Mooseek v The Queen

[1992] HCATrans 69

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M36 of 1991

B e t w e e n -

ESMOND ARNOLD MOOSEEK

Applicant

and

THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ DAWSON J GAUDRON J

Mooseek 1 12/3/92

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 12 MARCH 1992, AT 9.58 AM

Copyright in the High Court of Australia

MR P.C. DANE, QC:  May it please the Court, I appear with my

learned friend, MR M.E. DEAN on behalf of the

applicant. (instructed by A. Crockett, Legal Aid

Commission)

MR M. ROZENES, QC:  May it please the Court, I appear with

my learned friend, MS B. KING for the respondent.

(instructed by Director of Public Prosecutions

(Commonwealth))

MASON CJ: Yes, Mr Rozenes. Mr Dane.

MR DANE: If the Court pleases. This is a two-pronged

attack upon the judgment of the Court of
Criminal Appeal which has, it is submitted,

permitted two principles that protect an accused to

be ignored. Both failings, it is said, of the

Court of Criminal Appeal go to the warnings that a

when similar fact evidence is admissible, and the second goes to the warning of impermissible prejudice arising from joinder in a multi-count indictment.

judge is required by authority to give to a jury. criminal propensity,

Once similar fact evidence, if we might go

first to that proposition, is admissible, it is

submitted that a warning is necessary to ensure

that a jury does not misuse that similar fact

evidence.

DAWSON J:	What sort of warning?
MR DANE:	It is our submission that a warning has got to be

given to a jury, whereby it can understand the

place that similar fact evidence has, identifying
to the jury the purpose that the Crown leads it and

then identifying what it is that experience has

demonstrated to those conducting courts that

criminal propensity has in the decision-making

process, so that a jury is confronted with that

experience and told not to use it for the purpose

that is impermissible, in our submission,

namely - - -

DAWSON J: Well, is that right? Criminal propensity is not

something the jury can take into account?

MR DANE: Quite, sir, but -

DAWSON J: Well, I do not understand that to be the case and

I said the opposite in Harriman. The propensity

may have to be of a particular sort and may have to

have probative value which transcends its

prejudicial value, but it is propensity evidence,

nevertheless.

Mooseek 2 12/3/92

MR DANE:  Yes, sir, and the evidence, when it so transcends,

is admissible.

DAWSON J: Yes, and once it is admitted, it is propensity

evidence and indeed, in this case, the evidence was

of propensity; the propensity of your client to

import heroin in vases put into a container with

cane furniture.

MR DANE:  Yes, well, thank you, sir, because that is

precisely the distinction that we wish to draw.	In
this case he was so charged and the facts upon which the Crown relied were the very facts that Your Honour has enunciated, namely, heroin inside
vases.	The similar fact evidence - - -

DAWSON J: We are talking now, just about - we are not

talking about the incident in Israel, just to get

it straight.

MR DANE: Well, yes.

DAWSON J: So, you can put that on one side.

MR DANE:  The 1977 Israeli matter can be just put to one

side.

MASON CJ: But you are not suggesting that a warning about

propensity should have been given in relation to

that evidence?

MR DANE:  No, Your Honour. The concern is that the evidence

of similar fact that had all the required

qualifications to fall within that description, was

the 1989 importation of furniture from the

Philippines. Included were vases or lamp bases

that had this peculiar aspect to it. Now, it was

led as a matter of identity, that is, this had such

a similar aspect to it, the 1989 matter, as to be

capable of pointing to an individual that would

have conducted this sort of importation and it was

never said, and it was disavowed in the submissions

in order to have this evidence admitted, that it

was for anything other than the system which goes

to identification.

However, then there crept into the evidence

the matter of Deveroli, who was linked with the

1989 importation, which was not an importation as

to heroin. But when Deveroli gets mixed up with it
it then transpires that Deveroli is a heroin

trafficker and then one gets involved with the

movement of Deveroli between Melbourne and Sydney,

the detection of PVC pipes with Deveroli, then the

detection of PVC pipes at Deveroli's sister's place

in Sydney, which had a tracing of heroin about it.

Mooseek 3 12/3/92

MASON CJ:  What was the subject-matter of the 1989

importation?

