McKenzie v The Queen

[1998] HCATrans 419

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S138 of 1997

B e t w e e n -

LESLIE COLIN McKENZIE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 20 NOVEMBER 1998, AT 12.08 PM

(Continued from 9/10/98)

Copyright in the High Court of Australia

MR G.D. WENDLER:   If the Court pleases, I appear for the applicant. (instructed by Peter Ash & Associates).

MR A.M. BLACKMORE:   If the Court pleases, I appear for the respondent. (instructed by the Director of Public Prosecutions (NSW)).

GAUDRON J:   Mr Wendler, we think we might be assisted by hearing from Mr Blackmore at this stage.

MR BLACKMORE:   Your Honours, we submit that there are three reasons why this is not an appropriate matter for special leave.  Firstly, this is not a matter following the recent decision of this Court in Fleming, which raises any matter of general importance or principle.

The two questions which were raised by the applicant in his submissions have now been addressed by this Court in Fleming.  They were matters of importance.  They no longer are.  And I can take your Honours, ultimately, to that judgment.

HAYNE J:   Do you say that, consistently with Fleming, this verdict can stand?

MR BLACKMORE:    Yes.  I will come to the individual verdict itself, yes.  The point of importance that was raised by the applicant, it seemed to me, was whether or not a judge sitting alone should specify in his judgment matters which are necessary for him to make his judgment, including factual findings and findings in relation to the law and the principles thereto.

HAYNE J:   Should he identify the elements of the offence in this case?

MR BLACKMORE:    And one of those matters would be the elements of the offence, yes.

HAYNE J:   And do you say he did?

MR BLACKMORE:    Yes, and it will need some explanation, but, yes I do say in this case that he did.

The second matter, and in a sense it assumes without conceding that there was an error of law in relation to that matter, the matter that your Honour has just raised, we submit that the failure of the judge to, in fact, apply that principle of law in this case would lead to the inevitable result that this Court would be then asked to consider whether or not there was a substantial miscarriage of justice which, in essence, is a factual range through the facts.  We do not have the factual material here, but ‑ ‑ ‑

HAYNE J:   Or may require consideration of what principles could be applied in applying a proviso in the case of trial by judge alone, where there is a failure of the kind asserted by the applicant here.

MR BLACKMORE:    Yes, although, again, that issue has been addressed, perhaps not in detail, but it was addressed in Fleming as well.  And, with respect, we would submit just in relation to that aspect of it, that this would not be an appropriate vehicle to proceed with, simply on a question of fact alone.  I will come to the Court of Criminal Appeal’s judgment in that respect.

Thirdly, and I might deal with this matter in more substance immediately.  We submit that in this case, in reality, the judge did set out the elements of the offence.  If I could go to the appeal book, page number 5 at line 20, his Honour set out the indictment.  The indictment in this case was a very simple indictment.  It, in essence, had two elements.  One, that the accused cultivated and, secondly, what he cultivated was a prohibited plant.  Both of those matters are dealt with on line 21 in the indictment.  There is an additional consideration here and that is that there was no issue in relation to the second element about it being a prohibited plant.  That necessarily followed from the defence that he did not know about these plants at all, so there was no issue in the case as to whether or whether it was not a cannabis plant.

GAUDRON J:   It is always, yes ‑ ‑ ‑

MR BLACKMORE:   There is always a issue.

GAUDRON J:   But there is a wider issue, though, than whether he knew that the plants were there.

MR BLACKMORE:    Yes, exactly.  And knowledge is, of course ‑ ‑ ‑

GAUDRON J:   And that is the problem with the way in which this judgment proceeds, is it not?  It almost assumes that because that was the only matter raised by the defence, that that was the only matter that had to be dealt with by the trial judge.

MR BLACKMORE:    No, with respect, I need to elaborate on that.  But, yes, that is an observation.  We say, with respect, not an accurate one.  He certainly spent, that is the trial judge spent a lot of time dealing with that issue and, we would submit, because that was the defence case.  But before he got to that issue, he did analyse the Crown evidence in terms of the circumstances which make up the Crown case.

