there the complaint to this Court

is that the Full Court ought to have held that

the learned trial judge failed to direct the jury
adequately as to the nature of the elements of the

count of trafficking and then they specifically

refer to 2, 3 and 5. And trafficking - the complaint

made against the way the offence is described is

that the court wrongly held that trafficking could

amount to, what I might call, a continuing offence

as distinct from an offence related to a particular

incident. And no challenge whatsoever is made,

in my submission, in those grounds or what is complained

of there -

DEANE J:  I did not want to lead you back, I just wanted

to be clear on that point.

MR FLANAGAN:  No. I am sorry, Your Honour, but that 1s as

we apprehend it. I have always understood my learned

friend, basically, to be saying; the Full Court

of Victoria looked at the question of trafficking and concluded that the proper meaning of the word trafficking as used in the current section does

not include running a business of supplying.heroin

to addicts and that if you are alleging that in

an offence you have got to ascribe a particular

time and place and a particular incident. And

he is saying, I think, that the Full Court was

wrong in saying that it could be otherwise and
he is faced with the judgment of the three judges

of the Court of Criminal Appeal maintaining that

it could be a continuous offence. And he then,

as I understood it, would challenge the application

of the proviso and one would assume that he would -

I do not know - that he might base some argument
on the basis of the dissenting decision by

Mr Justice Ormiston but, beyond that, I cannot

help the Court on the matter, with respect.

BRENNAN J:	Mr Ri~hter, have:.ybu anything to say in reply to the question we are now addressing?
MR RICHTER:	Yes. Going back to the foreshadowed application to add a ground, we make that with extreme reluctance
knowing that it can be nothing but exceptional and
we recognize that obviously leave to add that ground would not be given unless the circumstances
were exceptional but the Court has done it and
has, in fact, treated an issue such as this, albeit
that it was for the first time raised in this Court
on a special leave application, for example in the case of DE JESUS in 1986 in which the matter,
upon which this Court held, was not raised at trial,

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was not raised at the Court of Criminal Appeal
level and was raised, for the first time, before

this Court. And the reason that it was not raised

on either of those occasions - it was a severance

issue - was because all parties acted in ignorance

of this Court's decision in, I think it was,

SUTTON's case and also in BOARDMAN, and this Court

gave leave to amend and, indeed, quashed the

convictions. So that we make the application fully

conscious of the fact that it is altogether

exceptional but we say that the misdirection is

so clear and so pivotal that this is an exceptional

case for the granting of that consent to amend.

And, as I say, the argument for its exceptionality

can be encapsulated in very short compass. We

have drafted the proposed additional ground together

with the summary of the submissions on the additional

ground and it takes but one short page in double

spacing and is based on three propositions. First

of all that the learned trial - - -

BRENNAN J:  Well we will not ask you to develop it until

such time as you have got leave to add it.

MR RICHTER:  Indeed. Well, if I may explain what the misdirection

was, perhaps it will highlight the exceptionality

for the purposes of getting leave to amend. The

learned trial judge directed the jury that if they

found that the applicant was the occupier of the

premises - if they found that beyond reasonable

doubt - he was then deemed to be in possession

of the heroin on the premises unless he proved

that he did not know it was there. Now, tha~ in

itself, is not entirely a correct formulation because

what he needs to prove under section 5 is that

TlO he was not in possession.

BRENNAN J:  Mr Richter, we do not wish to hear you on the

argument until we grant you leave, if we do grant

you leave.

MR RICHTER: If the Court pleases.
BRENNAN J:	Perhaps, you could give us a copy of the proposed

amendment that you seek.

MR RICHTER:  Indeed. I am sorry the summary is on the same

page, I could rip it off.

BRENNAN J:	Have you anything to say on the question of whether leave should be granted - anything further
in reply?

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MR RICHTER:  No, the only thing is that the awareness of

a fundamental misdirection arose very late in the

piece when the judge's charge was being read by

me. That is all I can say.

BRENNAN J:  Thank you, Mr Richter.

The Court will adjourn briefly to consider

what course it should take.

AT 10.48 AM SHORT ADJOURNMENT

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UPON RESUMING AT 10.58 AM:

BRENNAN J:  Mr Richter, the Court does not presently propose

to give you leave to amend your grounds of appeal

by adding that ground which you have proposed in

relation to count 4. However, as the argument

progresses in relation to counts 2, 3 and 5 it may

transpire that an attack on the conviction on count 4

may flow over in some way to the

question of the application of the proviso, if that

should be a relevant consideration, with respect to

counts 2, 3 and 5.

In the event that that should appear in the

course of the argument, the Court proposes to reserve

its decision ultimately on whether proposed additional

grounds should be allowed to be added until we have

heard the whole of the argument with respect to
grounds 2, 3 and 5. Therefore, in the course of

your argument in dealing with those counts, it would be

appropriate for you to indicate where, if at all,

any attack on count 4 would fit in relation to the

consideration that the Court should give to

counts 2, 3 and 5.

MR RICHTER: If the Court pleases.

BRENNAN J: In those circumstances, the application presently

stands adjourned until after we have concluded the

hearing on the present grounds of appeal.

MR RICHTER:  If the Court pleases. I would seek to hand up

the summary of the applicant's submissions in

support of the application for special leave to appeal.

Might I indicate this as a result of the question

that fell from His Honour Mr Justice Deane when my

learned friend was on his feet in relation to the scope

of the notice of motion:	it is quite clear that the
Court of Criminal Appeal found unaminously that there

had been either an explicit misdirection or a

non-direction by the learned trial judge with respect

to the trafficking involved in as much as there were

a number of episodes, acts of trafficking, with respect

to which evidence was led. The learned trial judge

had in fact made a ruling to the effect that in his

view a continuing offence of trafficking was available

but he, in fact, never charged the jury with respect to

the component elements of such a continuing offence.

(Continued on page 16)

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MR RICHTER (continuing):  It followed from that that

if the continuing offence has elements other than

the single act offence there had been a

non-direction and a misdirection is as far as

the learned trial judge had actually said to the

jury on one occasion that if they found one act

of trafficking they could find trafficking and

that passage appearsat page 24 of the appeal books

where the learned trial judge said:

I will later tell you what the elements of

the charges are, but let me just take one

at the moment. Count 2 charges

Mr and Mrs Giretti with trafficking in drugs,

to put it shortly. Now, if you were

satisfied that on one occasion Mr Giretti,

without any knowledge of his wife, engaged

in the drug dealing, then you could find him

guilty. If, in respect to that drug dealing,

you were satisfied that his wife was a party

to it in a way which I will later describe,

you could find her guilty as well.

He was really addressing himself to a different

issue, the notion of parties and concert and

the like but that is the only occasion that I could find in the charge as a whole which really directed itself to the question of what happens if the jury

find one act of trafficking established in any

of the counts, can they convict of those counts?

So that, although the learned trial judge

had earlier decided to put the case to the jury

on the basis of continuing offences of trafficking,

the directions that were given were, in fact,

appropriate to single act trafficking and were

bad in this instance becaus~ if one takes count 5

as an example, there were two episodes to which

count 5 related, two discrete episodes; one was

the supply of heroin, a capsule of heroin, without

reward to a woman prostitute on an occasion which

was, in fact, identified by reference to another

occasion. In other words, she had given evidence
that the day before she went to gaol the applicant

had given her a capsule of heroin.

(Continued on page 17)

C2Tl3/l/ND	16	23/3/88
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MR RICHTER (continuing):  Now, there was no evidence that that

was in the course of commercial dealing, or anything

like that, but she had given evidence that the

applicant had given her a capsule of heroin and by

reference to the date upon which she went to prison

one can identify that occasion as 13 May 1985.

The second episode,which is covered by the time span

in count 5, is the one to which I have already adverted,

relating to the deal done on the capsule in the car

by the woman,Gillian Dunstan.

Now, it would be, on His Honour's direction to

the jury, open for them to convict the applicant on

count 5 if some of them found that they were persuaded

that he had given the woman who had gone to prison the

capsule, some others had found that they were not

persuaded at that, but were persuaded that he had given

a capsule to the woman,Dunstan, to sell on his behalf,

and there could be no unanimity as to what it was that

was found, not so much as to a fact but as to an element

of the offence charged.

