Komljenovic v The Queen

[2007] HCATrans 52

[2007] HCATrans 052

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M100 of 2006

B e t w e e n -

DRAGO KOMLJENOVIC

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM MELBOURNE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 9 FEBRUARY 2007, AT 10.34 AM

Copyright in the High Court of Australia

MR C.B. BOYCE:   If it please the Court, I appear on behalf of the applicant.  (instructed by Victoria Legal Aid)

MR J.D. McARDLE, QC:   If the Court pleases, I appear with MS C.M. QUIN for the respondent.  (instructed by Solicitor for Public Prosecutions (Vic))

KIRBY J:   Yes, Mr Boyce.

MR BOYCE:   Your Honours, the court below sustained the applicant’s conviction on count 1 by invocation of a principle as to which the jury received no direction, by invocation of a principle that is unsound, it is submitted, in any event, at least in the circumstances of this case where the offender is charged with separate counts that are each referable to different forms of narcotic, as was the case here.

KIRBY J:   What is the provision of the Victorian criminal law relating to carrying on a business?

MR BOYCE:   It is the general count of trafficking, section 71AC.

KIRBY J:   I see.  The business is not in the statute?

MR BOYCE:   No.

KIRBY J:   It is simply in the trafficking.  That was an awful lot of evidence here about a business, all those people traipsing backwards and forwards to the unit.

MR BOYCE:   That is so, but the question in the final analysis is, your Honour, and I apologise if the Court perhaps did not receive the correct presentment in the matter until relatively late.

KIRBY J:   I think we have attached to our application book what looks like the presentment.

MR BOYCE:   Yes.  The presentment, as your Honours will see, the relevant counts are count 1, count 4 and count 5 plead trafficking and it was put on a business basis referable to the different forms of narcotic.

KIRBY J:   Yes.

MR BOYCE:   The point that is raised in this application is that it is clear beyond argument, it is submitted, that the jury in this case were directed to convict the applicant on counts 1, 4 and 5 on the following bases.  First, that he conducted a continuous and repetitive trade or business in heroin – count 1 – on his own.  Second, that he conducted a continuous and repetitive trade in business in methylamphetamine – count 4 – jointly with Clayton.  And, thirdly, that he conducted a continuous and repetitive trade in business in cannabis - count 5 – jointly with Clayton.  That proposition is borne out when one has regard to the manner ‑ ‑ ‑

KIRBY J:   But given that you have an awful lot of people going into the flat and that in the nature of things the prosecution cannot establish exactly what each person is purchasing, why is it not open and left to the jury to work out whether or not it has been established that at least on some occasions the drug was proved to be heroin and methylamphetamine and cannabis?

MR BOYCE:   The jury were specifically instructed in the manner in which I have outlined, your Honours, and that is, “Look at heroin.  Was there a business in heroin?  Look at cannabis.  Was there a business in cannabis?  Look at methylamphetamine.  Was there a business in methylamphetamine?”  The point was taken below that it on the evidence it was not open to the jury – the jury convicted of count 1 – to be satisfied beyond reasonable doubt that it was heroin as pleaded, as above, any other form of drug.

The court, as I submitted earlier, sustained the conviction on count 1 by reference to a new principle, a novel principle, a principle that one might refer to as the shopkeeper principle – who runs several lines, namely, who conducts an overall business in selling a certain drug but if there are certain isolated transactions ‑ ‑ ‑

KIRBY J:   It does not sound an offensive principle to me.  I mean, the prosecution of course says in this application that even if you apply the Giretti test that applying that in its ordinary language, then that was established in this case.  But even if you have this shopkeeper principle, it does not seem unreasonable or wrong to me.

MR BOYCE:   Your Honour, it may not be and ‑ ‑ ‑

CALLINAN J:   If you take the ordinary situation, a person may have a certain line in great quantity but have available to some customers a different line, a more expensive line.  There may only be one or two transactions a year in it and dozens of transactions in the other lines.

MR BOYCE:   In answer to both your Honours’ questions, it may not be given an appropriately pleaded presentment but the fact of the matter is the jury in this case were not directed or asked to convict on that basis and yet it is a basis upon which the court below sustained the application.  Now, the vice ‑ ‑ ‑

CALLINAN J:   Mr Boyce, just show me the relevant directions, please.