MR DANE:  The subject-matter of the 1989 importation was

cane furniture from the Philippines, which also had

in it, coincidentally, two of these lamp bases, but

it was not led as an importation of heroin. It was

led as a system of worthless furniture going to an
innocent agent and collected in a certain way from

a Manila hotel and the furniture was never really

the subject of any sale in Australia. It had all

the same trappings and - - -

MASON CJ: But it did not relate to evidence of concealed

heroin in the containers or the lamp bases, vases,

whatever you like to call them?

MR DANE:  No, but if we may say, that leaked out.

DAWSON J: That is an unfortunate way of putting it.

MR DANE: And in the end - and of course, it is that

leakage -

DAWSON J: Correct me if I am wrong. What happened was that

Deveroli was the man who was supposed to have taken

delivery of the container, is that right?

MR DANE:	Yes.
DAWSON J:	And then subsequently Deveroli, who is now dead,

subsequently in his luggage was some PVC piping,

which contained traces of heroin.

MR DANE:  Yes. Oh well, not his, but his sister's piping,

yes, but that is good enough, yes.

DAWSON J:  "And there was piping found at his sister's

place, which contained traces of heroin."

MR DANE: Yes.

DAWSON J: Evidence was then led to show, in the form of

Deveroli's notebook and diary, that he was dealing

in large sums of cash, and that he had connections

with the accused.

MR DANE:  Yes. It was patent that he was a drug trafficker

and it ended up that, that was just taken.

DAWSON J:  So really what the Crown was saying was, well

here is a drug trafficker who takes deliveries of some cane furniture and vases and he is connected

with the accused.

MR DANE:  Yes. And what we are saying is that, when the

Crown has been able to demonstrate that it has got

Mooseek 12/3/92

a system and therefore can have the appropriate

evidence by way of similar fact, then that is one

thing. But when it does have the additional

difficulties that emerge from that - which was not

the basis upon which it was admitted - it requires

a warning so that the jury will not misunderstand

it.

DAWSON J: Yes, well, we are not talking about the

admissibility of the evidence; - - -

MR DANE:	No.
DAWSON J:	- - - we are talking about the lack of a warning.
MR DANE:	Yes, sir.
DAWSON J:	Now, will you tell me what the judge ought to

have said; what you say he ought to have said.

MR DANE:  Yes. You have been told about a 1989 importation,

which has a number of features about it, enumerate

the features, that enable you, by way of inference,
to use it to, if you accept all those things, to

identify the person who is engaged in the Gibb

importations, 1983/84. You will have also heard

evidence about Mr Deveroli, and that which Your

Honour has just enunciated. It is no part of the

Crown case that this importation had anything to do with heroin. It is well recognized - and the sort

of warnings that one has about accomplices - that

those experienced in the law have found that when
prior convictions or subsequent convictions or

subsequent criminal activity gets before a jury,

you might be attracted to make your decision upon

that basis, and that basis alone. That is, you

might be attracted to make a decision on evidence

about another criminal action. You have heard

about it and I ask you to put it, as a matter of

law, out of your mind.

DAWSON J:  But you cannot do that. I can understand the

submission that the trial judge ought to have said,

well this 1989 instant is not alleged to be an

importation of heroin, if that is the case. All

that the Crown are alleging in relation to that is

that there was an importation of cane furniture

with vases in it with which the accused was

connected. In other words, that this was - as you

have put it - the system, once again, and the

prosecution would be asking you to assume, since he

was using the system on that occasion, and it is so

similar to the system which they are alleging on

another occasion, that one and the same man was

involved, but you cannot, from the 1989 incident,

allege that there was any propensity to import

heroin. But that is one thing, but to say there is

Mooseek 12/3/92

a system is alleging propensity on your client's

behalf, at least if not heroin, to import vases in

containers which are filled with cane furniture

from the Philippines.

MR DANE:	Yes, Your Honour.
DAWSON J:	And to say system, that is only another way of

saying that he had a propensity; this was the

system he used, but - - -

MR DANE: But, it was not led as a -

DAWSON J:  As I understand, the Crown did not allege - or

this is what you have told us - in relation to the

1989 incident, that it had anything to do with

heroin.

MR DANE:  That is the way in which the evidence was admitted

and that is the basis upon which it was put.

However, unfortunately, in the address to the jury,

it was seized upon and it was used.

DAWSON J:  But, do you say that it would be wrong to say to

the jury, "Now the Crown puts forward this
evidence, as evidence of a propensity on the

accused's part to import this type of vase, with

this type of furniture." - you would say that would

be wrong?