DAWSON J:  What do you say the trial judge ought to have said?

MR RICHTER:	What we say really is that the count ought to have been particularized in such a way as to make it relate
to only one of those transactions.

DAWSON J:  Was there any application for particulars?

MR RICHTER:  No, Your Honour. Indeed, the whole problem arises

in this way:  it seems that counsel were really

somewhat overcome by the breadth of this presentment

and the sort of mass of evidence that flowed. There

were essentially five witnesses, three of whom were

prostitutes, one of whom was the husband of one of the

prostitutes, and another was a driver who drove the

prostitutes around; all of whom gave evidence that

could only be described as being very, very vague in

terms of dealing in heroin with the applicant. Those

dealings covered a multitude of types of transactions.

It was dealing in the sense that some alleged that the

applicant had sold them capsules ofheroin, a straightforward

sale, other episodes were referred to, once again in

vague terms, not isolated, related to the notion that

they had been paid in heroin for their services as a

prostitute because the applicant was running an

escort agency called Babes in Geelong.

(Continued on page 17)

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MR RICHTER (continuing): There was evidence that there were

gifts of heroin. the giving, for example, on

13 May 1985,giving of·h~roin. Evidence of

bartering ot heroin for sex - - -

DAWSON J:  Now, what are you really saying, Mr Richter?

Are you saying that the direction of the trial

judge was wrong, in which case I do want to know

what you say he ought to have said, or are you saying

the trial judge ought to have called upon the

prosecution to elect in which case that is a

different point? What are you saying?

MR RICHTER:  I am saying both, in fact. He ought to have

called upon them to elect because it became clear

that there were separate acts of trafficking

contained .in each of the counts and, therefore,

it became clear as a result of discussion that,

if the counts went to the jury other than on the basis of some continuing offence, there could be

no certainty in what a jury would find so that the

judge was awake to the problem in the sense that

he was the one who noted its existence just before

charging the jury, raised it - - -

BRENNAN J: Well, Mr Richter, you say other than on the basis

of a continuing offence. Are you or are you not

challenging the view that trafficking may include

what you call, a continuing offence?

MR RICHTER:  I am challenging the view that it may include a

continuing offence in the sense of being a status

offence, of charging someone as being a trafficker

rather than charging someone with trafficking and

the distinction there is that what we would submit

is that whilst one can have a continuing offence of

trafficking, it must be limited to cases where episodes

are, in fact, not inseparable but the separation of

them would make it a bit of a nonsence so that what

we say is that one can have a count of trafficking

would be appropriate to call that the one offence	which covers a number of acts of trafficking. It	only in circumstances where those acts of
trafficking are so related in time, space and nature,
homogeneity of nature, for example, all sales, that it would be nonsensical to split them into different
counts. An example of that would be a man who has,
for example, a pound of heroin and is doleing it out capsule by capsule over a period of days. It would not, in those circumstances, be necessary to charge
a trafficking for each of the capsules, although it
would be possible. It would be appropriate to charge
with the one count of trafficking coving the dates
upon which he was doing that or, if he is running a shop and is handing over capsules and he makes five
sales to the one addict in the one day, it would not
be necessary to separate those and charge five counts

C2Tl5/1/SH	18	23/3/88
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because they would be so intimately connected in
point of time and nature that one could say that

it was one activity and, therefore, continued from

the first sale to the next sale.

DAWSON J: Are you saying here the evidence would not support

continuous trafficking in that sense?

MR RICHTER:	No, that is right. Yes, Your Honour.
DAWSON J:	So that the jury, if they were to be justified in

their conclusion, must have selected one or other of

the incidents within the periods which are specified.

MR RICHTER:  I am terribly sorry. I have misled Your Honour.

Here, the evidence - no, that is so. Here, the evidence would not support it.

DAWSON J:  So the jury, if its verdict is to be supported,

must have selected one or other of the dates on

which actual instances of trafficking took place
within the period specified in the various counts.

MR RICHTER:  The jury, for all one knows, might have found that

all the specified acts - - -

DAWSON J: Well, now, that is what I was going to ask you. I

do not know the answer. If there are a number of

instances and only count of trafficking within a

particular period, is the jury entitled to select

one or all and say, well, at least there was one

offence committed here and, as a corollary, may

one member of the jury select one instance and

another, another? Is there anything against that?

MR RICHTER:  We say, only if that sequence of instances can

be categorized as the one activity.

DAWSON J: Well, now, is there any authority for that

proposition, one way or the other?

MR RICHTER:  There is not, Your Honour. There is authority

in relation to the continuing activity concept.

DAWSON J: Yes.

MR RICHTER:  For example, there are a number of English cases to

which we refer in our list of authorities and - - -

DAWSON J: What I want to ask - simply make it clear - - -

MR RICHTER: BALLYSINGH is a prime example of that sort of

concept.

C2Tl5/2/SH	19	23/3/88
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DAWSON J:  Let me make it quite clear what I am asking,

Mr Richter. If a man is charged with having committed

the one offence within a particular period and

the evidence indicates a number of instances within

that period, any one of which would justify the

conclusion that he was guilty of the one offence during that period, is there anything wrong with

the charge or with the jury - different members

of the jury - selecting different instances to come

to that - - -

MR RICHTER: 

There 1s because it breaches the notion of the unanimity of the jury and a prime example of that

is a case called TROTTER, for example, which is cited in our

list of authorities, where a count of indecent
assault was laid, the one count. and when the evidence
unfolded the victim had related another incident,

in a different part of the premises on the same

day.  The jury convicted and there was an appeal

to the Court of Criminal Appeal in Victoria and

that court held that the verdict could not stand,

it was too uncertain, because a lhalf a dozen of

the jury may have, for all one knows, determined

that the first incident was made out; some other

members of the jury may have determined that the

other incident was made out and there

would be no unanimity with respect to the one offence

because those two incidents, in fact, were two

discrete offences although charged in the one count
as it turned out. The count, as drafted, was
capable of covering the two incidents and yet the

conviction of the jury could not be said to be

certain enough to stand simply because there was
no way of saying what the jury found.

So that to that extent we make this submission: the notion of a continuing offence is a notion

which is certainly known to the law. An offence

of conspiracy, for example, continues; the agreement

continues in existence, although the offence is

first committed when the agreement is struck,

nevertheless the agreement continues until it is	called off; there is a continuing aspect to the
crime there.	One can also have a situation where

the actions are so closely related as in effect

to constitute the one transaction, as it were,

and that would be an acceptable definition for

a continuing offence but, in our respectful submission,
what the Court of Criminal Appeal as a whole, in

this particular instance, did was to decide that

there was, in fact, an offence of being in the

business of trafficking which could be laid at
a fairly open-ended sort of span with 211 sorts
of evidence of different types of activities within

that period.

C2Tl6/l/SDL	20	23/3/88
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DAWSON J:	That is as the Full Court saw it, is it not?
MR RICHTER:	Yes.
DAWSON J:	And they said the trial judge failed to direct the

jury properly and apply the proviso?

MR RICHTER:  Yes. We go further; we say that in our submission

what the Full Court laid down there was also wrong.

It went too far and it, in fact, judicially

legislated into existence a status offence, namely

of being in the business of trafficking, rather than of trafficking as charged. When the count

between such and such dates, traffic 11 - that had	in the presentment is laid in terms of, "AB did,
always traditionally had a specific meaning, namely
that he conducted an activity of trafficking.

DEANE J:	You obscure the question if you say "being in the
business".
MR RICHTER:	Yes.
DEANE J:	Why do you not say, "carrying on the business 11 ?
MR RICHTER:	"Carrying on the business", or "carrying on

the trade", which are expressions that were all

used in the Court of Criminal Appeal. What we

say is that that notion of carrying on the trade

is not within the meaning of the definition of

trafficking and that trafficking has to be more

specific.

