McCulloch v The Queen

[2009] HCATrans 224

[2009] HCATrans 224

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M30 of 2009

B e t w e e n -

DAVID STEVEN McCULLOCH

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HEYDON J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 4 SEPTEMBER 2009, AT 11.00 AM

Copyright in the High Court of Australia

MR M.J. CROUCHER:   May it please the Court, I appear with my learned friends, MR C.O.H. PARKINSON and MS A.L. WOOD, on behalf of the applicant.  (instructed by Victoria Legal Aid)

MR D.A. TRAPNELL, SC:   May it please the Court, I appear with my learned friend, MR C.W. BEALE, on behalf of the respondent.  (instructed by Solicitor for Public Prosecutions)

HEYDON J:   Yes, Mr Croucher.

MR CROUCHER:   Your Honours, if we could deal with ground 2 first, regarding the directions on the mens rea.  The directions, in our submission, given at trial were inadequate to convey that the applicant had to intend from the outset, and contemporaneously with the behaviour said to constitute the actus reus of each offence, to sell a commercial quantity.  Also that Mr Stumpo, the complicit person or the principal if you like, had the same intention from the outset, or that they agreed at the outset that all that would occur.

Indeed, in our submission, such directions as were given, particularly by speaking of an awareness that the relevant thresholds were being trafficked and the belief that it was probable or likely that trafficking exceeded the threshold implied that the requisite intention would be established if, at the time the thresholds were crossed, or perhaps even considering the matter ex post, the applicant was aware of that fact, or that it was probable or likely.

Now, the Crown conceded in the court below that the directions were inadequate in this regard.  The court, in our respectful submission, was wrong to conclude the directions were adequate, having regard to the real issues, which is what their Honours concluded.  Whilst the applicant’s defence, true enough, was that he was set up, it was still, it is submitted incumbent on the respondent to prove the elements of the offences charged, including the requisite mens rea, particularly with respect to the element of commercial quantity.

Further, in our submission, given the evidence, it was also incumbent on the judge to direct adequately on this topic, because on the evidence it was open to a jury to fail to be satisfied that the applicant had the requisite intention from the outset and there are several reasons we say that is so.  First, the applicable commercial quantity was only just exceeded in the case of count 2 by the last of seven transactions and in respect of count 1, by the second last of nine transactions, all of these occurring over a period of many months.

Secondly, the amounts sold initially started out quite small and were nothing like the amounts that one would expect ultimately would amount to a commercial quantity.  Consider, for example, the evidence concerning the methylamphetamine count, count 2, which is set out at application book 139 to 140, but it might be summarised in this way.  The first transaction of methylamphetamine was where it was sold in powder form in the amount of 13.8 grams.  Then there was a second transaction of a very, very small amount of .02 grams, on a separate occasion.  Then the third transaction effected a change.  It was a change from powdered methylamphetamine to ecstasy tablets, which had methylamphetamine as their drug component.  Now ecstasy, of course, is usually comprised of MDMA, but apparently, it can be comprised of methylamphetamine in some circumstances.  The first of those transactions involved only two ecstasy tablets, weighing 0.6 grams.

Then the next four transactions concerned numbers of tablets, 500, 750, 1,909 and 1,993 respectively, the last of which just took it over the threshold for a commercial quantity.  Now, that change in the midst of those transactions from powder sold in very small amounts of tablets is significant.  Mr H, as he is described, who was of course an afflicted witness, if one puts its neutrally, and uncorroborated on the initial discussions that he asserted occurred between himself and the applicant, had said that the applicant had spoken of powdered amphetamine – methylamphetamine - at the outset, and only had spoken of grams, half ounces, which is about 14 grams, or at the most, an ounce, which is 28 grams.

It would take 45 such transactions, mathematically speaking, to get a commercial quantity of methylamphetamine over time.  There were only seven transactions here, and as I say, they were not in powder, in the end, they were tablets.  Of course, with tablets, one does not think of weight, one thinks of number, but the relevant criterion is weight.

