Muradian v The Queen

[2003] HCATrans 714

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S355 of 2002

B e t w e e n -

ARMINE MURADIAN

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GLEESON CJ
McHUGH J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 13 MAY 2003, AT 2.01 PM

Copyright in the High Court of Australia

MR C.B. CRAIGIE, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR R.J. BUTTON.  (instructed by Legal Aid Commission of New South Wales)

MR R.J. BROMWICH:   May it please the Court, I appear for the respondent.  (instructed by Commonwealth Director of Public Prosecutions)

GLEESON CJ:   Yes, Mr Craigie.

MR CRAIGIE:   If the Court pleases.  Your Honours, the central question in this application is whether in a crime of intention, which we say an offence under section 233 of the Customs Act plainly is, a direction as to suspicion of what is perhaps a factual situation may permissibly sit alongside the hitherto accepted guidance of this Court as represented by the cases of Kural and earlier, of course, He Kaw Teh.  That guidance indicated to judges that what was required was a proof of intention in the context of there being a significant and real chance of a particular state of affairs existing.

This application is directed to the Court of Criminal Appeal in New South Wales, having a response to a misdirection on that point by a trial judge, which response we say in fact built upon error and created a further error in departure from proper principle.

In the Court of Criminal Appeal judgment – and I may say the essential area of battle, if I can call it that, appears in pages 49 and 50 of the application book.  Your Honours will see the development of what we would say was a process of error entrenched and, in fact, given imprimatur of the Court of Criminal Appeal.  The passage of the trial judge’s directions under challenge were these words – they come from paragraph 30 of page 49 of the application book and the reference was to this effect:

and that those circumstances according to the Crown are indicative of somebody who has knowledge or may have reason to believe a significant real chance that there may be something in connection with that bag that is not quite right and that would raise the suspicion of perhaps bringing in narcotic goods to the country.

Although the Court of Criminal Appeal characterised in particular the words “may”, “significant real chance”, “not quite right” and “the suspicion of perhaps” as being unfortunate, the effect of the court’s treatment of the issue was in reality to sanction the raising of suspicion of there perhaps being drugs in a particular container as being something that was in fact in accord with authority as represented by this Court in Kural.

Your Honours, the alternative formulation that grew out of the Court of Criminal Appeal was, to quote the learned presiding judge, Justice Handley, at page 50 of the application book and actually goes over to 51, line 45 to line 10 on 51:

Nevertheless in the end the issue which he –

that is, the trial judge –

said the Crown posed for the jury was “and that would raise the suspicion of perhaps bringing in narcotic goods to the country”.

[17]     In my view a person who suspected that he or she was perhaps bringing narcotic goods into the country would be a person who was aware there was a significant or real chance that his or her conduct involved an act of importation of that character.

GLEESON CJ:   Just remind us what the defence case was.

MR CRAIGIE:   Essentially it was one of being an innocent dupe.

GLEESON CJ:   Yes, but she owned all the goods that were in the suitcase?

MR CRAIGIE:   Save, of course, on her story the narcotics ‑ ‑ ‑

GLEESON CJ:   I meant, yes, she owned all the innocent goods that were in the suitcase?

MR CRAIGIE:   Yes, she said that she had been asked to bring the suitcase in, apparently for sentimental purposes, to satisfy the whim or the need of the owner who had subsidised her fare.  It was, on one view, an unlikely story.  That, I suppose, brings one to this concern, that it is very much for the innocent dupe in particular that it is vitally important that the directions given are fair and accurately assess the state of the law, in particular, as to not permitting the jury to slip over that very fine line between proper inferences and suspicion.

Your Honours, if I could use a simile from another discipline, directions of this kind involve very fine and very dangerous surgery, very close to the jugular of innocence.  A slip of the order as was made by the trial judge and entrenched, in our submission, with the authority of the Court of Criminal Appeal, is quite fatal and of course particularly fatal to the presumptions of innocence of a person who, on one view, may be an innocent dupe.  Whether or not the accused in this case was, was something for the jury to determine untrammelled by the temptation that would be represented by a suggestion that this was not an offence of intention but an offence of a particular and watered‑down version of knowledge.

GLEESON CJ:   The person who gave her the suitcase paid half her airfare?

MR CRAIGIE:   Yes, your Honour.

GLEESON CJ:   Why?

MR CRAIGIE:   No clear reason was given except that it was known that she had gone through hard times herself and that it was considered to be an act of friendship to assist her to take a holiday in Australia and the quid pro quo for that was that there was this bag that he would like given to a friend or an acquaintance in Sydney.

Your Honours, it was not an overwhelming Crown case.  It is certainly to be distinguished from what is commonly encountered of drugs strapped to the body of the alleged importer, but it was a powerfully suspicious case.  That of course invokes the protections that are inherent in the proper directions that should come from a trial judge. 