One of the reasons we say that is that to include

that sort of notion would open a Pandora's box

in terms of the sort of vagueness of the evidence
that could be tendered before a court in support

of the allegation and the span of it.

The evidence in this particular case is a

good illustration of it, in our respectful submission, because the evidence is of a multiplicity of activities including gifting, bartering, sale, sale through an agent and the like.

(Continued on page 22)

C2Tl6/2/SDL	21	23/3/88
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MR RICHTER (continuing): It is all vague, save for the fact

that the assertion is made that, "On occasions

he sold me heroin."

DAWSON J:  Do you say, if I understand you rightly when I

think what you say, that for there to be trafficking

within the meaning of the Act there have to be

specific instances?

MR RICHTER: Specific acts of trafficking.

DAWSON J:  Yes, well, what are specific acts of trafficking?

You do not have to have individual sales, do you?

MR RICHTER:	You do not have to have individual sales in the sense that you can have gifts - I am sorry,
you cannot have gifts because that is in a non-
commercial ·context but you can have specific acts
such as the transportation of drugs in the course of some commercial enterprise relating to the dealing in the drugs and that transportation of
the drugs is an act of trafficking.  You need an
act of trafficking around which to hang the
concept of traffickin& in our respectful submission.

DAWSON J:  Why? Why cannot you have a man who has obviously

set himself up in the business of trafficking,

who has all the paraphernalia there, he is obviously

prepared to sell it to anyone who comes and who

obviously has sold to people without establishing

any particular sale or any particular act?

MR RICHTER:  Because even a heroin trafficker is entitled

to a holiday and if he is charged with trafficking

between 1 January and 31 January he could be

convicted on his day off, on the weekend, when

he is not trafficking in any way, shape or form.

DAWSON J:	Why cannot you say that it is an irresistible
inference that during this period this man was
selling drugs to someone but you cannot establish
on any particular occasion but for that reason
he was trafficking?
MR RICHTER:	The traditional basis for charging between dates

was that you could not establish the precise dates

so that if one had a count of murder, for example,

where it was not known when the killing occurred but one could within certain parameters say, "It

must have occurred between those dates", it was

historically, in our respectful submission, intended to create a situation where you could say, "This

appropriate to charge between those dates and to
tell the jury that if they found that the act had

taken place within those dates they could convict.

man is a murderer; he has killed 15 people within

C2Tl7/l/ND	22	23/3/88
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the last 10 years; I cannot tell you where and

what but I say he has killed 15 people."

DAWSON J: You see, I think this aspect - I am aware of

TROTTER's case but that was where there were

separate offences but is not the evidence of the
sale or the transportation or whatever it might

be, not the offence itself but merely evidence

of the offence which is trafficking which can be

divorced from the particular transaction? Is not

that the nub of the problem?

MR RICHTER:  They are separate offences, the various acts

of trafficking.

DAWSON J:  That is what I am questioning .. You say you_ simply beg the

question wben you say "the separate acts of

trafficking",the separate acts which indicate that

the man was engaged in trafficking and it may be
that one act is enough to indicate he is engaged

in trafficking. It may be that you may have two, three

or four. But the offence of trafficking is

not tied to a particular act of transportation
or a particular act of sale or whatever it might

be.

(Continued on page 23)

C2Tl7/2/ND	23	23/3/88
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MR RICHTER:  There has to be somethin~ pointed to which is

the actus reus of the trafficking and that, generally, would have to be the activity - a particular activity, in our respectful submission. It becomes - - -

BRENNAN J:	This means that the shopkeeper can be convicted only as a party to his employee's sales.
MR RICHTER:	That is if he does not sell himself, yes.
BRENNAN J:	He cannot be convicted himself as trafficking.
MR RICHTER:	He can be convicted as trafficking because he

is doing it through an agent; he can be a principal

BRENNAN J:  Not of trafficking simpliciter but only, as I

understand your proposition, since the actus reus

consists of the actual sale, just as the murder

would consist of an actual killing, any other person

than him who does the actual sale can be convicted

only as a party to that offence.

MR RICHTER:  In that sense, yes. But that is no different

from saying that someone who contracts with someone

to kill a person cannot be convicted of murder

directly.

BRENNAN J:  Quite. In other words, the problem lies in

the definition of the actus reus and the question is whether or not the shopkeeper can be convicted of trafficking even though he never puts his hand

to a cap of heroin.

MR RICHTER:  Yes. And that submission would carry the answer

that he should not be - could not be.

DAWSON J:  You see if you go back to TROTTER's case where

the man was charged with a particular - I have

forgotten, was it a particular assault or act of

indeceny or something - it is understandable that

the Crown has to concentrate on, or specify, one

particular instant otherwise there may be two offences

involved. But if he had been charged with something

like, if there is any such creature known to the

law, engaging in immoral conduct, then the separate

offences would be admissible as evidence of the

one offence, and that is more akin to this.

MR RICHTER:	That is really very much the nub of the problem.
DAWSON J:	But it comes back to what the presiding judge

says:  what is the definition of the actus reus?

MR RICHTER:  Yes, and in terms of the presiding judge the

Full Court found that he was wrong. What we are

saying, of course, is the Full Court did not go

C2Tl8/l/AC	24	23/3/88
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far enough, not on that issue but in what it, itself, did in order to support the conviction by redefining

trafficking.

BRENNAN J:  Well now, do you wish to develop your argument

by reference to the text of the statute?

MR RICHTER:  Yes, if the Court pleases. The concept of

trafficking in the POISONS ACT	of 1962 was not
defined. Section 32(2) of the	POISONS ACT 1962
provided that:

Every person who prepares, manufactures

sells or deals or traffics in -

a drug of addiction, as it was called then, or

specified d~ug is guilty of an offence. And the

authorities relating to the interpretation of the

word "trafficks.'.' proceeded on the bas is that really

a common law interpretation of the concept was

appropriate and - - -

DAWSON J: That is the English language interpretation.

What does the dictionary say, Mr Richter?

MR RICHTER:	The dictionary says a number of things and, indeed, the dictionary definition is referred to
by His Honour Mr Justice Ormiston at page 263 of
the appeal book where His Honour gives:

(Meaning 2a). More importantly, the

intransitive verb is given the following primary

meaning (Meaning la):

"To carry on trade, to trade, to buy and sell;

to have commercial dealings with anyone; to

bargain or deal for a commodity. Sometimes,

to resort to a place for the purpose of trade;"

The Macquarie gives two meanings to the

intransitive verb, as follows:  "To carry

on traffic, trade, or commercial dealings";

and "To carry on dealings on an illicit or

improper kind."

(Continued on page 26)

C2Tl8/2/AC	25	23/3/88
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MR RICHTER (continuing): His Honour continues:

Those and other dictionary definitions

I have looked at neither add to, nor

detract from, the width of the concept of

trafficking as defined in the Oxford

Dictionary. "To carry on a trade",

whether lawful or unlawful, is to be

engaged in a continuous activity of a

commercial and systematic kind.

Now, it is quite clear, in our respectful submission,

that the dictionary meaning is capable of carrying the

notion of the conduct of an illicit trade, but what

we would submit is this, that for the purpose of

legislation, of criminalizing the trafficking in heroin,

in our respectful submission, something much more

specific than that would have to be intended because

the concept of carrying on trade is an extraordinarily

wide, varied and vague one. So that inf act the -

DAWSON J:  It is not really, is it? It may extend over a

period of time, but it is not a vague concept.

MR RICHTER:  It is not a vague concept if it is rivetted to

specific activity.

DAWSON J:  Why? I mean, you may carry on for a short time or

for a long time and therefore one instance may be enough

or you may need more; but that just means the

instance into evidence of what you are doing.

MR RICHTER:	Yes, Your Honour, I have to concede that, and what I would argue though is that the statutory
construction given to traffic in the cases that we have
cited, FALCONER V PEDERSEN, HOLMAN's case, all relate
to specific activity types of trafficking and there is
no decided authority on the issue of whether you can
have simply the notion of carrying on of a trade as the nub of the charge with specific acts merely evidencing
that, rather than the specific acts being the of fences
charged.  So it is a novel point to that extent.
BRENNAN J:	Your argument would take it to the point of

saying that the section is really rather ineffective

at catching the entrepreneurs.

