Moses v The Queen

[1993] HCATrans 372

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No MSS of 1993

B e t w e e n -

ANTHONY MOSES

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DAWSON J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 9 DECEMBER 1993, AT 2.55 PM

Copyright in the High Court of Australia

Moses 1 9/12/93

MR T.F. DANOS:  If the Court pleases, I appear with my

learned friend, MS J.A. PERLMAN, for the applicant.

(instructed by Valos Black & Associates)

MR R.J.H. MAIDMENT:  If the Court pleases, I appear with my

learned friend, MR D.J. LANE, for the respondent.

(instructed by M. Rozenes, QC, Director of Public

Prosecutions (Commonwealth))

DAWSON J:	Mr Danos.
MR DANOS:	If the Court pleases.  I would not want it to be

said that we were going to argue in a sense the

short cut version in that the issues that

Your Honours have just heard about Kesavarajah and

his fitness to plead very much impact on the

position so far as this applicant is concerned.

That is that the issue of Kesavarajah's sanity was

very much an issue in the trial so far as the

defence of the applicant Moses was concerned, and

it is that ground which I would seek to deal with

first, which appears in the application book as

ground (iii) which appears on page 307 of the

application book in the affidavit and page 313 of

the summary of argument.

TOOHEY J: Where does it appear in the draft notice of

appeal, Mr Danos?

MR DANOS:  In the draft notice of appeal, Your Honour, it is

(iii) at page 327.

TOOHEY J: But it is not formulated as other than a question

of admissibility of evidence.

MR DANOS:  Yes. The reason that it is formulated that way,

Your Honour, is because at the trial it was sought

to lead evidence from Dr Walton.

TOOHEY J: Sought by whom?
MR DANOS:	Sought initially by counsel who acted for a

Dr Khoosal, Mr Priest. Dr Khoosal was charged on

the importation count only. In fact he sought to

lead evidence from Dr Walton and it was also sought

to be cross-examined by counsel acting for the

applicant Moses, and in fact it is material that

ought to have been in the appeal book.

DAWSON J: Let us get it - Khoosal's counsel sought to call

Dr Walton.

MR DANOS:  Yes, called him on the voir dire, Your Honour.

Moses 2 9/12/93

DAWSON J: Well, call him and a voir dire was held to

determine whether he could be called or should be

called.

MR DANOS:	Yes.
DAWSON J:	What was the evidence given at the voir dire?
MR DANOS:	The evidence that was given on the voir dire was

to the effect that - what he had observed in 1992.

It was also evidence - - -

DAWSON J:	Who had observed in 1992?
MR DANOS:	Dr Walton.  What was also put is that material

from the listening device tapes, the material that

was on the tapes, particularly the tape of

11 October 1990, that material had been put to

Dr Walton. The conclusion that was being sought to

be obtained from Dr Walton was to the effect that

that was consistent with his diagnosis of the

psychotic condition that he described.

DAWSON J:	What was the point of all this?
MR DANOS:	The point of all of this was - the defence

basically being run by the applicants was they did

not take Kesavarajah's ramblings and rantings

seriously, that this man had delusions of grandeur,

that he constantly spoke in these highfalutin,

grandiose terms, but nobody ever took it seriously,

that it was part of the way in which Kesavarajah

conducted himself. A lot of the time he was under

the influence of alcohol and these were discussions

that were wide ranging over a number of topics

including at some stages - - -

DAWSON J:  What was the evidence of - we have not got, I

think, the evidence that Dr Walton gave.

MR DANOS:

No, that was - - -

TOOHEY J: Just before you take us to that, on what footing

does the present applicant seek to advance as a

ground of appeal the rejection of evidence sought

to be called by a co-accused who is not an

applicant either in the immediate proceedings or,

as I understand it, not an applicant at all to this

Court.

MR DANOS:  No, he was acquitted, Your Honour; Dr Khoosal was

acquitted.

TOOHEY J: Yes, I understand that.

MR DANOS:	What occurred was that counsel - - -
Moses	9/12/93
TOOHEY J:	I am not asking you what occurred, Mr Danos; I am

just asking you on what footing your client now

seeks to rely upon the rejection of evidence sought

to be called by a co-accused as a basis of a grant

of special leave to appeal to this Court.

MR DANOS:  Because on the application that was made by

Dr Khoosal's counsel, there was cross-examination

of Dr Walton by counsel for this applicant Moses,

which material, it was said, was relevant to his

defence. That is the material in this part of the

application book that should have been filed but

had not been filed. Counsel for Moses, this

applicant, cross-examined Dr Walton on the voir

dire. In the course of that cross-examination he

put to Dr Walton aspects of the incriminating - - -

DAWSON J:  How did you get to a voir dire? Who was to call

Dr Walton if he was to be called?

MR DANOS:  At that stage it was going to be counsel for

Dr Khoosal.