MR DANE:  No, the distinction that we draw to this Court's

attention is the difference between the propensity

in this case was a non-criminal propensity; that

is, an importation, which has no criminal aspect to

it at all, as far as the Crown was concerned. It

has nothing to do with a crime, in itself, and

therefore there was no problem as to leading other

criminal activity to demonstrate a criminal

propensity. The purpose here was a non-criminal

propensity; that is, a commercial propensity to

engage in commerce in a certain way, to identify

what we say was a criminal activity on a previous
occasion.	And so, it is just the distinction

between a criminal propensity and a propensity to

engage in importation of furniture in a certain

way, and so -

GAUDRON J: So, if you put it like that, Mr Dane, it has got

nothing to do with similar fact evidence at all,

but with the particular evidence in this case.

MR DANE:  Yes.

GAUDRON J: That is to say, the evidence, not having

established a criminal enterprise in 1989, or the

Crown not having claimed it - - -

Mooseek 6 12/3/92

MR DANE: Well, the Crown disavowed it.

GAUDRON J:  Disavowed it - then something was required by

reason of that, in the circumstances of this case.

MR DANE:  I am sorry.

GAUDRON J: Well, the point I am making to you is there is

no matter of general principle advocated in this
case; no matter relating to similar fact evidence

itself, which brings a necessity for a direction of

the kind you now say should have been made.

MR DANE: Well, only this, that criminal propensity has got

into this case and we say that in these

circumstances there should well be a warning and

the Court of Criminal Appeal should have said,

there was an omission here, and we ask that this

Court say, yes, there should not have been such an

omission. The court below said that they were

prepared to tolerate it and we ask this Court to

say, no, that cannot be tolerated.

GAUDRON J: But you did not seek any further direction about

it and the Crown disavowed reliance on it.

MR DANE:  To have it put in, but not in their submission to

the jury and the Full Court clearly found that,
that the Crown had, in fact, used it in their

submissions. On page 37 of the application book:

It was said that the Crown did not invite

the jury to conclude that heroin was imported

in 1989. However on this aspect, applicant's

counsel drew our attention to some parts of

the prosecutor's address to the jury. We

think it probable that the jury would have

understood that they were being invited to

find that heroin was imported in 1989.

DAWSON J:  It mystifies me, but how did the evidence about

Mr Deveroli's activities get in?

MR DANE:  The purpose of Mr Deveroli was, first of all, as I

understand it, as one who sent large sums of money

to Mr Mooseek at a time when Mr Mooseek had left
the jurisdiction and it was said that, of course,

Mr Mooseek having left the jurisdiction after he

had been arrested on these matters and with grant

of bail, that of course was - the fact that he had

left the jurisdiction was one point that was called

against him. There was this connection with

Deveroli sending large sums of money to him and

once Deveroli was there, over the objection of the

applicant's counsel at the time, Deveroli's part

was expanded upon, and that involved vast numbers

of bank clerks coming along saying how money was

Mooseek 12/3/92

transferred by Deveroli to the applicant, using

another name, and a large number of other people

around the world, and so Deveroli came in at the

edges and then -

DAWSON J:	But Deveroli's evidence was not - correct me it I am wrong - led to prove that the 1989 importation
was an importation of heroin, but led for other
purposes?
MR DANE:	Yes, sir; he was just associated with the 1989

importation.

DAWSON J: Yes.

MR DANE:  And so he was a character in the case and his part

was told to the jury - - -

DAWSON J: But the inference was clearly there on the

evidence that the 1989 importation was of heroin

and you say that that is the inference that the

jury should have been warned against making.

MR DANE:	Yes.
DAWSON J:	Not because of any question of similar fact, but

because the Crown did not put it that way.

MR DANE:  Albeit that they ended up using it that way. On

that analysis - and perhaps we are grateful for the

Court's analysis in that way - on that analysis it

is not a similar fact situation; one just has an

inadmissible piece of propensity and no warning to

cover it and it is all put under the guise of a

similar fact.

If we may refer you to Your Honour's judgment

in Harriman, (1989) 167 CLR 590, and in particular

Your Honour's judgment at page 604, point 3 on that

page. Your Honour was dealing with the letter that

passed between the accused and another in prison

and as to the inadmissibility of that letter Your

Honour there said:

If the objectionable material so predominates

that it would be unfair to the accused to

admit the document in evidence notwithstanding

its relevance, then it should be excluded.