MR BOYCE:   The relevant directions are included at pages 29 to 31 of the application book, line 4.  Can I read the relevant parts?  Your Honours, commencing at line 4:

The Crown’s case in respect of – I will deal with Count 1 and heroin, but you will understand that what I am saying in respect of Count 1, by way of definition, applies also to Counts 4 and 5, except that the drug of course has to be different in each case.  In respect of Count 1 it is the Crown’s case not that he sold heroin on any particular day during that period between 13 June and 9 August, whereas you’ll recall in Count 2 it was that he did it on a particular day.  That is not the Crown case in respect of Count 1.  The Crown case there is that he was, during that period, engaged in the business of selling heroin and in this case, traffic case, Count 1, traffic means carrying on a business or a trade.  Was engaged in a continuous activity of a commercial and systematic kind.  So what is sought to be proved here is not a specific offence on a specific date, but the carrying on of the business over a period involving the trafficking in heroin.  A business of a, or a continuous activity of a commercial and systematic kind.

The next relevant part of the directions is found over the page at page 30, lines 23 to 28:

He was not merely one who sometimes sold drugs, but he was engaged in a continuous activity of a commercial and systematic kind in relation to heroin during the whole or part of the period referred to in Count 1, and that element of the charge has, of course, to be proved beyond reasonable doubt.

Now, the paragraph that is fixed upon by my learned friends and by the court below is the paragraph that appears on page 31 beginning at line 7, but when it is read in context the meaning becomes clear, it is submitted.  His Honour said:

So you were asked again to find that, in all the circumstances as they have been laid out before you in the evidence and analysed by counsel, the only reasonable inference is that he was engaged in a business as defined, and that is a matter you have to decide in respect of Count 1, which relates to heroin, in respect to Count 4, which relates to amphetamines and in respect of Count 5, which relates to cannabis.  You may find he was in a business that involved all of those things.

Namely, when understood in context, “You may convict him of all those counts”.

You may find he was not carrying on a business at all. 

“Therefore, you would not convict him of any counts”, it is suggested, with respect, your Honours. 

You may find he was carrying on a business that involved this one but not that one, and so on.  Those are matters entirely for you.

So the directions are clear.  They are, as it were, rather like separate consideration directions:  “But you must find, in order to convict of any of those three particular counts of business engaged in the particular narcotic” - the court below, it is submitted, with respect, pulls out, in my respectful submission, out of context the one sentence, “You may find he was in a business that involved all of those things”, and then proceeds to construct the principle that is described – the shopkeeper principle, as I have called it, that is described by the court below at application book 128, beginning at the beginning of paragraph 28, over to application book 131, at paragraph 35 which, as I submitted, was to suggest that it was open to this jury to convict the appellant on the basis that he was not continuing, let us say, a regular transaction business in heroin, but he was conducting only isolated occasions in heroin but it was part of an otherwise drug business.

KIRBY J:   Yes, but all the evidence was before the jury and the judge’s direction appears to have addressed their attention to the particularity of the counts and that they could come to a conclusion there was no business at all - which would have been a hard conclusion to come to on the evidence, all those people going backwards and forwards all the time – or they could conclude that it was a bit of one drug on some days and other drugs on other days and ‑ ‑ ‑

MR BOYCE:   Indeed, but importantly, your Honour, with respect, his Honour did not direct the jury in terms of which the court below has sustained the applicant’s conviction.

CALLINAN J:   Mr Boyce, why should the so‑called Giretti principle remain like a fly fixed in amber, unchangeable and unadapted to its circumstances?

MR BOYCE:   I do not suggest that for a moment, your Honour.

CALLINAN J:   You do really in your outline.  You seem to want Giretti to be treated as engraved on one of the tablets.

KIRBY J:   You are horrified at what you say is an extension of it.

MR BOYCE:   In circumstances of this ‑ ‑ ‑

KIRBY J:   You have been up here before being horrified about extensions of the law.

MR BOYCE:   I try not be horrified, your Honour.

CALLINAN J:   I would not regard it as an extension.  I would regard it to the extent that it is an adaptation and I am not too sure that it is an adaptation.  It is merely an application of it to different circumstances.

MR BOYCE:   It might be, your Honour, but the crucial point is, it is submitted, is it not the way the jury were directed in this case?

CALLINAN J:   I still do not see precisely what you say is wrong with the direction.

