Lao, Nguyen v The Queen

[2003] HCATrans 756

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M184 of 2002

B e t w e e n -

VINH LAC LAO

Applicant

and

THE QUEEN

Respondent

Office of the Registry
  Melbourne  No M185 of 2002

B e t w e e n -

THANH HUNG NGUYEN

Applicant

and

THE QUEEN

Respondent

Applications for special leave to appeal

McHUGH J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 JUNE 2003, AT 10.26 AM

Copyright in the High Court of Australia

__________________

MR S.C. SHIRREFS, SC:   If the Court pleases, I appear for the applicant, Lao.  (instructed by Theo Magazis & Associates)

MR O.P. HOLDENSON, QC:   May it please the Court, I appear in this matter on behalf of the applicant, Nguyen.  (instructed by Theo Magazis & Associates)

MR D.J. BUGG, QC:   May it please the Court, I appear in both matters, with my learned friend, MR B.M. YOUNG, for the respondent.  (instructed by Director of Public Prosecutions (Commonwealth))

McHUGH J:   Mr Shirrefs, it is a common ground.  How is the argument to be divided?

MR SHIRREFS:   I will do the pleading point.  I will deal with the way in which his Honour Justice Vincent in paragraph 58 dealt with what really is the nub of this application.  It comes to the central issue, your Honour, as to whether or not, in a case involving persons jointly charged with a single offence alleged to have been committed pursuant to a joint enterprise, common design, common purpose, in this case constituting a single criminal transaction over a period of time, in relation to issues of joint and several liability but in the absence of a finding by a jury of the existence of that common purpose; joint enterprise or design notwithstanding, a verdict of guilty can be returned severally against either accused based upon their own separate or independent acts, which amounts to a separate offence, is at the nub of this application because ultimately that was the way in which Justice Vincent in his judgment disposed of this ground on the appeal.

Justice of Appeal Buchanan held, and we say correctly held, that by virtue of the joinder of the two applicants in a criminal transaction which spanned both the conduct of the applicant, Lao, as an alleged overseas importer of narcotics to the person Tong, who with his associates Vuong and Ong, then sought to on‑sell and on‑sold the bulk of what they had obtained to the other applicant, Nguyen, that defined the parameters of the criminal transaction.  It defined the spectrum of the transaction and thereby defined what was the single offence charged in the count on the presentment.

Justice Buchanan found that on the evidence and on the state of the evidence Lao’s dealings with Tong and Nguyen’s quite separate and distinct dealings with Tong, Vuong and Ong, both in terms of time and space, were so separated and disconnected as not to be trafficking in the one criminal activity which was the offence charged.

McHUGH J:   But the Giretti definition of traffic is the carrying on of a trade or business in dealing in drugs, is it not, from source to consumer?

MR SHIRREFS:   Yes, and I think ‑ ‑ ‑

McHUGH J:   Why does that not cover this case?  I mean, take conspiracy.  It is common, say in an abortion conspiracy, where you may have allegedly people, chemists, referring women to a particular doctor.  None of the referees, the people referring, know any of the others or have any dealings with them but they all have a common object.  They can be tried on a single count of conspiracy because they have a common object.

MR SHIRREFS:   In this instance the complaint made in the court below, as stated by Justice Vincent in paragraph 58, was that either of the accused could be separately convicted of their own independent dealings.

McHUGH J:   Yes.

MR SHIRREFS:   Independent of one another, and the problem arises because of the nature of the joinder of the two applicants together in the one offence comprising this between dates criminal transaction in circumstances where what is alleged to exist is based upon the principles in McAuliffe, and that is the common design, common purpose, the understanding or arrangement amounting to an agreement that they would engage in this activity.

The way in which your Honour Justice McHugh describes it is really focusing on the passage of the drugs in question, as to whose hands touched the drugs.  The issue central to this application is whether or not within a joint offence, in this case, a charge based upon a common purpose or understanding, whilst it is true that the two applicants charged are joint and severally liable with respect to the commission of the joint offence ‑ ‑ ‑

CALLINAN J:   And with respect to exactly the same parcel of the drug?