Otherwise the document may be admitted, but the jury should be clearly warned against the

use of the objectionable material in an

impermissible way, preferably both at the time

the document is admitted and in the judge's

charge at the conclusion of the evidence.

And so, in one way or another, this evidence got before this jury and there was no warning as to the

Mooseek 12/3/92

way it should be used, and of course relying as we

do in that judgment in that - - -

DAWSON J: Well now, can we just analyse that. If the jury

1989 importation was not only an importation of vases, but of vases containing heroin and that the

concluded on the evidence, despite the fact the the

accused was connected with the importation, are you

saying that, that being the situation, the trial

judge should have directed the jury that they

should not infer, if that is what they found, that

your client had a criminal propensity to import

heroin in this way?

MR DANE:	Yes, sir.
DAWSON J:	But that would be flying against the facts, would

it not?

MR DANE: Well, with respect - - -

DAWSON J:  I mean, that was the point in Harriman. Since

Boardman's case, it used to be thought that

propensity evidence was inadmissible, because it

was not relevant and you had to establish it

falling in some other category of relevance to

rebut a defence and so on; those categories that

are mentioned in Lord Hailsham's judgment, in

Makin, but that is a very old fashioned view

nowadays. Nowadays it is admitted that propensity

evidence is admitted as such, so long as it goes

beyond just a mere propensity, the prejudice of

which is greater than its probative value.

MR DANE:  We may be at cross purposes and in furious

agreement at the same time. Certainly the

proposition of law that Your Honour has referred to

is not something that we challenge here. What we

say here is that propensity has been put forward,

riot on the basis that it has got the propensity,

but on a completely different basis and it comes in

flying under, what we now say, false colours. It

comes in under similar fact and a propensity arises

therein and we say it is incumbent to have a

warning that when that arises, that the similar

fact can be culled from the propensity.

Now, it is submitted that one will never know

that if the Crown had said, "We wish to lead the
evidence in 1989 of propensity", in the strict

sense that Your Honour now refers to, that is, "We

say that while we are not charging with an

importation of heroin in 1989, we will prove an
importation in 1989, but it comes in under false

colours." Now, if it comes in under false colours,

and it may well be admissible on the principles

Mooseek 9 12/3/92

that Your Honour has just said, then it should be

explained to the jury, and that is all we really

say.

GAUDRON J: But it did not come in, in this case, under

false colours at all; it came in on the basis that

there is a distinct method employed by this man

when he wants to import certain things from one

country to another.

MR DANE:  Yes.

GAUDRON J: It does not matter what the things are, it got

there as a distinct method, and so distinct and so

individualistic that it is improbable that when you

find these vases being used on another occasion,

that it was anybody else who was doing it. They

are the colours under which it got into evidence.

But, what happened in this case has got

nothing to do with similar fact evidence at all, as evidence about which you did not seek a direction.

MR DANE:  That is another matter which we clearly have to

address, but we do not quibble here, albeit in the

court below we did, as to the admissibility of that

system. It clearly does point, but it is a system

that does not disclose - and there is no need for

it to disclose - any criminal activity whatsoever.

GAUDRON J: Well, you say that; prima facie it involves

breach of the Customs Act, prima facie, does it

not?

MR DANE: Well - - -

GAUDRON J:  I mean, it does not matter what is in it, but

prima facie one - - -

MR DANE:  I suspect that my knowledge of the customs

regulations is about the same as the average juror

and I would be unable to answer you accurately.

GAUDRON J: Well, prima facie, people do not go around

slipping odd items into somebody else's consignment

of goods.

MR DANE:  On the evidence, I do not think that it was in any

doubt whose consignment it was, because one of the

individual facts that pointed back to the accused

was that it was he who in fact was the consignee to

an innocent agent. The point that we wish to make,

of course, is that it is pretty high stakes which

this case is concerned with and it is not as if one is dealing with a theft of a watch from Myers; this

is a case where there are life sentences at stake

Mooseek 10 12/3/92

and where, in the rub of a case where the stakes
are so high, that coincidentally the very offence
for which he is being tried is led in evidence

against him, is no doubt a very potent piece of

evidence, and of course, if we had our time over

again, there would be the argument as to whether or not that could be led against him, as to whether or

not its prejudicial effect was greater than its

probative effect. In any event - - -

MASON CJ:  Mr Dane, we have spent a good deal of time on the

first point; perhaps we ought to explore whether or not the second prong is any sharper than the first.

