Hargraves v The Queen; Stoten v The Queen; Handlen v The Queen; Paddison v The Queen

[2011] HCATrans 120

[2011] HCATrans 120

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B73 of 2010

B e t w e e n -

ADAM JOHN HARGRAVES

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B72 of 2010

B e t w e e n -

DANIEL ARAN STOTEN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B5 of 2011

B e t w e e n -

DALE CHRISTOPHER HANDLEN

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Brisbane  No B7 of 2011

B e t w e e n -

DENNIS PAUL PADDISON

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

GUMMOW J
CRENNAN J
BELL J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO BRISBANE

ON FRIDAY, 13 MAY 2011, AT 9.15 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC:   May it please the Court, in the Hargraves matter, I appear with MR P. KULEVSKI for the applicant.  (instructed by Robinson Legal)

MR B.W. WALKER, SC:   May it please your Honours, in the Stoten matter, I appear with my learned friend, MR J.R. HUNTER, SC, for the applicant.   (instructed by Peter Shields Lawyers)

MS W.J. ABRAHAM, QC:   May it please the Court, in the Hargraves and Stoten matters, I appear with my learned friend, MR A.J. MacSPORRAN, SC, for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

MR P.J. DAVIS, SC:   May it please the Court, in the matter of Handlen, I appear with MS C.L. MORGAN for the applicant.  (instructed by the Legal Aid Queensland)

MR M.R. BYRNE, QC:   May the Court please, in the Paddison matter I appear with MR G.J.D. DEL VILLAR for the applicant.  (instructed by Legal Aid Queensland)

MS W.J. ABRAHAM, QC:   May it please the Court, in the Handlen and Paddison matters, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GUMMOW J:   Thank you. We have called these matters together because they all seem to involve a point relating to section 80 of the Constitution. Can we begin, Mr Gleeson, by looking at your draft notice of appeal in Hargraves?

MR GLEESON:   Page 223, your Honours.  Your Honours, could I indicate that we do not seek to press ground 3.

GUMMOW J:   Yes, all right.  What about ground 2?

MR GLEESON: We would seek to press ground 2 on the basis that it does raise squarely again the issue under section 80 and in terms of the factual component of it, whether it was a misdirection. We submit that it is a short argument but it appropriately crystallises the section 80 issue.

GUMMOW J: Is ground 2 meant to raise some point distinct from section 80?

MR GLEESON: No. It simply illustrates there were two misdirections in the trial which went to the central issue of fact in the trial thereby raising section 80 issues. There is no separate legal issue in ground 2.

GUMMOW J:   Right.  You do not press ground 3?

MR GLEESON:   No, we do not.

GUMMOW J:   Which is a non‑section 80 point?

MR GLEESON:   That is correct.

GUMMOW J:   All right.  Mr Walker?

MR WALKER:   Your Honour, my position is exactly the same.

GUMMOW J:   What page is it?

MR WALKER: The draft is at 223. As to ground 2, yes, it is grist for the same mill, section 80. It differs only in that the Court of Appeal did not find that a complaint about miscarriage was made out under ground 2 but was made out under ground 3. The proviso was applied in relation to the ground 4 matter.

CRENNAN J:   The interest direction.

MR WALKER:   Quite.  It did not apply to the, I will call it, third possibility; not established by the evidence or for which there was no evidence confusion.

CRENNAN J:   That suggests that ground is very much relevant to the trial and does not really an issue of wider importance.

MR WALKER: We would submit, as my friend, Mr Gleeson, has put it, that it provides a footing for exactly the same argument about section 80 and for that reason should remain.

GUMMOW J:   Yes.  If you succeed in getting a grant of leave, you would have to redraft these notices, I think, gentlemen, to make it quite clear.

MR WALKER:  Yes, so as to put 2 under the same rubric as 4.

GUMMOW J:  It may a species of the genus, section 80, I guess.

MR WALKER:  Yes.  Exactly so.

GUMMOW J:   All right.  If we look at Handlen, where do we see the draft notice of appeal in Handlen?

MR DAVIS:   It is at page 180.

GUMMOW J:   This has the joint criminal enterprise point as well, does it not?

MR DAVIS:   Yes, your Honour.

GUMMOW J:   Yes, I see.