MR SHIRREFS:   Yes, which was, in this case, an historical co‑incidence, not a matter of design as between the applicants.

CALLINAN J:   It was the same parcel of the drug and the same intention to get it out onto the streets, because it was of no value to anybody unless it could be got out onto the streets and consumed, and then money would pass up the chain.

MR SHIRREFS:   Simply because the applicants, on the evidence placed by the Crown and alleged by the Crown, were engaged in the trade.

McHUGH J:   But what is the injustice to you?  At the moment it seems to me this is a highly technical argument.  Your clients did not give evidence, they have been found guilty.  They have been sentenced to long terms of imprisonment.  You concede they could be found severally guilty, but you say that there had to be a finding that they were engaged in, in effect, the one business.

MR SHIRREFS:   The injustice, your Honours, is that they were both entitled to be acquitted with respect to this count, as was decided by Justice Buchanan in the court below, and that is because the joinder in the single offence meant that they could only be found guilty based upon either joint or several liability with respect to the single offence charged, not in relation to a separate offence, which is the way in which it was approached by Justice Vincent in paragraph 58 of his judgment.

That goes back to a long line of authority in which there is conflict in this country.  In the case, and it is in the supplementary authorities that I provided to the Court yesterday, of R v Warry and Kelly [1959] Qd R 486, Justice Philp at page 489, in our submission, states the proposition correctly to the effect that where persons are jointly indicted, the indictment is joint and several in relation to the joint offence – that it is not several “in relation to an offence other than the joint offence”.

He disagreed specifically with the decision of the New South Wales Court of Appeal in Fenwick, which was handed down in 1953.  In the case of Mackay in this Court, Justice Jacobs, dealing with the issue of separate acts said to constitute the one offence in which there were two accused, there dealing with the issue of rape, said at page 470:

A single charge of rape preferred against two persons is a charge that jointly they committed rape.  It is not a charge that each severally committed an independent act of rape.

His Honour Justice Jacobs cited, with approval, that passage that I have just cited from Justice Philp in the case of Warry.

His Honour also impliedly rejected the position reached by the House of Lords in the DPP v Merriman on this issue.  Merriman, in 1973, adopted the reasoning in Fenwick and in so doing overruled the English decision of Scaramanga, but in overturning Scaramanga and adopting the reasoning in Fenwick, the House of Lords made no mention of the 1969 decision of Sperotto in the New South Wales Court of Appeal where a Bench of five expressly overruled the decision in Fenwick.

In Mackay, Justice Murphy approved Sperotto.  In the 1989 decision in Queensland of R v Baynes, the conflict between Merriman and Sperotto was discussed.  Justice Thomas, with whom Justice Shepherdson agreed, approved the passage cited by Justice Jacobs in Mackay and also approved what was said by Justice Philp in Warry.  Justice Williams, although favouring Sperotto, did not consider it as a right vehicle to resolve the conflict.

In his judgment in the court below, Justice Vincent, in holding that independently of each other Lao could be convicted of his trafficking dealings with Tong and the applicant Nguyen could separately be convicted just on the basis of his trafficking activities with Tong, cited a passage of President Winneke’s in the case of Hewitt, where President Winneke adopted Merriman and Fenwick in holding that the fact that two accused jointly charged with committing the one offence, that does not mean that they both have to be convicted on the basis of pre‑concert.

In so finding, his Honour made no reference to the decision in New South Wales of a Bench of five in Sperotto.  All of these cases, bar Merriman, were concerned with single counts of rape where there were multiple penetrations where the accused were jointly charged with the single offence of rape, constituted by numerous acts.

McHUGH J:   Sperotto itself has been overruled in New South Wales by a case called Morgan, but only on the question of honest belief.

MR SHIRREFS:   Honest belief, yes, which was also at issue in that case.  In Merriman, the court there was concerned with acts of stabbing by two brothers of a hotel owner who were jointly charged with the assault in question, where one of them pleaded guilty and one contested it.  In all of those cases they were dealing with events occurring in the same space and time constituted by acts in the presence of one another.

