Musarri v The Queen

[2006] HCATrans 580

[2006] HCATrans 580

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P18 of 2006

B e t w e e n -

PAOLO MUSARRI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON THURSDAY, 26 OCTOBER 2006, AT 9.02 AM

Copyright in the High Court of Australia

MR G. TRACZYK:   May it please the Court, I appear on behalf of the applicant.  (instructed by G.A. Lacerenza & Associates)

MR S. VANDONGEN:   If it please the Court, I appear on behalf of the respondent.  (instructed by Director of Public Prosecutions (Western Australia))

GUMMOW J:   Yes, Mr Traczyk.

MR TRACZYK:   May it please the Court.  It is submitted that special ‑ ‑ ‑

GUMMOW J:   You need an extension of time, do you not?

MR TRACZYK:   Thank you, your Honour.  I do seek an extension of time to file the amended notice of appeal and the other documents.

GUMMOW J:   Is that opposed?

MR VANDONGEN:   No, your Honour.

GUMMOW J:   You have that extension.

MR TRACZYK:   Thank you, your Honour.  It is submitted that special leave to appeal should be granted in this case because it is submitted that a miscarriage of justice has occurred.  If special leave were to be ‑ ‑ ‑

KIRBY J:   Is that really what you are suggesting, or are you not really suggesting that a very technical principle of criminal pleading has not been complied with?  It is not really justice, is it, in this case that calls out for correction if anything calls out for correction?  It is quite a technical point.  That does not mean it is not an important point but I am a bit surprised to hear you start with miscarriage of justice.

MR TRACZYK:   I use that phrase in the sense that it would be submitted that it was not open to the jury in this case on the evidence before it to find the applicant guilty.

GUMMOW J:   Guilty of what?

MR TRACZYK:   Guilty of what he was charged with, and that is a conspiracy to traffic in heroin.

GUMMOW J:   That is not quite right, is it?

KIRBY J:   The offence was conspiracy “to possess a quantity of a prohibited drug, namely heroin,”.  If it had said “prohibited drugs, namely heroin and amphetamine” and described it correctly, you would not be here, would you?

MR TRACZYK:   I do not know whether, with respect, I can answer that question yes or no because I have not really turned my mind to it, but the reality ‑ ‑ ‑

KIRBY J:   It is the words in commas, is it not, “namely heroin” that you base your case on, but the actual substantive offence is conspiracy “to possess a quantity of a prohibited drug”.

MR TRACZYK:   This issue was argued at trial, your Honour, and the learned trial judge made a specific ruling that what the prosecution were required to prove at trial was that the subject of the conspiracy was heroin and not just drugs in general.

KIRBY J:   Can I ask you does the provision of the statute have a differential mention of different drugs, heroin, amphetamines, or is the actual offence in its terms “a prohibited drug”?

MR TRACZYK:   I think from memory – I do have the Act here with me – it prescribes offences involving prohibited drugs and then it lists particular prohibited drugs.

KIRBY J:   I am not criticising you putting the case and I do understand that the whole tradition of our criminal justice system is high particularity and specificity in accusations which the Crown or the State have to prove.  I do understand that but it is just that when you talk of miscarriage of justice and when we can only hear a certain number of cases a year, this is not a case which – it is a very technical case.  It does not mean it is not a miscarriage in the technical sense but it is not one that, as it were, leaps out at you as being a great injustice to your client.

MR TRACZYK:   With respect, your Honour, it is important to remember that the charge of which he was convicted was a conspiracy, which it is trite to say requires an agreement between two parties to do a particular thing.  It is obvious that ‑ ‑ ‑

GUMMOW J:   The evidence of what came out from the certificates would nevertheless – it was admitted, was it not?

MR TRACZYK:   It was and ‑ ‑ ‑

GUMMOW J:   That throws retroactive light, if you like, on the conspiracy.

MR TRACZYK:   With respect, does it, your Honour, because if you look at those certificates, those certificates indicate ‑ ‑ ‑

GUMMOW J:   I am looking at page 82, I think it is, of the ‑ ‑ ‑

MR TRACZYK:   The actual certificates I think should be in the application book.