HAYNE J:   And what did he find about cultivation?

MR BLACKMORE:    We submit he did not ever say, “I find, as a fact, that he cultivated.”  But we submit that, given the simplicity of the finding necessary, ie that whether or not he cultivated, the finding of guilt of itself is sufficient to say he must have implicitly found that he cultivated.  There was no other issue in the Crown case – substantial issue in the Crown case other than he cultivated.  And, therefore, by saying, “I find him guilty” is, in essence, in this case, perhaps only in this limited case where there is so limited elements and the facts of it are so concentrated onto that element, that you might be able to make such a submission.  But in this case, we submit, that that finding alone was sufficient.  In the judgment at ‑ ‑ ‑

HAYNE J:   Are we to read the judgment as amounting to a finding on your submission that the accused tended the plants?

MR BLACKMORE:    No.

HAYNE J:   What are we to read the judgment as finding in relation ‑ ‑ ‑

MR BLACKMORE:    That he cultivated the plant.

GAUDRON J:   Well, what does that mean?

HAYNE J:   Cultivate in any or which of the various senses?

MR BLACKMORE:    With respect, the section is an inclusive section.  But the word “cultivate” itself has meaning.  It is an English word.  He had no reason to set out any of the additional elements of cultivating under section 3 of the Drug Misuse and Trafficking Act.  He could simply have said, “I found the man cultivated.” in the English sense.

HAYNE J:   You see the difficulty I have with the reasons, I think, can be put in this way, Mr Blackmore.  It might reasonably be said that the defence’s case was not the strongest that has ever been put in a court, but there we are.  But what is it that the judge has found that this man did?  This man is going to have some time to reflect on those findings, in a place where ‑ ‑ ‑

MR BLACKMORE:    He has already done that time, I think.

HAYNE J:   He has done it, has he?

MR BLACKMORE:    Yes, I think so.  My friend might be elucidate that.  He was sentenced, I think, to a minimum term of four months.  I think the total term is something in the order of two years and a minimum term of four months.  I stand corrected, but that is ‑ ‑ ‑

HAYNE J:   What does he reflect on, what he has been found guilty of?  Cultivation?

MR BLACKMORE:    Yes.

HAYNE J:   “What did the judge find I’d done?”

MR BLACKMORE:    He set out, with respect, at pages 6 to 8 of the judgment.  I accept your Honour’s proposition that it must be implicit in the judgment because there is nowhere in the judgment you can find the words, “I find, as a fact, that this man cultivated a cannabis plant.”  But it is a necessary part of our submission that your Honours accept that that is the necessary implication from the finding of guilt, given the very limited circumstances of this case.  He goes about making that finding by first in analysing the Crown evidence.  He does so at pages 6 to 8 of the appeal book.

I will not just simply read it to your Honours, but there are a series of findings that he makes on those pages as to what was found on the property, for example, that there were nine plots in total located on his property, that he worked there, and lived there.  There were 128 cannabis plants in total.  The plots themselves were divided into sub-plots by means of plastic mesh.  The significance of the mesh itself was important because that was found, or identical mesh was found, in his sheds.  The nine plots were located around the property.

There are a whole series – I would no doubt bore your Honours to simply go through them all - but there is a whole series of circumstances which he finds sufficient to establish that the man has cultivated those crops.  And, again, I come back to the submission that, given the very limited elements of this case, the only element that was really in issue was “cultivate”, and the finding by his Honour that he was guilty necessarily implies he was guilty of cultivating.  If it would be useful, I will take your Honours to Fleming briefly ‑ ‑ ‑

GAUDRON J:   I think we are familiar with that.