Of course the concern, and if I might say the special leave point in this matter, goes beyond simply 233B.  It would touch any offence where an element of intention is vital and it is open to the mischief that the formulation adopted by the Court of Criminal Appeal will invite in such cases a movement away from a proper response to the proof of intention on the basis of a significant and real chance of a particular state of affairs existing to a situation where the jury may feel that the existence of a suspicion and what perhaps is a factual situation, something redolent of an objective test is the appropriate basis upon which they should proceed.

Your Honours, it would appear that what has happened here is a product of courts over a time ignoring or perhaps drifting, more properly, away from this Court’s admonition in Kural not to raise guidance to trial judges to the status of directions.

GLEESON CJ:   I got the impression that what happened here was that the judge was travelling along the tram tracks when he was following the standard directions but he got off the tracks when he started to recount counsel’s argument.

MR CRAIGIE:   Yes, your Honour, and of course my friend says this was no more than a customary comment on what the Crown says.  The difficulty with that is, first of all, it was interwoven with the directions to make them indistinguishable from the directions themselves and, of course, secondly, the Court of Criminal Appeal seemed to have no difficulty in regarding them as an integral part of the directions and, indeed, by an imprimatur as to a more palatable version of the observation in fact raised the formula to one of a direction which appears at the top of page 51 of the application book.

My learned friend has raised the issue of whether in fact it made any real difference.  I understand that to be the effect of what he says.  It would be our submission that in this kind of case the difference between a fair trial for a person as vulnerable as the presumptively innocent – an innocent dupe and a trial where suspicion has activated a verdict is a fine one and in fact an error of this nature is entirely impermissible and it would be extremely dangerous if it were allowed to stand with the Court of Criminal Appeal’s imprimatur.

As to whether or not the proviso would stand in the way of remedy in this Court, it is our submission that, as I have indicated before, this was certainly not an overwhelming case.  It was a dangerously suspicious case.  Indeed, if one works upon the basis that but for this direction the trial would have proceeded along a different course, it could be by no means assured that conviction was inevitable.  If a proper direction was given, the jury, untrammelled and undistracted, would simply concentrate upon the matters that were raised by the Crown and by the matters of character that the accused raised, and the decision would be made on that basis.  There could be no secure determination that this was by any means a case where a conviction was an inevitable outcome in the face of a proper summing up.

McHUGH J:   On a special leave application do you not have to fact up to these problems:  first of all, the judge was reciting what the Crown case was; second, the words that you point to are not themselves put as criteria of liability but as the result of a train of reasoning that on this argument would flow from there being a significant real chance; and, most importantly, no point was taken, it seems to me, concerning this direction.

MR CRAIGIE:   Your Honour, the first point is that the Court of Criminal Appeal seems to have taken a different view as to the status of the observation and its recounting of the Crown case.  It is not at all plain that it was simply a reflection.  In any event, if there were doubt about that, the court, by tying its treatment of that issue and its disapproval, it has to be said, of what was said to an alternative formulation, appears to make it plain that it accepted that it had the effect of a direction to the jury.

As to your Honour’s second point, it is our submission that Kural, in particular, whilst it is not a formula to be put to a jury, is certainly a framework within which a direction must be designed.  What has happened here is it has both been treated as a direction and then enlarged upon as a direction with a consequence that the view expressed by the Court of

Criminal Appeal in relying upon suspicions and what was perhaps the situation undermines the essential import of Kural to a dangerous degree. 

I am reminded that your Honours will find at the top of page 19 of the application book an intervention by counsel for the applicant asking, spelling mistake aside, that there be a direction:

in terms of Parare, that nothing short of actual knowledge will suffice ‑ ‑ ‑

McHUGH J:   They cannot stand with Kural.

MR CRAIGIE:   It may not, your Honour, but it cannot stand with the direction as formulated either by the trial judge or, with respect, by Justice Handley in the majority.

McHUGH J:   But that is the importance of counsel taking points, that the judge’s attention is then drawn to the direction and the judge can give it.  Judges such as Justice Gaudron, who took a very liberal view of special leave applications in criminal cases, was always adamant that on the discretionary aspect of granting leave the failure to take a point was a matter of some importance.

MR CRAIGIE:   Your Honour, that undoubtedly weighs against us but it is against also a concern that this Court not permit subordinate courts to drift from essential propositions which have an impact upon all criminal trials.  That would be, in our submission, the strongest part of our complaint, particularly directed to the alternative formulation that the Court of Criminal Appeal builds, mistakenly in our respectful view, upon Kural to effectively transform 233B into an offence of knowledge and knowledge at a lesser level than would be consistent with authority.  Your Honours, unless there is something further with which I could assist the Court, those are the submissions for the applicant.

GLEESON CJ:   Thank you, Mr Craigie.  We do not need to hear you, Mr Bromwich.

MR BROMWICH:   If the Court pleases.

GLEESON CJ:   The Court is not persuaded that the case raises an issue suitable for a grant of special leave to appeal or that the interests of justice require it.  The application will be refused.

AT 2.18 PM THE MATTER WAS CONCLUDED