GUMMOW J:   Yes, I am looking at page 82 of the application book, which is the treatment of the subject by Justice Roberts‑Smith.

MR TRACZYK:   I am not sure whether the – yes, the certificates themselves appear in the application book at pages 132 and 133.  You will see from those certificates that the substance that arrived in Perth was analysed as containing various things including methylamphetamine.

GUMMOW J:   Yes, and heroin.

MR TRACZYK:   And heroin.  The particular purity of heroin is specified in relation to both parcels that were located by the police but the certificates themselves indicate that certainly there was an amphetamine‑based substance, methylamphetamine there as well.  The Court of Appeal when it looked at these certificates said about these certificates there is heroin there and then made the finding that it must be because the weight of methylamphetamine is not recorded in the certificates that it must have been of a minimal amount. 

With respect, that is not something that the applicant agrees with and, indeed, challenges.  In the way that inferences are drawn in a criminal trial, if you look at the certificates there is no reason why a jury should not conclude that the majority of the substance there is methylamphetamine.  Because the percentages and purity of the other substances are in fact specified, what is left over?

GUMMOW J:   What do you say about the bottom of page 82?

The offence of possessing a prohibited drug . . . is one of possessing not just the pure drug (which is rarely, if ever, the case) but the total admixture ‑ ‑ ‑

MR TRACZYK:   That simply states the obvious, that there is an offence of possessing a prohibited drug with intent to sell or supply.  That is what the statute says but that is not what the applicant was convicted of.  The important point, as I have indicated, is that he is convicted of a conspiracy, that is an agreement, to supply a particular drug.  The point of that submission is this, that if you have ‑ ‑ ‑

GUMMOW J:   And they went ahead and supplied a compound or a mixture, a quarter of which was pure heroin.

MR TRACZYK:   If the applicant had gone ahead and done that, then presumably he would have been charged with the substantive offence.  The point though is at the stage where it is said a criminal offence has been committed, the applicant’s position is that there is no agreement.  The submission as set out in the applicant’s summary of argument is that, “Okay, I’m not a very meritorious person”.  He admits to being a person who is prepared to engage in drug dealing.  That is obvious.  His position is, “Look, what I’ve been dealing in was amphetamine.  I got a supply from Delovski which was no good and I’m asking Delovski to send me another supply of amphetamine”. 

It is trite to observe that that is not a very meritorious sort of person, nor is the conduct, but if the person that he is speaking to, Delovski, sends him something else, then it cannot be said that there has been any agreement between the two.  One is asking for one thing and the fellow down the other end of the line is sending something else.  Examples obviously are always of limited value but if he had been asking for, say, cannabis and he admits to dealing in cannabis and all of a sudden the other fellow sends him 90 per cent pure heroin, does he then become liable to the penalties of a conspiracy to traffic heroin?  It cannot possibly be right.  That is the important issue.

KIRBY J:   There are two elements in the telephone intercept that you anchor your case in.  The first is the reference to the drug as being mushy ‑ ‑ ‑

MR TRACZYK:   Not gluey.

KIRBY J:   - - - which I understand does not aptly apply to heroin but does apply to methylamphetamine.

MR TRACZYK:   Yes.

KIRBY J:   That is common ground, is it, that heroin is not aptly described as mushy?  I have no idea myself.

MR TRACZYK:   That was the evidence given by the informant in the matter.

GUMMOW J:   It is not common ground though.

MR TRACZYK:   In terms of what Stanbury ‑ ‑ ‑

GUMMOW J:   Between the parties it is not common ground.  I do not think your opponent accepts that it is common ground.

MR TRACZYK:   I am not sure what their position is because they have never answered the particular proposition that has always been advanced by the applicant, and that is the evidence of Stanbury was that the reference by the applicant to something not being gluey, which is what he is complaining about, Mr Stanbury said that that is more likely to be a reference to amphetamine and is unlikely to be a reference to heroin, and he said that spontaneously.  Indeed, I hope the Court has a copy of the relevant material for application for leave to appeal.  It is referred to in the application book but there is in fact a transcript of this particular part of Stanbury’s evidence at page 79, I think it is, of those further materials.