MR BLACKMORE:   All right, thank you.  The only other submission that I have in relation to the application is that we are comfortably able to assert

that the Court of Criminal Appeal did, for itself, analyse the facts in the case.  If I could take your Honours briefly to page 29 of the appeal book where the Chief Justice, as he then was, considered the evidence, and this is about lines 10 to 15, noting that to him, the strongest argument seemed to be one that he was not guilty of cultivating, but had knowingly been concerned in cultivating.  Particularly, though, I wanted to address the next paragraph, where his Honour says, the answer to that question:

which is one that requires careful evaluation, lies in the detail of the evidence, particularly the evidence connecting the plots of cannabis and the methods of cultivation used with equipment and material which, according to the applicant, was used by the applicant himself.

Now the thrust, in my submission, is not whether that is right or wrong, but that we can comfortably assert that the Court of Criminal Appeal went through that evidence in some detail to reach the finding that his Honour reaches at the end of the page and that, in essence, what would be involved in a grant of leave here would be just the Court doing the same exercise again, and it is not an exercise, with respect, the High Court would normally do on a case where leave had been granted.  And we submit, for that reason, it is not an appropriate matter for a grant of leave.

GAUDRON J:   Yes, thank you Mr Blackmore.  Yes, Mr Wendler.  Is this not a single issue case, so that, in effect, the judgment can only be read as a finding as to the relevant element of the offence?

MR WENDLER:   No, your Honour.

HAYNE J:   What issues were agitated at trial other than the single issue of cultivate?

MR WENDLER:    Well, that was the only issue that was agitated, but that is not the issue here. The issue here is whether or not a judge sitting without a jury has complied with the mandatory provisions of section 33(2) of the Criminal Procedure Act.

GAUDRON J:   But that can be complied with if, as a matter of necessary implication ‑ ‑ ‑

MR WENDLER:    It is not even ‑ ‑ ‑

GAUDRON J:   That is so.

MR WENDLER:    The reasons for a judgment by the primary judge do not even go that far, in my respectful submission.

HAYNE J:   Could you answer the question I posed to Mr Blackmore?  This fellow contemplating his fate in jail, would he know what the judge found on the issue tendered at his trial?

MR WENDLER:    No.  In fact, what he understood the judge found and based his criminal responsibility on was what is identified on page 13 of the application book in the reasons for judgment of the primary judge at line 20, where it is expressed:

Having rejected the accused’s evidence I reject as being completely untenable the view that he did not know of the existence of these plots upon his land.

And it goes on further on page 14 at line 20:

It is inconceivable that, some of the plots being so close to his house, that he would not know of their existence at some time over the many months that they must have been there because they were quite an advanced crop.

In other words, this applicant thought he was convicted of cultivation on the basis that his version of events were rejected and he must have known of the existence of these Indian hemp crops.  In short, there has been a finding of guilt on a basis totally alien to the charge.

GAUDRON J:   Well, you pick that up but that really is the trial judge’s explanation for rejecting his evidence that he did not know.  The finding of cultivation is the inference drawn from the presence of the equipment on the property.  And what your argument would seem to go to is this, it would seem to say that in any circumstantial case, there has to be a more precise finding that cultivate.

MR WENDLER:    And that is exactly why this Court in Fleming at page 13, when identifying the legal effect of section 33(2) of the Criminal Procedure Act, said at page 13, as part of its fifth proposition of eight propositions raised in relation to the legal effect of section 33, at page 13:

Fifthly, whilst s33(2), when specifying that which a “judgment” must include, does not use the expression “reasons for judgment”, it should not be taken as intending that the requirements of s 33(2) be satisfied merely by a bare statement of the principles of law that the judge has applied and the findings of fact that the judge has made. Rather, there must be exposed the reasoning process linking them and justifying the latter and, ultimately, the verdict that is reached.

In short, the treatment by this Court in Fleming concerned the legal relationship between Part 9 of the Criminal Procedure Act and section 6 of the Criminal Appeal Act.  The Court of Criminal Appeal cannot effectively exercise its jurisdiction over a trial court if, in circumstances where there has been a trial by judge alone, when it, itself, does not have on the reasons for judgment, an adequate nexus between the law that is being applied to ‑ ‑ ‑

GAUDRON J:   What law?  This was a fact case, was it not?