MR RICHTER:  It is not at all ineffective, with respect,

Your Honour, because the entrepreneurs can be caught

if the evidence is sufficient of their directing of

the activities.

BRENNAN J:	Of the precise activity of sale.
MR RICHTER:	Yes.
BRENNAN J:	So that if the entrepreneur was removed by some

links from those who engaged in hawking the

C2Tl9/l/HS	26	23/3/88
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material on the streets, the section would be

virtually useless.

MR RICHTER:  Well, the section would be virtually useless on

any view, unless some evidence could link indirectly

with their activities.

BRENNAN J: Quite, but it would not be sufficient, for example,

to produce evidence of the entrepreneurial activity

which merely set up or arranged for the sales of the

street operators.

MR RICHTER:  With the greatest respect, I do not see how that

would be possible if such evidence was available

without that evidence, in effect, pointing to specific

activities of trafficking, in fact, for which he would

be responsible, and over which he could be charged.

But in a sense Your Honour's question highlights the

matter that we urge on this Court, that to simply

define it as being in the business or carrying on trade

without the requirement of proof of the specific acts,

as it were - - -

DAWSON J:  I do not understand that. When you say the

specific acts, without evidence, you mean - well,

of course that is so.

MR RICHTER:	Yes.
DAWSON J:	There is nothing imprecise about carrying on a

business or carrying on a trade.

MR RICHTER:  With respect, Your Honour, it would leave it

completely open to the sort of general evidence, some
of which is exemplified in this case, of saying he

was dealing in drugs.

(Continued on page 28)

C2Tl9/2/HS	27
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MR RICHTER (continuing):	To convict someone on that sort

of evidence goes contrary to the whole notion of

analysing the evidence and making sure that it is

sufficient. The mere assertion by someone, "Well,

he is a drug dealer" would then be evidence.

DAWSON J: Well, I do not see that.

BRENNAN J: Yes, we understand that point I think, Mr Richter.

MR RICHTER: Well, that is one of the points that we make in

our respectful submission, that there has to be a

distinction between a continuing activity and a

continuing offence and what we say is that it is

appropriate to charge trafficking as a continuing

activity in certain circumstances where the acts

are so clo·sely linked that they, in fact, form the

one transaction, as it were, albeit that they may cover more than the one act whereas the notion of

the open-ended allegation of someone being in the
business of trafficking is too vague to constitute

a triable offence and what the impact of the

judgment of the Court of Criminal Appeal has is to
create just such a broad category of offence of

trafficking. That is one of the complaints which

takes further the finding of the court that there

had been a misdirection on direction. I will not

pursue the misdirection and non-direction aspect

on its own to any great extent because it is
conceded that there was such a misdirection and

a non-direction and it went to a critical matter,

in other words, it was a non-direction and a
misdirection with respect to the very elements
of the offences of which the applicant was
convicted.

BRENNAN J: Could I just get you to pause again. Is the proposition this: in the first instance, the

definition of trafficking in the POISONS ACT and

I take it in the DRUGS POISONS AND CONTROLLED

SUBSTANCES ACT does not extend beyond what you
say is a one-transaction event.	That is your
first proposition.

MR RICHTER:	Yes, Your Honour.
BRENNAN J:	Now, your second proposition is, I gather, linked to that and that is that there was no direction in
those terms given to the jury. Is that correct?

MR RICHTER: That is so.

BRENNAN J:  Now, do you raise any argument based upon the view

which the Court of Criminal Appeal came to, namely,

that if there is an offence of trafficking consisting

in the carrying on of an illicit business that there

is any misdirection or non-direction on that approach

to the section?

C2T20/l/SH	28	23/3/88
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MR RICHTER:  There was a complete non-direction on it by

the trial judge and, indeed, there was also a

positive misdirection in so far as he, in the nas~age cited to the court,says that if they find a single

act they can convict so that, to that extent, there

is both the absence of a definition of the elements

of the offence which is fotmd to exist as an offence

by the Full Court, no definition of what being in

the continuous business will be in the business of

trading in drugs means and then there is the

positive misdirection of telling the jury that if

they find one act they can convict and that raises
the other leg of the argument, as it were, which goes

to the uncertainty principle such as the one expounded

in TROTTER and in a number of other cases, namely,

that where a jury is directed that if they find one
instance of trafficking they can convict, then where

there are a lot of instances of trafficking of - sorry,

Your Honour.

DAWSON J:  I would be repeating myself. That begs the question.

You say one instance of trafficking, that could be

one instance of trading.

MR RICHTER:  One act of trading.

DAWSON J: Yes.

MR RICHTER:  Yes, but it is not just one act of trading. It is

one act of trafficking because, as I have said, the -

DAWSON J: Well, it may also be that.

MR RICHTER:	Oh, indeed, but there are different types of trading activities, if I can call them that, rolled
up in these counts.

(Continued on page 30)

C2T20/2/SH	29	23/3/88
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MR RICHTER (continuing): And, as I have indicated, they include

direct sale, barter or exchange and a number of

other concepts. There are about five different
forms in which the trafficking is said to be occurring

in this instance, quite apart from the general

notion of the man being in the business of trafficking.

Then there is, of course, count 4 which is an altogether

different concept of trafficking and perhaps at

this stage I might relate what I would be saying

about count 4 in this context. If what the Court

of Criminal Appeal is saying is right and that

one can charge a continuing course of trade then

count 4 becomes of extreme significance because

that is a specific and isolated instance in which,

by virtue of what we would have argued was a

misdirection on the burden of proof, a finding

of guilt is made that the man is trafficking in

heroin.

That being so, if in some sense the concept of a continuing offence is a live one, it would

make .it very difficult, if not impossible, for a

jury to separate that from the other counts.

DAWSON J:  Did 26 April 1985 fall within any of the other

periods specified for the other counts?

MR RICHTER:  It fell within two of the counts but was defined

out of them by the learned trial judge who isolated

it and said that for the purposes of count 4 they

must in fact consider count 3 as ceasing on

25 April and must consider count 5 as commencing

on 27 April so as to clearly isolate count 4 as

a separate count. So that that sort of overlapping

does not exist but the sort .. of overlapping that

would exist,in our respectful submission, and it

seems clear from the judgments that the Crown case

was really put on the basis of, "This is a man

who is running a continuing trade in drugs", that

is the way that the Crown case was put and if

that be so then the occurrence with respect to

which count 4 is laid and the finding of trafficking

relating to a substantial quantity of heroin on

that occasion must, of necessity, in our res2ectful

submission, have ...... consideration in relation

to the notion of,· "Is the man in the trade of

trafficking?"

BRENNAN J: Is that accurate or is it overstated? I merely ask you the question not tendentiously; in other words, if, in relation to count 5, the jury took _in.to account .the finding

of a quantity of heroin in the bedroom on 26 April -

that is one matter of fact. If they took into

account the proposition that they also intended to convict, in the light of what you contend to

be a misdirection of law, then that would be another.

Is the jury likely to have taken into account in determining count 5 any matter of law with respect to count 4?

C2T21/l/SDL	30	23/3/88
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MR RICHTER: 

If the matter of law compelled them to the

conclusion that they must convict the applicant
of trafficking then we would say yes, because although

His Honour was careful to delimit the evidence

and say, "The following evidence is admissible on count 4", and then, "The following evidence

is admissible on count 5 and do not cross-use the

evidence", the learned trial judge, of course, did not tell them that they could not make usP

of the finding that he had trafficked on the 26th

as to whether or not he was a trafficker with respect

to the other counts, and in particular to count 5.

So that it is in that way that those matters are related.

DEANE J: 

Was he asked to?

MR RICHTER:  I do not believe he was, no, Your Honour. He

was not asked to.

DEANE J: There was a dispute as to whether there was a

continuous offence which the trial judge raised

and at that stage defence counsel sought to put

the Crown on election on the basis that there was

not a continuous offence. But, accepting

His Honour's ruling that there was a continuous

offence, was there any complaint to his summing

up on the ground you are suggesting?