GUMMOW J:   Yes, we have it. 

MR TRACZYK:   You will see on that page about halfway down:

I’ve already asked you.  You said that from the first call in this sequence of telephone calls there’s nothing that would entitle you to deduce that they were talking about any particular drug, if they were talking about a drug.  Is that so?

Anyway, the question goes on, but spontaneously Stanbury says:

Okay, well, reading it now, yes, it – there could be a reference to it being amphetamine.

And what particular reference is it that you’re looking at there?‑‑‑The part where Paul Musarri says, “Well Jimmy, I’m telling you it’s fucking different.  It’s not gluey.”  That could be a reference to amphetamine - could be a reference to amphetamine . . . 

Well, if that is a reference to drugs, it could not be a reference to heroin, could it?---Unlikely to be a reference to heroin, yes.

That is a spontaneous answer given by Stanbury on this issue as to, “What do you think they’re talking about, Mr Stanbury, in those earlier phone calls?”, and he picks on that part.

KIRBY J:   Is there a possibility – and I think this is raised in the Crown submission – that the original dealing was in methylamphetamine but that the conspiracy might have been for a different drug or a different combination of drugs or a drug that would contain pure heroin?

MR TRACZYK:   Certainly at the beginning of the trial the Crown position was made quite clear in terms of the exchange that appears at the application book, page 57.  You will see there where these issues were being argued about.  The learned trial judge certainly understood the Crown case to be, as she says at the top of page 57:

No.  The crown have said.  The crown say it’s heroin.  The crown are saying, it’s quite obvious, whatever – the first heroin deal went bad and Musarri was complaining and as a result Delovski said, ‘Look, we’ll send you some better stuff.’  That’s what the crown case is.

KIRBY J:   So it was common ground that the drug was to be the same on both dealings.  The first one which was described as mushy and was at a price of I think $3,800 – was it common ground that $6,000 was the then going price for heroin?

MR TRACZYK:   Between $6,500 and $9,000.  There was evidence that was adduced once ‑ ‑ ‑

KIRBY J:   So they are the two elements in the evidence that you rely on?

MR TRACZYK:   Yes.  Can I take your Honour further on the first point you raise whether it was common ground as to whether or not what the applicant was asking for as a replacement was the same as what he was complaining about in the earlier calls.  At page 57 where the learned trial judge sets out what she understands to be the Crown case, and that is that certainly heroin was being complained about, so he is asking for heroin, the learned prosecutor, you will see at the bottom of page 57, commencing there at paragraph 37, the Court of Appeal makes the observation that:

Her Honour made it clear she understood that Mr Traczyk was foreshadowing a possible application –

and so it goes on.  Then the Court of Appeal observed:

to which the Crown prosecutor reiterated that the Crown could only go on the intercepted conversations themselves, and so far as the Crown was aware, there was no reason to differentiate between the substances concerned and the Crown believed the previous dealing was in heroin.

So what the position of the Crown at trial was, “Look, we believe that the substance being complained about was heroin and therefore Musarri was conspiring with Delovski for Delovski to supply him with heroin.

KIRBY J:   I see you have some very good factual arguments to go before the jury, but why was it not available to the jury to decide, notwithstanding those factual arguments, that the drug was heroin?  After all, the policeman adhered to his view that it was.

MR TRACZYK:   Can I say this about the evidence of Stanbury.  All that evidence came out in cross‑examination and one would think that the Crown would not have been able to elicit that evidence as evidence‑in‑chief because ‑ ‑ ‑

KIRBY J:   Yes, but it was before the jury.

MR TRACZYK:   Yes, it was before the jury.

KIRBY J:   It was available to the jury to act on.

MR TRACZYK:   Yes, but it remains as no more than opinion evidence.  It is not an opinion that is based on any established fact.  It is simply an opinion that he expresses which is consistent obviously with guilt, but ‑ ‑ ‑

KIRBY J:   But when we have jury trial we have to take the good with the bad.  We have to take the entirely rational and logical with the common sense that the jury brings to bear.  Why was it not available to the jury to conclude that?