This case did not involve or concern that issue.  It was put here on the basis of common purpose, where these two applicants were rolled into a single count alleging numerous acts over a four‑month period as constituting the one criminal transaction in which the two applicants at either end of that spectrum of activity never met or had any contact with one another, knew the identity of one another and who engaged in separate and discrete acts of trafficking, both in terms of time and space and the persons they were dealing with.

McHUGH J:   What do you say – I think the name of the case is Murray, cited in New South Wales in 1972, or somewhere around that time, in which it was held in the abortion‑type situation that I suggested to you that they could all be tried on a count of conspiracy even though they did not know each other and no dealings with each other, but they all had a common object of sending women to a particular person to perform abortions.  There is also a case back in 1929 in the English Criminal Appeal Reports about police officers bribing, or taking bribes from nightclub owners, and I think they were all charged on a single count of conspiracy.  What do you say about those cases?

MR SHIRREFS:   It probably comes to an issue in this Court in the case of Gerakiteys where you had a single count of conspiracy, and this is cited in the authorities and was referred to in the court below, joining a number of people in the one conspiracy you had the object of defrauding the Health Insurance Commission.  That involved the insurance broker and a doctor, who I think was Gerakiteys, and the patients that they were seeing, but the Court there held that the object of each was not commonly joined in the one agreement, in fact, that within the conspiracy there were separate agreements that were contained within that single count, and therefore the point of issue in Gerakiteys in the High Court was whether they were entitled to be acquitted.

In the court below in New South Wales the verdict had been overturned and a retrial had been ordered and the point of issue in the High Court was whether, in those circumstances, Gerakiteys was nonetheless entitled to be acquitted and the Court held that he was.

In Merriman, in the judgment of Viscount Dilhorne in which he also rejected the position in Scaramanga, that being that in a joint offence, whilst the accused joined are joint and severally liable with respect to the joint offence, they are not severally liable in relation to a separate offence.

McHUGH J:   We do not have the evidence before us, of course, of the trial, but are they being charged on the single count on, in effect, a common purpose, statements and acts by one are admissible against the other.

MR SHIRREFS:   All of that came into play by virtue of the joinder and that the Tripodi principles applied.

McHUGH J:   That is your premise.

MR SHIRREFS:   Indeed, in the judgment of Justice Buchanan, he said that these two accused should have been jointly presented on separate counts, the counts should have been separated, but that may well have led to separate trials of both because of the issues that were relevant to each.

The passage I want to take your Honours to is at page 346 of the application book, which is paragraph 58 of the judgment of Justice Vincent.  In the preceding pages his Honour set out passages from the respondent’s summary of argument in the court below, and at the commencement of paragraph 58 said:

It is evident that an adequate foundation existed for the joint presentation of the applicants on the one count.

Of course, that sentence does not mean that that evidence was sufficient to found a conviction.  He continued:

Clearly, if the jury accepted the Crown contention that Lao and Nguyen were acting pursuant to a common design to traffic in heroin with the Tong group during the designated period, the charge would be made out.  However, the absence of a finding by the jury of such a common design would not necessarily result in the acquittal of either or both of them.  Either could be convicted if it was accepted that the particular individual engaged with the Tong group in the specified, relatively continuous commercial distribution of heroin, during the designated period.

In our submission, that passage is wrong in point of law with respect to this offence.  That would amount to the jury finding guilt of either accused, not of the joint offence charged which encompassed the activities of both, but of separate offences in dealings exclusively with their own independent acts with Tong, and that is the point of contention in this application.

CALLINAN J:   Can I bring you back to page 325, paragraph 20, the judgment of Justice Buchanan, about line 10:

The applicants may have contributed to the trafficking conducted by Tong –

and so on.  Do you see that?

MR SHIRREFS:   Yes.

CALLINAN J:   There is no doubt that that is correct, that the applicants did contribute to the trafficking.  Is that not so?

MR SHIRREFS:   There is no doubt, on the evidence, as alleged and found by the jury, that Lao contributed to Tong by selling heroin to him.

CALLINAN J:   And that was a significant contribution to the sales.  Is that not right?  It was significant.  I put it to you that way because I have in mind the decision of Court in Royale which talks about significant contribution being a cause.