MR DAVIS:   Your Honour, there is a difficulty with the draft notice of appeal that I should mention now.  Our client was convicted of two counts of importation, one count of possession and one count of attempted possession.  The counts of attempted possession and possession relate to the drugs that were allegedly imported.  There is no ground of appeal which deals with the convictions for the possession and the attempted possession because the joint criminal enterprise direction does not strictly relate to those two counts. 

In the outlines of argument it is said that the counts are all so intertwined that the errors which are made in relation to the directions concerning the importation counts affect the convictions for the other two counts.  So we would be seeking at some stage to add a new ground along these lines, that the convictions on the counts of possession and attempted possession constituted a substantial miscarriage of justice caused by the way in which the cases of importation were put to the jury.  That ground of appeal is in line with the outlines of argument that have been filed.

GUMMOW J:   Mr Byrne, does the same point apply to your application?

MR BYRNE:   Yes, precisely the same point, your Honour.

GUMMOW J:   Thank you.

BELL J:   May I inquire, Mr Byrne, the Court of Appeal approached the matter upon the basis that, as it were, no harm had been done, notwithstanding that counsel and the trial judge approached the trial on the basis that liability was in respect of a joint criminal enterprise.  Taking into account, as I understand the court’s reasoning, that the jury must have been satisfied of that which was required to establish liability as an aider and abetter in each case and that there had been no other irregularity in the trial, the court referred to the admission of evidence on the Tripodi principle.  Is any issue taken concerning that aspect of the court’s reasoning on a view the Tripodi principle is one concerned with preconcert and notions of joint

criminal enterprise explaining the basis for the admission of the evidence of acts of one person in the trial of the other?

MR BYRNE:   To answer your Honour this way, that is one of the reasons we advance as to the failure of the trial.  The trial was, as your Honour has spelt out, run essentially as a conspiracy trial.  The principal witness, the person Reed, was called by the Crown and, as the Court of Appeal explained, was the principal evidence against the two applicants.  He was treated as part of a joint enterprise in respect to the others and the trial judge directed that it was a joint enterprise and criminal responsibility flowed from that, as did the admissibility of the evidence.  The way it should have been run, we would submit, is that Reed, the witness, should have been presented as the principal offender and then the question for the jury would have been whether the evidence established against that background that the two applicants here aided or abetted him in the relevant sense under the Code.

BELL J:   I understand that.  I think I am raising a point that is slightly different.  I just seek to understand whether it is any part of your case that evidence was admitted against your client by reference to the common understanding that the trial was one of joint criminal enterprise, being evidence of the acts and statements of others said to be a party to that joint criminal enterprise.  That would not have been admissible against him had it been appreciated that the trial was being conducted on the basis that he aided and abetted the man, Reed.

MR BYRNE:   That was not a point taken either at trial or in the Court of Appeal, your Honour.

BELL J:   Yes.

GUMMOW J:   Yes, thank you, Mr Byrne.  We had better go back to the applications in Hargraves and Stoten and hear what Ms Abraham wants to say in opposition to a grant of leave on the section 80 points.

MS ABRAHAM:   Your Honour, in our submission, in this case, it is not an appropriate vehicle because ultimately my friends have to rely on the combination of what is said to be two errors.  The one that is said to be in ground 1, that is the Feddema error, that is the direction which the court below, in our submission, clearly and correctly rejected.  If one puts that to one side, one is then left with what is referred to as the Robinson error and, in our submission, in relation to that, the court did not even find, with respect, that it established a miscarriage of justice and only considered the question of whether there was no substantial miscarriage of justice as, in effect, the fall back position.  In my submission, in those circumstances, this clearly is not an appropriate vehicle in which to determine what are the essential minimum requirements. 

With respect, I am not quite sure what my friends are putting in relation to that in relation to this trial.  When one considers the evidence in this case, which clearly was overwhelming evidence, and in relation to the Robinson direction only, with respect, it was an error just, so to speak, in other words, the court had considerable difficulty in coming to that conclusion, in my submission, there is no miscarriage of justice occasioned and therefore this matter ought go no further.

BELL J:   I appreciate the court expressed some hesitancy about the conclusion, but, having expressed that hesitancy, it did find that the direction did contravene the principles stated in Robinson in a case where it is put credibility was the issue.