MR TRACZYK:   If it was available – let me concede for the purposes of argument that it is something that the jury could use.  The first point I make about it is that it is very weak evidence of guilt, very weak because ‑ ‑ ‑

KIRBY J:   You are in the High Court of Australia now.  We are not going to retry your client’s case as a court of trial.

MR TRACZYK:   No.  The complaint that is made is that even bearing in mind Stanbury’s evidence, the point that the jury had to decide before they could convict the applicant was that what I referred to as the replacement amphetamine negotiation theory, that the Crown had dispelled that theory to a standard of proof beyond reasonable doubt.  Unless you can do that, unless a jury could be satisfied beyond reasonable doubt that Musarri was not asking for amphetamine, then you cannot convict him of conspiring to try and get heroin. 

In terms of whether or not the Crown could dispel the hypothesis that I submit is consistent with innocence, how does one do it?  That question has never been answered, with respect.  It was never answered, with respect, at trial.  The Court of Appeal does not answer that question and it is a question that they had to answer before they could uphold the conviction. 

If you cannot answer that question, then the Court of Appeal was bound to say that even though there may have been some evidence on which the applicant could have been convicted, the test that is set out in M v The Queen makes it clear that even if there is some evidence on which a person can be convicted, a court of appeal does not simply look at that fact itself.  Even if there is some evidence, if the evidence is so lacking in probative value or insufficient – the test is set out in M v The Queen at pages 493 and 494. 

Despite the fact that there may be some evidence on which a jury could convict, a court of appeal’s obligation is to set aside the conviction if the evidence is such as to raise a reasonable doubt as to the guilt of the accused.  The simple question in this application is how does the Crown, the jury, the Court of Appeal, ever dispel the real possibility based on evidence that Musarri is talking about amphetamine and whatever Delovski sends him is his business.  Musarri is not conspiring, it is submitted, to try and get heroin.

KIRBY J:   It sounds like an argument before the jury which I am sure you would have put as persuasively as you are trying to put it before us or an argument for the intermediate court.  It does not sound like an issue of general principle or of law or of conflict of authority.

MR TRACZYK:   It is, it is submitted, a point of special importance in the way that the Court of Appeal approached the matter.  The Court of Appeal, with respect, simply got it wrong.  Time and time again in the Court of Appeal’s judgment the court makes the observation or the finding that there was evidence on which it was open to the jury to convict.  Time and time again they say that in their judgment and never, with respect, does the court fulfil the test that it is required to do that is clearly set out in M v The Queen and affirmed by this Court in Jones.  It is a very clear, precise test designed specifically to deal with this particular issue and whether there is a miscarriage of justice.  I take your Honour’s point.  “Justice” may not be the correct word here but I use the word in the sense that ‑ ‑ ‑

GUMMOW J:   The red light is on.

MR TRACZYK:   Thank you.

GUMMOW J:   Yes, Mr Vandongen.

MR VANDONGEN:   Your Honours, if I can go directly to the issue of whether the Court of Appeal below dealt with the question in M v The Queen and refer your Honours to ‑ ‑ ‑

KIRBY J:   Just before you do that, can I just get some ground laid.  Do you accept that there is no principle applicable to this of immaterial variation between the matters proved and the indictment?  There is no, as it were, pleading excuse that the Crown can offer and say it does not really matter because if it was methylamphetamine it is still a prohibited drug. 

MR VANDONGEN:   No.

KIRBY J:   You do not run that?

MR VANDONGEN:   That argument was run at trial but I do not ‑ ‑ ‑

KIRBY J:   That was lost and you accept the ruling on that.

MR VANDONGEN:   Yes.  The Crown had to prove the conspiracy.

KIRBY J:   Do you accept also that the evidence about the mushy quality of the heroin and the price seems to indicate that the conspirators were talking of methylamphetamine rather than of heroin?

MR VANDONGEN:   No, I do not accept that, your Honour.  If I can deal with that question now by reference to application book page 68.  My friend has provided your Honours with additional transcript dealing with Mr Stanbury’s evidence.  What is not included in that additional material is what is referred to on application book page 68, and that is transcript pages 266 and 267.  What happened was the transcript that you have been referred to at page 251 occurred during the early parts of the cross‑examination of Mr Stanbury.  I think there was then a break in the trial and Mr Stanbury returned the following day and gave evidence at pages 266 and 267. 