MR SHIRREFS:   In terms of causation?

CALLINAN J:   Yes, that if the applicants caused or significantly contributed to trafficking, then plainly they could be joined in the one count, could they not?

MR SHIRREFS:   Does one then draw the line with Nguyen who then on‑sells his heroin to people in the Footscray area in the city of Melbourne and they are also capable of being similarly joined in the one offence as the one criminal activity.

CALLINAN J:   Well, what is wrong with that?

MR SHIRREFS:   In my respectful submission, the problem with that approach is to focus on the passage of the drugs rather than the points of principle that apply in relation to joinder based upon a common purpose or common design case, which this was.

CALLINAN J:   But you have a common commodity and a common end and you have a joint enterprise, have you not?  Common commodity, common end in view, all making a significant contribution to the common end in respect of the common commodity.  Why is that not a joint illegal enterprise?

MR SHIRREFS:   It is if the joint enterprise is based upon the existence of the understanding arrangement mounting to an agreement that they would participate in it, in which there is a meeting of the minds.  In Trudgeon, in the decision of Chief Justice Gleeson when he was Chief Justice of the New

South Wales Court of Appeal, the issue there was a question of conspiracy to supply where Cheung was the supplier of large amounts of heroin to Trudgeon, knowing full well that it was Trudgeon’s intention, clearly, to on‑sell that to others because it was a commercial trade that was being engaged in.  But his Honour held, and in our submission correctly held, whilst Cheung may have realised that that was the intention, clearly the intention as to what Trudgeon would do with the commodity, that was not sufficient to constitute the conspiracy being the agreement that that in fact should take place.

McHUGH J:   Yes, but in this particular case, given the statutory context, you do not have to prove any agreement, do you?  What you have to prove is the carrying on of a business in dealing in drugs from source to consumer.  Why is it not open, as a matter of fact, to find that they were engaged in that business, even though they played independent parts?

MR SHIRREFS:   The statutory context here, to answer that question, your Honour, was that they were charged with trafficking.  The verb “trafficking” has an ongoing notion and notes an ongoing activity.  They were joined together in that activity, not by any statutory definition but by virtue of the principles that underpin common purpose, as expressed by this Court in Johns, this Court in McAuliffe, and as expressed by the Court of Appeal in Victoria in Clarke and Johnstone, which requires the forming of an intention linked by an understanding, arrangement or agreement, amounting to an agreement that they would engage in the particular activity. 

That is the issue in point here, that there was insufficient evidence that the applicant Lao and the applicant Nguyen were linked together in that sense in the joint enterprise, and the problem that we bring before this Court is that the way in which Justice Vincent approached it in paragraph 58 was to say that may well be the case, but in any event, they could severally be convicted of their own independent dealings.  Those independent dealings with Tong amounted to separate offences, not the offence charged.  The offence charged ‑ ‑ ‑

McHUGH J:   Your time is up.

MR SHIRREFS:    ‑ ‑ ‑ was the offence which covered the spectrum of both.  If the Court please.

McHUGH J:   Yes, thank you.  Yes, Mr Holdenson.

MR HOLDENSON:   If I could take your Honours to page 346 of the application book, that is a page which was before your Honours a few minutes ago and that is where your Honours will see paragraph 58 of the judgment of his Honour Justice Vincent and as Mr Shirrefs indicated, this application turns upon the correctness of that paragraph .  Could I take your Honours to the third and fourth sentences of that paragraph, namely lines 27 and 28 and then 28 to 31.  At line 27 his Honour says, and I quote:

However, the absence of a finding by the jury of such a common design –

and that is referable to two lines above at line 25, namely, “a common design to traffic” and both Lao and Nguyen acting pursuant to that:

would not necessarily result in the acquittal of either or both of them.  Either could be convicted if it was accepted that the particular individual engaged with the Tong –

That passage there is the turning point in the judgment where his Honour in considering the ground of appeal, namely, whether or not the verdict was unreasonable and/or could not be supported having regard to the evidence, approached the question by reference to the wrong principles.  He did not act in accordance with what has been decided by this Court so many times and in that regard recently in MFA v The Queen, namely, to look at whether or not it was open to the jury to convict the accused, as they then were, of the offence prosecuted, as prosecuted by the Crown.