MS ABRAHAM:   With respect, in my submission, one cannot consider the issue of was it a breach of Robinson without considering, as the court below did, what the direction actually was, what the facts of this case were and what the issues were at trial and here the trial judge made a conscious decision to do what he did because he considered without doing that there would run a grave risk of misjustice to the accused and, in my submission, that is a relevant consideration. 

Also relevant is that the terms of this direction, with respect, are far removed from that considered in Robinson.  In particular, in relation to this direction, the court found that the jury would not have understood it to have meant that the evidence of the applicants had to be scrutinized more carefully than that of any other witness.  In my submission, that finding is critical because that is at the heart of Robinson.  That is at paragraph [128], application book 202, the bottom of that page. 

In my submission, that is critical because one cannot just categorise it is a breach of Robinson therefore.  One must look to the terms of the direction that were given and that is exactly what the court did here and that is why they had considerable hesitation in coming to the conclusion they did and why, with respect, they doubted that a miscarriage of justice resulted, let alone a substantial miscarriage of justice.  In my submission also, whilst your Honour said it is a question of credibility, clearly credibility was in issue, but the court found, with respect, that there was a wealth of evidence by which the states of mind could be objectively assessed.  That is paragraph [158], application book 208. 

BELL J:  But that really goes to the section 80 point, does it not, and the exercise of the proviso?

MS ABRAHAM:   Yes and no, with respect.  Your Honours have made the point that this was a case relating to credibility, but, with respect, at the end of the day when the court was considering whether or not first of all there was as miscarriage of justice and then the question of the proviso, the fact there was a wealth of evidence by which it could be objectively assessed, in my submission, is a relevant consideration.  Also, with respect, I notice in the submissions of my friends a suggestion that this appeared to have been the distinguishing factor between these two accused and the one that was acquitted.  In my submission, that is just not so and it is not borne out on the evidence.

There was a difference in the evidence between the roles of each.  Significantly, in my submission, there was a difference in that the person who was found not guilty was not involved in any way with communication with Strachans in relation to the set up of the scheme, whereas Mr Hargraves and Mr Stoten were.  They were in communication by email and the like.  Also, it was those two that were the ones that were providing the instructions in relation to the mark ups and it was those two – to be perfectly correct, there is no evidence in relation to Smibert, which was an important piece of evidence, that he had anything to do with Glenn Hargraves.  So factually there is an obvious explanation, in my submission, and so it was not a critical factor at all the issue of this direction.  So there is no factual foundation ‑ ‑ ‑

GUMMOW J:   The fact is the Court of Appeal did apply the proviso, did they not?

MS ABRAHAM:   They did it as a fall back position.

GUMMOW J:   If you want to say they did not get to the proviso, well, that is sort of a notice of contention point, I suppose.

MS ABRAHAM:   Ultimately, yes.

GUMMOW J:  But the fact is, they applied the proviso and your opponents say that section 80 of the Constitution was engaged in that activity.

MS ABRAHAM: I accept that, your Honours, but, with respect, it is unclear from my friends’ submissions as to what it is that is said to have been breached, in effect; what is it about section 80, what is the essential requirement or essential feature or characteristic in this trial and, in my submission, that is important. What we are dealing with is a ‑ ‑ ‑

GUMMOW J:   Just listen to me for a minute.  They want to strike at the whole of the proviso, as I understand it.

MS ABRAHAM:   That is ultimately as I read the reply submissions.

GUMMOW J:   Maybe you have a very good response to that, but that is what they want to do.

MS ABRAHAM:   Well, in my submission, that is not an appropriate vehicle in which to do that for the reasons that I have stated.  Those are my submissions.

GUMMOW J:   Mr Gleeson, what do you say about this?

MR GLEESON:   Your Honour, dealing with the main points raised, the first point was that the Court of Appeal only hesitantly and partly found a breach of Robinson.  We submit that at page 203, paragraph [129] the court having considered all the material, made a finding that there was an infringement of Robinson.  If I could direct your Honours to the last sentence of paragraph [129], that is a finding directly in terms of Robinson.

GUMMOW J:   It is the last sentence of 129, is it not?

