Lobban v The Queen

[2001] HCATrans 171

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 2000

B e t w e e n -

GEOFFREY PETER LOBBAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 1 JUNE 2001, AT 9.49 AM

Copyright in the High Court of Australia

MS B.J. POWELL, QC:   May it please the Court, I appear with MS E.M. HOLMES, for the applicant. (instructed by Patsouris & Associates)

MR B.M. SELWAY, QC, Solicitor-General for the State of South Australia:   May it please the Court, I appear with my learned friend, MR S.G. HENCHLIFFE, for the respondent. (instructed by Director of Public Prosecutions for the State of South Australia)

GUMMOW J:   Yes, Ms Powell.

MS POWELL:   Your Honours, the respondent, in its summary of argument, acknowledges that this appeal raises a number of issues of general importance.

GUMMOW J:   Yes, but he has a qualification then; he has a sting in the tail of his submissions.

MS POWELL:   He has the qualification that this is not the right vehicle on the basis that the court below determined that even if the public policy discretion was applicable, the appeal would fail, and the application of Justice Martin’s general unfairness discretion would not lead to the exclusion of the analysis of the destroyed cannabis. 

What the applicant says is, that if the court incorrectly identified the nature and the content of the various available discretions, then it cannot be said that the applicants had those discretions applied properly to the facts of his case.  The facts are set out, of course, at application book page 68 and accepted by the respondent with two further facts, that the material said to be cannabis was lawfully seized and that, of course, is not in contest, and that its destruction, albeit deliberate in the sense that it was not an accidental destruction, was as a result of mistake on the part of police officers rather than an intentional destruction.

Put simply, what was said to be cannabis seized from the applicant’s car and his house was destroyed contrary to section 52A of the Controlled Substances Act, thereby we say ‑ ‑ ‑

KIRBY J:   We know all that, but I think, given the concession, you really have to concentrate on whether or not, even if your discretion were accepted at its highest, nonetheless, especially given that you apparently concede that it was purely accidental, the destruction, that the whole of the evidence would require that the testimony be admitted.  I think you have just got to address that.  I take the point that you make that, until in a sense you identify the test, you do not really focus your mind accurately on the exercise of the discretion, but what do you say to the proposition that whatever the exact formulation that, in this case, the evidence would have got in?

MS POWELL:   Well, first of all, your Honour, when we say that the destruction was - your Honour said it was accidental.  We say it was a deliberate destruction, in that it was a choice to destroy; it was not as if the exhibit room in the police station burnt down ‑ ‑ ‑

KIRBY J:   But it was not done maliciously to ‑ ‑ ‑

MS POWELL:    ‑ ‑ ‑but it was not done maliciously, that is so.  We say that the statutory ‑ ‑ ‑

KIRBY J:   No sample was kept, not even a tiny fragment, no little sample?

MS POWELL:   None of the cannabis in the car was retained at all.  In the house there was some material, but it was labelled in such a way that it was impossible for anybody to know whether it was sampling kept in accordance with the Act and Regulations.

HAYNE J:   The other point you have to deal with, in this respect is, first, there are photographs, are there not, of what was seized in the car and at the house and, secondly, it is said that, your client, on being asked what he intended to do with what was in the house, said, “probably smoke them”.

MS POWELL:   That is right.  That is so.

HAYNE J:   All that being said, the notion of analysing the plants perhaps recedes in its importance.

MS POWELL:   Well, that involves, of course - the step has to be taken that, in fact, the statutory safeguard, enacted by the legislature, we say, for the purpose of ensuring a fair trial, simply has to be set aside, in other words, ignored.

GUMMOW J:   There is no question of commercial quantity or any of that here; it just has to be in excess of two kilos, is it?

MS POWELL:   For the purpose of the Act, I think it applies generally to cannabis; I do not think there is any question of being a commercial quantity or anything of that nature.

GUMMOW J:   Yes, that is what I thought.  Exactly.

MS POWELL:   Of course, the Act is quite mandatory.  It says, that before cannabis is destroyed, “samples” of it “must be taken and kept for evidentiary purposes”, and there can be no doubt that what the legislature was directing that imprimatur to was the reliability of evidence, thereby preserving the right to a fair trial of the accused.