DAWSON J: This was in the defence case? MR DANOS: This was in the defence case.

DAWSON J: Why did you need a voir dire?

MR DANOS:  Because it was objected to by the Crown. The

Crown anticipated this evidence and objected to it.

TOOHEY J:  So it is not even evidence that you sought to

call; it is other than is sought to be extracted by

cross-examination.

MR DANOS:  If it had not been called by Dr Khoosal, then it

may well have been that this applicant would have

called the evidence, but the vehicle having been

opened by the fact that Dr Khoosal was going to

call the evidence, this applicant was going to take

advantage of that situation in that obviously he

could cross-examine the - - -

TOOHEY J:	No doubt, but my earlier question still stands. How is that the foundation for a grant of special
leave to appeal to this Court?
MR DANOS:	Because there was material there from the voir dire that was directly relevant to the defence of
this applicant that had been excluded by the ruling
of the trial judge.  The trial judge ruled that
this material - that all of the material in
relation to Dr Walton - could not be led before the
jury including the application - the application was joined by all counsel for the defence,

Moses 4 9/12/93

including Kesavarajah's counsel, that this material

of Dr Walton's should be put before the jury.

DAWSON J: This all relates to - Dr Walton examined

Kesavarajah some time in 1992, did he?

MR DANOS: Correct.

DAWSON J:  And the events we are talking about took place in

1990?

MR DANOS:  Yes, Your Honour.

GAUDRON J: But how could Dr Walton's evidence of

Kesavarajah's mental state be relevant? I mean,

certainly if the issue was what the co-accused
thought, they could give evidence about it or make

a statement about it and I dare say there could be

evidence as to how Kesavarajah in fact behaved, but

why Dr Walton's evidence?

MR DANOS:  Because this could be put as objective material

that supported the view that was taken of

Kesavarajah's state of mind.

GAUDRON J: But it was not his state of mind that was

relevant; it was the co-accuseds' state of mind

that was relevant.

MR DANOS: In our respectful submission, it was both. It

was the applicant's state of mind that was relevant

and it was also the state of mind of - the view
that the applicant took of the co-accuseds' state

of mind.

DAWSON J:  And that is what being put to you. It was the

co-accuseds' state of mind that was important.

They could give evidence about that themselves.

MR DANOS:  Of course they can but

DAWSON J:	And they could give evidence of the behaviour of the man.
MR DANOS:	What Dr Walton's evidence did, with respect, is

that it lent support to the view that they took of
the co-accused, namely that this was a man who we

did not take seriously who had to delusions of

grandeur, and the objective medical evidence

supported that proposition.

TOOHEY J:  Mr Danos, how did the Court of Criminal Appeal

dispose of this matter?

MR DANOS:  We would submit that the Court of Criminal Appeal

disposed of this by simply avoiding the issue and

they did that - - -

Moses	9/12/93
TOOHEY J:	You mean the judgment does not advert to it at

all?

MR DANOS:  They do not advert to the way in which this

applicant wanted to use the material. It appears

at pages 256 and 257 of the application book. It

actually starts, Your Honour, at page 255.

Your Honour will see at line 20, which is ground 5.

TOOHEY J: The crux of it seems to be at the top of

page 257.

MR DANOS:  Yes, the crux of it is. What the Court of

Criminal Appeal does is it introduces what we

submit is an· irrelevant consideration. It

introduces the way in which it was argued on behalf
of Rajah - the reference there to Rajah is the

reference to Kesavarajah.

TOOHEY J: That is a different matter. Page 257 is dealing

with counsel for Moses basing her application on a

submission that is there spelt out. Do you have

any quarrel with that as a statement of the basis

of the application made by counsel for your client?

MR DANOS:  No. Where we take issue with the Court of

Criminal Appeal's judgment is in the next two

lines. The court there says:

His Honour appears to have treated the

doctor's evidence as not being relevant - in

the sense that it could not supply the

material upon which reliance had been

postulated. This much was conceded before us.

In other words, the capacity to enter into an agreement, not - that is what His Honour the trial

judge dealt with, the capacity to enter into an

agreement.

DAWSON J:	I do not read it that way at all.
GAUDRON J:	No .
TOOHEY J:

it could not supply the material upon which

reliance had been postulated.

DAWSON J: And that is preceded by the sentence:

counsel for Moses based her application on a submission that the doctor's evidence tended

to support a relevant belief in her client.

MR DANOS:  But with respect, Your Honours, the sentence

which says, "This much was conceded before us",

Moses 6 9/12/93

that was not the concession that was - the

concession that was made before the court was that

the learned trial judge had not dealt with the

applicant's argument. He had simply dealt with it

in the context of a capacity to enter into an

agreement. The Court of Criminal Appeal looked at

that aspect and said, "Well, we can't find any

fault with that", but directs its mind, in our

submission, to the proposition that is put by -

GAUDRON J:  In any event, it is very difficult to see how it

could support such a belief. The evidence was that

he saw him two years later, he did not know how -

you say there was no evidence of exactly how he

behaved at that stage. All the doctor's evidence

went to was that something was consistent with his

diagnosis.

