Pereira v The Queen

[1988] HCATrans 205

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S65 of 1988

B e t w e e n -

MARGARET ANNE PEREIRA

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ

Pereira

DEANE J
DAWSON J
TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 13 SEPTEMBER 1988, AT 12.00 PM:

Copyright in the High Court of Australia

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MR G.R. JAMES, QC:  May it please the Court, in that matter

I appear for the applicant with my learned friend,

MR T.A. GAME, and my learned friend, MR M. ANSTEE.

(instructed by John Bettens & Co.)

MR P.S. HASTINGS:  May it please the Court, I appear on

behalf of the respondent. (instructed by

Director of Public Prosecutions)

MASON CJ:	Yes, Mr James.
MR JAMES:	Thank you, Your Honour.  Your Honours, I hand

up the outline of the applicant's argument.

MASON CJ:	Thank you. Yes, Mr James.
MR JAMES:	May it please the Court.  I would like to open

by indicating to the Court that its decisions in

KURAL and SAAD were prescient, however, the

decision of the trial judge in this case, in the

summing up, predated the decision of this Court

in SAAD, though followed the decision of the

Court of Criminal Appeal and the decision of this

Court in HE KAW TEH. Your Honours, when the

Court of Criminal Appeal came to deal with this
ground which was, as the appeal book sets out

at page 120, ground 6, the learned trial judge

erred by allowing the Crown case to go to the

jury in terms of wilful blindness.

It dealt with that matter and that ground as such. At page 131 line 11 of the appeal book,

in the judgment of the Chief Justice:

I am also of the view that his Honour was

correct in permitting the matter to go to the
jury on the ground of wilful blindness, as

well as on the Crown's primary contention

of actual knowledge.

MASON CJ:	But that was all that was said.
MR JAMES:	That is the whole of the reasoning on this ground,

Your Honour. In fact, there had been three grounds

which had raised the conduct of the trial.

(Continued on page 3)

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Pereira

MR JAMES (continuing): At the close of the Crown case,

counsel for the applicant sought a verdict by

direction on both counts and, in particular,

on the count of knowingly concerned. Following

the evidence for the defence he made a similar

application. His Honour the trial judge delivered

a short judgment and that can be found in the

appeal book at page 59. That basis of the

application is set out in the first paragraph,

lines 10 to 16:

there is no evidence of either the accused

being knowingly concerned in the importation
of the good~ or knowing the nature and quality
of the goods found to be in the place occupied

by her at the time of a search.

The application is based on TEH's case

and what was said in that case concerning

knowledge.

And at line 23:

The highest court of the land can surely

not mean by its judgment, that only where

a person can be convicted of a crime involving

knowledge, either knowledge of being concerned

in the importation, or in the possession

of prohibited imports, that one must have

admissions.

And His Honour refers to the circumstances from
which inferences can be drawn and what is said

is of great importance. He says, at page 60:

It is also important in that consideration,

that some of the utterances might be

considered to show a consciousness of guilt.

I am satisfied that the matter should proceed to a jury -

In his summing up, His Honour gave directions

as to the consciousness of guilt and they can

be found at page 72 of the appeal book.

(Continued on page 4)

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Pereira

MR JAMES (continuing): Those directions were in short form,

connnencing at line 2:

When the police investigate matters

they are of course asking some questions and
the accused person is not bound to answer

questions. That is one of his rights,

what laywers sometimes in modern days call

the right to silence. However, where people

under investigation answer some questions,

do not answer others, or hide away from

others, then you as a jury can consider the

totality of what they were getting at; the

totality of what can be deduced from that

and sometimes those reactions can afford

unintended proof of guilt in the sense that

they can show to a fact-finding jury

that the person is afflicted with a

consciousness of guilt by the way that they

answer questions. That is something you

are entitled to use in your considerations

and of course, it is a matter which you

use with care.

And then at line 22, on that page:

Counsel have addressed you to indicate

that the point at issue in this trial is
really knowledge in the accused.

I should take Your Honours to what was said

at the conclusion of the summing up when trial

counsel sought redirections, at page 83, line 23:

the necessity for the Crown to prove that the accused knew in the first charge that there was cannabis resin being imported;
that she was knowingly concerned in the

importation not of the goods but of the

cannabis resin, secreted inside.

And again, at line 30: 

that your Honour would tell the jury that

they have to be satisifed that not drugs
but cannabis resin was the intended import
for which she was knowingly concerned.

What His Honour says appears at lines 34 to 37:

I said' they had to be satisified that she had knowledge that there was a narcotic good

known as cannabis resin.

At page 84 His Honour points out he had said

"the likelihood of drugs". Then, at line 7;

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Pereira

Of being in possession, your Honour. It is our submission that your Honour should address the jury in respect to the fact

that if she did not know that there was

cannabis resin in the parcel, then she

could not have been found guilty of either

offence.

Your Honour gave the jury - - -

TOOHEY J:  Mr James, could I just interrupt you for a

moment? Does the appeal against conviction on

the importation offence and the appeal against

conviction on the possession offence stand

or fall together, in your submission?

MR JAMES: Yes. In our submission, Your Honour, this

was a case in which the evidentiary element

of knowledge was such that wilful blindness

did not enter into the case on either offence

and the practicality of the matter, in our

submission, is that the danger that this Court

adverted to in KURAL and SAAD has come to pass.

That is to say that the Court's remarks in

HE KAW TEH, in KURAL and in SAAD have been

elevated to a principle of liability rather

than a proper explanation being given to the

jury as to those facts which might enable them
to find the intention necessary to constitute
the two offences charged. That is why Mr Costello

took the point in relation to knowledge in the

way in which he did, and that is why he submitted

that there were not alternative verdicts.	He
continues:

It is our submission that if there is no

proof beyond reasonable doubt on the

part of the accused that there was knowledge

of cannabis resin in the parcel, then the

jury cannot find her guilty on both counts,

or one count and not the other.

And he continues, reading the next paragraph:

(Continued on page 6)

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Pereira
MR JAMES (continuing):

Your Honour said to the jury that they have the

option of finding the accused guilty of one

and not guilty of the other. That is a

misdirection and your Honour should state that

if the jury were satisfied beyond reasonable

doubt that she knew there was cannabis resin

she could be guilty of both but if they were

satisfied that she did not know there was

cannabis resin -

and that is plainly an error on trial counsel's

part -

then she must be acquitted of both. The

issue being knowledge; is no knowledge there

is no possible attempt of a guilty one

and not guilty on the other.

That is plainly a mistranscription but the sense

of it can be gleaned from the earlier passage.

His Honour was of the view that he should not

withdraw what he had put to the jury. Then at

line 37:

What I am putting your Honour should tell

the members of the jury is that if they are

satisfied beyond reasonable doubt that

there was no knowledge on the part of the

accused of cannabis resin in that package,

then she cannot be found guilty of either

offence. That is what I asked your Honour

to put to the jury, that having not been

put.

Infelicitous in onus, but direct in impact, in our

submission. His Honour did not redirect the jury.

DEANE J:  Theoretically she could be guilty of one and not

the other.

MR JAMES:	Yes, Your Honour; in the abstract.
DEANE J:	And it was open here.  I mean, one could draw

an inference from the facts that she was not involved

in the importation but that when she got the parcel

she realized what it was?

MR JAMES:  In order to do that on the evidence in this case

one had to have resort to the consciousness of guilt

evidence, the material to which His Honour has

referred earlier and to which I had taken the Court,

which related to her unwillingness to answer

questions to the police and the telling on one

version of a lie.

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Pereira

DEANE J:  But if one could infer some knowledge from that

evidence, it was open to the jury to infer knowledge

that she knew what was in the parcel but to refuse

to infer that she was concerned in the importation?

MR JAMES: Technically, yes, Your Honour, I would have to

concede that. But the Crown case from first to

last was that she was a person who had been to

India, who had met a man on a plane to Adelaide - - -

DEANE J:	I follow that, yes.
MR JAMES:	- - - and that as a practical proposition to put

to the jury, particularly in the context where

counsel is seeking to fight the case on that

square issue of knowledge or no knowledge. the
introduction of the wilful blindneai the wilful

blindness arising from answers she ~ade to the

police at a time when she had to have some suspicion-

DEANE J:  I was simply directing my question to your answer

to Mr Justice Toohey, that is, it was not open to

find her guilty of one and not guilty of the other?

MR JAMES:  That was not an answer in abstract, Your Honour,

that was in the context of this case and, indeed,
our submissions are all placed, in this case, as

to the way in which the case was fought and the way in which the issues were posed to the jury. Now, Your Honours, the directions that His Honour

gave on the first count, that is, the count of

knowingly concerned, are to be found commencing at page 73. Perhaps I should take Your Honours

to line 13 because His Honour deals with concerned

and knowingly concerned in a way that, in our

submission, tends to obscure the separate nature

of the elements.