MR RICHTER:  No.

DEANE J: While I am interrupting you, what would you say

in relation to Mr Justice Crockett's comments at

page 332 in the paragraph in the middle of the

page? You will remember the paragraph if I remind

you: it is where His Honour in effect says there

was a clear dispute on an overall case rather than

an isolating of individual incidents?

(Continued on page 32)

C2T21/2/SDL	31	23/3/88
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MR RICHTER:  What we would say is that that is precisely

at the root of our complaint to this Court at this

stage because if one takes a global approach to

these things -

DEANE J:	But His Honour is talking about the conduct of
the case which removes a lot of the force in the
suggestion of "Some members of the jury might have
found incident A, other members might have found incident B. 11
MR RICHTER:	Not necessarily, with respect, Your Honour.

There might be some types of activities, for example, a prostitute saying, "He gave me heroin

in exchange for sexual relations.", that a jury

might find more acceptable in the circumstances

as against some other sorts of instances. It was

not really·a question of accepting the whole of

the Crown case or rejecting the whole of the Crown

case. And that global approach would lead to error,

in our respectful submission.

DEANE J:  But the point I am really raising with you is in
some cases that global approach is a very wise
approach -

MR RICHTER: It is a common-sense one.

DEANE J:  - - - for a defendant who wants to take the

advantage of a complete acquittal in circumstances

where conviction of some and not of other and

habits of concurrent sentences mean that there

is not much difference between getting off one

out of four charges and being convicted of all

four. It seems to me, and I am just putting this

to you, that it is signficant when one comes to

the question of granting leave in a case such as

this in this Court where, to put it politely, there

is a great mess in terms of what has been raised,

what has not been raised, by your clients in both

the courts below to see whether it is a case where

it could fairly be said that there were advantages

in the way counsel saw fit to conduct the trial

at first instance.

(Continued on page 34)

C2T22/l/ND	32/33	23/3/88
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MR RICHTER:  In our respectful submission that conclusion

would not really emerge from an examination of

what happened at the trial. One would rather take

the view that certain matters were simply missed

and the reason I say that, once again, and I do

not desire to keep referring to count 4,but the
missing of that critical direction by everyone
tends to indicate that. If someone was of that

sort of view that they would attack the case head

on altogether and either win the lot or not win

the lot; if someone had heard a direction which

in fact made his client guilty of traffickin& unless

his client proved something, objection would have

been taken. So that, in our respectful submission,

whilst it is true to say that to be completely

acquitted the credibility of all of the five crucial

witnesses really had to be destroyed, in that sense,

it would not be true to say that there was no differentiation as to the approach to counts.

And count 4 was very significant because it

we say the Court of Criminal Appeal, in fact, in

involved possession of a large quantity of heroin
whereas the other counts, indeed as is reflected

in the sentencing, were of a lesser seriousness.

finding what it found, that it was proper to lay

a continuing count of trafficking in the circumstances

of this case, was wrong. And, indeed, if one looks

at the findings that were made by His Honour

Mr Justice Crockett he, himself, was in some doubt

as to whether the evidence in the case would support

that sort of a continuing trafficking. And what

His Honour says with respect to that appears at page 328 of the appeal book in the last paragraph

where His Honour had been discussing some of the

English authorities and His Honour says:

Having regard to them, particularly,

D.P.P. V MERRIMAN, I should have had some

doubt as to whether the commission of a number

of finite illegal acts in the manner disclosed

by the evidence in the present case would

of themselves, having regard to the circumstances

in which they occurred, allow it to be said

that one criminal enterprise in relation to

each of counts 2, 3 and 5 had been established.

The cases, as I have shown, do undoubtedly

support the proposition that a proscribed

act ordinarily finite in its commission,

e.g. theft, may be committed so frequently

pursuant to a regular course of conduct that a series of them becomes the one "continuous offence" which can be pleaded and proved as

such. As I say, I doubt that is so in this

case.

C2T23/l/AC	34	23/3/88
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But an offence may be "continuous" in

a quite different and less "constructive"

way -

and His Honour then goes on to say:

That question is whether the offence of

trafficking (other than as it is statutorily

defined) is by its very nature a continuing

offence -

namely, the carrying on of a trade or business,

which takes me back to the statutory provision,

in relation to which I was asked whether there

was something to emerge from the construction of

the Act. I have indicated that in the POISONS ACT

there was no definition of trafficking and the

trafficking was left to be interpreted in cases

such as FALCONER V PEDERSEN and HOLMAN's case,

which are referred to in our list of authorities.

When the POISONS ACT was repealed and the

DRUGS POISONS AND CONTROLLED SUBSTANCES ACT came

into operation, the definition of traffic altered

in the sense that trafficking was defined in

section 70(1), to some extent, albeit in an inclusive

way, and the definition read:

"Traffick" in relation to a drug of dependence

includes -

(a) prepare a drug of dependence for trafficking;

(b) manufacture a drug of dependence; or

(c) sell, exchange, agree to sell, offer

for sale or have in possession for sale, a

drug of dependence.

Now, in our respectful submission, the specification of the sorts of things that trafficking includes

in section 70(1) makes it clear that what one is	talking about is particular activities rather than
being in the business of trading in drugs.

(Continued on page 36)

C2T23/2 /AC	35	23/3/88
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MR RICHTER (continuing):  But that is not the crux of the

offence but that it is rather specific activities

such as the preparation of a drug of dependence

for trafficking, the packaging of it for the purpose

of trading i½ for trafficking, the manufacture
of it, with or without a purpose that it be sold
and then the concept of selling, exchanging,

agreeing to sell and the like, all of which are

finite activities rather than definitions of the

status of a person as being in the trade and it
is the addition of those which, in our respectful
submission, makes it clear that what the act
contemplates is finite activities rather than the

status of a person as a trafficker or as someone

who is conducting a trade. And the reason for
that, in our respectful submission, is that the

notion of s9meone conducting a trade is very broad

and far too broad for the sorts of serious offences

created by this legislation.

So that those are the submission that we

make in relation to what the Court of Criminal

Appeal did in finding that there was a continuing

offence. In that sense it does not meet the grounds
to say that we are complaining of something that

the Court of Criminal Appeal has done already,

namely, find that there had been a misdirection

and a non-direction, because the principles

enunciated by the Court of Criminal Appeal in making

that finding and then in applying the proviso are

themselves subject to a submission that they are

too broad.

BRENNAN J:  Your basic proposition is that the judge's

initial ruling is wrong and everything that

followed after it was wrong.

MR RICHTER:  Yes, but it followed in a different way.

Certainly, his initial ruling was wrong but we

do not have to argue that because that is not what

he did and the question then becomes, "Is the

Court of Criminal Appeal's formulation wrong?"

rather than the learned trial judge because - - -

BRENNAN J:	But at all events the learned trial judge did not direct the jury to have regard only to
particular and isolated instances.
MR RICHTER:	Yes.

BRENNAN J: That was the application that was made, of course,

by counsel for the accused at the trial, is that

correct?

MR RICHTER:  Yes, Your Honour. The grounds at the trial

were generally expressed in terms of the fact that

C2T24/l/ND	36	23/3/88
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the verdicts on counts 2, 3 and 5 are uncertain

which - I am sorry, at the appeal_. I think I

misunderstood Your Honour's question.

BRENNAN J:  At the trial counsel were contending for the

view that, once the judge raised the question,

the way in which the jury shquld be directed

was that their attention should ~e focused on

particular acts of sale or transactions and that

they should restrict their consideration to each
of the several ones and, indeed, that the Crown

should be put to its election with respect to them?

MR RICHTER:	Yes, Your Honour, that is implicit in their resistance to the notion of a continuing offence.
BRENNAN J:	And that is the proposition that you have been

advancing?

MR RICHTER: 

Yes, Your Honour.

BRENNAN J: 

If you should be wrong on that and if the

Court should be of the view that the Court of
Criminal Appeal was right in its construction of
the sections, then you face the question of whether

there was some blemish in the trial in which the

accused is entitled to take the benefit?