MR DANOS:  What could have been done had Dr Walton been

called, and what was sought to be done on the voir
dire in a limited way, was that material from the

tape of 11 October 1990 had been put to Dr Walton

and in the course of cross-examination on the voir

dire, counsel for the applicant put material from

the tape of 13 Septernbe

r 1990, which was the critical tape so far as this applicant

was concerned. In the course of putting various parts of

that tape, the doctor said that that was consistent with his

diagnosis.

DAWSON J: That is something you could only do in

cross-examination, is it not?

MR DANOS:  I suspect - - -

DAWSON J: At all events, that is what you are complaining

about: you could not cross-examine.

MR DANOS:	Yes.
TOOHEY J:	You did cross-examine.
MR DANOS:	Only on the voir dire; not before the jury.

DAWSON J: Did counsel for your client make any application

to call the doctor on behalf of her client?

MR DANOS:  I have just been handed the application book of

Kesavarajah, and there is an aspect of - I should

indicate to the Court that a number of aspects of -

sorry, it is page 75 of this applicant's

application book. In the course of His Honour's -

it is the trial judge's ruling. It is clear from

what His Honour the trial judge is saying, where he

says:

Moses 7 9/12/93

I think although Mr Bey, learned counsel

for Mr Kesaverajah, now supports the admission

of the evidence as indeed do counsel learned

in the cases of Mr Allen and Mr Moses - - -

DAWSON J: But that is a different thing. You are

supporting it to enable you to cross-examine. Did

you say in the event of - was any application made

in the event of that application which you support

being refused, you would make application on your

own behalf, or on behalf of your client?

MR DANOS:  I do not believe that that course was adopted,

Your Honour. Once it was ruled that Dr Walton's

evidence was not admissible, as I understand it, it

was accepted that none of the counsel would then be

in a position to call him.	I think it was simply
accepted by - - -

DAWSON J: But you see, they are separate issues because

here the judge can only consider the application by

Kesavarajah on the basis of the relevance to

Kesavarajah's case, and he could not allow, if it

had no relevance there, the evidence to be called in order that you could cross-examine the doctor.

So you do not ever form a basis for your objection or complaint now.

MR DANOS: Certainly no other counsel - I can only assume,

Your Honour, that once the ruling had been made

that Kesavarajah could not be called by Khoosal's

counsel, it was simply supported by the other

counsel. Once that was accepted, then no other

counsel took the view that they had a right to call

Dr Walton.

TOOHEY J:  Mr Danos, I must say for my part I find it very

hard to identify any question of special leave

arising out of this aspect of the matter.

MR DANOS:  The way in which it arises, in our respectful

submission, as a special leave point is because if

this stands for the authority that evidence of the

state of mind or the propensity of a co-accused is

limited in its ability to be called, then it would

seem to be watering down the proposition - there is

a fairly wide proposition - that is put in the

decision of Gibb v McKenzie.

TOOHEY J: But it does not stand for that authority surely,

not given the circumstances in which the doctor was

to be called by an accused who was not seeking to

use the evidence for the purpose for which other

counsel may have sought to use it through

cross-examination. It does not seem to stand for any proposition at all other than that it was not

Moses 9/12/93

relevant, rightly or wrongly, to the purpose for

which it was sought to be adduced.

MR DANOS:  But it was understood - application was made by

counsel for the applicant that, having

cross-examined the material, that counsel for the

applicant was also wanting to have that material
put in in the way in which it was relevant to the

applicant in this case. In other words - - -

TOOHEY J:  If you wanted to do that, you would have to do it

in the course of the defence case.	What was the
trial judge to do:	make some sort of dissection of

the transcript of the evidence or allow - say,

"Well, I'm going to admit part of this evidence -

not the evidence that's sought to be adduced by the

accused who really sought to call Dr Walton, but

I'll allow it to be used for other purposes."

MR DANOS:  Perhaps this was a short cut method of looking at

all of the aspects.

DAWSON J: That does not make it a very satisfactory vehicle

for any points you want to raise by way of special
leave, but I think we have appreciated the point,

Mr Danos. Is that the special leave point you want

to raise?

MR DANOS:  Yes, Your Honour. What we submit is that this

question of Kesavarajah's sanity was an issue that

was kept from the jury.	The jury had no real
inkling of what had occurred.	What we would
submit - - -

DAWSON J: It is not so much sanity as behaviour when it is

your state of mind.	No doubt your client was able
to give evidence as	to his observations and things
on which he relied.

MR DANOS: That is so, Your Honour.