The next matter is, was the accused concerned

in the importation? Being concerned in

as you can imagine, with a whole process of	something covers a wide range of activities	importing goods into a country. It is
impossible for me to list all of them that
could go to the fulfilment of a plan for the
importation of prohibited articles. However,
involvement in it,or having a connection with
it, taking part in it, either beforehand, before it gets to Australia, or after it gets to
Australia and before it is cleared, finally
cleared for use in this country, can all be part of being connected with, or concerned I should say, in the importation.

C2T30/2/MB	7	13/9/88
Pereira

MR JAMES (continuing):

It is sufficient to establish being

knowingly concerned in the importation of

prohibited goods, that the person charged

although inactive, could have been ready

and willing pursuant to some pre-concerted

plan to be a recipient of a parcel containing

prohibited imports -

Your Honours, in our submission, that direction

is certainly not adequate in itself, is erroneous
in so far as the word "knowingly" appears in
the direction and the word "could" appears in
the direction and its obscurity which is as low
as we would put it, is not cured by what appears

subsequently in the summing up -

when it was delivered to the person in order

that the goods might be dealt with in this

country. So you will be concerned in this
case with the circumstances surrounding
the receipt of the goods and the retention

of the goods until such time as arrest.

And it was precisely those circumstances which

are the circumstances relied on to establish

intent, knowledge or wilful blindness.

His Honour continues to refer to:

the circumstances which might have existed
before that, to permit of the possible
arrangement for the goods to be brought

to Australia, or sent to Australia -

and at line 4 on page 74 -

and that would involve such questions as

knowledge of people overseas who might

have brought it, the chance of having

arranged it and the like.

And, of course, the case was built round her

knowledge of such people in India.

But of course, you will remember that in

considering all those circumstances, if

you find that they do exist you will have

to be satisfied to the extent I told you

of previously before making a final decision
of guilt if you ever wish to come to that
conclusion.

Being concerned, knowingly concerned with the importation of goods can be shown

C2T31/l/ND	8	13/9/88
Pereira

by the co-operation, conscious and deliberate

co-operation in the receipt or the forward

on of the goods, or the use of the goods

knowing that they are being imported, or

having been imported at the time when the process of the importation is still going

on and the process of the importation is

still going on until the goods get to the

ultimate person to whom they are intended,

when it comes to middle persons.

We would not quarrel with that direction,

Your Honours, except the word "knowingly" 1s

again included. His Honour then goes on:

It is important, of course, that you

consider the next element in the charge

which is not only that you happen to be

concerned but that you are knowingly concerned.
In other words, you would be looking to

see whether the proved acts and circumstances

which went on involved the accused person

in the importation. You will be asking

youself in the long run, was the person

knowingly and to that extent consciously

and deliberately concerned, in the

importation of the prohibited import.

And His Honour then goes on to direct the jury

as to the circumstance of the dumping of the

parcel:

For instance, if somebody just dumped

that parcel, you might find it difficult
to say that they were knowingly concerned

if that was all the evidence you had. But

then, if you have other evidence that would suggest to you as a rational inference that the person knew that the parcel was being

imported and that it was going to contain

or did contain, or was likely to contain

prohibited imports in the nature of narcotic

goods, then the proof of knowledge would

be made, if you were satisfied with that

inference being the only rational inference

that you could come to.

(Continued on page 10)

C2T31/2/ND	9	13/9/88
Pereira
MR JAMES (continuing):	That,	in those two passages,

the paragraph commencing at line 19 on page 74,

to the conclusion of the second paragraph on

page 75, line 4, is the essence of the guidance

His Honour gives the jury on the charge of

knowingly concerned, in so far as the intent of

that offence is to be ascertained.

His Honour then, however, deals with the same

direction and qualifies it in the subsequent

two paragraphs on page 75:

Perhaps I will put that to you another

way. For proof of this crime and

there does not necessarily have to be

shown active participation in the sense

of the sending of the goods, there will

however have to be shown to be proved

some act, or acts on the part of the
accused in the proof of his concern in it,

or her concern in it knowingly. And you

will be wanting to know as I repeat it to

you again, was she knowingly and to that

extent consciously and deliberately

concerned in importing, in the importation.

Can it be said that the acts proved and shown to have been done by the accused

do in truth implicate, or involve her

in the offence?

I would ask you also to try this

distinction, that if there was just mere

knowledge of the importation of goods and

then merely concerned about distributing
the goods after they had been imported
into the country, after they had got through
the process of importing to the recipient,

then that would not be enough to show

concern in the importation. You would

want to be satisfied that there was a

knowing concern about the process, or

some aspect of the process of importing

from the time of its being arranged in
say, India, until the time of receipt into
the hands of the recipient in Australia.

His Honour then turns to the second count. If I

might take the Court back to the paragraph

commencing at line 26 on page 74:

For instance, if somebody just dumped that

parcel, you might find it difficult to say

that they were knowingly concerned if that

was all the evidence you had.

Your Honours, with respect, if somebody had just dumped that parcel it would not be open to the

jury, if that was all the evidence they had,

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Pereira

to say they were knowingly concerned:

But then, if you have other evidence

that would suggest to you as a rational inference that the person knew that the

parcel was being imported and that it was

going to contain or did contain, or was

likely to contain

and what is omitted from that.and that the accused

knew that it was going to contain, did contain or

was likely to contain -

prohibited imports in the nature of

narcotic goods, then the proof of

knowledge would be made, if you were

satisfied with that inference being

the only rational inference that you

could come to.

Your Honours, the question of knowledge, however,

was not left at an end by His Honour's directions

on knowingly concerned, and the issue was posed

at page 76, line 1, as soon as His Honour turned

to his directions of law on the nature of the

possession count:

Once again, the counsel have put to

you the issue here, is there knowledge

in the accused?	However, these are the
ingredients.	She was found in possession
of prohibited imports.	The prohibited

imports include cannabis resin, which is

a narcotic good and the quantity once again,
there seems to be no dispute about it, is

in excess of the trafficable quantity.

However, the argument is that she was not

in possession of the goods and this is an
important matter for consideration in this

charge -

and His Honour directs the jury in relation to

custody and control and continues at line 18:

(Continued on page 12)

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Pereira
MR JAMES·(continuing):

But then the law adds onto that, that

there should be knowledge in the person

who has the care and control, as to what he has actually got the care and control

of. So the law says one has in one's possession

whatever is to one's knowledge physically in one's custody, or under one's physical

control, in the sense that one intends to

and in fact does, exercise dominion, or

control over the thing. The argument here

is, the chief argument you might think

is, that the lady did not know what was

in the bag so to speak.

The Crown says the circumstances surrounding

the receipt of these goods will satisfy

you that she did know and that you will

come to that view, because of the way she

answered the questions and the circumstances

surrounding it and what she has told you

here in court and also arising from this

matter, or bringing up an association with

some man on a trip between Adelaide and

Sydney.

And then His Honour turns to the crux of his

directions concerning the nature of knowledge:

Of course, the law knowing how difficult

it is to prove knowledge, sometimes does

allow a jury to consider the fact that somebody

has acted with wilful blindness. So the

law says that if the suspicions of a recipient

of a parcel from overseas would be aroused -

and again His Honour is using, as he did earlier

when he referred to the "could", terminology of

a general nature·-

and the person refrains from making any

enquiries for fear he might learn the truth,

then it is wilful blindness and can be treated

as equivalent to knowledge of the contents. the receipt, or of the appearance of the

goods, the jury may well be satisfied that

if you are so minded beyond any reasonable

doubt that the recipient wilfully shut his
eyes, or her eyes to the possibility that
the parcel was containing narcotics, for

that reason you can treat that as being
guilty knowledge and the necessary guilty

knowledge for possession.

C2T33/1/SDL	12	13/9/88
Pereira

Stopping there, Your Honours, and returning to

that paragraph, we would draw the Court's attention

to the use in line 4 of the words "would be aroused",
the way in which this is put, in general terms,

and the person refraining in the event that his

suspicions would be aroused.

So that if there is something suspicious

about the receipt, or of the appearance

of the goods -

there is no reference there as to the necessity

to show that that personally occurred to the

accused -

the jury may well be satisifed that if

you are so minded beyond any reasonable

doubt that the recipient wilfully shut his

eyes, or her eyes -

not to the likelihood but -

to the possibility that the parcel was

containing narcotics, for that reason you

can treat that as being guilty knowledge

and the necessary guilty knowledge for

possession.