Those third and fourth sentences are wrong for four reasons.  One is a pleading point that has been dealt with by Mr Shirrefs, I do not repeat it.  There are three other reasons.  The first is that the passage is contrary to what his Court decided in McAuliffe v The Queen.  McAuliffe v The Queen (1995) 183 CLR 108 at the head of page 114, namely, first line on the page, said this, and I am translating what is there set out to this case. It reads, that:

the complicity of [Nguyen] may also be established by reason of a common purpose shared with [Lao and the Tong group].  Such a common purpose arises where [Nguyen] reaches an understanding or arrangement amounting to an agreement between [Lao and the Tong group] that they will commit a crime.

McHUGH J:   Yes, but your argument, like Mr Shirrefs, throws all the weight on the doctrine of common purpose.  It ignores the statutory offence as how it has been defined in Giretti.  The question is, were these people carrying on a trade or business in dealing in drugs from source to consumer?  Why could not the jury say, yes, they were.

MR HOLDENSON:   Because that is not this case.  Could I ask your Honours to turn the page to 347, where your Honours will see paragraph 59 of the judgment of his Honour Justice Vincent, and there is the passage from the judge’s charge to the jury where he directed them with respect to what it was that they had to find on the Crown case as prosecuted in order to convict, and scattered through those half dozen paragraphs indented on that page one sees nothing other than the phrases “joint enterprise”, “common purpose”, “true purpose”, “common design”, “criminal purpose”.  For example, at the equivalent of line 20:

the accused must have known of the criminal purpose and agreed to play a part in carrying it out.

Going back to Giretti, Giretti and what your Honour speaks as to the statutory context, Giretti is where one accused conducts a business.  In order to run a case against multiple alleged offenders, multiple accused, the Crown must introduce some notion to render other persons, that is, persons other than the one, criminally liable.  Here, they did it by reference to a thing called joint enterprise, common purpose.  That requires an antecedent agreement ‑ ‑ ‑

McHUGH J:   No, it does not, as long as they are attempting to carry out a common object.  Take any company.  Its headquarters are in Sydney.  It has staff in Melbourne and Townsville.  The employees do not know each other, have no communication, they are all engaged in carrying on the same business.

MR HOLDENSON:   And on the basis of Gerakiteys, if it were a conspiracy case, but in our submission, no distinction, each requires an antecedent agreement or something amounting to an agreement, the prosecution would have a problem with multiple conspiracies.

McHUGH J:   Yes, but that is why the distinction here, it seems to me at the moment to be, that it is not a question of a conspiracy, it is not a question of an agreement, it is a question of whether or not these accused were carrying on a business.  Why were they not carrying on a business, because they were both doing acts in pursuit of a common object even if they did not know of each other’s identity, which appears to be the case.

MR HOLDENSON:   To respond to your Honour, could I take your Honour to the fourth sentence in that paragraph 58.  That is the sentence which reads:

Either could be convicted if it was accepted that the particular individual engaged with the Tong group ‑ ‑ ‑

McHUGH J:   That may mean no more than his Honour got it wrong there, but it does not mean that you succeed.

MR HOLDENSON:   What it means is that paragraph is entirely flawed because that is how his Honour answered the question of whether or not it was open to the jury to convict.

McHUGH J:   Yes, but that does not mean that you are entitled to succeed even if his Honour is wrong in that passage because as I put to you, why was not, on the judge’s charge which is set out at 47, why could not the jury find that they were carrying on this joint criminal enterprise?

MR HOLDENSON:   Because, for example, in the paragraph on page 347 that begins at the equivalent of line 30, his Honour correctly charged the jury by reference to how this Crown case was put.  He said, and I quote:

Before you can convict either of these accused you must be satisfied beyond reasonable doubt that that accused shared with Tong and/or Vuong and/or Ong a common design to commit the offence ‑ ‑ ‑

CALLINAN J:   But it was not common design?  The design was to get the drug out into the streets for profit.

