Kelly v Tepper

[1988] HCATrans 187

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Adelaide No Al3 of 1988

B e t w e e n -

TODD LAURENCE KELLY

Applicant

and

DONOVAN PAUL TEPPER

Respondent

Application for special leave

to appeal

MASON CJ

WILSON J

Kelly

BRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON FRIDAY, 26 AUGUST 1988 AT 11.16 AM:

Copyright in the High Court of Australia

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MRS. TILMOUTH:  May it please the Court, I appear with

my learned friend, MR M. SYKES, for the applicant.

(instructed by Sykes Bidstrup)

MS C.M. BRANSON:  May it please the Court, I appear with

my learned friend, MR W.C. CHIVELL, for the

respondent. (instructed by the Crown Solicitor

for South Australia)

MASON CJ:	Mr Tilmouth.
MR TILMOUTH:	May it please Your Honours. This case

involves an offence which is called, in South

Australia, unlawful possession and which is often

called in other States goods in custody. The

offence, of course, is always regarded as serious

for two reasons: firstly, because it attracts

a sentence of imprisonment if a conviction is
found and in South Australia the sentence which

can be imposed is a fine of up $8000 or imprisonment

for two years on summary conviction; and,

secondly, it has always been regarded as serious

because of the reverse onus of proof situation

which is an exception, of course, to the general

rule requirement of mens rea.

Moreover, if the Court pleases, the courts

have consistently construed this section and

equivalent sections very strictly and, in fact,

this Court in GRANT V REG said that there has always

been a strict construction of the elements which

are concerned in the offence in question. Now,

if the Court pleases similar offences in Australia

have always been construed as requiring, before

the reverse onus situation takes effect, proof of the prerequisite elements beyond reasonable

doubt. PATMOY's case, the Full Court of the

Supreme Court of New South Wales held so in the forties and our court in the fifties in WALLACE V HANSBERRY

adopted the same line of reasoning and in the sixties

the Victorian Supreme Court, the Full Court,

in REG V TWEEN ruled the same way.

Those case have been consistent and powerful

authorities requiring proof of the original

elements beyond reasonable doubt. In our submission,

the error in this case is the departure from the

time-honoured formula which has consistently and

uniformly been adopted across Australia.

MASON CJ:	But are you right in saying that there has been a time-honoured formula that has been
consistently adopted throughout Australia? What
have you got, apart from PATMOY's case, to support
the assertion that there is a time-honoured formula?

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MR TILMOUTH: Well, in our submission, TWEEN's case, the

Victorian Court of Criminal Appeal, and

WALLACE V HANSBERRY. There is no decision -

if the Court pleases, it says that the requirement

of the basis of the suspicion reasonably held

is not otherwise qualified by the fact that

it must be proved beyond reasonable doubt.

MASON CJ:	But do these cases, of any of them, hold that that standard of proof relates to the element
of reasonableness of the belief as distinct from
the existence of the belief, or the grounds for the belief?
MR TILMOUTH:	If the Court pleases, none of these cases

have dealt directly with that point.

MASON CJ:  Well, that is the point here, is it not?

MR TILMOUTH:  Yes. But the direct implication, if the

Court pleases, is that it follows from the way

that this provision and like provisions have been

construed over the years. Can I draw this

analogy,if the Court pleases, and add that this

analogy, we say, is one reason why the case is of

general importance. The CUSTOMS ACT, the requirement

in some offences for proof of reasonable suspicion

of goods having been imported. Juries are

customly directed here - and as we understand

it interstate following ABBREDERIS' case - that

the proof of that element must be sustained beyond

reasonable doubt, and we draw the same analogy.

In our respectful submission, that illistrates

why this case is of general importance. It just

simply is not a decision which relates to goods
in custody type cases. This kind of terminology

recurs in legislation and important legislation,

including the CUSTOMS ACT, and we say that that

kind of legislation has been put to juries

consistently as requiring proof beyond reasonable

doubt and, likewise, we say here.

BRENNAN J:  Mr Tilmouth, say the prosecution proves the

suspicion beyond reasonable doubt and it proves

the grounds of the suspicion beyond reasonable

doubt, what else does it have to do to satisfy

what you regard as the time-honoured formula in

terms of proof of facts? What other fact has to

be proved then?