HAYNE J:   What is the difficulty that your client would face at trial given that there is no vegetable matter to be produced in evidence?

MS POWELL:   He was unable to have, independently, the cannabis tested.

GUMMOW J:   Tested for what?

MS POWELL:   To see whether it was cannabis.  To weigh it.  He was deprived of the statutory safeguard which the legislature had given him.  The way in which the ‑ ‑ ‑

GUMMOW J:   Is he going to say it is something else, marigold plant or something or rather?

HAYNE J:   Tobacco?

KIRBY J:   Well, you do not have to say.  You say the Crown has to prove its case and you have been deprived of the actual scientific proof of exactly what the item was.

MS POWELL:   Exactly.  We have been deprived of a statute-given safeguard and it is not a ‑ ‑ ‑

HAYNE J:   Now, what is the statutory definition of cannabis?  Is it something that is defined by reference to containing as an act of ingredient tetrahydrocannabinols or is it defined as plant of the genus cannabis sativa?

MS POWELL:   I am sorry, your Honour, I do not have my Act with me and I am unsure of the precise definition.

HAYNE J:   Well, it may matter, because if it is defined by reference to active ingredient, I can understand the need to analyse; if it is defined by reference to genotype, then photographs are looking pretty good from my point of view, Ms Powell.

MS POWELL:   Well, your Honour, that really, in my submission, takes the focus away from where we say it should be, namely on the statute given rights, on the substance of the right that is given to an accused person.  We say that that right cannot be watered down by saying photographs would suffice or smelling it by an experienced would suffice; the evidence has to be preserved unless it is destroyed in these pre-conditioned situations.  We say that the court below clearly did not give the proper content to the discretion, which should have been applied in this case.  Now the South Australian Supreme Court is in conflict as to the application of the public policy discretion to cases of real evidence and cases of this type.  In the drink-driving cases, where previously the legislature had given the right to have a blood sample taken and the legislature required the police to participate in facilitating that right, our court has said that if the facilitation of that by police is not properly conducted, then the evidence may be excluded on the public policy discretion, even though the evidence of the breath sample was, of course, lawfully obtained.

However, in Attorney-General’s Reference [No 1] of 1998, the court said, contrary to that, that if the evidence was lawfully obtained, there could be no question of the application of the public policy.

KIRBY J:   We realise that there is this difference and it is potentially a significant difference and it is potentially of importance in all parts of Australia where it is not governed by legislation, but the question is whether, assuming there to be that public policy discretion - you do not say it is mandatory to exclude the evidence, do you?

MS POWELL:   We say that if the statutory right is denied, that will lead to the exclusion.

KIRBY J:   Mandatory?  In every case?

MS POWELL:   Yes, because ‑ ‑ ‑

KIRBY J:   You say it is inherent in the statutory provision for testing ‑ ‑ ‑

MS POWELL:   It is inherent in the statute and we say that the statute is there for one purpose and one purpose only, and that is to ensure a fair trial.

KIRBY J:   Well it is not stated in that way.  That would be an unusual interpretation.  I can well understand the argument that it enlivens the public policy discretion, but that is where you run then into the question of whether, on the evidence in this case, on the photographs in particular, that the proof would have got before the jury and therefore no miscarriage of justice has been done.

MS POWELL:   Well, that would have involved the Crown producing photographs and, presumably, proceeding on some lesser form of evidence without the analysts’ evidence at all, because what would be unfair in the case would be to introduce the Crown analyst’s evidence ‑ ‑ ‑

GUMMOW J:   Ms Powell, we have sent for the text of the Controlled Substances Act, which hopefully we will have shortly.  I think we would be assisted at this stage though by hearing from the Solicitor‑General and then we might, having done that, hear from you again.

MS POWELL:   As your Honour pleases.

GUMMOW J:   Yes, Mr Solicitor.

MR SELWAY:   May it please the Court.  Your Honours will see from our ‑ ‑ ‑

GUMMOW J:   Have you got the text of this mysterious statute of your State?