MR BOYCE:   There is nothing wrong with the directions, but ‑ ‑ ‑

CALLINAN J:   Tell me what is wrong with which direction.

MR BOYCE:   Nothing wrong with those directions, but they are not in accordance with what the court below proposed in the relevant pages of the application book, the shopkeeper principle.

CALLINAN J:   Let me be clear about this.  Do you say the trial judge’s charge to the jury was erroneous?

MR BOYCE:   No.

CALLINAN J:   Do you say that?

MR BOYCE:   No, the ground is one of insufficient evidence.

CALLINAN J:   You accept that the trial judge’s charge to the jury was entirely orthodox?

MR BOYCE:   Yes, I do, on this question, yes.

CALLINAN J:   Therefore, the results that flow from it were quite correct?

MR BOYCE:   No, your Honour.  The point that was advocated below, with respect, was that the jury could not reasonably have found beyond reasonable doubt that the applicant trafficked in one particular narcotic over and above ‑ ‑ ‑

CALLINAN J:   Because there were only two transactions proved of heroin.

MR BOYCE:   That is right, and there was other evidence but it did not reach the ‑ ‑ ‑

CALLINAN J:   There were traces of heroin on the premises.

MR BOYCE:   It came down to this ‑ ‑ ‑

CALLINAN J:   The two quantities were quite significant.  I think, what, they had a wholesale value of $2,500 and $5,000, is that right?

MR BOYCE:   There were two discrete transactions in June, the place was raided in August and some heroin was found, traces on the scales.  I accept what the learned presiding judge has said and, indeed, no doubt would be adopted by your Honour, there was a wealth of evidence that would suggest dealing in unspecified drugs.

KIRBY J:   There certainly was.

MR BOYCE:   I accept that.  The final analysis, with respect, your Honours, is to concentrate one’s attention on count 1, could the jury be satisfied beyond reasonable doubt that there was a trade or business in heroin?

CALLINAN J:   Because there were only two transactions.

MR BOYCE:   Yes, a continuous trade and business.

CALLINAN J:   Only two transactions, very substantial transactions involving $7,500, wholesale value, is it not, collectively?

MR BOYCE:   I cannot remember the exact figures, but they were ‑ ‑ ‑

CALLINAN J:   I may be wrong about that, but something of that order, I think.  I am sure one was $2,500.

MR BOYCE:   If I might say this, your Honour.  The two transactions were put in the alternative.  It was not put to the jury that they could find the business on the basis of those two transactions alone.

CALLINAN J:   No, but there were other matters and we know what they were.

MR BOYCE:   There was heroin on scales in the house.

CALLINAN J:   Yes, 2,500 and 5,000.

MR BOYCE:   Yes, heroin on scales in the house when it was raided and apart from that, it is submitted, the evidence was equivocal as between drugs.

KIRBY J:   It does not sound like a case - and some other cases you put up at least sounded to me like a case - where it cries out for any miscarriage of justice.

MR BOYCE:   Can I answer ‑ ‑ ‑

KIRBY J:   The overwhelming evidence of all the people going backwards and forwards - this was a healthy little business and in the nature of things it is very difficult to prove exactly what each item dealt with at the time was.

MR BOYCE:   So the answer is, if the shopkeeper, if I can put it that way, or the principle is to be applied, an appropriately drafted presentment, albeit ‑ ‑ ‑

KIRBY J:   No, it is left to the common sense and good wisdom of the jury.

MR BOYCE:   No, not solely ‑ ‑ ‑

KIRBY J:   So long as the judge directs their attention to the particularity of the counts, which this judge appears to have done.

MR BOYCE:   I have made my submissions about that, your Honour.  The unfairness in this case is the – you will have seen in the outline of argument perhaps, your Honours, that the principle was developed without the benefit of argument.  I say that is what happened and it is unfortunate that that was so, but beyond that I do not press the matter.  Nevertheless ‑ ‑ ‑

CALLINAN J:   Mr Boyce, I do not know quite whether you can elevate it to an inflexible principle anyway.  As the Court of Appeal said, the situation is analogous to that of a shopkeeper.  I do not know whether you could say the court was intending to lay down a principle applicable to all cases of trafficking.

MR BOYCE:   No, indeed, not, but there is, it is submitted, an extension of the principle hitherto not understood and it was not put and in this particular case was not argued below - the terms of it were not anyway - and which in a case, it is submitted, if followed – and I submit it is this case, but there could be other cases – if followed, could be productive of gross miscarriage and I cite that in the outline.