So that that becomes the definition of the intent

necessary for this offence. His Honour then
continues:

If you are satisifed that the person possessed the goods with knowledge of the

fact that there were narcotic goods of

cannabis resin in the parcel -

and that, Your Honours, would have been a correct

direction but it is given only in the context

of the statutory defence -

then the accused person has a let-out to

cover certain cases where there may be an innocence nevertheless, in the receipt of

the goods. It may be that they are intending

to take them along to the gendarmes, or

the police, or something of that nature

and then the law says that the accused may give a reasonable excuse and the onus then

falls on the accused on a balance of

probabilities, to prove that reasonable

excuse. There would be circumstances where

that can apply but that is not what is alleged

here. The defence here is, you would never

get to that point. I, the accused, did

not have to get to that point, because I did

not know that there were narcotic goods in that bag, or

in that parcel. So that aspect of the law I do not think
will concern you in this case.

C2T33/2/SDL 13 13/9/88

Pereira
MR JAMES (continuing): Indeed, the defence is only put at

this point only for the purpose of indicating that
the statutory defence does not arise. His Honour
continues:

The Crown says that you will come to the view on the onus that rests on the Crown to

prove that the accused did know that this
parcel contained narcotics, or that it was

likely to contain narcotics and that she

just was prepared to ignore that.

And:

just was prepared to ignore that -

Your Honours, in our submission, does not accurately

state the law either:

The defence on the other hand says, well, we

did not know - I did not know that this parcel

did contain any narcotic goods.	I did not
know what it contained really.

And His Honour then turned to a review of the evidence, and when he came, in reviewing the evidence, to the

question of those answers to the police officers on

which the consciousness of guilt proposition could be

based, at page 79, line - perhaps I should commence

at line 14, sorry, no, perhaps a little earlier -

when the parcel was delivered, at line 6:

It is suggested that her conduct when she

received the package was one which showed that

she expected it, or a package of that nature.

Perhaps a little bit more than she expected

but something coming from such a destination

I suppose, was what counsel was really putting

to you.

I remind you that that came when she said,
"Oh, a nice surprise.	Thank you," when she

heard that there was a parcel here for Caulfield.

Then it was suggested that, I think there

had been mention of a search warrant, looking

for matters later on when the parcel was found.

That she started to answer the questions

differently when the question of drugs was brought

up.

I should indicate to Your Honours that what was brought up was a statement in very blunt terms that she knew

that the parcel contained drugs and she denied having

that knowledge, and it was the questioning thereafter,

after the statement to her that the parcel contained

drugs, which is now the subject of what is said to

show a consciousness that the parcel contained drugs.

C2T34/l/VH	14	13/9/88
Pereira

Then it was suggested that, I think there

had been mention of a search warrant, looking

for matters later on when the parcel was

found. That she started to answer the questions
differently when the question of drugs was

brought up. She kicks off by answering questions

about having got delivery of the parcel that

afternoon. She agreed to that. She did not

agree that that man had delivered it to her.	She
said she did not take much notice of him.	She

said that Mr and Mrs Caulfield did not live there.

In effect, she answer that, "No." When she was asked why she accepted the parcel, she said it

was for a friend but she was not going to tell

the officer who it was.	She would not tell them
where they lived.	She said, "That's none of your

business." Then she is asked, "Do you know the

the parcel contains drugs?" She says, "I am

not saying anything to you." That is when the

policemen then warns her. She says, "I am not saying

anything. I want a solicitor." It is suggested

that that type of questioning, or answering of

questions shows a consciousness of guilt, or the
way she answered the questions, it is not the way

it is suggested, that a completely innocent person with no knowledge would be answering

questions about that parcel.

It is suggested that the goods were expertly

secreted and that you can use - you heard

defence counsel saying, that would suggest that

somebody just receiving those goods would not

know what they were, would not know that the

goods contained narcotics. It has been done so

expertly and the contention is you would not

expect I suppose cricket balls like that to be

used by little boys, or big boys.

There is reference - His Honour refers to the fact that:

somebody would be expected to know something
about what was in the balls.	Why would they

be throwing it out of India unless somebody

in Australia knew that they were more than

cricket balls?

And the officers had attended at her premises with a warrant to search for drugs. Now, Your Honours, the

sunnning up in fact concludes at page 83, after a

short review of the balance of the factual material in

the case.

(Continued on page 16)

C2T34/2/VH 15 13/9/88

Pereira
MR JAMES (continuing): At pages 83 to 84 the trial counsel

puts his application that His Honour should

redirect the jury on those matters to which I had

taken the Court a little earlier. He had made

the earlier applications and they can be found

at pages 49 and 57 the last three lines of

page 49 and the argument proceeds through page SO,

concerning the elements of the offence and the

place of knowledge.

Wilful blindness is first raised at

line 29 by the Crown prosecutor in reliance

on what fell from Sir Harry Gibbs, the then

Chief Justice, in TEH's case. The Crown then

referred to Your Honour Mr Justice Deane's decision

in that case. The Crown prosecutor had submitted

that there was evidence capable of going to the

jury to determine the question, that is that she

knew there were narcotic goods in the package,

or likely to be. At page 51 the Crown submission

appears that that material went to a question of

knowledge,.or that she:

was expecting a package and that she did

not seek to give any particulars of who

it was for.

The Crown in fact ref erred His Honour - after

dealing with knowledge, at lines 22 to 24 inclusive -

to SAAD's case in the Court of Criminal Appeal.

That was the application that led to His Honour's judgment, to which I had taken the Court earlier.

It appears also - - -

MASON CJ:  The Crown prosecutor was obviously privy to the

views of Justice Deane that are not reflected

in TEH ' s case .

MR JAMES: Your Honour the Chief Justice will also find

reference to Your Honour.

MASON CJ: Yes, I have noticed that. I was said to agree

with these non-existent views of Justice Deane.

(Continued on page 17)

C2T35/l/JM	16	13/9/88
Pereira

MR JAMES:  Your Honour will find that at page 52 the case

for the accused was opened and it is apparent

from some discussion between counsel and

the trial judge that the accused case was squarely

enough opened on the basis of a grave shortage

in the evidence of knowledge and the accused

made a statement in which he denied all knowledge

and called her father in relation to

Mr Caulfield and as to her background. Then,

at page 57 came the further application made

by trial counsel at the close of the defence

case in which CHAMBERLAIN, IRELAND and PLOMP

are cited for various reasons but, in particular,

at page 58, Mr Costello submitted that the

inference were not such as to be capable of

establishingas the only rational inference,

knowledge, and that:

there was no evidence at all to show that
the accused knew that what was inside the

package was hashish.

He relied upon TEH's case for that proposition.

His Honour rejected the application.

Your Honours_, that isthe ambit of the appeal

book material on this issue. It was a trial

within very short compass and unfortunately the

Court of Criminal Appeal's reasoning when rejecting

the ground of appeal gives one little assistance

when one come to examine it, even though the

matter was before them. But it was certainly

a matter in which the question of knowledge and

the appropriateness of the wilful blindness direction

was directly and squarely in contest.

In our submission, the Court of Criminal

Appeal has failed in its function to deal with

this grounJ of appeal and that this was not a

case in which as a practical proposition wilful

blindness ever entered into it and it was such

a case as where the introduction of wilful blindness
served to confuse the jury, given as it was in

passages which dealt with the central issue and

which were themselves erroneous.

(Continued on page 18)

C2T36/l/ND	17	13/9/88
Pereira

DAWSON J:  You do submit there is a principle of "wilful

blindness", do you?

MR JAMES:	No, Your Honour.
DAWSON J:	You submit it is a non-existent principle?

MR JAMES: No, I do not go that far either. What we say is

it is rather like recklessness in murder; it has

its place in the appropriate case but it is a

principle to which resort should not be made

unless there is an appropriate place for it.

That is why Your Honours will find on our part B

list of authorities reference to PE'MBLE,

LA FONTAINE and CRABBE. When it comes to this

question of the definition of the mental element
of a crime, this Court has dealt with the existence
of an evidentiary proposition in SAAB and KURAL

and has dealt with it in the context of how one goes about proving or how a jury might reason

towards a conclusion establishing the intent

for a crime.

DAWSON J:	It never is a substitute for proof of the actual intent?
MR JAMES:	No, never, Your Honour. This is, as I understand

it, the first case in which this Court is being asked to examine, in the light of what was said

in HE KAW TEH, the principle of"knowingly concerned"

in an importation, whatever might be the intentional

element associated with importation which was raised
in HE KAW TEH, as well as the possession problem.