MR SELWAY:   No, your Honour; I have also just sent out for it.  My understanding is ‑ ‑ ‑

KIRBY J:   This just proves again, lawyers hate statutes.  They love the common law, they hate statutes.  Never bring a statute to Court.

MR SELWAY:   I certainly have not on this occasion, but I think my understanding is that it is probably both; both the description of it as a genus and the description in terms of the constituents, but we are checking on that and hopefully we will be able to tell your Honours very shortly.

Your Honours will see that we concede that the question of whether the public policy discretion applies in the way the Full Court has suggested, is probably a matter of general importance; we say the Full Court is correct.  And the question of whether the unfairness discretion applies in the way the Full Court has suggested, we also concede as a matter of general importance.  On that question I perhaps should say that if leave were given I doubt whether we would argue that Justice Martin’s analysis of the fairness discretion is correct.  We would argue that the pre-Swaffield discretion applied to real evidence.  On that basis we say the question is whether this is a proper case and that, we say ‑ ‑ ‑

KIRBY J:   Do you remember Chief Justice Barwick once said that he never took too seriously what judges said about what they would have done on a hypothesis, because until you actually have the test clearly in your mind you are not really addressing the legal criterion that you have to apply by the law.  So that would suggest that it is an important point and until the judge has the actual obligation to apply the stated criterion, if there is a public policy discretion, you are only really doing it on a hypothesis; you are not really concentrating - Chief Justice Barwick said that on a number of occasions, I think.

MR SELWAY:   Your Honour, I think there clearly is a risk that if one does not have the test clearly stated and clearly understood, one might be looking at the wrong questions and asking the wrong questions.  What we say here though is that, in effect, whatever the test is and however it was applied, this is not a case where it would have been applied.  We say ‑ ‑ ‑

GUMMOW J:   Can I interrupt you to say, Mr Solicitor, the definition as we have it in section 4(1) of the Controlled Substance Act 1984 (SA) defines cannabis as meaning:

a plant, or any part (including the seed) of a plant, of the genus cannabis –

So it is talking about the plant.

MR SELWAY:   Yes, I thank you, your Honour.  In that regard, what we say is, we would accept that failure to comply with a statutory protection at least puts the court on notice in relation to the fairness discretion, that is this case, and we say therefore the court should have considered it and the Full Court so held.  We would dispute that the provision is mandatory.  We say it is a matter of statutory interpretation, and there is nothing in the statute that suggests it is mandatory.  We say it gives rise to a discretion, which is what was argued below.

KIRBY J:   Well, that seems a little unpersuasive.  I mean, the Parliament of South Australia has gone to the trouble, because of the risks of miscarriage, to say you have to preserve parts, you have to have samples available, it has to be able to be checked.  Now to be completely honest, I do not know what a cannabis plant looks like; I mean, I suppose evidence can be given by police officers, but I would not know, and the average juror, I would suspect, would not know, and therefore that is the reason why the Parliament has provided for the sample, and in our accusatorial system of justice, that is quite important.  You make the accusation; they are entitled to have it checked.  That is what the scheme, the Parliament of South Australia, has provided.  If there is a public policy discretion, that seems to enliven it and frankly I think there is a public policy discretion.  That is, at least, my current belief.

MR SELWAY:   If one looks at the public policy discretion, the question then is whether the reception of evidence, which was lawfully obtained, but about which there is some illegality subsequently arising, if you like, has an impact so that the court’s processes would be abused by the court’s reception of that evidence.  On that issue we ‑ ‑ ‑

KIRBY J:   It is not just any old illegality, it is not a minor illegality; it is a striking at the scheme, which the Parliament has set in place for the purpose of allowing an accused to test the Crown’s accusation.

MR SELWAY:   Your Honour, I do not doubt that.  We concede that it is a matter of general importance.  What we say though is that, as my learned friend has put it, this was a mandatory requirement of the evidence being excluded.  Not that there be a discretion, but that it be mandatory.  And as to that we say that the statute does not say that the evidence is excluded.  What the statute says is there is a duty upon the police, and the question then is, what the impact of the statute is in relation to the law of evidence. 