MR TILMOUTH: Well, in our submission, the court at the end

of the day must be satisfied beyond reasonable

doubt that the suspicion was reasonably based.

BRENNAN J:  Yes.

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MR TILMOUTH: 

And in this case, if the Court pleases, the

learned special magistrate's remarks are ambiguous,
capable of several constructions, but on one

of them we say that he was simply saying that

the officer's suspicion was reasonably aroused

in the first place but not prepared to hold at the

end of the day that it was reasonably based.

BRENNAN J: 

Well, that may be so, but if you would come back

to the question I asked you: in terms of the issue for proof, once suspicion and grounds of suspicion are established, is there any other issue for proof?

MR TILMOUTH:	No, I would think not, if the Court pleases.
BRENNAN J:	So the only problem we have got in this case

then is whatever the expressions were that were

used in the courts, was the magistrate satisfied

or should he have been satisfied of those two

facts,and then there might be a residual question

of whether that foundation or ground for the

suspicion was reasonable.

MR TILMOUTH:  Yes. But, if Your Honours please, I submit

we have one more step in the process and one error. by His Honour Jus.tice Cox and, in effect, it

influenced itself in the Full Court. His Honour

held, at page 14 - and I am looking at the last

paragraph on page 14 and this is, what we submit,

was the error which translated itself into the

Full Court reasoning. His Honour said, at about

point 9:

I am satisfied, for these reasons, that the

learned stipendiary magistrate applied the

wrong test. It was enough for him to find,

as indeed he expressly did, that it was

reasonable for Marks to be suspicious.

Now, in our submission, that is not enough, even

presuming the question Your Honour Justice Brennan

has put to me, the answer is yes. In our submission,

that falls short of those two requirements that

Your Honour put and, really, if that is applied

literally, makes the offence virtually a strict

responsibility offence. Once it is proved that

the officer held the suspicion and once any basis

at all is sustained for holding that suspicion,

once any ground at all was held, that is it, and

the reverse onus situation applies.

In our respectful submission, the error there

is the test is far too undemanding for such a

serious offence.

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BRENNAN J: Well, analyse that as against the proposition

I put to you. First of all it was necessary to find that Marks was, in fact, suspicious.

MR.TILMOUTH:  Yes.

---

BRENNAN J:  Next it was necessary to find sane grounds for that suspicion.

MR TILM)UTH.: Yes .

BRENNAN J: And then the residual question was whether that ground

was a reasonable ground. Is there any difference between

that and reasonable for Marks to be suspicious?

MR TILMOUTH: Well, in my submission, there is, if the Court

pleases, because if that is the case it does not
provide any safeguard against what is otherwise

a very strict kind of offence with the reverse

onus and, in my submission, this ts simply too

undemanding. Marks held a suspicion, I find

subjectively; I find there is a scintilla of

evidence which gives it an objective basis;	I
therefore find the threshold questions are

satisfied and I ask the question then whether the

onus of proof on the accused person has been sustained.

If the Court pleases, I cannot argue it any

further than that. Obviously the Court has

grasped the point. But in the shortness could I

add that,in my submission, it is an important

point because, as I have already suggested to the confined simply to this kind of offence, which

incidentally, of course, has its parallels in

all the Australian States. There are similar provisions in all the Australian States, some of them are on summary conviction, some, of course,

on indictment. But this case has the capacity
to have an ·influence much wider than these kind

of offences and I draw the parallel with the

CUSTOMS ACT as just one example. As I have

suggested to the Court the practice has been,

up until now, to direct juries that proof beyond

reasonable doubt of the suspicion of importation, for example, must be made out, ABBREDERIS' case.

