Markovich v The Queen

[1998] HCATrans 356

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S38 of 1998

B e t w e e n -

MARK FRANCIS MARKOVICH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 9 OCTOBER 1998, AT 11.25 AM

Copyright in the High Court of Australia

MR J.I. DORIS:   May it please your Honours, I appear for the applicant with my friend, MR C.B. SIMPSON.  (instructed by Baird & Associates)

MR G.S. HOSKING, SC:   If your Honours please, I appear for the respondent.  (instructed by S.E. O’Connor, Director of Public Prosecutions (New South Wales))

MR DORIS:   May I say something, your Honours, about two cases which were supplied to the Registry and added to the list of authorities which are not addressed in the written submissions before your Honours?  The first is the English case of Couzens. 

GUMMOW J:   How will that help?

MR DORIS:   Your Honours, it is authority for the proposition that the correct approach or the approach that would have been the correct approach by the judge at first instance in this case was for the judge to determine himself whether the prohibition in question applied to the substance.

McHUGH J:   But which ground of your appeal has this application to?

MR DORIS:   In relation to grounds 2 and 3.  The fundamental proposition underlying the application, your Honours, is that this trial miscarried because what happened was that the jury were permitted to determine a question which, if not a question of law, was identical to and co-extensive with a question of law.

McHUGH J:   But surely the jury were only doing what juries always do, that they were asked to bring in a general verdict after applying the law given to them by the judge to the facts of the case.

MR DORIS:   Your Honour, it can be viewed that way so long as the true and proper character of the question for the jury is exclusively a question of fact and we say it is not.

McHUGH J:   When you talk about questions of fact, juries are frequently asked to make value judgments.  When somebody is charged with an offence involving dishonesty, driving in a manner dangerous, having an intent to defraud, the jury has to make a value judgment of the facts based on the directions of law given by the judge.  There is no difference in this case.  They were given directions as to the meaning of the words “structurally derived” and they then had to apply those directions to the facts of the case, bearing in mind the expert evidence that was before them.

MR DORIS:   Your Honour, they were given some directions.  They were not told what, in our respectful submission, they should have been told, namely whether - - -

McHUGH J:   But, look, this is not a Court of Criminal Appeal.

MR DORIS:   No.

McHUGH J:   There has to be something special in this particular – to attract the jurisdiction of this Court.

KIRBY J:   Your complaint, really, is a complaint that the Parliament ought not to have made such a vague offence, and I have some sympathy with that complaint.

MR DORIS:   Your Honour, that perhaps - - -

KIRBY J:   But that is not a complaint that we can attend to.  I have a lot of sympathy for such a complaint but that is what the law of the State provides.

MR DORIS:   I accept straight away, of course, that the courts are bound to apply the laws that is given to them by Parliament.  The law could have been applied in this case in what I respectfully suggest is the proper way, namely for the judge himself to determine whether the substance which was the subject of the indictment was a prohibited substance.  Effectively, the jury determined that on the competing theories of experts.  It was, in Mr Markovich’s case, the essential issue; the ultimate issue and, really, the only issue.

Now, one can characterise that as a question of fact and it was so characterised for the purpose of the trial.  That has attendant evils in the context of this trial, given that the jury were asked to reach their decision on the basis of competing theories of experts wherein they had to make findings of fact about, for example, what is dimethoxyphenylethylamine; what does “structural derivation” mean - some direction was given but not a complete direction – and what are hallucinogenic properties and whether it is necessary in every case for hallucinations to occur?  His Honour gave directions there.  He partially gave the jury directions toward the resolution of the factual issue.  What we say happened is that the jury, at the very least, were only partially directed on what was wrongly characterised as a question of fact. 

If I can bring your Honours back to Couzens’ Case.  Implicitly, his Honour Mr Justice Roch in Couzens’ Case approved a procedure which is the procedure that I advocate should have occurred in Mr Markovich’s case, namely, that the parties at first instance - - -

McHUGH J:   You are conducting this case as if you are addressing the Court of Criminal Appeal of New South Wales.  So far, you have said nothing which would indicate this case involves anything special.  You are particularising a particular case.