MR HOLDENSON:   In our submission, that would tend to mean and, indeed, only could mean, that the decision of the New South Wales Court of Criminal Appeal in Trudgeon is wrong.

CALLINAN J:   It might mean that.  That is not the issue here.  The issue here is, as Justice McHugh points out, what does the statute say?

MR HOLDENSON:   The statute makes it clear, as prosecuted in this case, that paragraph 3.3 in the applicant Nguyen’s outline of submissions which is at page 425 of the application book, is correct in that with reference to this case, as prosecuted, there were five elements.  For a substantial portion of the between dates period, “each and all of” these two applicants, with Tong, “reached a joint agreement”.  Down to (iii) in the middle of 425, “single business  . . . as a group”, all of them being engaged as a group, each of them knew it and each of them did their bit, played their part, with reference to conducting the business “pursuant to their joint agreement”.

The point raised by your Honour Justice Callinan gives rise to the question in circumstances where this case was referable to an agreement or something akin to an agreement, amounting to an agreement, draws the distinction between – and if we can just confine it to two people – the content of an agreement between two people that the second person will do certain things, that being an aspect of, an element of, within the content of the agreement, and, on the other hand, something very different, namely, where the first person has an expectation, belief, suspicion, call it what you like, that the second person will subsequently do something.  That is this case.  That is Trudgeon.

McHUGH J:   No, but look at how the judge put the case.  At 347 line 11:

Such a joint enterprise may exist between persons who carry out their part of the common design without knowing the part played by others or precisely by whom, when or where the other parts are to be carried out.

MR HOLDENSON:   But there still has to be acting for the common purpose.

McHUGH J:   No, acting for the common design and the common design here, as the judge said, was the sale of this product.

MR HOLDENSON:   We are content with the judge’s directions to the jury there, but if we can just go back to the fourth sentence in paragraph 58, which I have said by way of submission is wrong and your Honour said maybe it is, but the consequence of it becomes this ‑ what his Honour has there done in the third and fourth sentences is create a different case for him to consider whether or not the relevant ground of appeal had been made out.  What his Honour is there considering is a Lao/Tong case and separately a Nguyen/Tong case, but that is not the case that we see the subject of the charge in 347, and so his Honour has approached this ground of appeal by reference to a different case.  He has broken it up.

McHUGH J:   Yes, you seize on these passages and they may or may not be right.  There are some authorities which would say that they are right, some authorities that would say they are wrong, but that was just part of the train of reasoning of the judge.  It was not the point that Justice Vincent decided the case on.  His ratio was at 350.

MR HOLDENSON:   At 350?

McHUGH J:   He says, “The central complaints” faced by the applicants are:

two basic misconceptions.  The first one related to the notion of “business” as considered in Giretti.  It was simply not to the point, as was repeatedly asserted in the course of discussion before us, that all were engaged in the activity alleged as an aspect of their separate “business” operations.  The other and equally fallacious proposition was that, in a case where the joinder of the two applicants in the one count was entirely appropriate, it was necessary before either of the applicants could be convicted that the prosecution established that he was engaged in a joint enterprise with the other.

MR HOLDENSON:   And his Honour says in that second sentence, and describes it as being an “other and equally fallacious proposition” with respect to joint enterprise, it is contrary to this case, as evidenced by the content of paragraph 59.  It is not fallacious at all.  It is not wrong at all.  His Honour has identified and proceeded by reference to a case different from that which was prosecuted in the County Court and then described our submissions with respect to the case which was prosecuted as being an “other and equally fallacious proposition”.  That last sentence at paragraph 61 just cannot sit with paragraph 59, but it does.

The other aspect of - just getting back to paragraph 58, and I am still not going to repeat what Mr Shirrefs said by the reference to the pleading point - the third and fourth sentences there also had the effect of creating a count which was duplicitous.