DAWSON J:	And he did, did he?
MR DANOS:	He gave some evidence of the way in which he

regarded Kesavarajah and his grandiose schemes,

yes. But what we say is that the Dr Walton

material lends objective support to that part of

his defence, namely that he never took

Kesavarajah's rantings in this area seriously and

that it was all -

DAWSON J:	I think we have got that point.
MR DANOS:	If I can turn perhaps now to ground (i) which

appears at page 307 of the application book and

page 311 of the summary of argument.

Moses	9	9/12/93
l0DAWSON J:	We do not have to develop these points fully in an application for special leave.	You can
indicate what it is that you say.
MR DANOS:	Yes.	The summary of argument sets out the nub of

this. Nevertheless, it does require - I understand
obviously that this is an application for leave,
but it does require an understanding of what the

Court of Criminal Appeal did with this particular argument. That, in my submission, requires - - -

TOOHEY J: Which particular argument are you referring to,

Mr Danos? You took us to page 307 but several

grounds are identified there.

MR DANOS:  Yes, and 311, Your Honour, is the summary of

argument.

TOOHEY J:  No, but which of those grounds are you now taking

us to?

MR DANOS:  Ground (i).

TOOHEY J: That is the argument that there should have been

a separate trial.

MR DANOS:  Yes, at the point in time when the applicant had

been acquitted on the first count.

DAWSON J:  Why do you say there should have been a separate

trial?

MR DANOS: 

The reason that we submit that there should have

been a separate trial is that the evidence
admissible against the applicant Moses fell into a

small and discrete area, and the two issues that
needed to be resolved which are set out at page 249

of the application book form part of the judgment,

namely:

1. Whether the conversations at the Hyatt

Hotel (to which Moses was a party) could

support the inference that, apparently, Rajah

and he had agreed to traffick in heroin.

2. Whether in the context of such an

agreement Moses had the requisite intent in

the sense that he treated Rajah's apparent

agreement seriously.

The reason that we submit that the evidence in

relation to Moses fell into a smaller discrete area

is perhaps illustrated best by what is set out at

page 250 of the application book which are the four

overt acts that the Crown sought to rely on so far

as it related to Moses. What then the Court of

Criminal Appeal said at page 251 is that it was

Moses 10 9/12/93

submitted to them that the principle in Darby's

case, namely the principle of a co-conspirator

having a separate trial where there is a small and

discrete - and the evidence was substantially

different - is one that found favour with this

Court.

DAWSON J:  But the evidence is not discrete here. The whole

of the evidence, practically anyway, was

admissible in relation to your client, was it not?

MR DANOS:  I am sorry, Your Honour, the whole of which

evidence?

DAWSON J:  The whole of the evidence which was called. You

first of all had to have an importation of heroin

before there could be any trafficking in the heroin

and the whole thing had to start with some event,

and it started with an event in Sydney to which

your client was a party. What is the evidence you say was not admissible against your client but was

admissible against the others?

MR DANOS:  What occurs, Your Honours, is that there is the

evidence surrounding particulars of overt act.

What then occurs at a later stage, that is, in the

months of October and November, is, in effect - I

am guessing in percentage terms, but probably 80 or

90 per cent of the rest of the evidence of which

the applicant took no part.

DAWSON J:  It is not a matter of taking any part, but it was

concerning the heroin which he was alleged to have

agreed to traffic in.

MR DANOS: That does not necessarily follow, with respect.

If he was a party to a trafficking in heroin, it

does not follow that the heroin that Rajah was

going to import was that heroin.

DAWSON J: That does not follow but the jury can infer that.

MR DANOS: Nevertheless, he has been acquitted by direction	in relation to that conspiracy so that there is a
fairly fine point that needs to be made, because
what then happens is that Kesavarajah then becomes
the only link between the two conspiracies. There
was only four conspirators alleged in relation to
the first count, namely, Khoosal, Kesevarajah,
Allen and Moses. Moses is acquitted by direction
on count 1. There were allegedly three conspirators on count 2, namely, Kesevarajah, Moses and Allen. Allen is, by direction, acquitted on
count 2. So that the only link, as such, between
the two counts is the man, Kesevarajah.

Moses 11 9/12/93

Now, there is nothing, in our respectful

submission, from which it could be said that the

trafficking conspiracy which, in chronological

terms, is the first in order, that that necessarily

meant that they were going to traffic in that which

they would ultimately talk about importing at a

later point in time.

DAWSON J:  No doubt the direction was given that some

evidence was relevant and admissible only in

relation to some of the accused.

MR DANOS:	The point that was being made, with respect, is that in relation to count 1, the importation count,
there was extensive discussion about heroin and its
importation which, in our respectful submission,
was not in any way admissible against Moses.

DAWSON J: It is not a question of volume. It is a question

of prejudice.

MR DANOS: 

The volume is prejudicial, with respect.

DAWSON J: 

I see, that is the point?