MR DORIS:   May I come to your Honour’s point.  If there is merit in this appeal, then it is right to point out to your Honours that there are two trials awaiting hearing on the same – an indictment formulated under the same provision.  These are accused - - -

KIRBY J:   That is a provision of the statute which has this unusual provision.

MR DORIS:   Yes.  The Crown are obliged to proceed because of the time frame under this provision, in relation to two trials, where the accused were, in fact, severed from the indictment that constituted the main trial, the subject of this appeal, Mr Carroll and Mr Urquhart.  We say that there was a fundamentally wrong approach taken at trial which was not corrected by the Court of Criminal Appeal.  We say that such an approach might be taken again in the two trials pending and might be taken despite improvements in the drafting of legislation in relation to the legislation as it currently stands, which refers - - -

KIRBY J:   But if the Court of Criminal Appeal was right then that will simply be the application of law as it has been declared for the State of New South Wales.

MR DORIS:   Yes, quite so.  We say, with respect, the Court of Criminal Appeal was wrong - - -

KIRBY J:   Essentially, you want to use the fact that subsequently Nexus was expressly provided as some kind of legislative admission or some kind of executive admission or somebody’s admission that it was not in the statute as it was provided in its general terms, but that cannot be so.

MR DORIS:   I seek to argue, your Honour, that if - - -

GUMMOW J:   I mean, as a matter of logic, there is no reason why a particular substance could not fall within more than one head in that schedule.

KIRBY J:   And, in any case, it could be for the avoidance of any dispute or disputation of the kind we now have before us.

MR DORIS:   It depends on the application of the power to amend the schedule.  So far as the question of logically, your Honour brings me to, is concerned, if - - -

GUMMOW J:   But, in any way, it does not arise here because this man was being tried for this offence in relation to the schedule at a time before the amendments.

MR DORIS:   As it stood.

GUMMOW J:   Yes.

MR DORIS:   If the trial involved any discernment of the legislative intent as it underlay the provision under which he was tried, then it became, in my submission, relevant to inquire whether the subsequent specific addition of the substance in the express exercise of a power to add can be read so as to interpret the legislation before the specific addition as evidencing an understanding on the part of Parliament that the substance was not intended to be included.  One draws that simply from the fact that it was added - - -

McHUGH J:   The evidence of intention is to be determined from the text of the enactment according to its natural and ordinary meaning, read in the context and having regard to the purposes of the enactment.  The fact that, subsequently, another legislature or another executive government amends the regulation is of no relevance whatever.  It was either an offence according to the text of the enactment at the time of the commission of the acts in question or there was not and what Parliament later does can throw no light on it, unless the Parliament purports to make unlawful what was lawful beforehand.

MR DORIS:   With respect to your Honour, there is, in my respectful submission, a relevant distinction between adding and amending for the purpose of clarifications.  Now, those are the powers that the legislature is given and may act upon.

GUMMOW J:   Look, the end result in this may be that the amendment was invalid.

MR DORIS:   Yes.

GUMMOW J:   A matter of administrative law.  You would challenge that.

MR DORIS:   Yes.

GUMMOW J:   It does not deal with this case.

McHUGH J:   And, in any event, although the point was taken at the trial, Mr Justice Smart said that it was not renewed in the Court of Criminal Appeal, which would seem to indicate that counsel then appearing for the applicant thought there was no substance in it. 

MR DORIS:   Your Honours, there are some remarks of her Honour Justice Gaudron to the effect that in this Court the matter has pertinence to the appeal.

GUMMOW J:   Once it gets here.  You have got to get here first.

MR DORIS:   Once I overcome the first hurdle, of course.  It is not a matter which, if your Honours were to find it had some substance, merit or was worthy of consideration, your Honours would reject because it was not urged or urged strongly at all in the Court of Criminal Appeal.

May I deal with what your Honour Justice McHugh brought to me.  Of course, the Parliament can amend but what happened here - - -

GUMMOW J:   Here it is the legislature.  It is the executive, I should say.