Whilst a "knowingly concerned" charge under

section 233B(l)(d) may not be a true accessary

type offence - it may be a substantive charge on

its own - it· certainly parallels the provisions

of section 5 of the Commonwealth CRIMES ACT and

it certainly parallels sufficiently the provisions

relating to it, or the circumstances relating

to accessaries examined by this Court in GIORGIANNI,

such that one can say that the accused, at least

as though they were an accessary, must have

knowledge of the importation and of the drug, at

least of the narcotic goods in this offence even

if it were not necessary in the other offences

under section 233B.

(Continued on page 19)

C2T37/l/'MB	18	13/9/88
Pereira

MR JAMES (continuing):  But that is simply because the

correspondence of the words "knowingly concerned" with the mens rea, so that in this case they define "mens rea 11 more adequately than they would

for any other offence under section 233B. But

that only lends support to the argument that

wilful blindness has no part in the definition

of an offence of knowingly concerned and this

summing up, whilst it separates the two counts,

does not separate for the jury the suggestion

that one is talking about two different things

when one comes to the intention for the two

different and distinct offences.

I hope I have answered Your Honour's question

as best I can. That is why we included in our
list of authorities those cases and, in addition,
included RAAD which is a New South Wales case

concerning receiving where it was held that belief

is the essence of what one is talking about in

receiving as the mental element necessary when

one receives the stolen goods. And, indeed,

it seems that there is a basis on which the whole

of this calculus that has been ere~ted .in respect
of 233B. can be seen as merely one manifestation
of a much wider problem and, indeed, the court

has approached it in that way in HE KAW TEH and

KURAL and SAAD, such as to permit of some such

statement as appears in CHAN WING SIU concerning

the liability of accessories to murder.

That is the "you must be satisfied beyond

reasonable doubt that he did contemplate that

a death might well result". Now, we mention

that solely because if it comes to the necessity

of doing what this Court has so far refrained

from doing and done so in express terms by saying

that the court did not intend to erect wilful

blindness into a mode of direction for trial
judges, then it may be necessary that the Court

should give some guidance on the question as

this Court did do by adopting what was said by

Sir Robin Cooke in CHAN WING SIU in MILLS' case,

SINFIELD AND MILLS, where the only point in which

the court delivered a judgment was to suggest

some such formula might be appropriate to such

cases as a general but not an absolute rule.

(Continued on page 20)

C2T38/l/ND 19 13/9/88

Pereira
MR JAMES (continuing): But, Your Honours, in our submission,

what we have here are directions which are in error
and which are materially in error which, when they

are examined in their totalit½ might well have led the jury to discount entirely the defence in a way

that was inappropriate and thus to deprive the

accused of a prospect of acquittal that might
otherwise have been open and that these questions and

the appropriateness of wilful blindness have not

been examined in this case by the Court of Criminal

Appeal at all; that, because the court, when it came to examine the directions, did so only in the

context of whether or not a conviction was open on

the Crown case. That appears, Your Honours, from

page 129 of the appeal book where the court examined

the directions -I should say, the three grounds -

that being grounds 4, 5 and 6:

4.        .The learned trial judge erred by allowing

the charge of 'possession of a prohibited

import (cannabis resin) to go to the jury.

5.      The learned trial judge erred by allowing

the charge of being knowingly concerned in the

importation of a prohibited import to go to

the jury.

6.      The learned trial jduge erred by allowing

the Crown case to go to the jury in terms of

wilful blindness.

And the court, at line 8 on page 129, dealt with those

three grounds together:

The next three grounds challenge the decision of the judge to allow the case to go to the jury on both the charge of possession and the

charge of being knowingly concerned. Ground 6

makes a specific challenge to the judge

allowing the Crown case to be put to the jury

wilful blindness, as well as on the primary	on the ground of what has been described as	ground advanced by the Crown, namely actual
knowledge of the presence of narcotic drugs.

And a passage from the judgment of the Chief Justice,

Sir Harry Gibs in HE KAW TEH is set out from the ALJ report.

(Continued on page 21)

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Pereira

MR JAMES (continuing): And the court then turned to KURAL at

the top of page 130 where the court, having the

benefit of the preliminary print of that judgment,

set out the passage from the joint judgment of

His Honour the Chief Justice, Your Honours Justices

Deane and Dawson.

DAWSON J:	The present Chief Justice, of course.
MR JAMES:	It is set out in error as being Chief Justice -
MASON CJ:	Yes, but what do you draw from that? You seem

to regard this as having some sinister relevance?

MR JAMES:  The relevance of setting out that passage is

the Court never turned its mind to what appeared

in the case concerning the matter not erecting

itself into some principle of law or mode of

direction for trial judges. They did set out

the passage concerning the availability of reasoning

on such a path.

DAWSON J: It seems to treat the two passages as saying

the same thing and I am not at all sure that

that is right.

MASON CJ:  Yes, it does. Hence the reason for perhaps

the mistake as to identity as well.	A Freudian
slip.

MR JAMES:  Your Honour, we in fact submit that, in our

sixth submission, the Court of Criminal Appeal

failed to understand the concept of wilful

blindness and evidenced it in the judgment in

this case in so far as there is such a concept

available.

In our submission, this is an appropriate matter, notwithstanding what the Court has said

in SAAD and KURAL, for the grant of special leave

not only because of the errors in the discussion

of wilful blindness, if one is to embark upon

it; not only because, in our case, this was

never a case in which wilful blindness should
have been discussed at all - it should have been

left as a contest of knowledge or no knowledge

or, more appropriately, intent or no intent;

and because the Court of Criminal Appeal has

failed to perform the function cast upon it by

section 6 of the New South Wales CRIMINAL APPEAL

ACT to examine this ground of appeal and to examine

the adequacy of the directions. In our submission,

in those circumstances, it is appropriate for

this Court, particularly since it has said what

it has said in KURAL and SAAD, to make it clear

that this already complex and already difficult
legislation is such as requires the giving of

assistance to the jury in as clean, clear terms

as it possible.

C2T40/l/SDL	21	13/9/88
Pereira

MR JAMES (continuing):  The jury cannot be taken, Your Honours,

in our submission, to fail to understand adequately

the proposition that the accused will be guilty

if the accused intentionally, knowing what he or

she was doing, participated in the bringing into

Australia of narcotics. And to complicate it,

as is done in this case, is to produce anelevation,
in our submission, of an examination of a mode of

reasoning into an additional principle of liability.

Unless I can assist the Court any further, they are

the submissions we would make on the application.

MASON CJ:  The Court will adjourn until 2.15.

AT 12.46 PM LUNCHEON ADJOURNMENT

C2T41/l/JM	22	13/9/88
Pereira

UPON RESUMING AT 2.15 PM:

MASON CJ:	Yes, Mr Hastings.
MR HASTINGS:	I have, Your Honours, my outline of the case.
MASON CJ:	Thank you. Yes.
MR HASTINGS:	Your Honours, might I corrm:nce by ref erring to

my second point, that is, that the direction given

by the learned trial judge on the question of

wilful blindness was solely directed to the

second count in the indictment which was one of

possession. The trial judge at page 71 point 2
made it clear that the jury had to make two distinct
decisions and reach two verdicts and as was canvassed

briefly this morning with my learned friend he

adverted to the possibility of the accused being

found guilty on both, or not guilty of both, or

guilty on one and not guilty of the other. That,

in fact, was the subject of some complaint later

but, nevertheless, it set the tone, in my submission,

for the way in which the trial judge then embarked

upon the balance of his summing up.

It becomes clear~ in the pages that follow,

that the trial judge, commencing at page 73 line 12,

dealt with the question of knowingly concerned

and the criteria which applied to that count

which was the first count in the indictment.	I
will not go through the matters again that my learned friend has adverted to but in so far as

the trial judge was talking about knowingly and

consciously and deliberately, it is all, in

my submission, the context of directions on the

first count of being knowingly concerned. Then

at page 75 line 25 the sunnning up clearly breaks

away from the first charge which had by then been

completed. His Honour commences with the words

at line 25:

The other charge relates to posssessing

prohibited imports namely, narcotic goods

consisting -

et cetera, and goes on dealing with· knowledge

generally on the next page and then directly on

page 77 to the passage dealing with wilful blindness .

Your Honours, it is our submission, that on that

reading of the summing up there can be no

misunderstanding to the effect that the judge

was dealing with both charges when he dealt with

wilful blindness but was clearly in the way

that he expressed himself and had generally

structured his summing up was only dealing with the

C2T42/l/MB	23	13/9/88
Pereira

second count of possession when he came to deal

with that issue. So that any complaintt in my

submissiont which goes to the appropriateness

or the terms of the direction on wilful blindness

cannot be said to taint the conviction which

was reached in relation to the first count of

knowingly concerned.