Now, the next matter is that Mr H also, in his evidence, on which the respondent relies, did not speak of the amounts of hashish, which is relevant to count 1, to be sold.  Nothing in those conversations alleged spoke of Mr Stumpo’s intention, which of course was an essential ingredient as well and did not receive any directions.  Next, the increasing demand over time was being driven by the police, not by the applicant, or anyone else.  It was they who decided how much would be sought in these ever increasing amounts over time.  So in those circumstances, it was plainly open, we say, that a direction with respect to the mens rea had to be given properly so that ‑ ‑ ‑

CRENNAN J:   Was one sought?

MR CROUCHER:   No, it was not sought.  That there was no exception sought, by trial counsel, is hardly surprising in the circumstances for these reasons.  Firstly, since there was, until the present case in the Court of Appeal, no authority on whether a Giretti‑style count of trafficking in a commercial quantity could be proved by a series of these simpliciter transactions - it just had not been decided - so there could be no direct authority on the requisite mens rea at the same time.  Indeed, the Crown’s argument in the court below on this equivalent ground was that such an intention as the court found was required, intention from the outset contemporaneously with the actus reus to sell a commercial quantity, was not required, so it is not surprising firstly, for that reason.

Further, as it turned out in this case, trial counsel, who was there at the time that the jury was charged, had only come into this case a matter of days before.  The previous counsel had withdrawn, and counsel who ultimately appeared before the jury when the judge was charging the jury, as I say, had only come into it very late, and obviously was running with the idea, of course, on instructions that he was not involved and finally ‑ ‑ ‑

CRENNAN J:   Well, that means a direction about intent might have had the effect, as the respondents put against you, of weakening that non‑involvement defence in the eyes of the jury.

MR CROUCHER:   That is always possible that it can do so, but a judge must secure directions, or give directions that are required on the evidence, which will amount to a defence.  That is the third point I was about to make, that whatever the approach of trial counsel, since the absence of proof of the requisite mens rea was a defence plainly open on the evidence, it was incumbent on the trial judge to direct adequately on the issue.  We have referred in our submissions to Pemble v The Queen in this Court on that very point, and to the judgment of Justice Hunt in Stokes & Difford in the New South Wales Court of Criminal Appeal, back in 1990.  These principles still apply, so that when one considers all those circumstances, in our respectful submission, the court was simply wrong to conclude that the directions were adequate in the circumstances.

Can I move now to the related ground, which is ground 4, the failure to leave the alternative verdicts.  In this regard, it is submitted that the Court of Appeal erred in its conclusion and its reason for concluding that the judge did not err in failing to leave the alternatives of trafficking simpliciter.  The court said that the jury would have been bemused if the alternatives were left in light of the way in which the trial was conducted.  No doubt a jury may be bemused in a murder trial in which an accused defends his alibi, but the judge, pursuant to his or her duty, leaves the alternative verdict at manslaughter because the alternative is open on the evidence.

As this Court confirmed in Gillard, previously in Gilbert, that fact, the failure to request the alternative, even the express request not to leave it, does not relieve a judge of the duty of leaving the alternative verdict where it is open.  Had this been a murder trial, where the alternative manslaughter was open to the same degree that the alternatives of trafficking simpliciter were open in the present case on the evidence, there is no doubt, in our submission, that the failure to leave the alternative verdict would amount to a miscarriage of justice.

In Gilbert’s Case, in the joint judgment of Chief Justice Gleeson and Justice Gummow, their Honours said at paragraph 17 of the reasons, that in view of the present:

age of concern for the victims of violent crime, and their relatives . . . a jury may hesitate to acquit –

in a murder or nothing case –

and may be glad to take a middle course –

manslaughter –

which is offered to them.

Similarly, Justice Callinan in the same case, at paragraph 101, remarked that:

It is contrary to human experience that in situations in which a choice of decisions may be made, what is chosen will be unaffected by the variety of the choices offered, particularly when, as here, a particular choice was not the only or inevitable choice.