MR DORIS:   Well, I suppose, in fact, it is the executive although I understand that the Parliament, in some formal way, gives its assent and approval.

GUMMOW J:   No, they do not.  They may disallow it.  Either House may disallow.

MR DORIS:   One takes it that it was not disallowed.  The simple point that I bring your Honours to is this.  When the addition of this substance was specifically made, Parliament had two options, or the legislature, the executive had two options:  they could have exercised the power to add or they could have exercised the power to amend for the purpose of greater clarifications.  Those are the powers in section 44.

KIRBY J:   Yes, but it is different, you see.  One is done by Parliament; the other is done by the executive, and the Parliament had already permitted a measure of flexibility, if you like to call it that, by the formula which it used.  That was done by the will of Parliament.

MR DORIS:   Yes.  The express exercise of the power was in exercise of the power to add.  The short point is this:  if there is something on the list already, you cannot add it, and the express exercise of that power leads, in my respectful submission, to an implication, at least - - -

KIRBY J:   If that is right, that brings you back to Justice Gummow’s point that that is a matter for objecting to the addition.  It is not a matter for objecting to the prosecution of your client under the provisions as they originally stood.

MR DORIS:  

Only to the extent that one seeks to discern legislative intent where there is perhaps a grey area as to whether one particular substance is intended to be included in a prohibition or is not.

McHUGH J:   But legislative intent is a myth unless it means the intent to be deduced from the words used by Parliament.  One does not investigate the mental states of those who pass the legislation or enacted the schedule or amended it.

MR DORIS:   Your Honours, the Crown contended and had to contend that this was a prohibited drug.  It was a prohibited drug which was later added to the schedule and was not, in our submission, a prohibited drug when the schedule, which was current and relevant at the trial, was enacted.

Your Honours, may I return briefly to what I would respectfully say is the main thrust of this.  One acknowledges the courts must apply the law as it is given.  Now, there are two ways, given the provision which your Honour Justice Kirby has characterised as perhaps slightly wanting.  It could be done by the judge taking the bull by the horns, hearing the necessary evidence and making up his mind as to whether or not the prohibition applied to the substance in question or it could be done, as it was done in this trial, by permitting the jury to make a decision, characterised for the purposes of the trial as a decision of fact but, in fact, a decision which is entirely co-extensive with the question, “Is this a prohibited drug?”

We say the proper course was not followed.  We say the proper course would have been in conformity with the course taken in Couzens’ Case where, again, the words “structurally derived” fell for determination.  So that the judge, on the necessary evidence, should have determined and given to the jury the answer to the question, “Is this a prohibited drug?”  Now, that may have had consequences for the trial but the trial procedure has taken place.  What took place was a contest on the essential issue in the case between experts who professed different views on the issue.  The jury were left - - -

GUMMOW J:   That happens all the time.

MR DORIS:   It does happen frequently, and I must acknowledge that, but it is, in my respectful submission, a rare case where the real issue in the trial is fought, if I may say this, by experts on either side, effectively gladiators.

McHUGH J:   Why?  In a medical negligence case for manslaughter, it is common.

MR DORIS:   This is a criminal case.

McHUGH J:   I am talking about a criminal case; somebody charged with manslaughter by virtue of a doctor in an abortion case, in a medical negligence case, where it is alleged that there has been gross negligence, the case will depend upon which of the experts is accepted.

MR DORIS:   I acknowledge that that is often the position but here the question upon which the case depended was a question which was entirely co-extensive with the question, “Is this a prohibited drug?”  So that the issue to which the expert evidence went approached so closely, if it was not co-extensive with the question of law upon which the outcome of the case depended, that it can be seen that what, effectively, occurred in this trial was a determination by the jury as to the question whether or not the substance was prohibited.

McHUGH J:   But that describes the end rather than the process, does it not?  The issue was whether this was a prohibited drug and that had to be determined by determining whether Nexus was a substance structurally derived from a compound that was identified in the schedule by reference to its chemical formula and whether Nexus, also, had hallucinogenic properties.  Now, those were questions for the jury to determine, having regard to the judge’s directions and the expert evidence.