(Continued on page 25)

C2T42/2/MB	24	13/9/88
Pereira

MR HASTINGS (continuing):  Having said that, Your Honours,

it is our submission then that it was a proper

factual basis in the evidence to give a direction

on wilful blindness. My learned friend this

morning gave some indication that that had not

been the Crown case but, in my submission, it

is quite clear from the terms of the summing

up in the way that the trial judge - and we have

been directed to the argument which was .raised

earlier in relation to directions on the verdict -

that it was an issue raised by the Crown which

pitched its case on two levels: one, endeavouring to demonstrate knowledge directly by the accused; and, secondly, in the event of that not being

accepted by the jury, presenting a case of wilful

blindness.

And with that having been raised by the

Crown, in my submission, it was appropriate on

the evidence for such a direction to be given
and I will not go in any detail into the facts
at all but the facts primarily which generated

a proper premise for that direction, in my submission,

wer~ simply to be found in the response to the

delivery of the parcel by the applicant when

it was handed to her in a name other than her

own and she said, "Oh, a nice surprise". Secondly,

the finding of the parcel an hour later by the

police in an unopened condition in the bottom

of a wardrobe, that being a somewhat ambivalent

fact which perhaps demonstrated - at least entitled

a jury to generate two inferences: one being

that because it was unopened it demonstrated

a lack of proprietary interest on her part

consistent with it being a parcel destined for

somebody else but the Crown would say something

of whichshe had some knowledge; and, secondly,

the fact that it was then in the wardrobe of

a bedroom demonstrated some desire,:it could

be put, to keep the parcel out of sight.

So from that fact there was, on the one

hand, a demonstration of it not being something

with which she was directly concerned but something

of which she had some knowledge and something

about which she had susoicions by virtue of it

being placed in a discreet place like that.

(Continued on page 26)

C2T43/l/ND 25 13/9/88

Pereira
MR HASTINGS (continuing): Then, the third part of the

evidence which, it is submitted, justified

the direction, were the answers given by the

applicant when questioned by the police after

they had made known their purpose and in

particular in response to the question:

Why did you accept the parcel?

the applicant said:

It's for a friend.

The next qHestion was:

Who is the friend? -I know but I'm not

going to tell you.

And those questions, we submit, and those answers

provided the framework of an assertion by the

accused that it was not a parcel for her, in

the sense that she had been directly involved in

it, but she knew for whom it was intended and by

virtue of her refusal to say who the identity

of the recipient was, she was again confirming or demonstrating the suspicions which she held as to its illicit nature. And whilst my learned

friend correctly says - - -

DEANE J:	Mr Hastings, if what you say there is right,
and this is probably by the way in terms of
this appeal, but it is very difficult to see
how there could be a conviction of both offences,
is there not, in that the acts constituting the first offence on that approach are the very acts which constitute the second offence. In other words, her possession for the purpose of passing
on is the way in which she was concerned in the
importation?

MR HASTINGS:  I am not sure, Your Honour, that that would be

sufficient for knowingly concerned, to have it

after importation.

DEANE J: It may not be sufficient, but why is this not

two convictions for one action?

MR HASTINGS: There was a certain amount of duplication,

Your Honour. I do not know why this practice

is adopted, but it seems to be done quite

frequently.

DEANE J:	As I say, it probably does not arise, but if
you approach it the way you are approaching it
and say that she received it to pass on to
someone else, I have great difficulty in seeing
why her receipt into possession and possession were not the actions which constituted her guilty
of the first offence.

C2T44/l/JM	26	13/9/88
Pereira

MR HASTINGS:  It would just depend how active she

was, I suppose, Your Honour, on the evidence

as to what she had done, or could be seen

to have done to cause the importation to

occur. It may have been open on these facts
perhaps that she simply knew it was coming,

without having taken any active steps to

encourage its coming and knew what was in the

parcel.

(Continued on page 28)

C2T44/2/JM	27	13/9/88
Pereira

MR HASTINGS (continued):  But, Your Honour, in general terms

in this case we would submit that if the Crown

had - and indeed, it would seem from the verdicts

that the Crown succeeded in satisfying the jury

on the higher level of knowledge - but that if

the Crown had not, and had ·been successful,

however, on the wilful blindness argument,

there could well have been a not guilty verdict

on the knowingly concerned, but a guilty verdict

on the second count of possession.

DEANE J:  But what if her involvement in importing was that

she took and had it in possession for the purpose

of carrying it on, passing it on? How, after

she is convicted of that can she then be

convicted of having it in possession, when that

is the basis of her criminal activity which

attracts the conviction of the first? I am

not suggesting it cannot be. I am genuinely

asking you. It just seems strange to me.

MR HASTINGS:  Your Honour because simply she has possession

of the parcel as a result of the steps she had

taken earlier to cause it to be imported. I may be

over-simplifying Your Honour's question, but I would

have thought it followed, Your Honour, by virture of

the fact that she had been shown - assuming this
to be the case - to have been active in the

organization of the importation and she thereafter

had the parcel in her possession, that a conviction

on possession would follow.

DEANE J:  It seems a little bit to me like having her

convicted of murder and then going on and getting

her convicted of manslaughter as well.

MR HASTINGS:  Indeed, Your Honour, but I suppose it had the

practical utility that if the first premise of

the Crown case was not accepted by the jury, but the

jury accepted the second level of wilful blindness,

there was still a conviction to be achieved. That

might be a rather pragmatic explanation, Your Honour.

DEANE J:  Perhaps I am suggesting you were a little bit

greedy wanting two convictions instead of one.

MR HASTINGS:  But if the wilful blindness argument had been the one

accepted by the jury, it only would have been one

conviction and she would have been acquitted on

the earlier charge of being knowingly concerned.

(Continued on page 28)

C2T45/l/HS	28	13/9/88
Pereira

MR HASTINGS (continuing):  I do not think I can assist

Your Honours greatly by going further into the

facts. It is simply the Crown - or it was the

Crown case that those matters to which I have

now referred justified wilful blindness on the

basis that, on the one hand there was a circumstance

which caused suspicion, particularly the name on

the parcel being other than her own, and the response
she gave to the questions. In fact, I was going to

deal very briefly with what my learned friend said

this morning about having to discount the value of

the answers she gave after the police had been

speaking to her about the reason for their visit.

Indeed, that may well be so, but it is simply

my submission that the answer to that is that it was

ultimately a matter for the jury as to whether they

gave those answers their literal and full demonstration

of consciousness of guilty, if that be available, or

whether they accepted the defence argument that the

applicant, having been told that an inquiry was

being conducted into the whereabouts of drugs, she

exercised her rights in order to decline to answer.

It would be acknowlecged in that context that she did

not, in fact, decline to answer; she answered but

answered in the sense that she was not going to reveal

the identity of the recipient. But, in the end result,

in our submission, Your Honours, that would be simply

a jury matter but nevertheless within the confines of

a proper factual basis for wilful blindness.

DAWSON J:  Do you say that what the learned trial judge said

about wilful blindness is correct?

MR HASTINGS: Substantially, Your Honour, yes.

DAWSON J: That wilful blindness may be the equivalent of intent

or knowledge.

MR HASTINGS: Well, despite the admonition as to the contrary,

the learned trial judge used the words of the former

Chief Justice in TEH's case, in which appear the reference to being equivalent to knowledge, so, to that extent and in so far as that passage from the former

Chief Justice still remains substantially intact,

in my submission, substantially the trial judge was

correct.

DAWSON J:  Do you think that there is no inconsistency between

KURAL and TEH?

MR HASTINGS:	Not in substance, Your Honour, no, and I have taken the opportunity of rereading the judgments because of
some connnents made this morning, and certainly in the
terms of KURAL and SMD there is not said to be a rewriting of the law on mens rea in knowledge and/or wilful blindness but an attempt, it is said, to reconcile the two diverging views in the majority in TEH's case.

C2T46/l/VH	29	13/9/88
Pereira

MR HASTINGS (continuing): And, indeed, when one puts side

by side the passages in TEH's case and the passage

in KURAL's case, in my submission, there is not

a substantial difference. The terminology varies

from probability, possibility, likelihood,

significant real chance but the conceptual premise

underlying both judgments, in my submission,

is very much the same, giving recognition, of

course, to the fact that in the latter two

judgments attention was focused on the direction

to which the question goes being one of intent rather

that one of knowledge as being the real question

at issue. But having been redirected on that,

the substantial concept, in my submission, does
not seem to vary greatly between the two cases -
or three cases.

May I also deal with what my learned friend said this morning concerning the brief way in

which the Court of Criminal Appeal dealt with

the issue. In my submission it is not entirely

accurate to say that the matter was dealt with in one or two lines. My learned friend did go

back later to page 129 of the judgment of the

Court of Criminal Appeal to the point at which

in that judgment the relevant matter commences.