MR DANOS: 

That is partly the point. The first point is

that heroin is discussed clearly and unequivocally,
whereas it is not in relation to the trafficking
count. Secondly, there is a large volume of
material, and they speak in terms of a number of
different ways of conducting an importation of
heroin.

Now, what we point to is this, that at

page 251, in relation to these submissions, the

Court of Criminal Appeal, we submit, falls into

error. The first error that we direct the Court's

attention to is that at line 19 it cites two

authorities, namely, the case of Mai and Tran. The

case of Mai and Tran, with respect, had nothing to

do with those submissions, nor did the case of

Trudgeon.

DAWSON J:  It does not exactly rely on them, it just says

reference was made to them.

DAWSON J: Yes. Well, there was no reference made to them

in that context. But we further submit,

Your Honour, the court then says this:

It will be recalled that a similar

submission had been advanced in the

application of Allen who had obtained a

directed acquittal on count 2. We consider

that our observations on that submission are

apposite to the case of Moses. We repeat our

Moses 12 9/12/93

view earlier expressed that the circumstances

predicated in Darby have no application here.

Now, I would seek to take the Court to

page 207 where the court deals with the submissions

of Allen on this particular point. It actually

starts at the bottom of page 206 and goes

through 207 and I want to take particular reference

to this Court to what is said at page 208 at about

line 17. They say this:

There was, of course, a close relationship between the two conspiracies - a relationship

which Miss Lieder's submission failed to

recognise. The efficacy of the one conspiracy

depended on the efficacy of the other.

Efficacy or potential efficacy bore on the

Crown proof of intention. The traffickers

were dependant on the importers for stock and

the importers were dependant on the
traffickers to make their venture worthwhile.

As the trial judge at one point amusingly

observed, the importers were not bringing the

heroin into the country illegally for display

in a museum.

DAWSON J: That is the point I was putting to you earlier.

You have dealt with that.

MR DANOS:  If Your Honour would just bear with me for a

moment because it follows that the way in which the

court dealt with this on the next page in relation

to Mr Allen demonstrates a factual error that is so

glaring that it means, in our respectful

submission, that the court has not come to grips

with the real problem. Because it goes on to say

this at the top of page 209:

Evidence going to establish the trafficking

conspiracy with knowledge of it by the parties

to the importation conspiracy supported proof

conspiracy, that is, intended to engage in	that the latter intended to carry out that
conduct which would make the heroin available
for selling. If this is so, despite the submission of Miss Lieder to the contrary,
evidence of the conversations at the Hyatt Hotel in which Allen participated was not
rendered inadmissible against him by virtue of his acquittal on count 2.
Now, Your Honours, Allen did not participate

and it was never suggested that he participated in

the conversations at the Hyatt Hotel.	He had no
part in that at all.

Moses 13 9/12/93

DAWSON J:  Even if they are in error there, the point you

are making is that there was a discrete body of

evidence which related to your client alone and

that is the reason that separate trials should have

been granted after he was acquitted, by direction,

on count 1.

MR DANOS:  Yes.

DAWSON J: And the Full Court held that that was not so, it

was not a Darby situation, and that it was a string

of events which were interconnected and that

therefore most of the evidence, if not all of the

evidence, was relevant to the whole scene in which

your client was involved. We take the point.

MR DANOS:  Yes. But the problem with that is that it was a

whole string of which all of these people were

connected. Some of them were not connected.

DAWSON J:	Now, where is the special leave point in that?
MR DANOS:	The special leave point in all of that,

Your Honours, is that the Court of Criminal Appeal

has failed to properly understand the Darby - - -

DAWSON J: Perhaps it has. That is not immediately apparent

to me but, nevertheless, what is the point of

principle which is raised here?

MR DANOS:	The point of principle, Your Honours, is the extent to which evidence in one conspiracy, of
which one accused is involved, is quite discrete
from the evidence in - - -

DAWSON J: That is merely a question of whether Darby's case

is applicable or not, and the principle which is

set out in Darby's case is not questioned.

MR DANOS:  Your Honour, in the context of this case, the

failure to grant a separate trial and the

applicability of the Darby principle, we would

submit, has led to a miscarriage of justice and

quite clearly, in that context, we would submit

that the fact that the Court of Criminal Appeal has

wrongly applied the principle in Darby's case in

the way in which it occurs in this case indicates

that those principles have not been followed.

DAWSON J: Yes. Well now, what other points do you rely on

as justifying the grant of special leave?

MR DANOS: 

The next point, Your Honours, is described as

ground (iv) in the summary and that is an analysis
of two - - -

TOOHEY J: Which page, Mr Danos?

Moses 14 9/12/93

MR DANOS:  I am sorry, page 313 of the application book.