Now, in our submission, there is no reason in principle why the same considerations that apply in the homicide context should not apply to the leaving of an alternative verdict in a case such as the present.  This is also an age of concern for the victims of drug use, and their families, and the impact of drug‑related crime in the community generally.  The principal offences in question here are serious.  They carry penalties of up to 25 years imprisonment.  The related offence of trafficking in a large commercial quantity carries life imprisonment, and, indeed, the sentence imposed in this case, 14 years imprisonment, is a very high sentence and one that would approach the sort of sentences that are sometimes imposed in murder cases.

Now, we say that it is notable that in Hamzy’s Case, the decision of the New South Wales Court of Criminal Appeal, which of course is relevant to ground 1, and the question of whether one can aggregate in the first place, these simpliciter transactions, where it was alleged that Mr Hamzy had supplied something just short of 4 kilograms of heroin over a 20‑month period, three alternative counts were left to the jury:  trafficking a large commercial quantity of heroin when the large commercial quantity is 1 kilogram, so he is nearly 4 kilograms, compared with one; the alternative of supplying a commercial quantity where the commercial quantity was 250 grams, as opposed to the 4 kilograms alleged, and yet further still, the offence of, in the second alternative, supply simpliciter, where there is no amount to be determined.

A similar approach was taken in Atallah, which we have referred to, even though Mr Atallah had given evidence denying any involvement in supply of drugs.  So a positive defence, nothing to do with any of this, but the alternative in that case was still left.  That practice, as evidenced by those couple of cases in New South Wales, suggests the alternatives had to be left in the applicant’s case, as the circumstances here were far more likely to have led to acquittals on the principal counts.

Indeed, it is submitted that given the difficulties of proving an intention of trafficking a commercial quantity as a Giretti‑style offence in the present case, by this aggregation of simpliciter transactions, especially given that the applicable commercial quantity was only just exceeded by the second‑last or last transaction, that it was the police who were driving the demand, and that ecstasy, the methylamphetamine, was sold by a number of tablets, not by weight, in those circumstances, in our respectful submission, it is plain that the alternative verdicts of trafficking simpliciter were not only open on the evidence, but were more than realistic alternatives, and that there is a very high likelihood that a properly instructed jury would have returned the alternative verdicts, had they been left.

So much is demonstrated in this case by the verdicts returned in Mr Cotter’s case, the co‑accused, albeit for different reasons.  It would have been a relatively simple matter in the present case for the judge to leave the alternative verdicts, in the applicant’s case as well, and to explain how they might arise.  We have set out, in response to our learned friend’s criticism that it would be a difficult task, we have set out in our reply how we say a relatively simple task that would be simply to explain the mens rea properly, to explain the matters relevant to the mens rea, to explain the leaving of the alternative verdicts without necessarily cutting across the principal defence.

In this case, the jury ought not to have been left only with what might have been regarded as an unpalatable choice between convicting the applicant of the commercial quantity counts and acquitting him outright.  In this case, whether by application of the principles developed thus far in the non‑homicide context to the leaving of alternative verdicts, or those applied in the murder/manslaughter context, like Gilbert and Gillard, the failure to leave the alternative verdicts, we say, resulted in a miscarriage of justice.

In Saad, which is one of the cases to which our learned friends have referred, to which we have referred as well – in the judgment of Justice Nettle at paragraphs 101 to 102 - the booklet is not tabbed, it is the ‑ ‑ ‑

HEYDON J:   It is the fourth case behind grounds 2 and 4, I think.  It is tabbed.

MR CROUCHER:   It is, indeed.  His Honour there sets out ‑ ‑ ‑

CRENNAN J:   What is the page reference again?

MR CROUCHER:   The page reference is 564, paragraphs 101 to 102, and over the page.  His Honour there sets out in some detail what he understands to be the authorities and how they can be synthesised on the question of leaving the alternative verdicts in non‑murder/manslaughter cases and he refers to the English Court of Appeal decision in Fairbanks, and of course there is Maxwell’s Case that went to the House of Lords as well.  But when one considers those criteria that his Honour sets out there, we say it is plain that the alternatives should have been left in this case whether you apply that test, or that series of tests, or the murder/manslaughter test for these reasons.