He was taken back by my learned friend to this issue of what “not gluey” might have meant in that particular transcript.  You will see there at paragraph 80 of the application book on page 68 that Sergeant Stanbury made it clear that when he was talking earlier in the trial about what “not gluey” meant that he was talking about that if it was not looked at in the context of the whole telephone call.  You will see the two questions and answers that appear at the bottom of paragraph 80 make it clear that he is saying that out of context that reference to “not gluey” could mean amphetamine, and that is as high as he went.  In fact, if your Honours look at paragraph 81 of the same page he maintained, as I think your Honour Justice Kirby mentioned a moment ago, that the particular conversation was about heroin taken as a whole.

KIRBY J:   Yes.  What about the price?  The price does not seem to be apt to heroin.

MR VANDONGEN:   The price was also dealt with and it is dealt with on page ‑ ‑ ‑

KIRBY J:   Your point is that this is retail and wholesale price, is it?

MR VANDONGEN:   No, that is not my point, with respect, your Honour.  My point is set out on page 69 of the application book.  The whole point of the price was yes, on face value the price was more apt to amphetamine, but the point of the price was that in the conversation the applicant was complaining about the fact that the other person, whose name was Ivanov, was selling this substance at the price that would ordinarily be for amphetamine.  He was complaining about the fact that he was effectively underselling it at a price less than what he would have expected it to have been sold.  So when Detective Stanbury was taken to the issue of a price and it was pointed out to him that it more aptly fitted with amphetamine, he explained it in paragraph ‑ ‑ ‑

GUMMOW J:   There was some price cutting going on.

MR VANDONGEN:   There was a price cutting going on.

KIRBY J:   Anyway, that was available to the jury to take that view.

MR VANDONGEN:   That was available to the jury.

KIRBY J:   What is the answer to the complaint that the Court of Appeal applied the wrong test?

MR VANDONGEN:   The convenient starting point, your Honours, is page 71 of the application book in paragraphs 88 and 89 of the judgment below.  The applicant’s argument is based on the premise that it needed to be shown beyond reasonable doubt as an indispensable step in the chain of reasoning that the initial conversations were about methylamphetamine or amphetamine. 

That is dealt with by the Court of Appeal at paragraphs 88 and 89 where they reach the conclusion in the final two sentences – and I interpose here to say a conclusion that has not been challenged in the proposed grounds of appeal before this Court – that it was not necessary for the jury to reach a conclusion about the substance the subject of the earlier conversations.  That is the important starting point because they then went on to deal with the issue in the context of the test in M v The Queen at page ‑ ‑ ‑

KIRBY J:   But given that all of the jury’s attention had ultimately to be focused on the matter in the count of the indictment, why was it not the jury’s obligation to be constantly asking itself:  has it been established beyond reasonable doubt that this was a conspiracy to possess a quantity of a prohibited drug, namely heroin?

MR VANDONGEN:   And they were directed in that way.  Specifically the direction of the trial judge was that that is what they had to be satisfied about.

GUMMOW J:   There is no complaint about that direction, is there?

MR VANDONGEN:   No.  Critically, page 82 of the application book and paragraph 135, notwithstanding the finding that I have just taken your Honours to in the earlier passages of the judgment, the court, in particular Justice Roberts‑Smith, specifically dealt with the issue at paragraph 135 where he said:

the jury could properly have inferred to the necessary degree of satisfaction, that both –

and I emphasise “both” –

the subject of the earlier transaction and of the last conversation, was heroin.

So, notwithstanding that they had found that it was not a necessary or indispensable step, taking that as a given, his Honour Justice Roberts‑Smith nevertheless went on to assume that that was necessary and found, using not precisely the words of M v The Queen but, in my submission, the words that were used there indicated that he was applying that test and that well‑known test in M v The Queen, by concluding that nevertheless they could properly have concluded to the necessary satisfaction, that is satisfaction beyond reasonable doubt, that the earlier conversation was about heroin and ‑ ‑ ‑

GUMMOW J:   I do not think we need to hear you any further, Mr Vandongen.

