Palaga v The Queen

[2002] HCATrans 138

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A27 of 2001

B e t w e e n -

KAROLY PALAGA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GAUDRON J
KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 APRIL 2002, AT 11.47 AM

Copyright in the High Court of Australia

MR C.J. KOURAKIS, QC:   If the Court pleases, I appear for the applicant.  (instructed by Michael Woods & Co) 

MR P.J.L. ROFE, QC:   If the Court pleases, I appear with my learned friend, MR S.G. HENCHLIFFE, for the respondent.  (instructed by the Director of Public Prosecutions (South Australia)) 

GAUDRON J:   Yes, Mr Kourakis. 

MR KOURAKIS:   Your Honours, can I deal with the first special leave ground and the first appeal ground, that is, the complaint that the court erred in admitting the evidence of the cultivation of some 1,047 cuttings at the Hallett Cove home, first.  The objection is that that evidence was simply not admissible as evidence which was probative of the cultivation in a home in another Adelaide suburb at the time ‑ ‑ ‑

GAUDRON J:   Why is it not a circumstance which could be taken into account?  I do not see why the entirety of the evidence was not admissible. 

MR KOURAKIS:   If your Honour pleases, it has always been the applicant’s case that much of the evidence was admissible.  For example, the links between the applicant and the house, in terms of having keys to the Bedford Park house, having accounts in his name there, paying accounts and the like, was admissible.  Similarly, there was no argument that evidence of equipment at the Hallett Cove house which might have been used to propagate the cannabis which was found at the Bedford Park house was also admissible, on the R v Thompson and Wran basis.  The objection was simply to the admission of the evidence of the cultivation of 1,047 cuttings in December, which could have had nothing to do with the cultivation at the Bedford Park house.  That evidence ‑ ‑ ‑

GAUDRON J:   Why not?  Why do you say that? 

MR KOURAKIS:   In the sense that clearly none of those cuttings which were not yet plants had anything to do with the first growing of the plants at Bedford Park.  The way in which it might have ‑ ‑ ‑

GAUDRON J:   No, but here is a man in whose house there is found 1,470 marihuana cuttings which have not yet rooted.  In another house in which he pays the electricity and outgoings, there are found marihuana plants.  I would have thought that the evidence at Bedford Park was as equally relevant to the charge with respect to the cuttings, as were the cuttings to the question of Bedford Park.  This was a case, I should have thought, where the jury could be asked to infer from the whole of the evidence that there was no reasonable hypothesis consistent with innocence on either charge; that is to say, that it was a circumstantial case pure and simple. 

MR KOURAKIS:   If your Honour pleases, I accept that if that factual conclusion was made, that is, that the fact that he was cultivating the cuttings in December gave no other inference, supported no other inference, but that he had cultivated cuttings earlier in the year which had been transported to Bedford Park, then the evidence would be admissible, because it passed the Pfennig no rational view test.  His Honour the Chief Justice held that this was the sort of evidence which did not have to pass that test, but then went on ‑ ‑ ‑

GAUDRON J:   That is what I would have thought.  I would have thought this was purely a circumstantial case.  You could say once you look at the whole of the evidence, no rational inference consistent with innocence, it not being a propensity or Pfennig case at all.

MR KOURAKIS:   In my submission, the evidence operates as a circumstance only if one is prepared to reason that because he was propagating cuttings in December at Hallett Cove it makes it more likely that he was propagating the cuttings earlier in March, which cuttings were then transported to Bedford Park, but absent that, the evidence shows no more than that in December he knew how to propagate, or at least attempt to propagate, cuttings of cannabis, but the link with the Bedford Park ‑ ‑ ‑

GAUDRON J:   But is this not one of those strands of a rope type case?  You take the cuttings from which you may infer knowledge, the fact that he has some connection with the Bedford Park house, that he has been paying the electricity and the light and so forth and so on, and it all becomes a circumstantial case, does it not, and I would have thought a strong circumstantial case.

MR KOURAKIS:   If your Honour pleases, the applicant never argued that those other strands were not there and that they were not strong.  The question is whether there is another permissible strand which involves permissible reasoning, reasoning from the cultivation in December that excludes any rational hypothesis other than that the applicant cultivated the cuttings earlier in the year which found their place at Bedford Park.