If the Court pleases, for those reasons we

submit it is a very important point. It is not

one which should be confined to its own facts

and it is not which should be confined to this

kind of offence either. Can I add, finally, as

I have already hinted - although I do not pretend

that it is a special leave point in its own right -

it is clear, in our respectful submission, that

the magistrate's reasons were ambiguous and they

are capable of being reasonably construed as

stating that although the suspicion was aroused

reasonably there was no reasonable basis at the

end of the day. If that is the case, if there is

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ambiguity that, in our submission, should have

been resolved in the Full Court in favour of the

applicant, it being a criminal charge, and the

matter should have been sent back. I raise that

matter not to suggest that it is a special leave
point in its own right, but to argue, if I can,
if the Court pleases, that the case is a suitable

vehicle on its facts for the grant of special

leave. So, if the Court pleases, as short as it

is, we submit that the application is nevertheless

quite important because the ruling in this case

has a capacity to affect other substantive charges
where these words are used, far beyond these kind of
offences per se and, in our submission, a grant
of special leave is appropriate for those reasons.

If the Court pleases.

MASON CJ:	Thank you, Mr Tilmouth.	Yes, Ms Branson.
MS BRANSON:	May it please the Court.	The submission of

the respondent is that the decision of the New

South Wales Full Court in EX PARTE PATMOY RE JACK & ANOR. should not be regarded as being in conflict with

the reasons for decision of the Full Court in this

case. The point in issue in this case was not

a point in issue in PATMOY, as can be seen from

the grounds of appeal which are set out in the

reasons of decision in that case. That case is
reported in (1944) 61 WN (NSW) 228. The grounds

of appeal are set out at the opening words of
the judgment of the Chief Justice and I draw to

the Court's attention that this issue was not there

raised.

In those circumstances, in my submission, it

is not surprising that the detailed steps required
in analysing what is required to determine whether

or not a matter is acceptable of reasonable

suspicion was not there analysed. I put the same

submission,with respect, to the decision in

WALLACE V HANSBERRY which is a decision of the

Full Court of the Supreme Court of South Australia.

BRENNAN J:  Ms Branson, can I interrupt your argument just to

ask this question?

MS BRANSON: Certainly, sir.

BRENNAN J:  Let it be assumed that all the facts are found

to the necessary standard of proof in this case,

how is the offence made out? This is a case of

the suspected sale of drugs and somebody has

money as the result of selling drugs, why is that

position of property which is dishonest. It is

perfectly honest, is it not?

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MS BRANSON:  Well, if Your Honour pleases, this issue of

what is required by"unlawfully obtained"was considered if the Court pleases. That is the case of
by the Full Court of the Supreme Court of South

FORREST V NORMANDALE, (1973) 5 SASR 524, if the

Court pleases, a Full Court decision. That was

a case in which the suspicion was that the money

had been obtained through the fraudulent spray painting

activities of certain painters.

BRENNAN J:  I mean there might be false pretences, it does

not have to be stealing because it is stolen or
unlawfully obtained. But then the defence is that

the defendant obtained possession of the property

honestly. So that one would think that the

unlawful obtaining of property under subsection (1)

does not exist if the property is obtained honestly.

Well, now, what is it that is dishonest as distinct

from unlawful in selling drugs for money?

MS BRANSON:  Well, I think that distinction between dishonest

and unlawful is not in accord with the South Australian

authorities on the interpretation of the section,

if Your Honour pleases. The interpretation is
if the activity is illegal that involves the money

being obtained, in our submission, that would be

that it has been unlawfully obtained.

BRENNAN J:  It does not give any operation then to subsection (2)

which provides a defence for the obtaining of

property honestly?

MS BRANSON: Well, in my submission, sir, that said, in a

calculated and proper way if the money is obtained

honestly, that is, in accordance with the law, that

is a defence. If you have to show it was obtained

in any way illegally, the offence is made out. In my submission, that is the intention of the

section.

BRENNAN J:	So you equate "honestly" with "lawfully"?
MS BRANSON:	Yes, sir.
BRENNAN J:	Is there any authority in South Australia which

says that?

MS BRANSON:  The only authority that I am aware of where

the nature of those words was considered was the

case of FORREST V NORMANDAI.E, (1973) 5 SASR 524.

That was a case in which a woman who described

herself as a gypsy was found in possession of a

great deal of money. The belief of the police

officer was that it had been obtained by her husband,

it appeared, through spray painting activities that

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were, themselves, not illegal but fraudulent in that

they were misrepresenting the amount and quality

of paint being used. The majority of the Full Court

found that that offence was made out on that

belief being established.