And at line 11, in particular, in the middle

of the middle paragraph, the judgment commences

by reference to ground 6 which made:

a specific challenge to the judge allowing

the Crown case to be put to the jury on
the ground of what has been described as

wilful blindness, as well as on the primary

ground advanced by the Crown -

and from that point on the Chief Justice deals

with TEH's case and the then recent judgment

in KURAL and goes on, on page 130, in the second

half of that page to deal with the factual matters

which he apparently came to the view justified

a direction on the question of wilful blindness.

(Continued on page 31)

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Pereira

MR HASTINGS (continuing): It is only after canvassing those

facts which support the argument of suspicion and

then proceeding down page 131 to about line 10

that His Honour then expresses his summary of his

view by saying that:

I do not regard the evidence as falling short of permitting that view to be taken. I agree

with his Honour's conclusion that there was

here material adequate to go to the jury

both on the element of possession ..... being

knowingly concerned -

and goes on to adopt the approach on wilful blindness

Admittedly, in the course of that paragraph His Honour blurs and blends together, perhaps slightly

inaccurately, the question of the possession and

knowingly concerned, nevertheless, forgiving that

small aberration, in my submission, he otherwise

seems to have quite thoroughly dealt with the matter
which had been raised on appeal in that court.

Otherwise, Your Honours, I think the matters upon

which we seek to rely are set out in brief form
in my outline. Might I simply say on the general
basis of granting leave because of the importance

or significance of the issue, in my submission,

the matter has now been exhaustively canvassed

in the light of the major judgments in TEH's case

and the opportunity taken by the Court in SAAD and KURAL to correct any divergences which had

been previously manifest, it would be inappropriate

now to go into the area again as it has been

exhaustively and comprehensively dealt with in those

three judgments. So that on a general footing

we would submit this would not be a matter

appropriate to be granted special leave on the basis

of reconsidering the broader issue of mens rea and

wilful blindness . Unless there are any other matters

upon which I can assist the Court, they are the

submissions.

MASON CJ:  Yes, thank you, Mr Hastings. Yes, Mr James.

(Continued on page 32)

C2T48/l/MB	31	13/9/88
Pereira

MR JAMES:  Your Honours, I should have drawn the Court's

attention to that passage my friend has reminded

the Court of, at page 130 of the appeal book

in the judgment of the Court of Criminal Appeal

when that court is dealing with the three grounds,

being the complaints that the trial judge should

not have left either of the two counts to the

jury and the complaint concerning wilful blindness.

Your Honours will see that in the passage,

commencing at line 19 and concluding at page 131

line 14, appears the way in which that court viewed

all three of the grounds and, in particular,

ground 6, which is the ground that mounts our

complaint here. That passage commences:

In this case, there was in my view -

it commences, of course, immediately after the

extract from KURAL to which I had referred earlier -

adequate material available for the jury

to consider as founding the conclusion that
there was sufficient suspicion attaching

to the whole of the circumstances to justify

the conclusion being left open to the jury
that the appellant had the requisite intent.

The material available to constitute the

overall web of suspicious circumstances

may be seen from the terms of the conversation,

when she received the parcel and described

it, inappropriately, as a nice surprise;

it would be open to the jury to have some

initial interest aroused by her so describing

a parcel addressed to some other person.

More directly, the terms of her conversation

when the police arrived an hour later were
clearly such as to permit the jury to regard her conduct as evidencing a guilty knowledge
which would be sufficient to enable the

doubt that the appellant had the requisite

jury to conclude if it so chose beyond reasonable

intention to constitute the two offences

charged against her.

And His Honour goes on to hold that:

The matter is essentially one of factual

appraisal of the evidence -

and this is, no doubt, when considering the question
of whether the two counts should have been left

to the jury.

His Honour took the view that there was sufficient to permit the jury to find beyond reasonable

doubt the presence of the requisite criminal intention,

and I do not regard the evidence as falling

short of permitting that view to be taken.

C2T49/1 /SDL	32	13/9/88
Pereira
MR JAMES (continuing):

I agree with his Honour's conclusion that there was here material adequate to go to the jury both on the element of possession

and on the element of being knowingly

concerned.

And then follows the lines to which I had taken

the Court, which is the one point, in our submission,

at which the court deals with the specific ground

that was then advanced under ground 6.

Your Honours, if I could return to that

passage, the Court of Criminal Appeal is

referring to the adequacy of the evidence in
the light of its examination of the elements of

the offence. When it comes to that question of

intent, and how knowledge and wilful blindness

might play a part in it, it reaches the view

that there was adequate material available as

founding the conclusion that there was sufficient

suspicion to justify the conclusion being

left open that the appellant had the requisite

intent; that there was an overall web of

suspicious circumstances. Now the coupling of

wilful blindness,in terms of having a suspicion,

shutting one's eyes to a possibility amid a

web of suspicious circumstances, permeates this

entire passage, in our submission. And it cannot

be said, with respect, that the knowledge referred

to on the knowingly concerned count has been

adequately defined in terms of the mens rea for
that count unless one can firstly detach what is
said in relation to wilful blindness, such that
the definition of "knowledge" given there could

not taint the jury's deliberations on the first

count, and unless one could be of the view that an

adequate explanation was given to the jury of

the mens rea or intention necessary for the first

count.

The Crown case in this case was knowledge.

It was opened as knowledge; it was run as

knowledge until the defence application was made

at the close of the Crown case. Wilful blindness

was only raised, and then raised, apparently, as

a principle of law, in opposition to the defence

application that both counts should be taken from

the jury.

(Continued on page 34)

C2T50/l/JM	33	13/9/88
Pereira

MR JAMES (continuing):  Your Honours, as to the discount

of awareness that my friend had referred to

arising from her replies to police officers

following their arrival at her premises telling her they were there for drugs, or to search for drugs, that has to be considered in the light of

the directions given at page 72 of the appeal book

concerning consciousness of guilt, as do the

remarks of the Court of Criminal Appeal at page 130

which I have just read to the Court.

The consciousness of guilt direction at page 72

simply goes to the jury forming its own view of the

totality of what they were getting at, the

reactions affording unintended proof of guilt,

it is a matter which the jury are to use with care,

the jury can find that the person is afflicted with

a consciousness of guilt by the way that they

answer questions, but none of the usual cautionary

material is adverted to at all, the necessity for

the jury to be satisfied that what is done is done
deliberately and in consciousness of guilt of the
crime charged; nothing is put at that point, or

elsewhere, concerning the defence contention that

she having been told what they were there for,

the parcel having been shortly previously delivered,
before the jury could find a consciousness of guilt

of the offences charged on her part, it was

necessary to consider what other courses she

might have adopted.

(Continued on page 35)

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MR JAMES (continuing):  And it is put, in our submission, in a

more dramatic fashion at page 79, the last two lines

where the Crown put it in this fashion:

It is suggested that that type of questioning,

or answering of questions shows a consciousness

of guilt, or the way she answered the questions,

it is not the way it is suggested, that a

completely innocent person with no knowledge

would be answering questions about that parcel.

Your Honours, in our submission, what was said by

this Court in KURAL and SAAD was an examinition of

the problem as it had evinced itself to that time,

and the Court of Criminal Appeal had their attention

drawn to KURAL and also to HE KAW TEH. In our

submission, what was said by this Court in KURAL is

not identical with what fell from the Chief Justice,

as he then was, or the then Chief Justice, in

HE KAW TEH.

MASON CJ:  Now, what are the differences?

MR JAMES: Firstly, Your Honour, there is the mode of approach

is the first and essential difference. In SAAD and
in KURAL this Court defined a necessity for intent

for all the offences under section 233B. It reiterated

that knowledge is not the mens rea or intent for those

offences; that proof of knowledge by one means or

another may amount to supplying an irresistible

presumption of fact, as it were, of the essential

mens rea of the offences. One of the ways to get to

proof of knowledge is to proof that the person has a

sufficient awareness and evidences that proof by

shutting their eyes to what is going on. And I am

attempting in very short form to encapsulate all

the judgments in SAAD and KURAL.

However, in the judgment of His Honour Mr Justice Gibbs

in HE KAW TEH, in substantial examination of mens rea

generally and its availability, he says at page 534,

approximately point 7:  (Continued on page 36)

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DAWSON J:	What is the volume?
MR JAMES:	I am sorry, Your Honour,  (1985) 157 CLR 523.

In the third paragraph commencing on that page:

I should say immediately that if

s. 233B(l)(b) does not require the prosecution

to prove guilty knowledge, but has the effect
that an accused is entitled to be acquitted

if he acted with the honest and reasonable

belief that his baggage contained no narcotic

goods, in my opinion the onus of proving

the absence of any such belief lies on the

prosecution.

And it is at that point where His Honour, having

examined the variety of mental states appropriate,

is commencing his examination of what is the

appropriate mental state.