MR DORIS:   Well, in so doing, they determined a question of law, in my respectful submission.

McHUGH J:   That is what you assert.

MR DORIS:   But if I can put it this way:  another jury hearing the same evidence - - -

McHUGH J:   Well, exactly, but it is the same with dangerous driving; manslaughter by dangerous driving or culpable driving:  you can have a range of opinions.  The judge directs the jury what “dangerous” means; a judge in another case will direct them as to what “dishonestly” means in a statute.  It is then for the jury to say whether the facts constitute dishonesty or whether they constitute dangerousness.  A jury does not decide a question of law.  It brings in a general verdict.

MR DORIS:   Acknowledging the correctness of that and having regard to the possible consequences for the future trials, it is possible to see that another jury may hear the identical evidence and quite open to foresee that they may reach the opposite conclusion.  Now, if it is right or maybe close to right that the question put to this jury was co-extensive with a question of law, namely whether the substance is prohibited, then there is some danger that another jury hearing the same evidence and reaching an opposite conclusion will have given a different answer.  So, the state of the law will appear to be that on the one hand, 4bromo 2, 5, dimethoxyphenylethylamine is prohibited, on the other hand, it is not.  That is the inherent danger of permitting what are truly questions of construction to be left to a jury.

McHUGH J:   But it happens all the time.  Take conspiracy cases, and you have facts where, in a real sense, juries retrospectively declare whether or not something was a criminal offence.  That is the reality of it in many cases of conspiracy.

MR DORIS:   But never whether, as a matter of law, it is a criminal offence.

McHUGH J:   Well, they do not do it any more in this particular case.  This jury was asked to determine a question of fact.  After all, the words of a statute are questions of fact.

MR DORIS:   I see the light.  I bring your Honours briefly to a proposition of law that I maintain is good law.  It is an authority of this Court.  It is Yager’s Case (1977) 139 CLR 29. I read an extract from page 34 of the judgment. Briefly, the extract is this:

Where the resolution of the connotation of a word used by the legislature which is not self-explanatory is undertaken as a part of the interpretation of the statute, it is for the judge and not for the tribunal of fact to decide.

And that appears in my written submissions, your Honours.  I say that the law is as given there by his Honour the Chief Justice and in its application to this case, what was required by that proposition of law and by the approach taken in Couzens’ Case is that here was a term, a series of terms not self-explanatory, and it was for the judge to take it upon himself to determine whether the substance in question fell within that prohibition, that the way the trial was left had with it attendant evils of retrospectivity, a real hazard

that a jury would not cope, or cope adequately, with a contest between experts in areas where simply they had no prior experience and they could not be said to be applying their commonsense, common knowledge or anything like it to the contest that they were confronted with and had to judge.

GUMMOW J:   What do you say to the proposition that all of this should have been agitated at the trial, namely what you say are questions of law are for the judge and what you say are remaining issues of fact for the jury to apply in respect of that law?

MR DORIS:   I say the question of law for the judge was to - - -

GUMMOW J:   No, no, but in this trial, what you are saying to us was never said, was it?

MR DORIS:   Your Honour, the trial commenced with a demurrer and an application for a permanent stay.

GUMMOW J:   Yes, we know that.

MR DORIS:   In the course of that argument it was made abundantly clear that one of the bases for the application for a permanent stay was that the jury would be left to determine a question of law.  Now, although Couzens was not brought to the attention of the judge at first instance, it must have been manifestly clear to that judge that if there was any substance in the point then being urged upon him, the cure was for him to take it upon himself and decide whether this substance was prohibited or not and then tell the jury.  That may have had consequences for the trial.  But, in my respectful submission, we have had a trial which fundamentally miscarried in that the jury were left to decide the question of construction of the statute and that should not have happened.  Thank you, your Honours.

McHUGH J:   Yes, we need not hear you, Mr Hosking.