MR GLEESON:   Robinson is set out a little earlier at page 197 which directly picks up Robinson as set out at page 197. So that is the first matter. The second matter is the Court of Appeal decided this case on the proviso, so the issue is squarely raised, and if your Honours look at the paragraph relied upon by Ms Abraham which is on page 208 at paragraph [158], that essentially captures the entirety of the section 80 issue. Does section 68 of the Judiciary Act pick up, to use that shorthand, the proviso so as to enable the Appeal Court to make the judgment on the central factual issue in the trial which concerned the honesty and state of mind of the accused who gave evidence, that the court thinks the objective evidence was so strong anything the witness said had to be disbelieved?  So it clearly captures the issue. 

As to the third matter, what is the point we are raising, we are seeking to put it on two levels.  Firstly, at the higher level it can be expressed this way, that section 68 of the Judiciary Act, which is made expressly subject to section 80 of the Constitution, does not confer a jurisdiction on the Supreme Court of Queensland to dismiss the appeal of Mr Hargraves on the ground that, although the judge erred in a direction to the jury going to the assessment of the central factual issue, the court’s own view was the accused was guilty beyond reasonable doubt. That is at the higher level.

The second level we seek to put it, which picks up what this Court raised in Weiss at paragraph 45 but did not decide, is that even if the common form of criminal proviso were picked up, it is not available in a case where the nature of the error goes to the heart of the jury trial in the sense of the relationship between judge in giving direction and jury in finding fact.  In the language of the American authorities which have dealt with this, the US Supreme Court has said that where the error goes to the heart of ‑ ‑ ‑

GUMMOW J:   This is the harmless error doctrine?

MR GLEESON:   Yes.  The court has said in Neder and Sullivan vLouisiana that where the error goes to the heart of ‑ ‑ ‑

GUMMOW J:   What is the citation of that Louisiana Case, which was a rather amazing ‑ ‑ ‑

MR GLEESON:   Yes.  Your Honour, the citations are these.  In our materials, which I do not ask your Honours to go to, we have provided Neder v United States 527 US 1 (1999). The particular passage is at pages 10 to 11. There is a reference there to Sullivan v Louisiana 508 US 275 at page 201. We would seek to rely upon that. In the materials we have also provided what we submit is a helpful article on the US position. It commences at page 95. I only refer to it. It is a detailed analysis of the harmless error doctrine and the point it makes, consistently with jurisprudence in this Court and with Mr Stellios’ article, is that section 80 should be regarded as not only having a rights protection basis, but having a structural role within Chapter III as a decision as to how federal judicial power should be exercised where there are federal offences involved. In that article by Mr Fairfax, at pages 120 and following of the bundle, there is, we submit, a useful discussion in the US context of the structural aspect of the protection, all of which would tend to suggest if the error goes to the heart of the fact‑finding process, a proviso ought not be available. That is what we put, your Honour.

BELL J:   This is a broader concept of an error going to the heart of the process than Wilde?

MR GLEESON:   Yes.  Of course, in the US, Justice Scalia has criticised that restriction on the US approach and he has said that, reading it a little more literally and historically, it should not simply be an error going to the heart of the process.  If you have not in truth had trial by jury, then you should again have trial by jury to determine your guilt.  Justice Scalia’s position is referred to in Neder. So on the facts of our case, we would submit we come within existing analogous US authority. There is a strong case to fundamentally look at whether our Constitution gives that protection.

GUMMOW J: On that subject, one matter you might have to deal with, I think, is that in the United States in the 19th century, as I understand it, they applied the Exchequer rule which produced a lot of criminal appeals, notwithstanding the constitutional provision about jury trials. Then when the British backed off the Exchequer rule and produced the present criminal appeal system, they, in effect, to some degree followed suit with the harmless error doctrine, but the starting point had been the Exchequer rule in its application in the United States, notwithstanding the Constitution. Against that historical background, you have to grapple with the application of all that understanding to the state of affairs in 1900.

MR GLEESON:   Yes, including the important US Supreme Court cases decided in the last decade of the 19th century; Capital Traction v Hof.  So, your Honour, the argument would need to deal with that.  We would seek to submit that on a full analysis, having regard to history and having regard to principle, including the structural argument I have raised, one would lead to the proposition that if the error has gone at least, as in our case, to the heart of the fact‑finding process, the proviso cannot operate in its apparently broad terms.