GAUDRON J:   No, it does not have to be that inference.  It does not have to be that inference, you see.  The inference can be the accused knows, has knowledge of the cultivation of marihuana and knows about its cultivation in substantial quantities.  Then he has paid all these outgoings, he has this connection with the house in which there is this other person who – I do not know whether he gave evidence or not, did he?

MR KOURAKIS:   Mr Nagy?

GAUDRON J:   Yes.

MR KOURAKIS:   No.  Your Honour, in my respectful submission, that places the probative effect of the knowledge too high.  Many people can be expected to have knowledge of cultivation of cannabis, and many do.

GAUDRON J:   It was just a question of whether knowledge might properly be inferred by the jury.  It would not be an impermissible step, would it?

MR KOURAKIS:   No, to infer the knowledge would not but to place any weight on that and to consider that it adds anything to the other strands which your Honour has identified is where there is a risk, in my submission, of prejudice by reason of the impermissible reasoning that because he had cultivated in December he had also cultivated earlier in March.  The know‑how argument, if the Court pleases, could be extended to many very ordinary run‑of‑the‑mill offences, from knowledge how to pick a lock on a door, open a window, and would make that sort of evidence, and accordingly evidence of prior offences against the common housebreaker, admissible if there were some other strands or circumstantial evidence linking the person with the house but, in my submission, the knowledge that the accused might have as to how to break into the house really adds nothing to whatever the net effect of the other evidence is.

If the Court pleases, in the end the applicant’s case relies on it being reasonably arguable that it did not have any probative force.  The special leave question which relates to the extent to which the Pfennig principle applies to the whole range of similar fact cases is dependent upon there being at least that argument.  In my submission, if that is open, then the importance of resolving that difference remains.  If the Court pleases, they are my submissions.

GAUDRON J:   Now, Mr Kourakis, your application is out of time too, and I see no document in the application book explaining the delay.

MR KOURAKIS:   If your Honour pleases, that is so.  I spoke with Mr Rofe this morning and the Crown have no objection; it is one day out of time, I think, and I am not in a position ‑ ‑ ‑

GAUDRON J:   Only one day, is it?  Well, if it is only one day you can -

KIRBY J:   There was a time when one day would have been fatal, but we have moved on a little.

MR KOURAKIS:   There are some advantages in practising in this generation.

KIRBY J:   But would we not deal with the housebreaking or window opening case in a case where the Crown ever endeavoured to present such a case?  This is a much more vivid case where the know-how is really screaming out to the jury from the facts and this does not seem on the face of things to be a case where one gets a feeling of disquiet about the matter.  I agree the principle is the same, but the case to deal with it is a case where you do not have such a very vivid set of facts – same technique, large numbers of plants, same plant; it just does not seem to call out for our intervention.

MR KOURAKIS:   If the Court pleases, I have no other submissions on that factual link.  Can I turn to the question of the maximum penalty which the court held applied to the case of the attempted cultivation, and can I do so conveniently by asking your Honours to turn to page 72 of the application book which sets out section 32.  Your Honours will see that subsection (1)(b) creates the offence of taking part in the production of drugs.  Subsection (4)(a) extends the meaning of “taking part” to include the taking of “any step” in that production.  If the Court pleases, given the width of subparagraph (a), in my submission, it is probable that subparagraphs (b) and (c) would come within it in any event.  The question arises whether there is anything in the nature of an attempt which might still be open.  In my submission, the only possibility is that in which someone might attempt to grow cannabis by planting an apple seed, the factual impossibility ‑ ‑ ‑

GAUDRON J:   Well, I do not think that is right at all.  It depends on the meaning of the word “production”, which is relevantly the case here.  Was any produced?

MR KOURAKIS:   And his Honour the Chief Justice ‑ ‑ ‑

GAUDRON J:   And it was not, was it?

MR KOURAKIS:   No.

GAUDRON J:   I mean, the cuttings had not even rooted, had they?

MR KOURAKIS:   That is right.

GAUDRON J:   So none had been produced.

MR KOURAKIS:   No, they had not.