The applicant seeks special leave to appeal against his convictions for knowingly taking part in the manufacture of not less than a commercial quantity of a prohibited drug, Nexus, and in supplying not less than a commercial quantity of that drug.  He alleges that, at the time of engaging in the conduct which led to his convictions, the Schedule to the Drug Misuse and Trafficking Act 1985 (NSW) did not describe the drug Nexus under either its commercial or scientific name or by reference to its chemical formula. That is common ground in this case.

However, for the purpose of the prosecution, the Crown relied on an item in the schedule that prohibited the use of “substances structurally derived from” a compound that was identified in the Schedule by reference to its chemical formula.  To come within the Schedule item, the derived substance also had to have hallucinogenic properties.

There was abundant evidence on which it could be found that Nexus was structurally derived from the identified compound and that it had the relevant properties.  However, the applicant contends that, at the time of the acts which are the subject of the indictment, it was not the legislative object to make the drug Nexus a prohibited drug.  This argument is based on the fact that on 10 October 1994, which is a date after the commission of the offences alleged in the indictment, the drug Nexus was specifically added to the schedule by reference to its chemical formula.

The applicant contends that, because the power to amend the Schedule is a power merely to add or amend the name or description of a prohibited drug or substance, it must follow that the legislator did not understand the Schedule to include the drug Nexus before the Schedule was amended.  Although that point was taken before the trial judge, Mr Justice Smart said in the Court of Criminal Appeal that it was not renewed in that court.  Be that as it may, there is, in our view, no substance in the contention.

The intention of the legislature is to be derived from the text of its enactment.  Before the amendment to the Schedule, its text plainly evinced the legislative intention to cover drugs with the structure and properties of Nexus.  That being so, it is of no relevance whatever that at a later date the Schedule was amended by the Executive Government to include the drug by reference to its chemical formula.

The second ground of the application alleges that the proceedings should have been permanently stayed or, alternatively, that the convictions are unsafe because the jury would be and, in fact, were called upon to decide a question of law whether Nexus was a prohibited substance and would have and had to do so only on the basis of evidence concerning competing scientific theories.  Again, we think there is no substance in that ground.

The learned judge properly instructed the jury as to the meaning of the word “structurally derived”.  It was then a question for the jury to say, whether applying those directions, the scientific evidence established as a matter of fact that Nexus was a drug structurally derived from the compound identified in the Schedule.  The jury did not decide any question of law in this case.  The jury did what juries always do, that is to say, they brought in a general verdict after applying the law given to them by the trial judge to the facts of the case.  The jury, in our view, in this case no more decided a question of law than a jury does when it is asked to decide whether conduct was dangerous or dishonest or done with intent to defraud.

The third ground relied on which is contained in the written submissions but was, I do not think, really developed in argument specifically was that the trial involved an element of retrospectivity and an absence of fair notice which made the trial unfair and the convictions unsafe or unsatisfactory.  The basis of this contention is that the convictions depended exclusively on what the jury made of the competing expositions of concepts such as “structurally derived from” and “hallucinogenic properties” which were advanced by the expert witnesses in the case.  However, there is nothing unfair or retrospective about a conviction which depends on a jury preferring one set of expert opinion to another. 

Questions of guilt frequently depend on whether the acceptance of a contested scientific theory or opinion bring the facts within the elements of a criminal offence.  Cases of manslaughter involving medical negligence are classic and common examples. 

The final ground relied on in the written submissions is that the trial judge misdirected the jury by instructing them that the “Crown must prove that the accused knew or believed that the substance - in this case, of course, Nexus – was a prohibited drug or knows that there is a real or significant chance that it was.”  The applicant, in his written submissions, contends that this meant that the fact of his state of mind which had to be proved could only be determined by the jury’s verdict as to whether Nexus was a prohibited drug.  But that is not what the direction required the jury to do.  In the context of the evidence, the jury had to determine whether the accused knew, or knew that there was a real chance, that what he was doing was manufacturing or supplying a substance that was within the terms of the Schedule.

For these reasons, the application for special leave to appeal should be dismissed.

AT 11.54 AM THE MATTER WAS CONCLUDED