MR DANE:  The next matter was the need, we say, for the

warning in questions of joinder. The prejudice of

joinder is, no doubt, well understood and

appreciated by this Court. We seek to identify

three classes of prejudice; the mere multiplicity of criminal charges necessarily carries with it a prejudice that has been well recognized. The next

prejudice that we say is that the finding of guilt on one of the counts to support a finding of guilt on another is a recognized difficulty in the

joinder of many counts and, of course, then

thirdly, the chance of admissible evidence on one

count being inadmissible on another, but being used

by the jury on that other, and that is another

recognized prejudice in relation to joinder.

Now, it is submitted that when one has a

joinder of this class then warnings are necessary
in order to avoid the jury turning to those

prejudices to decide the case rather than to the

evidence. We say that, in this case, the only

warning about this matter was encapsulated in the
standard form of consider each charge separately

and then the sort of warning that is set out in the

judgment of the Court of Criminal Appeal below,

where it says that there was basically the warning

going to the second class that we have identified,

that is, finding guilt from one to another. And

that is the sort of warning that is recognized in

Sutton's case, where there were three counts and

the evidence of one relates to the next count.

There is a sequence of offences, but we say that in

this case there is no such sequence as in Sutton,

with those ropes, and similarly in Vaitos' case in

Victoria. And there was a Vaitos-type warning or

direction given.

Of course we turn and rely upon the

proposition emanating out of Sutton's case.

Justice Brennan enunciated the proposition and of

course affirmed in De Jesus where the evidence is

not admissible towards proof of his guilt of the

other offence, some steps must be taken to protect

Mooseek 11 12/3/92

the accused person against the risk of

impermissible prejudice. Now the critical thing,

of course, there is whether or not there is

evidence that might be used one to another, and if evidence can be used one to another, then there is probably no problem, but when it cannot be used one

to another, then there has got to be a warning that

covers that difficulty.

DAWSON J: Well, I know it was not approached in this way,

but why was the evidence in this case not available

to be used one to the other, as you put it? I

mean, the method of importation was so striking

that you really could not conclude that it was not

one man who committed each of the offences and,

indeed, the 1989 one, if it was put on that basis.

So it is really rather more a Sutton's case than

any other.

MR DANE: Well, the difficulty about that is that that is

not the way in which the case was - - -

DAWSON J:  No, I appreciate that, but it probably underlies

what the Full Court said, that in this particular case if the direction were given that you now say

should have been given, it would have been more

harmful to your client then helpful.

MR DANE:  Well, with respect, we would not accept that. One

does not criticize appellate courts of any colour

that said, "Well really you have done pretty well

about the law being ignored on this occasion

because your client would be in more trouble".	We
say that on a higher level than that it is

appropriate that the law be given its appropriate

airing where it is required.

DAWSON J:  What I am suggesting to you is that that is the

way they approached it, but in truth, in this

particular case it may not have been a direction

which could have been given, that it is a

Sutton-type case; that given these sets of facts,

if you establish them, then the same man is

involved in all of them.

MR DANE: Well, the difficulty that we have with that is

that the court below recognized that the large body

of evidence was not admissible one to another. It

made that proposition. Having come to that

conclusion, we say that in those circumstances,

then these warnings have to be given, and the

difficulty about that is that if a subsequent court

reads that judgment and says, in Mooseek's case

there was, according to the judgment, evidence in

one was not admissible in the case of another and

no warning was given, therefore there is a class of

case where that can happen, distinguishing what the

Mooseek 12 12/3/92

approved proposition in Sutton to be. That is,

Sutton tells us that where evidence in one is not

admissible in another then there has got to be a

warning about it, and then here we have got a

hybrid case of Mooseek, of where the Court of

Criminal Appeal in Victoria said, "Yes, you can

have that situation and still not need a warning",

drawn to the Court's attention - that is Reg v

and that is a circumstance that has arisen in South

Jacobs, (1987) LSJS 14. That was a case of

misrepresentation and fraud and that case was drawn

to the attention of the court below and on page 26

of the report, and page 13 of the judgment the
learned Chief Justice, with whom the other members

of the court agreed, concluded that it too was a

case where evidence in one was distinguishable from

evidence in the other, and yet concluded that in

the absence of a warning, it was satisfactory

because the prejudice in the present case was
minimal, a conclusion with which the court below in
the present case agreed and said it was being

benign and generous to the accused.