Our understanding of the law is it could have one of two impacts:  either give rise to the public policy discretion, which we accept as a matter of general importance or give rise to the unfairness discretion, which again we accept as a matter of general importance, but we say in either event, it is a discretion, and the question then is, how could the discretion have been exercised on the facts of this case?  In relation to that, we say that if the statute had been complied with, the effect would have been that samples were kept; still there would have been destruction, but samples would have been kept.  That is to say, the illegality does not go to the question of weight; it only goes to the question of what one has is cannabis or not.  You cannot prove weight from samples.

If the question then is whether one has cannabis or not, one has to look then at the evidence in relation to the plants in the vehicle and, subsequently, the evidence in relation to plants in the house.  Those being the two places from which the plants were taken.  In relation to the plants in the vehicle, the evidence was that all of those plants were destroyed.  There were photographs taken of them; documentation relating to the cannabis was in existence; the cannabis was tested by the forensic science centre, which the trial judge described as independent; the police actually intervened and looked in the vehicle because of a smell of cannabis in the air and, as the trial judge said, there is no reason given by the accused to suggest that the accused doubts it is cannabis.  The relevant witnesses were not cross-examined on that point.  Now, we say, taken together with the police behaviour and the fact that the police behaviour was not deliberate and resulted from an error, in our submission, on any view, the discretion can only be properly exercised to admit the evidence.

If one then looks at the cannabis in the house, the case is even stronger.  Maybe there is no discretion at all.  Not all cannabis was destroyed, some was retained, and that was tested by the accused.  We do not dispute my friend’s contention that what was retained did not comply with the regulations in terms of labelling, that is true, but the question still, particularly if one is looking at fairness, is what is the unfairness?  Some was retained.  It has subsequently been tested by the accused.  There were inferential admissions by the accused, who presumably should know that the plants were cannabis.  There was no material to suggest that the accused disputed the material was cannabis.  We would say, in those circumstances, there is no unfairness at all in permitting that evidence to go forward and, we would say also, if the public policy discretion properly applied, it should only be exercised one way.

Your Honours, that was the result reached by Justice Martin in the Full Court at page 58, paragraph 88.  We would say that the discretion his Honour was applying, whilst he described it as a “general unfairness discretion”, it is very difficult to identify what the difference between that and the ordinary fairness discretion might be.  Your Honours will see that in that discussion he refers to “the conduct of the police”; it was “unlawful, it was not a deliberate breach”, “no element of the court giving its imprimatur to the unlawful conduct”.  We would say, even in the unfairness discretion, that is an appropriate and relevant matter.  “The evidence of the analysis is critical”.  “Although the appellant has lost the opportunity to test the prosecution evidence. . . in the particular circumstances of this case there is no reason to doubt the reliability”, “The appellant did not cross-examine the analyst” and so forth.

Your Honours, that is consistent with the approach of the trial judge.  The conclusion drawn from it is at page 60, paragraph 91, where his Honour came to the conclusion that, even though there had been no consideration by the trial judge of the unfairness discretion, there was “no miscarriage of justice”.

GUMMOW J:   What does his Honour mean at the top of page 59, paragraph 89(i)?  He means joint judgment, does he not, in Swaffield?  The word “majority” is wrong.

MR SELWAY:   Yes, I think he must mean the joint judgment, your Honour.

KIRBY J:   Well I suppose we have the problem; the point is, as you concede, significant and, in fact, quite important, but the case you say is not an appropriate vehicle because the evidence was overwhelming and therefore this is not the appropriate time in which to fashion the principle.  But I suppose in every case, because it is a discretion, there are going to be arguments one way or the other and therefore the issue will not be tendered to this Court until you get a perfect case where you are bound to exclude it and, Ms Powell says that this is such a case because the South Australia Parliament has laid down this principle and you say the accused has not

denied it, but that is really contradictory to the accusatorial system of justice.  It is not for him to deny it, you have to prove it.

MR SELWAY:   With respect, your Honour, if there is a discretion, it rests on the accused then to establish the facts giving rise to it; it does not work the other way around.

KIRBY J:   Yes, but surely he does so in the context of an accusatorial trial.  He does not have to say, “Well I went into evidence and said it was not cannabis.”