At page 535, after dealing with the Canadian

cases, at approximately point 5, he expresses

the view:

However it is more likely that the

Parliament will have intended that full

mens rea, in the sense of guilty intention

or guilty knowledge -

and the two are contrasted as being a way of

defining "intent" -

will be an element if an offence 1s one

of a serious kind.

He continues in the sentence second from that

point:

It seems improbable that the Parliament

would have intended that it might be committed	as a result of mere carelessness, although
that would be the case if guilty knowledge
was not an element -

and refers to "unreasonable" and "honest mistake".

And then, refers to the effect of ne~ligence

at pages 535 to 536 and introduces wilful blindness

in this way at page 536:

(Continued on page 37)

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MR JAMES (continuing):

On any view of the effect of the section,

if the suspicions of an incoming traveller

are aroused, and he deliberately refrains

from making any inquiries for fear that he

may learn the truth, his wilful blindness
may be treated as equivalent to knowledge.

As I understand it, and understand the effects

of the judgment of this Court in KURAL and SAAD,

that statement is not an accurate statement of

the law. Near suspicion of the possibility is

not to be equated to knowledge. Continuing on:

If he is given a bag or parcel to carry

into Australia in suspicious circumstances,
or if there is something suspicious about

the appearance, feel or weight of his own

baggage, and he deliberately fails to inquire

further, the jury may well be satisfied that he wilfully shut his eyes to the probability that he was carrying narcotics and for that
reason should be treated as having the

necessary guilty knowledge. If he is innocent

of complicity in any attempt to import
narcotics, and there is nothing to arouse

his suspicions, it is difficult to see what

action he could be reasonably expected to take

to prevent a stranger from secreting narcotics in his baggage. It would have little point to

make negligence a ground of liability.

Whilst this is part of His Honour's discussion on

negligence, none the less, Your Honours, in our

submission, there is difference between this Court

in KURAL and SAAD and this Court in HE KAW TEH

connnencing at that point.

MASON CJ:	You are drawing a distinction between suspicion of possibility and awareness of likelihood, is that
it?
MR JAMES:	Yes, I certainly am, Your Honour.
MASON CJ:	But when you look at Mr Justice Gibbs' judgment

at page 536 he ultimately speaks of:

wilfilly shot his eyes to the probability

that he was carrying narcotics.

MR JAMES:	He does.
MASON CJ:	So that it is not right to contrast possibility

and likelihood, is it?

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MR JAMES:  But if Your Honour goes back only a couple of lines

earlier, what His Honour is discussing:

If he is given a bag or parcel to carry into

Australia in suspicious circumstances, or if

there is something suspicious about the

appearance, feel or weight of his own baggage,

and he deliberately fails to inquire further, the

jury may well be satisfied that he wilfully

shut his eyes to the probability.

Now, the jury would have to make a number of steps to get to that conclusion. They would have to firstly find that there was a probability that

he was carrying narcotics. They would, as I

understand KURAL and SAAD, have to find that he

was aware that there was a probability he was

carrying narcotics and he deliberately shut his
eyes to it.

MASON CJ:  Well, "likelihood" is the phrase that is used,

is it not?

MR JAMES:  "Awareness" or "likelihood". But that is not,

with respect, what the Chief Justice is there

saying, he is setting out this passage.

Your Honours will see that the passage chosen

by the Court of Criminal Appeal in the instant

case is that passage. It appears at page 129
of the appeal book, lines 19 to 37. His Honour

goes on, however, to deal with evidentiary

propositions when seeking to define the question
of the proper intent and the effect on a jury

of various matters of fact.

(Continued on page 39)

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MR JAMES (continuing):  At the bottom of page 536:

Further I am by no means persuaded that it is

virtually impossible, or even particularly

difficult, to prove the state of mind of

an importer of narcotic goods in the absence

of admissions. If a person enters Australia

carrying a suitcase which has narcotics

concealed in it, and offers no convincing

explanation of the presence of the narcotics,

I should be surprised if a jury would draw

any inference other than that he knew that

the narcotics were in the case.

And that was one of the reasons on which His Honour

based his conclusion that GARDINER was not sound.

Your Honours, that may be a mode of reasoning

that a jury may undertake but it excludes reference

to what other explanations may be offered to

them. His Honour then reached the conclusion

that mens rea was required and:

that the prosecution on a charge under that

provision bears the onus of proving that

the accused knew that he was importing a

narcotic substance.

That was a charge under section 233B(l)(b) that

His Honour was referring to and that was, of

course, the charge of importing.

His Honour then turned to possession and,

in fact, in a sense it was parallel to the instant
case and the summing up and the dichotomy my

friend has referred to as being a dichotomy between

the knowingly concerned in importation and the

possession. Then he looked at the mental element

requisite for possession. At page 539, after

reviewing the authorities, His Honour, at approximately

point 9, sets out the effect of the provision

in section 233B(l)(c), which was the provision

here.

MASON CJ:  Yes, as Justice Deane points out, he did figure

in this case, according to the report, at any

rate - he seems to have presented the argument.

If you look at page 524 and page 525, in the

marginal - - -

MR JAMES:	Pages 524 and 525?
MASON CJ: Yes.	It is not clear which argument he was

presenting, though, Mr James.

MR JAMES:  I understand, Your Honours, that Mr Weinberg

still claims the credit. Your Honours,

His Honour had, at approximately point 9 on

page 539, dealing with the offence of possession,

come to the proposition that the proviso to the

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offence made it:

unnecessary for the prosecution to prove that

the accused knew that the goods in his

possession had been imported into Australia

in contravention of the Act. It does not
relieve the prosecution of the burden of

proving that the goods were in his possession

and that involves proving that he knew of

their existence.

Having reviewed those cases that had been decided on the section and the mental state necessary,

view:

including BUSH and RAWCLIFFE and TAWILL,

For the reasons I have already given

"possession" connotes knowledge of the existence

of the thing possessed.

And he reached a conclusion at page 545, after

considering the history of the CUSTOMS ACT, at
the last paragraph commencing on that page -

perhaps I should go back one earlier paragraph:

(Continued on page 41)

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MR JAMES (continuing):

My remarks unfortunately were elliptical

and somewhat ambiguous. I did not intend

to suggest that sub-s (lA) rendered it
unnecessary to prove knowledge of the
existence of the goods but simply that the

sub-section rendered it unnecessary to prove

knowledge that the goods had been imported

into Australia in contravention of the Act.

The words of the sub-section show that it

has no wider effect.

For the reasons I have given I hold that
in a proceeding under par. (b) or par. (c)
of s. 233B(l) the prosecution bears the
onus of proving that the accused knew of

the existence of the goods which he brought

into Australia, or which were in a suitcase

or other container over which he had

exclusive physical control, as the case

may be. The proper direction on the first

charge was that the prosecution had to

prove that the applicant brought the

suitcase into Australia, knowing that the

heroin was in the case. On the second

charge the jury should have been told that
they could not find that the applicant

had the heroin in his possession, unless

they were satisfied that he knew it was

in the suitcase. Whether a direction

concerning wilful blindness was also

necessary depends on the facts, which were

not fully before us. It is rather

regrettable that a statutory provision

which has assumed so great an importance

in law enforcement in Australia should

present such difficulties of interpretation.

DAWSON J:  He seems to be suggesting some than less than

knowledge is sufficient there.

MR JAMES:  Well as to possession, Your Honour, perhaps

yes, but it is to be noted that as to the offence
of import, and that would, of course, be caught up

with an offence of knowingly concerned in an

importation, His Honour is not referring to

wilful blindness at all. He seems to be, in so

far as he is utilizing the concept of wilful

blindess as something less than knowledge, to

be confining that to possession. It may be

that he is simply saying that wilful blindness

is that mode of proof or reasoning which the Court

in KURAL and SAAD has been of the view it is.

But he does, in what he says, give rise to

problems in practical utility and bear evidence

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by the existence of KURAL and SAAD, and by this

case, and by the passage which the Court of

Criminal Appeal has cited.

DAWSON J:  If there is a difference between the two

approaches it is not much, is it?

MR JAMES:  In a sense, yes, it is, Your Honour, not perhaps

in substance and in reasoning. There is academic

debate in Glanville William's texts and Smith

and Hogan's texts concerning such matters as

direct intent, intent to commit a primary crime

but envisaging that on the route you will have to

commit a subsidiary crime. The difference

between wilful blindness and knowledge which,
indeed, Your Honour Justice Gaudron has referred
to in your judgment , the academic articles
being set out therein - it is a matter of academic

debate but in practise as a direction to the

jury, when it is put to a jury that a way of

satisfying intention is to look at knowledge or

awareness and that can be satisfied by wilful

blindness, and then to put it in such a fashion

that the jury might gain the impression that if

they were of the view they would be suspicious
and what has occurred therefore was a shutting of
the eyes, and that is a shutting of the gate,
as it were, is to mistake what the jury has to

reach a final decision on, in our submission,

and that is what, in our submission, happened 1n

this case.