As to duplicity, that was a complaint which was made even before the ball was bounced in this case, as is apparent from page 321 of the application book, where one conveniently finds in the judgment of his Honour Justice Buchanan reference to some pre‑trial argument, pre‑trial in the sense that that passage is there referable to the Crown’s application for leave to proceed on the presentment upon which they did proceed, the presentment the subject of trial and hence this application, where at line 14 your Honours will see the passage from counsel and at that point, for one of the accused, he identifies that if it is not one single criminal enterprise – and this is all about common purpose, joint enterprise – anything falling short of that, said counsel, and I quote, “raises latent duplicity”.  The prosecutor then immediately responded, in heated agreement, saying, “We do not contend otherwise”, and so the effect of what Justice Vincent did in that paragraph 58 was to run ‑ ‑ ‑

McHUGH J:   Yes, but Justice Vincent did not direct to the jury.

MR HOLDENSON:   No.

McHUGH J:   The jury were directed in accordance with paragraph 59, and what is wrong with that direction?

MR HOLDENSON:   There is nothing wrong with the direction.  What is wrong with it ‑ ‑ ‑

McHUGH J:   Then what is your complaint?

MR HOLDENSON:   At this point I am not complaining about the direction in paragraph 59.  I am complaining about his Honour’s disregard of that direction in determining whether or not the verdicts of the jury were reasonable or could not be supported by the evidence because his Honour, in answering that question in a manner adverse to the applicant’s, has disregarded the directions given to the jury because he has disregarded how it was the Crown put their case from pre‑trial to end of trial because his Honour in the third and fourth sentences of paragraph 58 has broken it up.  He has created two separate and distinct and different common designs.

McHUGH J:   But his Honour is not dealing with unsafe and unsatisfactory ‑ ‑ ‑

MR HOLDENSON:   Yes.  Your Honour ‑ ‑ ‑

McHUGH J:   The paragraph starts with:

It is evident that an adequate foundation existed for the joint presentation of the applicants on the one count.

What his Honour says about “could be convicted” seems to me to be an obiter dictum in the truest sense of the word.

MR HOLDENSON:   Your Honour, could I take your Honour back to the foot of 334.  Justice Vincent only had to consider this point, which was put in a number of grounds.  At the very foot of 334 paragraph 44 Justice Vincent agrees with Justice Buchanan.  Then at the head of 335 line 3:

I would therefore allow both appeals against conviction.  However, as I do not consider that the remaining argued grounds have been established, the proper consequence would be, in my opinion, that the conviction of each should be set aside ‑

What he then does - and he starts with the pleading point and considers the pleading point from paragraphs 45 to 48, and then he looks at, in paragraph 49 on page 338 of the application book, how the Crown put its case, and then in paragraph 51 he reaches a conclusion as to the Crown case, for example at line 14 on page 339:

The nature of their relationship, it was argued ‑

and that is by the prosecution ‑

was such that an inference of the existence of a common design with respect to their interconnected activities could be drawn.

He is only considering the one ground.  This is all about unsafe and unsatisfactory.  Then he sets out how the Crown put its case, passages from the outlines of submissions, that is the evidentiary material relied upon both by the applicants and the respondents in the Court of Appeal to support their respective contentions with respect to this one ground.  We then have paragraphs 58 and 59, more of the judge’s instructions, and then it is all over at paragraph 61.

McHUGH J:   Yes, I know, but Justice Vincent seems to have diverted himself because, as you see at the last sentence on the bottom of 346 to 347, he says:

Their joinder in the same count, if the matter was properly put to the jury, would present no issue of principle and raise no question of possible duplicity.

That seems to have nothing whatever to do with whether it was an unsafe or unsatisfactory verdict.

MR HOLDENSON:   Well, maybe the ground of appeal becomes this:  his Honour has not considered the ground, the ground of appeal in this Court ‑ ‑ ‑

McHUGH J:   Well, he has considered it at great length, and then he decides that you have not made the point out.