Now, the Court of Criminal Appeal, we would submit,

fails to deal with the propositions that the cases

of Ross and Nirta stand for. At page 262 the

judgment refers to Ross and Nirta and then appears

to go off, in our respectful submission, on a

complete tangent, namely, a Chidiac review of the

material.

The proposition that was being sought to be

submitted in the Court of Criminal Appeal in

relation to both the decision of Ross and Nirta was

that so far as an involvement to be in a conspiracy

to traffic in heroin it required evidence that

demonstrated something more than simply an

introduction to a potential purchaser of drugs.

DAWSON J: What point was this related to? What, it was an

unsafe and unsound conviction, or what?

MR DANOS:  No, this was put on the basis that the evidence

that was ultimately led did not support a

conspiracy to traffic in relation to the applicant,

Moses.

DAWSON J: That his conviction was unsafe?

MR DANOS: It follows, ultimately.

DAWSON J: Well, that is the point you are making.

GAUDRON J:  Or are you saying that there was simply an

insufficiency of evidence?

MR DANOS: First and foremost, there was an insufficiency of

evidence. The evidence only went so far as

supporting a proposition that the applicant had

introduced Kesevarajah to Oygur for the purpose of

Oygur and Kesevarajah trafficking but that there

was nothing to support the proposition that the

applicant intended to traffic.	The decisions of
Ross and Nirta supported that analysis of - - -

DAWSON J:  But you were convicted by the jury. You would

not be here if you were not.

MR DANOS: That is right.

DAWSON J: And therefore you must be saying that that

conviction is unsafe and unsound because there is

insufficient or, for that matter, no evidence.

That is the point.

MR DANOS: Ultimately, that is where it leads, Your Honour,

yes.

Moses 15 9/12/93

DAWSON J: Yes, and the Full Court looked at the evidence

and said there was enough evidence.	Now, where is
the special leave point here?

MR DANOS:  What we submit, Your Honour, is the Court of

Criminal Appeal judgment does not look at the

proposition in relation to Ross and Nirta.	At
line 8, the court says:

Accordingly, the particular type of

examination of the evidence envisaged in R v
Chidiac was not required.

They then deal with Ross and Nirta and then they come back and say, at line 18:

We have in accordance with the advice of

the High Court undertaken an independent

review of the evidence against Moses.

Now, in the one breath they have indicated that

Chidiac is not appropriate, refer to Ross and

Nirta, and then say, "But we will look at it in the

context of Chidiac". Now, what we submit,

Your Honours, is that the Court of Criminal Appeal

has either run together the two propositions or

failed to properly analyse the respective

propositions that Ross and Nirta stand for or,

alternatively, have just simply ignored Ross and

Nirta. If that is so, we would submit that this

case then stands for a proposition which is, in

effect, in conflict with Ross and Nirta in that,

again, if one looks back briefly to the overt acts,

this applicant's role is simply an introductory

role.

DAWSON J:  Now, we need not go over all this ground

extensively. This is an application for special leave to appeal, Mr Danos, and the point you are

making is that there was not sufficient evidence to

make it safe for your client to be convicted.	The
Court of Criminal Appeal looked at the evidence and
reached a contrary conclusion.	Now, that really is

what is in this point, is it not? You say they
were wrong.

MR DANOS:  It is a bit more than that, Your Honour, because

we would submit that they have looked at the wrong

things. They say, for example - - -

DAWSON J: If, in the end, there is admissible evidence

which would support a conviction that is not safe

and unsound, that is the end of the matter. If

not, well then, you are right. That is the point,

is it not, ultimately?

Moses 16 9/12/93

MR DANOS: Ultimately, but there are a number of steps

before one reaches that and one needs to look, with

respect, to what the Court of Criminal Appeal did.

And, for example, where they say this, Your Honour:

We are unable to accept the submission that evidence of the participation of Moses and his contributions to the discussions at the Hyatt

Hotel or, for that matter, his involvement in

subsequent discussions, was inadmissible
against him in support of count 2.

Now, with due respect to the Court of Criminal Appeal, that is a nonsensical proposition because

it is the discussions at the Hyatt that supported

count 2. It was only the discussions at the Hyatt

plus one other discussion which is on the 22nd.

And this is where we would submit, again, the court

has failed to properly analyse the material because

in the next sentence it says:

While it may be true that the Crown contended

that the trafficking conspiracy was complete

well before these later discussions, that fact

alone did not make evidence of them

inadmissible in support of count 2.

There is only one later discussion. It is a

discussion on 22 September 1990 which, again, the
Court of Criminal Appeal totally misunderstood

because at page 192 at line 8, in the very short

paragraph there, it says:

In a further conversation on 22nd

September 1990 between Moses and Rajah at

Dandenong, Moses told Rajah the terms finally agreed upon for the importation.

That, again, is a clear error. If it was anything

at all, it was a discussion as to whether there was

any final agreement about the trafficking.