First, as we say, the alternative was open on the evidence, the alternative verdict, the lesser verdict.  Secondly, the alternative was not trifling, compared with the principal offence, indeed, trafficking simpliciter is a serious offence itself, carries 15 years gaol and there were two offences here.  Thirdly, a jury would hesitate to acquit in this case when faced with the choice between outright acquittal, and a conviction on the commercial quantity counts.  This was particularly so when the co‑accused, Mr Cotter, through his counsel, was effectively inviting a conviction for the alternative of trafficking simpliciter based on the notion that he withdrew partway through the enterprise.

No jury was going to acquit this applicant in circumstances where he, said to be the principal of this operation, is inviting a jury to acquit him outright where the co‑accused, said to be a lesser player but still significant, is inviting the jury to convict him of the simpliciter alternative, and see that no one, when that simpliciter alternative was raised in relation to Mr Cotter, on the basis of a failure to prove that he was involved throughout the whole period, therefore the actus reus was not proved for the whole period, no one thought “Well, what about the question of mens rea?  How would that apply?”  Why, because this issue had not been decided.  It was not decided until this case came to the Court of Appeal.

There is no forensic choice in this case.  It is plain that no one realised, as a matter of law, that the alternates were open on the evidence in this case.  So for all those reasons, we say it was plainly in the interests of justice to leave the alternatives of trafficking simpliciter and the Court of Appeal was wrong to conclude otherwise.

Finally, on this ground, and in any event, we say that if the principles in Gillard and Gilbert, the murder/manslaughter cases, were applied to the present case, and we say there is no reason why they should not be, then these verdicts would have to be set aside, no doubt.  But this Court has not yet considered the question of whether those principles do, in fact, apply in the same way to the non‑homicide cases.  There are differing approaches in different jurisdictions.  Justice Nettle sought to synthesise them in Saad, but if you look at the House of Lords, you look at the Court of Appeal in England, look at each State in Australia, there are slightly different variations getting around.  We say this is an opportune case ‑ ‑ ‑

CRENNAN J:   Do you set that out in your written submissions?

MR CROUCHER:   Yes.  In a footnote we have set out the authorities that set out all the different approaches.

HEYDON J:   Footnote 34, is it?

MR CROUCHER:   Yes, that is right, your Honour, page 171 of the application book, footnote 34.  So we say this is an appropriate vehicle to consider this issue.  It is an issue that arises daily in criminal practice.  It is an issue desirous of resolution.

As to the other two grounds, they are quite short points.  We rely on what we have written, other than to say this.  The first ground is simply a matter of construction as to whether or not a commercial quantity count can be proved by a series of simpliciter transactions when the elements of the offence are trafficking in a commercial quantity.  Our simple submission is that it must be a series of commercial quantity transactions to make a Giretti business of trafficking a commercial quantity.  Hamzy, of course, is to the opposite effect in similar legislation in New South Wales ‑ ‑ ‑

CRENNAN J:   Hamzy focuses on the continuing criminal enterprise.

MR CROUCHER:   Indeed it does, so it is a narrow point.  The last point - ground 3, which is the complicity point, again, our learned friends rely on Clarke & Johnstone.  If your Honours look at Justice McHugh’s judgment

in Osland where his Honour sets out the four heads of complicity at common law, there is no mention of anything like Clarke & Johnstone.  It is something that certainly existed in Victoria for some time, but the High Court has never pronounced on whether such a form of complicity is known to the common law at all.  Those are our submissions.

HEYDON J:   Thank you, Mr Croucher.  We need not trouble you, Mr Trapnell.

This application for special leave to appeal does not raise any question suitable for a grant of special leave to appeal nor do the interests of justice require any grant of special leave.  The application is dismissed.

AT 11.21 AM THE MATTER WAS CONCLUDED