MR HOLDENSON:   And within the middle of that consideration is paragraph 58 which is contrary to paragraph 59, and then at the end we have paragraph 61, the last sentence of which is contrary - at page 347, and the entirety of paragraph 59.  So maybe the ground of appeal in this Court becomes his Honour has failed to consider the grounds of appeal which asserted that the verdicts of the jury were unreasonable and/or could not be supported having regard to the evidence, because it has to be, with respect, in our submission, it is in paragraph 58.  That is why we focused our attention on paragraph 58 because that is the turning point, and that is where, with respect, his Honour has it wrong as to what was the Crown case and what we have ‑ ‑ ‑

McHUGH J:   Yes, but the argument seems to have been that the joint charge was not appropriate ‑ ‑ ‑

MR HOLDENSON:   No, the argument was ‑ ‑ ‑

McHUGH J:   Well, Justice Eames for instance, at 362, has a heading to that effect.

MR HOLDENSON:   What happened, and we have done it in this Court, could we take your Honours to page 424 of the application book.  What we have done and what we did in the court below was approach the question of the sufficiency of the evidence by reference to the manner in which the Crown put their case.  The first way they put their case in a trial is the presentment, and we have drawn attention to the form of the presentment.  In paragraph 3.1 on 424 your Honours will see that we have spoken of the two accused being jointly charged.  Paragraph 3.2 at the foot of the page:

where the two accused were joined in the one count, the two accused were alleged to have jointly committed the one offence ‑

The jointness comes about in this case by reference to joint enterprise, which is in turn referable to an antecedent agreement and hence we speak in terms of agreement or understanding.

CALLINAN J:   Why must there be an agreement?  The Act says “traffic”.  Why must there be an agreement?

MR HOLDENSON:   To get multiple persons at the wrong end of the charge, one has to go to complicity, aiding and abetting, concert.  There could not be aiding and abetting here, there was no presence; concert there could not be, no presence; conspiracy is a separate offence under the Drugs, Poisons and Controlled Substances Act.  Indeed, so is aiding and abetting.  They are sections 78, 79 and 80.  So this had to be put by reference to joint enterprise to encompass multiple offenders.  That is why the charge ‑ ‑ ‑

CALLINAN J:   There is an understanding by anybody who gets his hands on this parcel of the drug that it is to go into trade.  It is going to be trafficked.

MR HOLDENSON:   It is, but the question becomes, is the understanding the subject of the jointness?

McHUGH J:   No, but if the judge made a mistake it was as a result of the misconception that you were putting.  Your argument, as it was, that they had to be engaged in a joint enterprise with the other in the sense that there had to be an agreement and Justice Vincent said that is a fallacious argument.  Now, it may be that you are right in saying that the judge was wrong in what he said in paragraph 58, but if he erred it was because of the anterior error that underlays your submissions.

MR HOLDENSON:   Well, the problem with that approach is that it is not - we did not push his Honour Justice Buchanan into error and we did not push Justice Eames into the same error.

McHUGH J:   There is no attack on Justice Eames at the moment, I have noticed.

MR HOLDENSON:   There cannot be in one sense, because he was diametrically opposed to Justice Buchanan.  He said even on the Crown case as prosecuted by them, and he said they were wrong, there was sufficient evidence.  So we have got - I do not want to turn it into a football game, but it is one all.  So we have focused on Justice Vincent.

McHUGH J:   Mr Holdenson, this is an application for special leave to appeal and you have to persuade us that there has been some miscarriage of justice.  It is not sufficient that you have an arguable point that Justice Vincent erred in respect of one aspect of his judgment.

MR HOLDENSON:   Well, we have made the submissions.  We say that goes to the ground and we say that special leave should be granted, resolve the point.  We do not ask the High Court to trawl through the volumes of evidence, and there were plenty of them.  It can be remitted.  It happened in this Court for example in Palmer, which is one of the authorities we provided, determine the point as to whether or not the ground of appeal has been correctly considered.  If in the negative, remit it and let the court below do it again.  If your Honour pleases.

McHUGH J:   Thank you.  The Court need not hear you, Mr Bugg.

Without expressing any view as to the correctness of the passage in paragraph 58 of Justice Vincent’s judgment and of which the applicants complain, the Court is of the view that there has been no miscarriage of justice in this case and that on the way that the Crown case was put to the jury, there was sufficient evidence to support the joint count.

Accordingly, the application is dismissed.

AT 11.13 AM THE MATTERS WERE CONCLUDED