MR SELWAY:   Well, the difficulty here is that what approach the accused has made as to the opposite effect.  He has made what appear to be admissions which, at least inferentially, suggests he accepts it is cannabis.  What one says at the end of the day is, certainly there is a breach of the statute, that cannot be denied.  The court is then put on notice.  The court has gone through the process, it has considered the discretions and it has come to a result, we say, which is clear and whatever view one takes is going to be the result.  Now, we say that in accordance with the usual jurisprudence of the court, this is not an appropriate vehicle to test the propositions arising from the question of whether Swaffield applies to real evidence; if it does, how it does and so forth, which are the real issues of general importance that these cases raise.  Your Honours, I do not think I can take the matter any further than that.

GUMMOW J:   Yes, thank you, Mr Solicitor.  Ms Powell.

MS POWELL:   Your Honours, as to the correct rationale for the public policy discretion, we say that that is set out in paragraph 27 of our summary and that is concerned with not only the public interest in maintaining the integrity ‑ ‑ ‑

KIRBY J:   Speaking for myself, I think, especially in the light of the concession, our search is not really on the principle at this stage.  I would be prepared to accept that you have an arguable point and an important point.  What you have to concentrate on are the facts, tedious though that may be.

MS POWELL:   Yes.  I understand that, your Honour, and what we say in that is simply this:  it is all very well for my learned friend in the court below to say photographs existed.  Photographs, of course, can never be a substitute for having the substance tested.  It can be said that there is an inferential admission, there is no direct admission as to that; and, most importantly, of course, of all was that the facts of this matters were that this applicant did put the Crown on notice that he wanted to test the material.  That is how the fact of destruction came to light.

GUMMOW J:   At what stage were they put on notice?

MS POWELL:   They were put on notice nine months after the cannabis was seized, but, of course, because he had received no notification of destruction, he was entitled to assume that the cannabis, or what was said to be cannabis, had been preserved because, under the statutory regime, had the police authorities acted lawfully, he would have been notified that destruction either had occurred or was going to occur. 

KIRBY J:   So this was after the actual destruction, but he did not know about it?

MS POWELL:   Yes.

KIRBY J:   I see.

MS POWELL:   He did not know about it.  He said, “Pursuant to my rights under the Act, I want to have this cannabis tested independently” and that is how the fact of destruction ‑ ‑ ‑

GUMMOW J:   I think you have to say “this plant”, Ms Powell.

MS POWELL:   I think I do.

HAYNE J:   “The green vegetable matter”.

MS POWELL:   The green – as former Chief Justice - Gray, said, “a bit old rope”.

Your Honours, so that in the context of this trial, the statutory safeguard was enlivened and that, in our submission, is a significant matter.

HAYNE J:   Just one point of information, is it common in South Australia in offences of this kind to have evidence given by botanists?  It is in Victoria, that is the usual form of proof.

MS POWELL:   No, because we have a provision in the Act which allows for simply the tendering of the analyst’s certificate, although the analyst can be called at the request of the defence.

So that what we say is that factually one can always envisage, as I think your Honour Justice Kirby said, a better set of facts, but this was a live issue in this trial and the fact that the courts are in disagreement as to the proper content of these discretions and the fact that the exercise of these discretions is something which happens in the courts every day, and it is

such an important matter that this Court ought to authoritatively say what the content and the application of those discretions are.  If the Court pleases.

GUMMOW J:   Yes, thank you, Ms Powell.  We will take a short adjournment.

AT 10.18 AM SHORT ADJOURNMENT

UPON RESUMING AT 10.31 AM:

GUMMOW J:   The actual decisions of the Full Court, first, that no miscarriage of justice has occurred and, second, that if there was a discretion to exclude the evidence in question, it would not exercise that discretion in favour of the applicant, are not attended by sufficient doubt.

The questions of principle which the applicant seeks to agitate in this Court are important and arguable.  However, we are not sufficiently satisfied that a decision upon them by this Court in his favour would, in the circumstances of this case, lead to success in his appeal.  Accordingly, special leave is refused.

AT 10.32 AM THE MATTER WAS CONCLUDED