BRENNAN J:	I am conscious that this is not the point that is raised against you on the special leave and as
present advised I might say that I have some
difficulty with the points that are raised against
you, but I have a great concern about
allowing to stand a conviction which does not transparently appear to be in accordance with the section.
MS BRANSON:	Well, my submission is that it is in accordance

with the section and in accordance with the Full Court's

interpretation of the section in FORREST V NORMANDALE.

But I would, of course, also rely on the fact that

no point has been taken, either before the Full Court

or on this special leave application on that aspect

of the case. Can I just say it is not regarded

as flowing automatically in this Si;ate that the
conviction of this offence is sufficient for you

to lose possession of the property that was the

subject of the suspicion. For that reason as

well, in my submission, that boosts the interpretation

for which I urge on section 41 of the SUNMARY OFFENCES

ACT.

WILSON J:  Ms Branson, the magistrate dismissed the charge,

or found there was no case to answer, did he not,

at the end of the prosecution evid~nce?

MS BRANSON:	That is so, sir, yes.
WILSON J:	So that the applicant was never called on or

never had an opportunity of attracting the defence

that is set out in the section?

MS BRANSON:  No, I am sorry, Your Honour, I gave you the

wrong answer. In fact, the defendant was called
upon to answer; the no case to answer application

was dismissed but at the end of the case His Honour

was unable to be satisfied that the Crown case

was made out on the whole of the evidence.

WILSON J:	Yes, that is right.
MS BRANSON:	So, yes, he did have an opportunity to put his

defence.	The magistrate did go on to make findings
with respect to that defence.	He found that it

was not established on the balance of probabilities

and that was why His Honour Justice Cox was able

to complete the matter.

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WILSON J:	To actually enter a conviction, yes.
MS BRANSON:	Actually enter the conviction, yes, sir.

The magistrate anticipated the appeal.

WILSON J:  And so it goes back to the magistrate now simply

for penalty?

MS BRANSON:	Simply for penalty, sir, yes.
WILSON J:	What is the penalty attracted by the section?
MS BRANSON:	It is a severe penalty, as my learned friend

has pointed out, if Your Honour pleases. It is

$8000 or imprisonment for two years as maximum

penalties. If the Court pleases, I was simply putting

the submission that WALLACE V HANSBERRY, the

South Australian decision to which I gave the

reference, also is a case in which this particular

issue did not arise and therefore, in my submission,

too strict an analysis of the wording of the reasons for decision in that case is, again,

inappropriate. The respondent's submission is

that there is a conceptual difficulty involved

in the notion of establishing beyond reasonable
doubt the reasonableness of a suspicion.

This difficulty was recognised by Justice Sholl of the Victorian Supreme Court in the case of

REG V TWEEN, (1965) VR 687, to which my learned friend

has referred, and that appears particularly at

page 693 of that decision. At page 693

His Honour Justice Sholl said this:

I do not find it easy to comprehend the notion involved in a directionthat the Crown must

prove reasonable doubt that the circumstances

give rise to a reasonable suspicion of guilt.

If a given set of facts gives rise to a

reasonable suspicion of guilty possession,

it is because guilty possession is one

hypothesis open to reasonable minds - - -

MASON CJ:  Ms Branson, I think we may relieve you from

troubling us further, or assisting us further I

should say.

MS BRANSON:	Thank you, sir.
MASON CJ:	Mr Tilmouth, do you wish to say anything in

reply?

MR TILMOUTH: All I can add is two things, if the Court

pleases. The first is the police officer when

he gave evidence - although this is not in the

appeal books - did say that his belief was that

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the money was obtained from trading in drugs and
the second thing is, of course, that the applicant

was charged with trading and those charges were

dealt with in the ordinary processes. This case was always attended with the grave risk

of there having been two bites of the cherry, as it were, by the prosecution. Your Honours

may recall reading in the judgment of Justice Cox	that in the court below an argument of abuse of
process was made on that very basis and so, if the Court pleases, what I add then is that
what has fallen from Your Honour Justice Brennan
is true, that in this case it really was a case
of not so much unlawful possession but other offences made out altogether.