Now, Your Honour, what we submit is this

judgment of the Court of Criminal Appeal could not

properly have made a judgment about whether this

decision was unsafe and unsatisfactory because

there are a number of errors in their analysis of the material and their analysis of the principles

that, we would submit, demonstrate that there could

not have been a proper judgment of this proposition

or the submission.

DAWSON J:  Now, what is the special leave point?

MR DANOS: That this judgment, with respect, in relation to

this -

Moses 17 9/12/93

DAWSON J: The matter of.principle?

MR DANOS:  The principle is that before you can come

properly to the view that the verdict is not unsafe

and unsatisfactory, one has to make a proper

analysis of the material and the Court of Criminal

Appeal - - -

DAWSON J: Well now, you say that they did not make a proper

analysis of it?

MR DANOS:  No.

DAWSON J: And did not attempt it?

MR DANOS:  No.

DAWSON J: Yes, all right.

GAUDRON J: But it still comes back to the question, there

was evidence of the conversations and the evidence

was such that it could be inferred that there was

an agreement, surely, and in fact, it was inferred.

MR DANOS:  But, you see, with respect to Your Honour, if one

looked at the evidence that was limited to what we

say was admissible on the Crown case against this applicant then we would submit that no reasonable

jury, properly instructed, could have come to a
verdict of guilty. That is what we would submit.

This jury was seeking to deal with count 1. It sought to deal with count 1 on the basis that there was a very large volume of evidence that spoke

about an importation of heroin and no dispute that

they spoke about it. The defence simply was, "We

weren't serious when we spoke about it."

Having looked at all of that evidence and all

of that material, what was then being requested of
the jury is to then put all of that aside because

none of it, in our submission, was admissible

against the applicant, Moses; that they could then

look at that and look only at the evidence that was

admissible against Moses and put all of the rest of

it out of their mind. We would submit that was a

form of mental gymnastics that no reasonable jury

could have undertaken. What we would submit is

that a reasonable jury, properly instructed, on the

admissible evidence against Moses, could not have

come to the verdict of guilty.

In relation to our proposition that the Court

of Criminal Appeal did not properly analyse the

material, if I could take the Court briefly to

page 191 of the application book and at the

paragraph which begins at line 12 says this:

Moses 18 9/12/93

In a conversation between Moses and Oygur

before Rajah entered the room Oygur spoke to

Moses about what had occurred between Rajah

and himself in their private conversation at

the Potts Point Hotel. Although the
conversation was to an extent in code, the

jury was invited by the Crown to accept that

it allowed them to conclude that an agreement

or arrangement existed or was reached for the

importation of heroin -

Now, again, Your Honours, the evidence never

supported a proposition that the conversation

between Rajah and Moses, on 13 September, could

ever have allowed the jury to conclude that there

was or had been reached an agreement for the

importation of heroin. Oygur had absolutely

nothing to do with the importation of heroin. It

was never suggested he had any role in it at all.

So, again, in our respectful submission, it is an

analysis by the Court of Criminal Appeal that fails

to properly understand the material.

DAWSON J: That takes you to what ground, Mr Danos? Is it

ground (v) on page 313? You have really dealt with

that point, have you not?

MR DANOS:	Yes, I have really dealt with the Chidiac point.
DAWSON J:	Is there anything else you wish to rely upon in relation to the application for special leave?
MR DANOS:	The only other aspect, Your Honour, is

ground (ii), the question of the operation of

section 321 of the Crimes Act. The way in which

that comes into operation is that by section 321D -

one needs to go back a step. The count on the

presentment relating to trafficking arises under

the Drug, Poisons and Controlled Substances Act,

section 79, which specifically allows for a

trafficking conspiracy charge to be laid.

Section 3210 then says this, that:

Sections 321(2) and (3) and 321B -

which is irrelevant for these purposes -

shall apply, so far as they are capable of

doing so and with such changes as are

necessary, for the purpose of determining

whether a person is guilty of conspiracy under

any enactment other than section 321 - - -

DAWSON J: So, you say it applies in this case?

MR DANOS:  Yes.

Moses 19 9/12/93

DAWSON J: Very well. What is the part of section 321 you

rely on?

MR DANOS:  The parts then that one needs to look at is

section 321(2) and (3) and, in particular, one has

to look at subsection (2)(a) and (b). Now, what we

submit is that (b) in particular would appear to

involve a direction about a future intention where

it says, to be guilty of an agreement, they:

must intend or believe that any fact or

circumstance the existence of which is an

element of the offence will exist at the time

when the conduct constituting the offence is

to take place.

DAWSON J: So, it is a conspiracy to commit an offence and

the conspirator has to believe that the elements of
the offence will exist if and when the offence

takes place.

MR DANOS:	If and when the offence takes place.
DAWSON J: All right.	Now, where did the court go wrong in

relation to that?