CRENNAN J:   Mr Gleeson, just before you sit down.  In relation to ground 2, what do you say the error is in paragraphs [131] to [134] of the Court of Appeal’s decisions?

MR GLEESON:   The error is found in the primary application book at page 91 between lines 30 to 60 and in relation to Mr Feddema, who was a witness called by the prosecution, the Crown’s case was that he was completely silent in giving advice even though he was the accountant.  The accused’s case was, we understood from Mr Feddema presenting us with a proposal that it had at least its implicit endorsement.  His Honour raised those two cases and said:

Well, that’s the submissions on both sides . . . You are not bound to make a choice –

and then raised a possibility which he said –

neither side espouses –

which was consistent only with guilt but on a different basis to that advanced by the Crown.  The third case was that the accountant, Mr Feddema, knew from the start what was going on, was giving informal advice, that is, taking the accused’s version that far:

but said nothing about the legitimacy of the scheme because he knew from talking to [them] that they knew if was unlawful.

So having raised that third possibility, his Honour then says –

You could not make a finding to that effect, because the evidence in this case is insufficient . . . However, you may, if you see fit, reject both [sides].

So having raised a third case consistent only with guilt but on a different basis ‑ ‑ ‑

CRENNAN J:   I understand what his Honour said.  What I am really asking you about is page 204 of the application book, paragraph [134].  I am asking you to identify error in the Court of Appeal and I am directing your attention to the texts there where, picking it up:

The most that may be said about the direction was that it was rather pointless and that it would have been better if the judge had not speculated as he did.  However, throughout his summing up the judge directed the jury clearly in terms of the onus and burden of proof and the presumption of innocence and the direction complained of could not have caused or contributed to a miscarriage of justice.

MR GLEESON:   Thank you, your Honour, I follow.  The error is to mischaracterise this as simply pointless, unhelpful and by‑the‑by as opposed to saying, in relation to a central witness, to raise and leave in some fashion with the jury a third case consistent only with guilt was something which should never have occurred.  His Honour simply should never have said, “You might want to think about whether, even though you cannot find, the two sat together knowing each was guilty and did not speak”.  That just should never have occurred in a criminal trial.  If one thinks of that error in relation to Feddema and the accused, together with the interest error, together they have gone to the heart of the issue the jury had to decide.   That is why we seek to press that point as well, your Honours.

BELL J:   Would this involve a contention that a judge making a comment considered adverse to the accused in the course of a summing‑up might be an error of a kind going to the heart of the trial?

MR GLEESON:   Yes.  The invitation to the jury is, as well as the two cases that have been presented here is a third case consistent only with guilt which I am in some fashion putting before you. 

BELL J:   The answer to my question is yes?

MR GLEESON:   Yes.  May it please, your Honours.

GUMMOW J:   Mr Walker.

MR WALKER:   I adopt what my learned friend has said and all of it.  Can I simply add one or two small points.  At page 202 of the application book by paragraph [126] the appellate conclusion was that:

The direction thus arguably suggested that the interest of each accused in his acquittal was relevant to his credibility.

By paragraph [129] about line 15 on the next page the point has been reached in the appellate reasoning that it:

was likely to be taken as meaning protection against conviction.

The last sentence of paragraph [129], in our submission, describes a state of affairs which provides an admirable vehicle for testing whether or not the arguments we seek to adumbrate concerning section 80 are well founded. It provides a good vehicle because, in our submission, it is not just this phrase “by jury” in section 80, but, most particularly, “trial” which is in question, and for the reasons that Justice Gummow raised for consideration by my learned friend, that raises matters of very considerable importance. Reflection, for example, on an alternative mode of appellate approach to error at the trial level seen in section 75 of the Judiciary Act shows that, in our submission, there are matters of substance which, in our submission, call out for a grant of special leave. 

In relation to the matter that Justice Crennan raised with my learned friend, the short answer, with respect, is that the last sentence of paragraph [134] in application book 204 about line 18 or thereabouts is reasoning which is at least cognate with a proviso‑style reasoning, namely, something wrong, we would urge grossly misleading, as to the possibilities of proper jury reasoning had been raised by the judge.  Nothing done in the direction to say, Please ignore what I have just said”, so no redirection.  In our submission, there is therefore, in essence, a very similar kind of reasoning involved, though not overtly framed as a proviso, namely, if there was something wrong, it did not make a difference to the finding of guilt.