MR VANDONGEN:   If your Honour please.

GUMMOW J:   Anything in reply, Mr Traczyk?

MR TRACZYK:   The test is not simply whether it was open to the jury to convict.  The test is set out, as I have indicated, in M v The Queen at pages 493 and 494 and particularly at page 494, which is at page 131 of the further materials of the applicant, this Court said this:

where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced.  If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence.

The passages that my learned friend has referred to really do no more than what, in my submission, the Court of Appeal said time and time again, and that they made findings that it was open to the jury to convict.  That is not the proper test for the Court of Criminal Appeal to apply.

I come back to the simple question that needs to be answered properly, that is, rhetorically one asks how does the Crown satisfy a jury beyond reasonable doubt that the applicant was not talking about amphetamines when he is complaining about something that has the exact price that the police are utilising from their own intelligence as being the price of amphetamine?

How can it possibly be said as a matter of logic that there is some undercutting going on when there is no evidence of any undercutting?  There is no evidence from Stanbury that there is some undercutting going on in the criminal underworld at the time.  He simply formulates a theory that when Musarri is complaining about the price of three eight and that Ivanov should be persuaded to sell it for four two, that is in the context where, on the police intelligence themselves by the chart that they utilised at that very time, May to June 2000, the going price for heroin was $6500 to $9000.

It is, with respect, a nonsense to say, “This fellow, Musarri, is so cheesed off”, if I can use that phrase, “that somebody’s selling it for three eight and he should sell it for four two when the going price is 6,500 to 9,000”.  With respect, it almost beggars belief to suggest that the opinion proffered by Stanbury is something that the jury could utilise to overcome the clearly open process of reasoning in a criminal trial.  The established fact is that the price of the substance being complained about relates to amphetamine, that it is not gluey as something that relates to amphetamine.

KIRBY J:   It is very powerful and if I were a juror, I would probably be eating out of your hand, but we see little snippets; they see the whole thing.  They see all of the evidence.  They heard all of those actual live telephone conversations.  We just see little snippets.  They heard the policeman, they look at these people.  They decide the case.

MR TRACZYK:    The Crown case was, with respect, encapsulated almost completely, I would submit, in those four telephone calls.  What happened afterward is not disputed.  There is no dispute that Musarri was talking about the problems when the police had arrested somebody else. 

Can I also make this observation.  I do not know whether it comes out clearly.  It is somewhere there in the application book.  The courier, Veselinov – this is the fellow who brought it from Melbourne to Perth with Saso Delovski – he gave evidence at trial and he was asked, “What did you think you were bringing?”  He said, “We opened up one of the packages and both me and Saso Delovski thought it was speed”.  That is what his evidence was and I think there is a transcript of that part of his evidence set out in the additional materials. 

So you have even one of the people who brought it over giving evidence to say, “I think I was bringing over speed”.  Musarri is talking about speed.  I think the Court can take judicial notice that “speed” is a term that is applied to amphetamines.  As I say ‑ ‑ ‑

KIRBY J:   I do not think you have to say it again.  Anyway, the red light is on.

MR TRACZYK:   Thank you, your Honour.

GUMMOW J:   The issue in this application was presented as a miscarriage of justice.  In fact, what rather is involved is a suggestion that the Crown did not prove the charge contained in the indictment, the conspiracy to possess a quantity of a prohibited drug, namely heroin.  There were two elements in the evidence that are said particularly to cast doubt on the character of a prohibited drug, namely the reference to the drug as “mushy” and the price of the drug which was said to be a price referable to the prohibited drug of methylamphetamine and not heroin.

We accept that the offence charged is what must be proved.  However, we are not convinced that the Court of Appeal erred in concluding that it was open to the jury to conclude to the requisite degree of satisfaction that the charge was established by the evidence.  The prospects of success in an appeal do not warrant a grant of leave.  We are not convinced that a miscarriage of justice has occurred, even in a technical respect.  Whilst the time for bringing the application is extended, the application is refused.

AT 9.37 AM THE MATTER WAS CONCLUDED