MASON CJ:  How are you going to take advantage of what

Justice Brennan has thrown out to you in this special

leave application?

MR TILMOUTH:  The problem was, of course, if the Court pleases,

that when Justice Cox originally gave leave - he

only gave leave on narrow grounds and the Full
Court would not let us go beyond those, and the
only thing we could do was to ask leave to amend.

But I agree on the face of the documents at the

moment these matters were not raised, well, certainly

not raised in this Court on the face of those

documents. But I would submit if the Court thought

that they were appropriate grounds for a grant

of special leave then leave should, nevertheless,

be granted and leave be granted to file an amended

ground of appeal.

MASON CJ:  Yes, but the difficulty is that we do not normally

grant special leave to enable a point to be raised

for the first time in this Court.

MR TILMOUTH:  Yes, that is true, except, of course, if the point would be favourable to the conviction.

I think it is CHAMBERS' case - I cannot remember

it off hand, a decision of this Court, I think

approximately two years ago - where the Court

ruled in a criminal case even though the matter

had been raised for the first time on appeal, if

it was fatal to the conviction, then it can be

sustained. Could I argue this with the Court as

well. In our submission,there is no case of

authority so far which has dealt with this precise

point. We say that the balance of the inference

from the existing authorities favour us, that no

Court has yet dealt with - except in this case -

the discrete point which is not argued here as

to whether or not the reasonableness of the belief

is capable of being quantified, or qualified,

by the onus of proof. In our submission, if it

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comes back to that it is appropriate to grant
leave on that ground and if the Court was to

review the case on that basis then, in our

submission, it would be appropriate to apply

to amend,to ventilate all the issues which

reasonably arise.	But I can argue it no further
than that, if the Court pleases.	I acknowledge,

of course, there was that problem that was not

dealt with in the court below, but if the Court
takes the view it is capable of being fatal

to the conviction then, in our submission, it is

proper to raise it even now. If the Court pleases.

WILSON J:  Mr Tilmouth, do 1I understand you aright. Was the

specific question that has now been referred to,

namely, the honesty, the scope of defence of

"honestly obtained"in the light of its relation to"unlawfully obtained", was that attempted to be litigated in the supreme court, that specific

point?

MR TILMOUTH:  Before Mr Justice Cox - of course, as the

Court knows I was not involved but I understand

it centred basically upon this issue and it was

not sought to be raised - - -

WILSON J:  Upon what issue?

MASON CJ: · The issue you now seek to raise as the principal ground?

- - . ~· -- -·	MR TIIM)urH: Yes.
:MASON CJ: Yes.
MR TII.M)UTII: . And it was not in the Full Court, of course, because

:tbe leave was a very na.r:i:ow lea;ye and Justice Legoe referred

t'q that, Your Honours will recall, in his

judgment. ·we tried to argue the ambiguity of the

magistrate's reasons and Justice Legoe, in

particular, said that was not covered by the

grant - - -

WILSON J:  But it was the appeal to the Full Court that

was restricted by the leave?

MR TILMOUTH:	Yes, it was.
WILSON J:	Not the appeal to Mr Justice Cox?

MR TILMOUTH:  No. That could be on any ground that the

appellant sought to raise as a matter of law.

WILSON J: And was this ground raised there because

Mr Justice Cox does not appear to deal with it?

MR TILMOUTH:  No, I am told it was not raised.

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WILSON J:	It was not raised?
MR TILMOUTH:	No, only in the court below in. the abuse of

process argument that I have mentioned.

WILSON J:  Yes, thank you.

MASON CJ:  The Court is of opinion that the point of

principle on which this application for special

leave is grounded is one that would not succeed

on appeal in this Court and for that reason the

application must be dismissed. During the course

of arguments another question was agitated in

relation to section 41, but it is a point that has

not been taken at any stage of the proceedings below.

It is not appropriate that this Court should now

grant special leave in order to deal with that

question.	The question must be pursued, if
at all, elsewhere.	The application is therefore
refused.

MS BRANSON:  No order for costs is sought, sir.

AT 11.43 AM THE MATTER WAS ADJOURNED SINE DIE

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