BELL J:   Was this the subject of a request for redirection?

MR WALKER:   I think the answer is yes.  There certainly was on the interest direction, which is the other ground.  I cannot at the moment pick out a precise one for that one, your Honour, but that completes what I wanted to add.

GUMMOW J:   I think we should hear Mr Davis and Mr Byrne as to what they want to say in support of their non‑section 80 grounds in Handlen and Paddison.

MR DAVIS:   In relation to the non‑section 80 grounds basically, your Honours, boils down to this, that the application for proviso here was made in circumstances where there was a fundamental defect in the trial process itself.  Your Honours, it really boiled down to this, that the appellant was charged with importing.  The jury were never asked to return a verdict on a count of importing.  What they were asked to do was to determine other facts said by the trial judge to constitute criminal guilt, namely, whether the appellant was part of a joint criminal enterprise. 

The elements then that were put to the jury were different to the elements of the charge which appeared on the indictment.  We submit then that there has not been a verdict; the jury were never asked for one.  There has not been a verdict on the facts which would constitute criminal guilt for the offence charged on the indictment.  In those circumstances, in our submission, the proviso ought not to have been applied consistently with cases such as Wilde v The Queen.  That is effectively our submissions.

GUMMOW J:   That seems to be the nub of it.  Yes, thank you.  Mr Byrne, do you want to add anything to that?

MR BYRNE:   May the Court please, I respectfully adopt what my friend, Mr Davis, has said in respect to the applicant for which we appear.  Page 153 of the application book, paragraph [70] sets out that the nub of the case in respect to Mr Paddison.  Essentially the Crown case did not meet the particulars they put forward and as the last sentence of that paragraph reiterates, he could not have been found guilty on that basis under the Code.  He could only have been found guilty on a different basis.  That is why we say it also goes to the heart of the trial by jury.  That is all I have.

GUMMOW J:   Thank you.  Yes, Ms Abraham.

MS ABRAHAM:   Your Honours, we oppose leave on two bases.  In my submission, the court below approached the issue in this case, having found error, by looking at whether or not the jury determined the facts that were necessary to sustain the charge of importing which, I have to say, the charge of importing remains throughout.  The basis of criminal responsibility, joint enterprise as opposed to aiding and abetting, obviously was different, but the charge itself is the same.

BELL J:   Can I just enquire, Ms Abraham, was evidence led in the case against Mr Paddison of statements or of acts of Mr Handlen in accordance with the principles explained in Tripodi?

MS ABRAHAM:   My memory is yes.

BELL J:   How, in a circumstance in which there was no assertion on a proper analysis of preconcert or joint enterprise, was that evidence receivable?

MS ABRAHAM:   In my submission, the Tripodi principle is not confined to joint enterprise or common purpose in the classic sense.  It applies, with respect, whenever the crime is committed as a result of joint activity between various parties, provided the criteria are met and, in my submission, Ahern makes that clear, as does a number of other authorities.  In my submission, no point was taken in the Court of Appeal on this basis for that very reason, that is, as the court says, regardless of whether or not it was aiding and abetting or it was common purpose or joint enterprise in the classic sense, the evidence was nonetheless admissible and, in my submission, that is perfectly correct.

BELL J:   On the basis that there was a sufficient foundation for the inference that the acts of the one were authorised by the other, notwithstanding the absence of any notion of preconcert. 

MS ABRAHAM:   Your Honour, with respect, you can have reasonable evidence of preconcert without it being a joint enterprise in the sense of an agreement committed in the classic joint enterprise way and so, yes, we say that.

BELL J:   Yes. 

MS ABRAHAM:   But it was admissible on that basis regardless.

BELL J:   I just want to understand the way the trial progressed.  The evidence was such that it is not in issue that however one characterised the basis of criminal liability, there was a sufficient foundation for the admission of the evidence of one in the case against the other and that is not in question.

MS ABRAHAM:   That is correct and, in my submission, that is the correct position and what the Court of Appeal said about that, that is, the basis of the liability being incorrect did not alter that, is perfectly correct.  As I said, ultimately the Court of Appeal approached the issue of whether they would apply the proviso on the basis of determining whether the facts necessary to found the conviction were necessarily found by the jury and in doing that, they looked at the directions that were given to the jury and the evidence and the issues at trial.  They have set out in the judgment a number of the passages in relation to directions to the jury, similar passages repeated

throughout the summing‑up.  A number appear in the judgment beginning at application book 140.