MR RICHTER: 

Yes, Your Honour, and then we would come back

to the question of whether or not the proviso

should be applied. And with respect to that

what we would submit is that where a misdirection

occurs which goes to the definition of the elements
of the offences themselves rather than to the
admission of evidence or to the joinder of counts,

the misdirection is so fundamental that it cannot

be said that the applicant has had a trial according

to law because the jury never determined upon the

elements of the offence with which he was charged.

(Continued on page 38)

C2T24/2/ND	37	23/3/88
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BRENNAN J: Well, does that not depend upon the way in which

the case was conducted?

MR RICHTER: It may or

BRENNAN J:  In this case, if the case was conducted in the way

that Justice Crockett said it was at the page that

my brother Deane put to you, then was that not the

issue for the jury?

MR RICHTER: 

It may or may not have been the issue for the

jury at all because we would support the judgment
of His Honour Mr Justice Ormiston who analyses the
matter in the way that tends to indicate that the

way the trial was run, one can have no certainty

that the jury did not miscarry in its verdict.

BRENNAN J: 

Was there, after the judge had given his original

ruling, any application for redirection along the
lines for which you now contend?

MR RICHTER: 

No, Your Honour, there was not and what we say as to that is that, once again, that would rather

be attributable to an absence of understanding of

the issues that, in fact, went to the jury and why

they went in the way that they went rather than a

tactical matter of withholding objection. In our

respectful submission, a reading of what occurred

there would tend to indicate that that is the case.

There was no exception taken but, in our

respectful submission, the case falls into the

category of those cases where if one comes to the conclusion that there has not really been a trial of the issues on which they were presented, then

there has not been a trial according to law and

count 5 is a perfect example of that, in our

respectful submission,because in count 5 there were

two episodes that were related to the jury by way

of evidence, that the learned trial judge isolated

for their consideration, one of which was the

gifting of a capsule of heroin which cannot be said

to be trafficking because there was no evidence that

that was in a connnercial context. There is no

evidence that it was to be paid for or that it was

in a connnercial context. The evidence of the witness

was that she was given a capsule of heroin the day

before she went into prison, presumably because she

was an addict and to help her. There was no evidence

that that was paid for in any way or was to be paid

for in any way.

The other incident is the sale through an agent,

namely - Gillian Dunstan, in the car to which I have

already referred. Now, it would be impossible to

say that in the absence of a proper direction as to

C2T25/l/SH	38	23/3/88
Giretti

the elements of the account that the jury had to

determine on, that the jury, in fact, found him to

be in the business of trafficking, in a continuing

business of trafficking.

DEANE J: Except, of course, in one way, if one puts to one

side the question of election, the direction given

by the trial judge was much closer to what counsel

for your client wanted than would have been a
direction given in accordance with the Court of

Criminal Appeal in that the trial judge did not leave open to them the possibility tha4 looking at

the evidence as a whole and, even if you are not

satisfied as to particular acts beyond reasonable

doubt, it is open to you to reach the conclusion on

all the evidence that he was carrying on the business

of trafficking in heroin.

MR RICHTER:  We accept that, Your Honour, and, indeed, the

Court of Criminal Appeal went further than the

learned trial judge in this sense, that the learned

trial judge sought very carefully to isolate the

evidence admissible with respect to each of the
counts whereas the views expressed by the majority

in the Court of Criminal Appeal would have allowed

some cross-fl.ow of evidence from one count to

another to establish that course of business. So,

to that extent, yes, we accept that. Nevertheless,

what the jury did determine must be seen to have

been uncertain.

DEANE J: Except you would have no complaint at all and, on

the Court of Criminal Appeal's findings, the

direction would have been too favourable if the

trial judge had said to the jury, "Yo.u must

all be agreed beyond reasonable doubt on an

individual act on which you rely".

(Continued on page 39)

C2T25/2/SH	39	23/3/88
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MR RICHTER: It would have been too favourable in that sense

but too unfavourable in another because if one
looks at the evidence it is really not evidence

of someone who is trafficking in heroin every day,

for example. The evidence is not, "Every day I

went to get heroin from this man and he is trading

in heroin". The evidence is far more episodic

than that and when analysed a jury may well have

said to itself, "Whilst we accept that on occasions

this man traded heroin for sex or sold capsules

of heroin to the prostitutes or did one or other
of these acts, we do not accept that he was in the business
of trading heroin as a business, as a continuing

business", and to that extent, in our respectful

submission, the evidence does not really support the fact that he was.because the evidence is too

episodic.

To that extent the direction is far less

favourable than the direction to which the applicant

would have been entitled to and, indeed, that is

the point seized upon by His Honour Mr Justice Ormiston.
that, had the proper directions been given with respect
to the elements of the continuing offence, it cannot

be asserted with certainty that a jury would not

have acquitted.

BRENNAN J: Perhaps you could identify the passages from

Mr Justice Ormiston's judgment on which you rely?

MR RICHTER:  Yes, Your Honour. They are really the passages

which relate to the applicability of the proviso.

There are passages at - - -

BRENNAN J:  I do not want to put words into your mouth but

it occurs to me that it is page 277 that you may

be speaking of?

MR RICHTER:  Yes, I have the notations with the pages in

the judgment - at page 277, indeed, the second paragraph

on that page:  The difficulty in the present case, however,

is that it is by no means clear that the jury

were asked whether they were satisfied on

each of those counts whether the accused were

guilty of the continuous offence of trafficking

by way of a trade in drugs over the alleged

periods. On the contrary -

et cetera. So His Honour certainly makes that

central to his findings and then finds that they,

not having been asked that question, it was by

no means conclusive that they would have answered

it in the affirmative and that is why His Honour

says that the proviso does not apply quite apart

from the fact that it is a fundamental non-direction

misdirection going to the elements of the offences.

C2T26/l/SDL	40	23/3/88
Giretti

There are other passages:  a passage at page 278

1n the middle of the page:

No such uncertainty would arise if the

trial judge had correctly directed the jury as to the nature and elements of the counts of trafficking.

His Honour is specifically referring there to the

episode of the sale in the car and the episodes

involved in count 5.

DAWSON J:  His Honour says that but His Honour directed the

jury in relation to trafficking at page 48 and

whilst His Honour adopted a sOOEWhat different approach

it may amount to the same thing: what he says

there is that there may be such a thing as a traffic

in drugs and if anyone takes a step in that traffic

he may be said to be trafficking. He does not

put to one side entirely the element of continuity

at all.

MR RICHTER:	No, what he seeks to do is to give the traditional definition, such as that of His Honour
Mr Justice Anderson in FALCONER V PEDERSEN and,
subsequently, Mr Justice Lush in HOLMAN's case just to describe the notions encompassed by
trafficking.but his charge is related in effect to specific acts of trafficking as is shown in the passage that I cited from page 24.

(Continued on page 42)

C2T26/2/SDL	41	23/3/88
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MR RICHTER (continuing):  Indeed, that is the view that is taken

by all judges in the Court of Criminal Appeal, that

in fact, his charge was related to specific acts.

That is the problem that they perceive as having occurred.

DAWSON J:  Yes, but of course there do have to be specific acts

because one has to demonstrate somehow or other the

accused's engagement in the traffick.

MR RICHTER:	Yes, indeed.
DAWSON J:	There is nothing wrong with that.
MR RICHTER:	Certainly not, with respect, but the sort of general

definition that is given of trafficking at page 47,

and indeed 48, where His Honour says:

Trafficking is any step in chain of

movement, coming from. one person to

another, in a connnercial setting. There
does not have to be innnediate connnerce in

the sense of the trafficking by the

particular individual, as I say, a carrier

would be guilty. If, for example, I had

heroin and heaven forbid, I ask you,

Mr Foreman to take it tonight and give it

to Mr Perry, and you said, "Yes, you would

do it for free", and you took it from me

to take it to him while you are carrying

it, you would be trafficking, because you

have taken part in the movement of drugs

in a connnercial enterprise.