MR WENDLER:    It was a charge of cultivation, but cultivation, apart from its dictionary definition, also – and this is set out in the argument at page 37 of the appeal book.  Section 3 of the Drug Misuse and Trafficking Act defines cultivation:

(a) sow or scatter the seed produced by the prohibited plant; and
(b) plant, grow, tend, nurture –

and so on. There was an obligation pursuant to section 33(2) of the Criminal Procedure Act to identify that activity that came within the ambit of section 3 and will ‑ ‑ ‑

GAUDRON J:   But then why is it not sufficient to say, “I find, by reason of the circumstantial evidence, that there was a cultivation” without going to the specifics involved?  There is no necessity to find that on Tuesday the 16th he watered them, and on Wednesday the 23rd he took the weeds out, and things of that nature, or that he planted the seeds or anything like that, is there?

MR WENDLER:    Yes, but there is no attempt to link those findings to the law which anchors the criminal responsibility on the face of the reasons for judgment.  That is the problem with it.

GAUDRON J:   But what else was there to do, other than to find that he cultivated them?

MR WENDLER:    His Honour was obliged to direct himself in relation to the definition of cultivation.  In other words ‑ ‑ ‑

GAUDRON J:   Why?  Is it an inclusive or exclusive definition?

MR WENDLER:    It is an inclusive definition.  It is specifically identified as being inclusive of such things as “plant, grow, tend, nurture and harvest”, and so on.  Now, in order to satisfactorily comply with the mandatory provision, as this Court has now held in Fleming, to comply adequately and effectively with Part 9 of the Criminal Procedure Act, there was an obligation to link that activity to the law pursuant to which he was charged.  It was not enough, simply, to give reasons for judgment which appeared to be, with great respect, vague and ambiguous and, in fact, suggest that criminal responsibility was made out beyond a reasonable doubt by reason that he knew of the existence of these plants.

GAUDRON J:   Well, that is not right.  If the trial judge had thought that, he would not have referred to the other matters.

MR WENDLER:    This is the problem. He refers, in passing, to some of those other matters and then he also refers to the fact of knowledge, the level of his knowledge, of the existence of these plants. You cannot be convicted in this State to cultivating Indian hemp just because you know there is Indian hemp plants growing on your property, or you know of the fact of the existence of Indian hemp plants. That is the reason behind section 33(2). The real effect of that section is to oblige judges sitting without a jury to focus upon the facts that are found proved beyond reasonable doubt, and link them to the charge which concerns the criminal responsibility of a particular accused.

Now this particular applicant, at the end of the day reading that judgment, cannot be criticised for coming to the conclusion that, well, I must have been found guilty because my evidence was rejected on the basis that I said I did not know that there were any plants growing on my property.  And nowhere in the reasons for judgment, for instance, is there an identification of section 3 of the Drug Misuse Act.  Indeed, nowhere is there even identification of the primary charge that is brought pursuant to that Act, namely section 25.  It is simply an assessment of evidence and, in part, is ambiguous to the extent that it appears to suggest that criminal responsibility was proved beyond a reasonable doubt by reason of a finding that he must have known that these plants were on his property.

So, it is my respectful submission that, having regard to this Court’s decision in Fleming, and the treatment by this Court of the legal relationship between Part 9 of the Criminal Procedure Act, and section 6 of the Criminal Appeal Act, the obligation today is that trial judges sitting without a jury are obliged, in my respectful submission, to proceed to make findings mindful of section 33(2) and, indeed, section 33(3) if applicable, in criminal trials where there is no jury. So, it is my respectful submission that Fleming is

apposite in the circumstances.  The application for special leave, in my respectful submission, should be granted and the appeal should be allowed.

GAUDRON J:   Yes, thank you Mr Wendler.

The Court is of the view that this was a single issue case and therefore the observance of the requirements of section 32 of the Criminal Procedure Act 1986 (NSW) is implicit in the trial judge’s reasons. Moreover, we are not satisfied that there has been any miscarriage of justice. Accordingly, special leave is refused.

The Court will now adjourn to reconstitute.

AT 12.31 PM THE MATTER WAS CONCLUDED