Now, we say that the Court of Criminal Appeal

is not a benign dictator and says what is a good

thing in a particular case -

DAWSON J:	I think you have made that point, yes.
MR DANE:	So, if there is a warning to be given and it is

obliged by a decision of this Court, then it is

not, we say, for that court to pick and choose the

moment when they decide to use it. What we say is

the problem that arises from the joinder

propositions that we put here is that one has a

hybrid case that one can see flourishing in another

jurisdiction, and we only draw Jacob's decision to

this Court to indicate that it is not the only time

where it has happened and, accordingly, we say that

there is a special leave point here where this

hybrid seems to be grafted on to the existing

propositions that have emanated from this Court.

If one steps back and sees it as a two-pronged

attack, that here we have a case where there has

been high stakes, serious case, where there is a

large volume of evidence, where there is a great

many charges and where the absence of two warnings

has, in our submission, clearly brought about a

miscarriage of justice, and this Court can grant

special leave in this case in order to ultimately

overcome that miscarriage of justice by saying that
there has been a development of the hybrid with

which this Court does not agreed. They are the

matters that we wish to draw to the Court's

attention.

Mooseek 13 12/3/92

MASON CJ:  Mr Rozenes, could we hear you on the first

submission that has been put on behalf of the

applicant.

MR ROZENES:	If it please the Court. May we make these observations in relation to facts. Firstly, it is
clear in our submission that the Crown did not seek to prove that the fourth 1989 importation was one
involving drugs. It could not do so, there was no evidence of that fact and it did not attempt to do
so.  What it attempted to do was to demonstrate
that the accused was a smuggler and that he used a
certain way in which to smuggle goods into this
country and that there was ample evidence to prove
he was involved as a smuggler in this 1989
transaction, and the identical means were used to
import the two 1983,1984 importations of heroin.
So, in that sense, as Justice Gaudron makes the
point, it was a similar fact case because it
demonstrated, in our submission, that the person
involved in the two heroin importations was the
same person who was involved in the admitted 1989
importation.

The fact that the question of heroin, as it

were, slipped into the case was through no fault of

the Crown. In fact, fault lay fairly and squarely
at the feet of the defence and the point was made

by the Court of Criminal Appeal in dealing with

this matter at application book, page 41. The

aggravating feature one imagines of that evidence was PVC piping has traces of heroin, therefore it

was being suggested Deveroli was an importer of

heroin or that the pipe had been used in the course

of the importation of heroin. Half-way down the

page:

On the question of the admission of

evidence that traces of heroin were found in

P.	V.C. piping seized by police during a search
of the Sassoon Flat (where Deveroli had been

living) it is necessary to refer to the

circumstances in which that evidence was led.

The evidence was not opened by the

prosecutor to the jury. However when the

trial was well advanced a discussion occurred

in the absence of the jury as to whether the

Crown would lead this evidence. The matter

was raised by counsel for the applicant, who

was told by the trial judge that the

prosecutor had said she was not going to lead

that evidence. Counsel for the applicant

responded in terms which were interpreted by

the prosecutor (quite reasonably in our view)

as a threat that adverse comment might

thereafter be made to the jury concerning the

Mooseek 14 12/3/92

Crown's failure to call that evidence. The

prosecutor then stated that "we had determined

that perhaps that was dangerous evidence to

lead. As a result of the complaint we have

to seriously think about whether we do lead

it". In the discussion which followed, the

judge invited later argument, and defence

counsel intimated that he did not wish "to be

constrained by any suggestion that we have

sought that that not be led".

There the matter rested, until some days

later when the analyst was called as a

witness, and without further objection, gave

evidence that traces of heroin were found in

three of the four pieces of P.V.C. pipe.

Now, they are the circumstances in which the question of the so-called impugned impermissible

evidence of drug dealing was brought into the 1989

importation. The Crown case is simple. The Crown

case is this man is a drug dealer. Over a period
of time, three importations and four separate sets

of trafficking. In the circumstances it simply

said that all evidence that tends to establish that

fact is admissible on any one of the counts and no

harm would have been done, for example, if there

had been one count of trafficking between the

outside dates, although there had to be a number of

counts of importation.