MR DANOS:  We would submit that the Court of Criminal

Appeal, in relation to this, simply said that it

did not apply and that what was sufficient - - -

DAWSON J:  Can you take us to the passage?

MR DANOS: Yes, I am sorry, Your Honours. It is at

page 257. They refer to the direction by

His Honour at the bottom of page 258 to the top of
259 and they simply state the direction of the

learned judge did not fail to comply.

GAUDRON J:  Now, you did not seek any particular directions

with respect to this matter?	No directions were
sought with respect to this matter?

MR DANOS:	No.
GAUDRON J:	The real question is whether, without the

direction which was not sought, the jury would have

misunderstood its task.

MR DANOS:  Yes. Well, in the sense that it is quite clear

that the statute - section 321 is now a statutory

enactment of conspiracy and it was not directed to

His Honour the trial judge's attention which, we

would submit, it ought to have - - -

GAUDRON J: Is there any reason to think that the jury

misunderstood its task?

Moses 20 9/12/93

MR DANOS:  The only reason it was important in this instance

because there was, in fact, at the point in time of

the alleged agreement to traffic, no heroin in

existence.

TOOHEY J:	Does that matter?
MR DANOS:	It matters, we would submit, if section 321(2)(b) has some relevance, that is, there must be some
basis of believing that the heroin will be in
existence.
TOOHEY J:	You could believe that because somebody had told

you.

MR DANOS: That might be so, Your Honour, in a given factual

situation but in the context of this case, we would

submit that it was particularly relevant because,

having being acquitted, by direction, on the

importation which in fact occurs at a later point

in time - we would submit that that was strong

evidence that there was no basis of this applicant

having any belief that there would be any heroin in

the future. If he had been a party to the

conspiracy to import, it might be different, but

the point that we would make is that here was a

situation where it was a direction which had not

been given that could well have made the difference
between whether he was acquitted or not on this

particular count.

TOOHEY J:	The difficulty with that, Mr Danos, is that the Full Court took the view that the direction that
was given was adequate and that, in any event, the trial judge was not invited to make any further
direction. It is a bit difficult then to convert that into a special leave point.
MR DANOS:	Your Honours can see what the trial judge said at

the bottom of page 258 and page 259. Now, we would

respectfully submit, His Honour has not come to

allow the Court of Criminal Appeal to say that he	grips with what is set out in section 321, and to
did, in our respectful submission, does not -

TOOHEY J: They say two things: that he did and that, in

any event, no exception was taken at trial to the

direction on this aspect.

MR DANOS:  Certainly no exception was taken and we have to

accept that but if there has been a failure to

direct on the law, in our respectful submission, on

an aspect that could be said to go directly to the

question of his acquittal, we would submit that no

court ought to simply stand on the basis that this

was not a point of sufficient importance that it

should simply be allowed to stand.

Moses 21 9/12/93

GAUDRON J: But it is very hard to think that in the context

of a trial of this kind and with counsels'
addresses and so forth that the jury would think
that they could convict even if the accused did not

intend or believe that the heroin should exist. It

is very difficult to think that there was any room

for them to think that.

MR DANOS: That might be so, in respect to Justice Gaudron,

the proposition in a situation where there was no

evidence of that. But in this case where there was

a very large body of evidence that went to the

importation of heroin of which evidence was not

admissible against the - - -

GAUDRON J:  I do not know. When you look at

section 32l(l)(b) it may well be admissible. It

may well be very admissible.

MR DANOS:  But it still requires, we would submit, some

nexus to the particular applicant.

GAUDRON J:  Not at all. Not necessarily. You sheet it home

to, say, Mr Kesavarajah, sheet the evidence home,

and then A'Hearn probably allows it to be taken

into account overall.

MR DANOS:  If the A'Hearn principle applies in the sense

that it was in furtherance of the conspiracy. But

that is at a point in time at which the applicant

in this case is no longer a party to the

conspiracy.

GAUDRON J: He is no longer a party to that conspiracy. It

does not matter anyway, it is just to suggest that

perhaps the evidence is admissible.	I mean, it
does not deal with your point.

MR DANOS:	No.
DAWSON J:	Now, those are the points you wish to raise?
MR DANOS: Those are the points, if Your Honour pleases.
DAWSON J: Thank you, Mr Danos.	The Court will retire to

consider what course it will take in this matter.

AT 3.56 PM SHORT ADJOURNMENT

Moses 22 9/12/93

UPON RESUMING AT 4.01 PM:

DAWSON J:  We need not trouble you, Mr Maidment.

Notwithstanding the arguments advanced by

Mr Danos for the applicant, we do not consider that

the judgment of the Court of Criminal Appeal raises

any question of principle sufficient to attract a

grant of special leave, and we are not satisfied
that there was any miscarriage of justice. Special

leave will be refused.

AT 4.02 PM THE MATTER WAS ADJOURNED SINE DIE

Moses 23 9/12/93