KIRBY J:   That might be so, and they would be cases where the Court might look to the direction in which Giretti and its progeny are moving, but it does not seem as though this is a very suitable case.

MR BOYCE:   It is submitted – I cannot do anything about the evidence but I can do something ‑ ‑ ‑

KIRBY J:   You certainly cannot.  That is your weak point in the case.

MR BOYCE:   I accept that, but I can say something about the way in which the jury was directed, the way in which the principle is developed.  The fact that this is the first case that has raised, in my respectful submission, at least so far as we are aware, this principle, and we know – as part of the directions of the principle as adumbrated by the court below, this new principle, what I call the new principle, is that the jury must make value judgments about the relative importance of the isolated transactions.  Do they fit in?  Is the shopkeeper selling a car as distinct from his or her regular lines?  The distinction in this case ‑ ‑ ‑

KIRBY J:   Directions along these lines were not specifically sought.

MR BOYCE:   Were not given.  Of course they were not sought, your Honour, because no one knew about this principle at the time.

KIRBY J:   As Justice Callinan said, the question is whether this is something new or simply the application of Giretti to the facts of this case.  If you are concerned about the so-called extension, then the matter will be the matter of submissions and then the issue is refined, but it is not really refined in this case.  Essentially in a matter like this we have to look at whether there is a miscarriage of justice and, as you properly concede, the evidence is so strongly against your client of the business that it ‑ ‑ ‑

MR BOYCE:   That there was drugs of some sort.  The evidence is the evidence, as your Honour has said.  Your Honours, one other matter.  As it turned out in this trial, the allegation with respect to count 1 was that the applicant was dealing by himself, not in a joint enterprise with the other person, Clayton.  The jury were not asked to determine did that factor impact on whether the two transactions were part of a generalised business.  The court below speaks about insurance underwriters acting on their

account or indeed in conjunction with others.  Were the jury directed about that in this case?  The submission is, and the answer is ‑ ‑ ‑

KIRBY J:   I think that was just an analogy in reasoning.

MR BOYCE:   It certainly was, but they would be matters if the principle ‑ ‑ ‑

KIRBY J:   An analogy that might have been a bit more familiar to those who wrote that point.

MR BOYCE:   I had to read the sentence a number of times to understand it but I think I understand it.  The jury were not directed about it and if the principle had application in this case, the jury ought to have received such directions.  Now, I submit that the principle is unsound in any event because of uncertainty.  If indeed the traditional Giretti or extended Giretti of these two bases are put together on the one presentment, how does the sentencing court know whether the conviction is on one or the other?  With the greatest respect, thank you, your Honours.  Those are our submissions.

KIRBY J:   Yes.  Thank you, Mr Boyce.  Mr McArdle, in view of your recent experience in the Court you will be surprised to know that we do not need your assistance on this occasion.

MR McARDLE:   Thank you very much, your Honours.

KIRBY J:   The issue which the applicant wishes to bring to the Court is whether an accused can be said to have conducted a business of trafficking in an illegal drug, in this case heroin, between specified dates, when it is said that the evidence showed that the accused had engaged only in isolated transactions involving that drug, although those transactions formed part of a broader mixed drug business carried on during the period charged.

The applicant complains that the approach taken by the Court of Appeal of Victoria wrongly extends the principle stated in R v Giretti (1986) 24 A Crim R 112. However, as was recognised by the Court of Appeal, each case of an illegal business will depend on the entirety of the evidence and the features of any business that is proved. On the original principle stated in Giretti it was open to the jury, on the instructions given to them by the trial judge, to accept the existence of the business charged.  Indeed, the evidence of the carrying out of the business in various drugs was overwhelming.

On one view, as Justice Callinan said during argument, what the Court of Appeal said did not involve an extension of Giretti but an application of that decision to the facts of the particular case.

It follows that this is not a suitable matter in which to consider the suggested extension of legal principle.  In the evidence at the trial we are not persuaded that there was any miscarriage of justice in this case.  The verdict of guilty on the disputed count was fully open.  Special leave is refused.

MR BOYCE:   If the Court pleases.

MR McARDLE:   If the Court pleases.

KIRBY J:   The Court will now adjourn in order to reconstitute for the following application.

AT 10.57 AM THE MATTER WAS CONCLUDED