Now, to take Your Honour Justice Dawson's

point. It is hard to understand what warning could

have been given in the circumstances by the learned

trial judge. The fact was the Crown relied upon

the so-called objectionable material in proof of guilt of the other charges; in proof of guilt of the fact that the man was a drug trafficker and it

would be very difficult for the judge to have said,

"This is how the Crown puts its.case.	Of course,
you cannot use the fact that this man is a smuggler

against him". That is the very issue that the

Crown was seeking to use against him.

They are the only matters I want to say about

the facts, but what I did want to say something

about is the special leave point as it has been

formulated. We would submit that, first of all,

there is no point of general importance involved in

this appeal which, if wrongly decided would

seriously interfere with the administration of

criminal justice. The law relating to similar fact

evidence is clear and nothing has been said by the Court of Criminal Appeal, in our submission, which

raises any issue in relation to similar fact

evidence available for debate. It cannot be said,

in our submission, that the Court of Criminal

Mooseek 15 12/3/92

Appeal has, in effect, created a set of directions

that might be followed either by courts in this

State or might be seen as being persuasive

authority by courts in other States that would in

any way undermine what this Court has said in

clearly unambiguous terms is the role played by

similar fact evidence in the courts.

MASON CJ: Well, the case is not presented on that footing

anyhow, Mr Rozenes.

MR ROZENES:  The ground of appeal was presented on that

footing, Your Honour. The case is now being presented on the basis that there has been a

fundamental miscarriage of justice.

MASON CJ: Yes. That is what I mean. It is not being

presented on the point of principle at all.

MR ROZENES:  Your Honour, the only material that we have

before us demonstrates this was an overwhelming

case against the accused and that any attempt to

have given the standard directions called upon would simply have demonstrated that fact in no

uncertain terms to the jury. There is no material

before this Court to demonstrate that not to be the

case. The fact is, it is an overwhelming case

against the accused and a highly prejudicial one at

that. They are the only matters that we would seek

to put before the Court in relation to that matter.

MASON CJ:  Yes. Thank you. Do you wish to respond,

Mr Dane?

MR DANE: There would be a factual dispute as to the order

of events that brought about the submission on fact

from our learned friend.

MASON CJ:  It does not make it a very likely case for

special leave.

MR DANE: Well, I would not want to have to argue that as

the basis upon the special leave point, but the

answer to the special leave point was a submission

on the facts. Perhaps it is just sufficient to

say, we disagree with that interpretation, it being

the interpretation that was placed upon it by the

court below and we say that that was a

misinterpretation and so, in the event that special

leave was granted, then the order of facts that
brings about those propositions would be in

dispute.

MASON CJ:  Thank you, Mr Dane. The Court will take a short

adjournment in order to consider the case.

AT 10.45 AM SHORT ADJOURNMENT

Mooseek 16 12/3/92

UPON RESUMING AT 10.54 AM:

MASON CJ:  The first ground put forward in support of this

application for special leave to appeal is that the

trial judge should have warned the jury not to use

the evidence of the 1989 importation as evidence of

criminal propensity. In evaluating the

significance, if any, of the trial judge's omission

to give such a direction, it is of prime importance

to note that the experienced counsel who appeared

for the applicant at the trial did not ask for a

direction along the lines now contended for, and

one can understand why he may well have considered

that such a direction would disadvantage the

applicant by focussing attention on this aspect of

the evidence.

The second ground is that the trial judge

failed to warn the jury of the impermissible

prejudice that would flow from using evidence

relevant to one charge in considering another when

that evidence was not admissible on the other

charge. The trial judge did give a direction in

these terms, "Each count must be considered

separately in the light of the evidence that

applies to it". No further direction was sought.

We are by no means persuaded, having regard

to the nature and relevance of the evidence in question, that such a direction was called for.

However, assuming that it was a case in which the

judge should have given a direction of the kind

contended for, had it been sought, we agree with

the Court of Criminal Appeal in thinking that, in
the circumstances of the case, the omission to give

the direction did not occasion a miscarriage of

justice. The application for special leave to

appeal is therefore refused.

MR DANE: If the Court please.

AT 10.56 THE MATTER WAS ADJOURNED SINE DIE

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Mooseek 17 12/3/92