GAUDRON J:   Well, it is either an attempt or nothing, is it not?

MR KOURAKIS:   No, his Honour the Chief Justice ‑ ‑ ‑

GAUDRON J:   The paragraphs, I should have thought, did not exclude the possibility or did not make the other section inapplicable, the attempt provision inapplicable.

MR KOURAKIS:   If the Court pleases, his Honour the Chief Justice found that this offence at Hallett Cove, the cutting cultivation, would have fallen within the terms of section 32, simply making this point, that one can take part and take steps towards production before the thing being worked on is, in fact, produced and, indeed, the simple planting of a seed, in my respectful submission, is an obvious example of that.  It is nonetheless a step in the production of the plant, although at the time of sowing and for some time thereafter there is yet no plant.

KIRBY J:   Well, Mr Kourakis, there is a debate about this.  It is a slightly ambiguous piece of legislation, it is legislation of the South Australian Parliament, it has been passed on by the Full Court.  It is not something where you could say that the interpretation they gave was not open.  You urge a different interpretation.  Every question of interpretation is, by the time it gets here, arguable.  I just do not think that you can show error in their interpretation.  You can show that there is another interpretation available, but they have resolved it and resolved it for South Australia and it seems an available and appropriate resolution.  Is the provision common in other States?

MR KOURAKIS:   In terms of taking part, I do not know, your Honour.  I do not rely on commonality; I rely simply on the importance in this State.  Your Honours, can I come finally to the question of the provision which, in fact, provides the maximum sentence, which your Honours can find on the next page, at page 73.  Your Honours will see, in the subparagraph (a) which is set out in the first half of the page, that the maximum penalty is dependent on: 

the quantity of the cannabis or cannabis resin involved in the commission of the offence –

Now, in my submission, that must mean the cannabis – if there be any cannabis – at the time that the offence charged is committed, in this case, with respect to Hallett Cove.  There were not 1,047 plants but

something much less than that, and dependent on the constituent of how many plants the cuttings were taken from.  Their Honours in the court below held that because the charge was an attempt to cultivate the plants, the cannabis involved in the commission of that offence was the number of plants that the attempt might, in the end, have produced.  But, in my submission ‑ ‑ ‑

KIRBY J:   Well, what is wrong with that, given that there is the offence of attempt, and that that offence addresses attention to the cannabis or cannabis resin involved in the commission of that particular offence, viz, the attempt.  What is wrong with that interpretation? 

MR KOURAKIS:   In my submission, it is right to say that it is the cannabis involved in the attempt, but that, properly construed, is a reference to the cannabis actually in existence, not some amount of cannabis that might in the future have been produced.  If your Honours please, otherwise, this curious result occurs and that is that if the Chief Justice is right – and, in our submission, he was – that the substantive, choate offence could have been charged, and had been charged, the maximum penalty would have been no more than two years imprisonment. 

Because the cannabis involved in the substantive offence was at the very lower end – the subparagraph (iii) end, because the Crown has chosen to charge attempt, then subparagraph (i) is, the Full Court said, applicable, and the maximum penalty is 25 years.  The same result would pertain if someone had planted 1,000 apple seeds with an intention to grow cannabis.  On the Full Court’s reasoning, the maximum penalty of 25 years would apply – not the lower penalty in subparagraph (iii) – because, as a matter of fact, there was no actual cannabis involved. 

In my submission, although there are some lesser offences which might also constitute an attempt of a more serious offence, one cannot have an offence which at the same time is both the attempt and completed offence.  But on that basis, the Full Court has proceeded to reason that the maximum penalty is applicable.  If the Court pleases. 

GAUDRON J:   Thank you, Mr Kourakis.  We need not trouble you, Mr Rofe.

We see no error in the approach taken by the majority in the Full Court to the evidentiary issue raised by this application.  Nor are we satisfied that the approach taken by the Full Court to the construction of the

legislation pursuant to which the charges were laid was wrong.  That being so, there was no error in the sentence imposed.  Accordingly, special leave is refused.

The Court will adjourn briefly to reconstitute for the next matter.

AT 12.06 PM THE MATTER WAS CONCLUDED