That, by the way, is a misdirection, in our respectful submission, by its very terms because. if His Honour

were to give it to Mr Foreman to give it to Mr Perry

for free it would not be trafficking, in fact, whereas

His Honour says that it would, and that compounds the

sort of problem that arises in relation to count 5.

But His Honour is really directing them to look at acts and going back to page 24 the finding of one act

is made sufficient to sustain a conviction for the

continuing offences.

DAWSON J:	That may be so, may it not?
MR RICHTER:	In our respectful submission, it could not.
DAWSON J:	Why not?
MR RICHTER:	The finding of one sale would not, in our

respectful submission, establish that there was a

continuing trade, unless there was evidence accepted that there was a continuing trade. The finding of the sale on the one instance could not, of itself,

support a conviction for a continuing offence. What

one would need, if one was laying a continuing offence,

is to draw an inference from a whole set of finite

acts of trafficking.

C2T27/l/HS	42
Giretti

DEANE J:  But the circumstances of one sale could. I mean, what

if the sale was he went into a shop and said,
"I'll have $1000-worth of heroin", and he leaned under

the counter and got it and wrapped it up and gave it

to him, and the shop had heroin on the front of it?

MR RICHTER:  Well, if the count related to that specific date,

then certainly that could give rise to the conclusion

that he was trading in heroin on that particular date,

but if the count related to the whole year it would not,

in our respectful submission, give rise to the

conclusion that he was trading in heroin over the whole

year.

BRENNAN J: 

But the count is one of whether he was trading in

heroin and the period within which the offence took
place, is that specified in the presentment?

MR RICHTER: 

Indeed, with - - -

BRENNAN J: 

It does not say that he was doing it on each of the

days which falls within that period. He could have his

day off, if he wished.

MR RICHTER:  But the assertion is that he is doing it throughout

that period.

· DAWSON J:  No.

MR RICHTER:  The evidence that was led in support of those

counts - - -

DAWSON J:  The Crown may have tried to prove that, but they

may have fallen short of it, but nevertheless proved

the offence as charged.

:MR.RICHTER:	I take Your Honour's point, and that goes back to the sort of proper example, or example of what we would
submit is a proper way of charging, between dates, and that is that you charge between dates if you do not know
of the occasion on which it happened, but it would be
wrong in relation to that shop episode, for example,
to charge between dates where you knew the day upon
which the person went into the shop.
DAWSON J:	You see, you come back to the confusion between the

particular instant, which is no more than evidence of

trafficking, by saying that it is the trafficking

itself.

MR RICHTER:	That is what the learned trial judge did, in fact.
DAWSON J:	I do not think he did.
MR RICHTER:	In our respectful submission, that is what he did - - -

DAWSON J:  He came at it a different way. He said, "The

traffick is a continuous thing", and I do not think

C2T27/2/HS	41
Giretti

anyone would disagree with that, "and your

reference to specific instances - one may be enough. 11	engagement in that traffickmay be proved by
That is not really saying anything different,
is it?

(Continued on page 45)

C2T27/3/HS	44
Giretti
MR RICHTER:	He did not really say that, Your Honour,

because what he says at page 24 and, indeed, what
the Court of Criminal Appeal takes him to be saying

in the totality of the charge is that:

if you were satisfied that on one occasion

Mr Giretti, without any knowledge of his

wife, engaged in the drug dealing, then you

could find him guilty.

'bn one occasion~ Now, in the context of the case

as it was run, that could mean the sale in the

car, for example - - -

DAWSON J: That is right, is it not? If the one occasion is sufficient to indicate his engagement in the

traffic of drugs then the one instance is enough?

MR RICHTER:  Indeed, if it is sufficient, if it be the sort

of instance that His Honour Mr Justice Deane posited

it would be enough for that particular occasion

to prove that he is trading in heroin, that he

is running the business of heroin on that occasion.

And, with respect, we agree with that. But it

would not sustain a conviction or, rather, a charge

of trafficking between dates where the specific

incident is, in fact, isolated in point of time,

would not permit the admissibility of evidence
otherwise inadmissible in terms of vagueness and

prejudicial impact to be given with respect to

that whole period, for example, where the episode

with respect to which the count is laid is the

sale in the shop on that particular day. I

am not certain I am making myself clear but the

concept that I have in mind is this, that an

inference can arise from a single act, this person

is trading in heroin, if it is a single act which,

in itself, for example, is a sale, the inference

does not need to be raised as to whether he is
a person trading in heroin because the act of selling

is an act of trafficking and is considered so on

all views.

So that one would not need to ask the ~uestion,

"Is he in the trade of selling heroin?" or' Is

he in the business of selling heroin?" One would

look at the act and say, "Did he sell heroin?",

that is trafficking.

DAWSON J: But, you see, at page 24, His Honour says nothing

more than that. He says, "Now, one specific • fl

occasion

if ..... on one occasion Mr Giretti -

was -

C2T28/l/ND	45	23/3/88
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engaged in the drug dealing -

which is nothing more than a synonym for trafficking -

you could find him guilty.

What is wrong with that?

MR RICHTER:  What is wrong with that, with respect,

Your Honour, is that it permits the jury to say,

"Well, we believe that he sold the heroin on

day X. We believe that he gave the woman who was

going to prison a capsule of heroin on 13 May.

We accept that beyond reasonable doubt and he is

therefore guilty of trafficking."

DAWSON J: If that indicates to them that he was engaged

in drug dealing they are entitled to convict him

on the basis of that evidence.

MR RICHTER:  But that is not the way they were directed,

with respect, Your Honour.

DAWSON J:  But I am reading his words:

Now, if you were satisfied that on one

occasion Mr Giretti, without any knowledge

of his wife, engaged in the drug dealing,

then you could find him guilty.

MR RICHTER:  Yes, but what His Honour means there is the

specific transaction, either a sale or a

conveyance or the giving for sale and the whole

context indicates that His Honour is not asking

for them to draw an inference from an act or acts

about transactions but rather that the act itself

constitutes the trafficking.

BRENNAN J: Is there any other passage in the summing up

which you would wish to refer to in support of

that view?

MR RICHTER:  In His Honour's summing up to the jury?

BRENNAN J: Yes.

MR RICHTER:  No, Your Honour, not in support of that

proposition, other than to say that at no stage

did His Honour proceed on the basis of telling

them that they would need to be drawing an inference

from specific activities and acts which they find

proved that the man was in the business of

continually trading in heroin. That never arises.

I do not believe that I can pursue that matter

any further. I will not take the Court's time.

C2T28/2/ND	46	23/3/88
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If I can simply come back to the question

of the way the matter in count 4 relates to

counts 2, 3 and 4, it is of importance - - -

BRENNAN J:  2, 3 and 5.

MR RICHTER:  2, 3 and 5 - I am sorry. It is of importance not to have been invoked to save these convictions. because we would submit that the proviso ought respect of count 4 because that would involve me arguing the whole count.

(Continued on page 48)

C2T28/3/ND	47	23/3/88
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MR.RICHTER (continuing): What we would submit is this:

that the finding of guilt on count 4 in the

context of the charge as a whole would do

precisely what Your Honour Mr Justice Dawson

says one could do and might very well do in

these instances. The evidence in relation to all the other counts involve no more than the

say so of people whose credibility was under
very serious challenge. The evidence on count 4

involved.the finding of the specific quantity,

quite a large quantity of heroin in his premises.

If there had been misdirection.with: respect to the

burden of proof such that the accused had not

discharged a reverse burden that he did not have

to bear, then a jury would naturally look to that

sort of evidence to find him guilty, the sort of

evidence of"here is several ounces of heroin in

this man's home': to find his guilty of that count

and, finding him guilty of that count, they would

then draw the inference that he is a trafficker

in the business of trafficking and that that might

apply right across the board to the other counts

and that would be a wrong way to proceed with

respect to the other counts.

DAWSON J: His Honour may have had that in mind because he was

very careful to direct the jury to keep count 4

quite separate - - -

MR RICHTER:	Indeed, Your Honour.
DAWSON J:	- - - because the law which applied to it was quite

separate and it was in a different category altogether.