What was clear in this case, with respect, the facts and, in one sense, the allegation remained exactly the same.  In other words, the role that was said to be played by each of the applicants was said to be the same.  Packing goods or financing or unpacking goods remain the same, which is why when the directions were given to the jury and the issues were raised as to what they needed to decide, it was put on that basis.  It is why, with respect, the Court of Appeal ultimately concluded on pages 155 and 156 that the findings of the jury necessarily included that of aiding because it necessarily included, for example, in relation to Handlen or in relation Paddison, packing the goods, packing the drugs.

So, in my submission, ultimately the issue for the court was not whether or not it was necessary for the jury to decide the facts, but whether, in fact, they did in this case.  So it very much turns on the facts that the court found in this case, as a matter of fact, the jury did decide the facts that are the basis of the counts of importing and so, in my submission, that makes this not an appropriate vehicle.  The other reason, in my submission, is that as your Honours were told early on, the applicants were charged with importing and possession, or attempted possession in relation to the drugs. 

Now, whilst I accept there is now sought to be an additional ground of appeal about that, the directions complained of have nothing to do with the possession counts.  With respect, they stand nonetheless.  There is no error in the directions about them at all.  Each of the applicants received identical sentences for the possession counts as they did for the importing and the sentences were to be served concurrently.  So this appeal, with respect, deals with an aspect of the trial only and, in my submission, that provides another reason why this is not a good vehicle to consider the issue.  Those are my submissions.

GUMMOW J:   Mr Davis, what do you say about that last point Ms Abraham was making?

MR DAVIS:   Your Honour, section 668E of the Criminal Code (Qld) provides the bases upon which there can be an appeal. One of those, of course, is that there is a miscarriage of justice. So no error of law has to be shown but just that there is a miscarriage of justice. Now, that occurred here, we submit, for this reason. When one looks at the facts as outlined by the Court of Appeal, it is obvious that the person, Reed, who pleaded guilty and gave evidence against the others, was the prime mover. He was the one who actually imported, he is the primary offender and he was a prime mover in other respects as well.

By having the case put to the jury on the importing charges on the basis of joint criminal enterprise, the Crown obtained a very significant forensic advantage because instead of having the case put to the jury on the basis of the Crown’s star witness is the primary offender and all these other people are secondary offenders, aiders and abetters, the Crown was allowed to have the case put to the jury on this notion of joint criminal enterprise.  We submit that that evades the possession and attempted possession charges as well.  Thank you, your Honour.

GUMMOW J:   Mr Byrne, do you want to say anything on that point?

MR BYRNE:   No, thank you, your Honour.

GUMMOW J:   Thank  you.  We will take a short adjournment.

AT 9.59 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.05 AM:

GUMMOW J:   In the matters of Hargraves and Stoten, which are listed as application No 1, looking at the draft notices of appeal, one of which appears at 223 in the case of Stoten, which applies to Hargraves as well, ground 3 is not pressed.  We think there are insufficient prospects of success to bring forward ground 2.  There will, however, be a grant of leave on ground 4 which includes subparagraphs a and b in ground 4.  Section 78B notices have already been given in anticipation of there being a matter in the Court actually.  There is now a matter in the Court and there should be fresh 78B notices issued to the attorneys in both Hargraves and Stoten.

In the matters of Handlen and Paddison, the draft notices of appeal sufficiently appear at page 183 in the Paddison matter. The notice of appeal, I think it is generally agreed, is in an unsatisfactory form. There will be a grant of special leave on ground 4 but ground 4 has to be rewritten really to make it quite clear that the section 80 point springs from section 11.2 of the Code, as it were, and to make it clear that what are presently grounds 2 and 3 really are species of ground 4, that counsel understands that. There have been no 78B notices in that matter and, of course, they will have to be given. The appeals should be heard consecutively and listed to take together two days. Is that clear?

MR GLEESON:   May it please the Court.

MR WALKER:   May it please the Court.

GUMMOW J:   All right.  Thank you.

AT 10.08 AM THE MATTER WAS CONCLUDED