He says that at page 58.

MR RICHTER:  Indeed. As I said, he was careful to direct them

to consider the evidence - :in a very compartmentalized

way with respect to count 4 - away from the other

counts and, indeed, the way he redefined that count

to eliminate the ovetlap of the other counts with

that date indicates that he was very careful to do it,
because, in our respectful submission,	to tell them that

they could not use the evidence on that count with respect to the other counts or vice versa does not

eliminate the vice or .the possibility that once,
having found trafficking proved on that count,

they then are persuaded that the man is a trafficker

and thereby the sort of vaguer and more general

evidence of the witnesses against him becomes that

much more acceptable.

BRENNAN J: You appreciate, of course, we do not have whole of

the transcript of the proceedings before us.

MR RICHTER:  Indeed, Your Honour.

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BRENNAN J:	And~ therefore, when we come to consider the question of the application of the proviso, the
first question that we would necessarily approach
is whether there was arq error in principle in the
approach adopted by the Court of Criminal Appeal
to the proviso.  Do you seek to make any attack upon
the understanding in principle of the approach that the Court of Criminal Appeal made to the proviso or are you speaking simply of the application in respect
of the circumstances of the case?

MR RICHTER: Well, both. First as to the attack on the point

of principle. In our respectful submission, where

there has been a significant misdirection or
non-direction with respect to the elements of the
offence wh~rewith a person is charged, the qualitative

decision that with an iIIllllaculate charge a conviction

would inevitably flow in any event, in our respectful

submission, does not meet the concept that the person has not had a proper trial, a fair trial, according to

law and that it would be inappropriate to apply the

proviso in such a situation. The proviso is not

intended to overcome a situation where the person has

not really had a trial according to law and he has

not had a trial according to law when the jury has

not been called upon to find the elements of the

offence wherewith he is charged.

So that, from the point of view of principle, the sort of qualitative analysis of saying, "Well, the credibility of the case on the whole must have been acceptable to the jury and, if that is so,

then whether or not there had been a misdirection

with respect to the elements, the same result would

have necessarily flowed", that sort of analysis is
not, in our respectful submission, applicable any

more than it would be to a situation of a fundamental

misdirection with respect to where the burden of

proof lies. It may well be that one has a case

where there has been a complete misdirection about

the burden of proof and yet the Court of Criminal

Appeal, second-guessing a jury, is of the view that

inevitably with ·a proper direction there would be

a conviction. In our respectful submission, that

ought not to be allowed to stand by the invocation
of the proviso because the person has not had a

proper trial according to law on the correct

principles.

(Continued on page 50)

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GAUDR0N J:  Do you make that same point for non-direction,

if you are driven to non-direction in this case?

MR RICHTER:  I make it for non-direction in this case because

the jury's mind is never directed to the elements

that they have to find. So that that - - -

GAUDR0N J:  But there is a difference between a non-direction

and a misdirection, is there not?

MR RICHTER:  Indeed, with respect.

GAUDR0N J: And what is it about this case that makes

non-direct:ion the same as misdirection, in your

submission?

MR RICHTER: 

The fact that the jury was never asked to find

the element, namely that the applicant was in the
business of trading in heroin.

GAUDR0N J: Well, I am not too sure if that is correctly

described as an element, though, is it? The
question is: did he traffick? And that might be

done by individual transactions, participation in somebody else's total transactions, or otherwise.

Really, are you not in the situation where you have

a continuous charge that the incidents are more

properly to be equated with the overt acts in a

conspiracy charge ; they a:i::e evidence from which the

inference is drawn - or evidence enabling an

inference to be drawn?

MR RICHTER:  Indeed, Your Honour, but if the jury is

proceeding on that sort of basis then that brings

into play the uncertainty principle of not knowing

which act of trafficking was accepted.

DAWSON J: It does not matter.

GAUDR0N J:  Does it matter?

MR RICHTER:  With respect, yes, where the jury is looking

at specific acts which, on air submission, is what

it was doing here, to say, "Is this act an act of

trafficking" or, "Is that act an act of trafficking".

It does matter because - - -

GAUDR0N J: That is assuming that the element is a particular

act. The element is trafficking which may be

proved by proof of a particular act.

MR RICHTER:  Yes, I accept that, but if they are not properly

directed as to what that element is, namely, being

in the business of trafficking in the form in which

the Crown laid that count, or pursued it -

GAUDR0N J: Or rriay, or may not be, in the business.

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MR RICHTER:	May, or may not be. That leaves a great deal

of	uncertainty, with respect, as to what elements -
if	one can use an example, the fifth count. One
of	the acts relied to show trafficking could not
be	said to be an act of trafficking.

GAUDRON J:  I have heard you say that many times, but I

do not understand why you say that, I must confess,

in light of the inclusive definition of traffick

in the 1981 Act.

MR RICHTER:  Because the trafficking there is all seen

to be part of activity in a commercial context -
in some sort of connne·rcial context, an activity

carrying some connnercial connotation, such that a gift

would not constitute a traffick. That is not to say

that for trafficking one needs to make a profit. But

there has to be some sort of commercial nexus, and

that is implicit in the decisions in FALCONER V

PEDERSEN and in HOLMAN and is implicit, in our

respectful submission, even in the broader inclusive

definition of trafficking, save for the one paragraph,

(b), which makes manufacture of a drug of dependence

to be included in the concept of traffick without the

need to show that it was for commercial purposes at

all.

DEANE J:  But even if the gift itself was not trafficking, the

making of the gift could be evidence of trafficking.

MR RICHTER:	It could, indeed, Your Honour, because it could be evidence of the fact that the donor has access to a
lot of heroin and that he has that by virtue of his being in the trade. But that is not the way this jury
was directed.
DEANE J:	If you look at the standard direction that His Honour

gave, for example, page 55, the paragraph in the middle

of the page, the point you make about the individual

incidence is of course well made, but that standard

direction which corresponds, I think, with each of the

relevant charges, in the context of this case, and if

you be wrong in relation to trafficking being a

continuous offence, goes very close to what would have

been a correct direction.

(Continued on page 52)

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MR RICHTER: Your Honour is looking at the middle of page 55?

DEANE J:  Yes:

Now, the evidence relating to that count

consists of.

MR RICHTER: It would be close to it, yes.

DEANE J:	I appreciate, as I say, the importance of your single
incident point.
MR RICHTER:	Yes, I have to concede that that comes close,

indeed, Your Honour. But what is urged on this

Court is that the nature of the case in its totality

was not really evidence of someone who set up shop

selling heroin and does so over the period of time
altogether but, rather, it was far more episodic

and disjointed and the three specific instances that were given and that were identifiable were

the two instances in count 5 and the possession

in count 4.

If the Court pleases, I do not believe I can

be of any further assistance.

BRENNAN J:  Thank you, Mr Richter. The Court will adjourn

briefly to consider what course it should next

adopt.

AT 12.22 PM SHORT ADJOURNMENT

UPON RESUMING AT 12.45 PM:

BRENNAN J:  We need not trouble you, Mr Flanagan. The appellant was presented on five counts of

trafficking in heroin under the Victorian statutes

which were successively in force during the periods

covered by the presentment. The jury was directed

to acquit the applicant on the first count, leaving

four counts on which he was convicted. The fundamental

question which concerned counts 2, 3 and 5 was whether

it was open to the prosecution to charge the applicant

with a continuing offence of trafficking when the

acts relied upon were discrete and episodic. The Full

Court held that it was so open to the prosecution and in·that conclusion we. agree.

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The other issues which the applicant seeks to

raise are such that having regard to the way in which the defence was conducted at the trial and the way in which the applicant conducted the appeal, it is not

appropriate to grant special leave to appeal.

In consequence of this view, we do not propose

to grant leave to amend the grounds of the application
with respect to the conviction on count 4. The
application for special leave is accordingly refused

and the application is dismissed.

MR RICHTER: If the Court pleases.

AT 12.47 PM THE MATTER WAS ADJOURNED SINE DIE

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