(Continued on page 43)

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MR JAMES (continuing): Now, the difference is

perhaps not an academic difference, but it is

a very real difference in practice. I do not

know if I have been of assistance to Your Honour

with that answer.

DAWSON J:	I think I follow what you are putting.
MR JAMES:	I can take Your Honours to what the Court said in KURAL and SAAD, but they are short passages. In particular, the passage in KURAL
can be found at (1987) 162 CLR, 502 at 504 to 505. There in the joint judgment of Your Honour
the Chief Justice, Justices Deane and Dawson, commencing in the second paragraph, Your Honours
review the mental elements for crimes, commencing with the words:

Because the mental elements in different

crimes vary widely it is impossible to make

a statement which is universally valid for

all purposes about the essential elements of

a guilty mind. Depending upon the nature of

the particular offence the requirement of

a guilty mind may involve intention, foresight,

knowledge or awareness with respect to some

act, circumstance or consequence.

And as I apprehend it, even there Your Honours are

not attempting to be exhaustively definitive.

Where the offence charged is the commission

of a proscribed act, a guilty mind exists

when an intention on the part of the

accused to do the proscribed act is shown.

The problem then is one of proof. How does

one prove the existence of the requisite

intention? Sometimes there is direct

evidence in the form of an admission by the

accused that he intended his conduct to

involve the forbidden act. More often, the

existence of the requisite intention is a matter of inference from what the accused

has actually done. The intention may be

inferred from the doing of the proscribed

act and the circumstances in which it was

done.

Where, as here, it is necessary to shown

an intention on the part of the accused to

import a narcotic drug, that intent is

established if the accused knew or was

aware that an article which he intentionally

brought into Australia comprised or contained

narcotic drugs. But that is not to say that

actual knowledge or awareness is an essential

element in the guilty mind required for the
commission of the offence. It is only to

say that knowledge or awareness is relevant to

C2T57/l/JM	43	13/9/88
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the existence of the necessary intent.

Belief, falling short of actual knowledge,

that the article comprised or contained

narcotic drugs would obviously sustain an

inference or intention. So also would

proof that the forbidden act was done in
circumstances where it appears beyond

reasonable doubt that the accused

and there Your Honours refer to the subjective

nature of the intent necessary -

was aware of the likelihood, in the sense

that there wa~ a significant or real

chance, that his conduct involved that

act and nevertheless persisted in that

conduct.

If I might stop there, Your Honours, that concept

is a concept well known to the law. It is

sometimes referred to as advertence. It is

referred to in New South Wales, in one sense

with murder, as reckless indifference to human

life, that is, a prior perception, awareness

and a determination to proceed in any event.

In my submission, that is not the wilful blindness

Sir Harry Gibbs was speaking of in the passages

that I had put to the Court earlier.

(Continued on page 45)

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MR JAMES (continuing):

That the accused was aware of the likelihood,

in the sense that there was a significant or

real chance, that his conduct involved that

act and nevertheless persisted in that conduct.

As a practical matter, the inference of mens

rea on a guilty mind will ordinarily be

irrestible in cases involving the imporation

of narcotic drugs if its proved beyond

reasonable doubt that the accused actually

imported the drugs and that he was aware, at the
time of the a.lleged commission of the offence, of
the likelihood of the existence of the substance

in question in what he was importing and of the

likelihood that it was a narcotic drug.

And then, Your Honours:

What we have said is designed to emphasize that the existence of the requisite intention is a question of fact and that in most cases the

outcome will depend on an inference to be drawn

from primary facts found by the tribunal of

fact. In this, as in other areas of the law, it

is important not to succumb to the temptation
of transforming matters of fact into propositions
of law. In that regard, we would emphasize
that the foregoing comments are not designed

as a direction or instruction to be read by trial

judges to juries. They are intended to give

guidance to trial judges in order to enable them

to formulate such directions as may be appropriate

to the facts and circumstances of particular cases.

It would be our submission, Your Ho.nours, that if that

had been put to the jury in this case, the accused

would have been considerably betteroff than the

direction that was in fact put. Without taking

Your Honours to the particular aspect of that case

which concerned the question of whether the accused

did or did not know the nature of the thing he knew was

in the samovar, I should indicate that Your Honours

Justices Gaudron and Toohey delivered a separate

judgment which commences at page 508 and, in relation

to that, at page 509 point 7 said:

It is apparent that his Honour directed the jury that, so long as the Crown established beyond reasonable doubt that the applicant

was aware that there was something in the

samovar, any requirement that the applicant

knew he was importing a prohibited import

was satisfied. The jury was charged in June 1985.

On 11 July 1985 this Court handed down judgment

in HE KAW TEH V REG. The Court held that, in a

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prosecution for an offence against section 233B(l)(b)
of the CUSTOMS ACT, the prosecution bore the onus

of proving that the accused knew that he was

importing a prohibited import. Views were

expressed by members of the Court as to what might

constitute the requisite knowledge and that is a

matter to which it will be necessary to return. But

on any·view of the decision in HE KAW TEH, the

trial judge's direction to the jury that it was

enough that the applicant be aware that the

samovar contained something, was a misdirection.

And it was on that matter that the Court was in divergence
and as to the consequences of it. At page 511,

Your Honours commenced a discussion of the nature of the

knowledge and the intention necessary for an offence

under 233B(l)(b), in the third line:

It is important to bear in mind that knowledge,
in relation to an offence of imporation under

section 233B(l)(b) of the CUSTOMS ACT, is an

element of the criminal intent which must be

established by the prosecution. The relevant

intent is to import a prohibited import, in this

case heroin.

And the passage from HE KAW TEH cited by the Court of

Criminal Appeal is then set out. Reference is made

to Mr Justice Brennan's judgment and I have not taken

the Court to Mr Justice Brennan in HE KAW TEH so far,

but set out is a passage from Mr Justice Brennan's

judgment, cited at the balance of the page:

Mr Justice Brennan did not expressly address this

question, but he formulated the knowledge requisite to establish intention to import prohibited imports when in a container (as is here the case) as

knowledge " ... at the time when he imported the

container, that it contained or was likely to

was likely to contain an object that was or was contain narcotic goods, or that it contained or likely to be narcotic goods."

(Continued on page 47)

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MR JAMES (continuing):

That formulation was preceded by lengthy examination of the law relating to mens

rea. It is helpful to set out a short

extract from that examination:

"That is not to say that some state

of mind less than knowledge is sufficient to establish intent. Actual knowledge is

required (GIORGIANNI V THE QUEEN) but what

is generally required to be known is at
least the likelihood that the prescribed
result of an act will occur (specific

intent) or at least the likelihood that

the existing circumstances are such as to
give an act the character of the act
involved in the commission of the offence

in question (general intent)."

The formulations by Gibbs CJ and

Brennan J are suggestive of differences,

but are reconcilable if refraining from

making inquiry is regarded in appropriate

circumstances as an example of knowledge

of likelihood sufficient to establish the

necessary criminal intent. However, the

notion of refraining from making inquiries

is sometimes erected into a doctrine of

wilful blindness. In that respect it is

the subject of an article by Professor Lanham,

"Wilful Blindness and the Criminal Law" -

that is the article that I had mentioned earlier 1n

which there is an examination of the varying

attitudes to mens rea. Continuing from the

commencement of the following sentence:

The basic question for the jury is whether

the Crown has discharged the onus of proving

that the accused intended to import a

prohibited import, which requires at the

least knowledge of the likelihood that what

is being imported is a prohibited import.

If there was nothing to arouse the accused's

suspicion, it is hard to see how the Crown

could discharge the onus of proof. If there

was evidence from which the jury might

reasonably conclude the accused's suspicions

were aroused -

and, again, reference to the subjective nature and the necessity for the accused's suspicions to be aroused -

but that he deliberately refrained from

making inquiries, the jury might properly

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conclude in all the circumstances that he

knew that the goods were likely to be

prohibited imports, or where, as here, the

goods were in a container, that it was

likely to contain narcotic goods. But it

would have done so, not by applying a doctrine

of wilful blindness, but simply by treating
the question as an evidentiary one - and
deciding whether the Crown had proved beyond
reasonable doubt that the accused intended

to bring into the country a prohibited import.

That approach is in accord with what was

said by Brennan Jin HE KAW TEH, and is

not inconsistent with what was said by

Gibbs CJ.

I am not sure, Your Honours, that we would adopt

the totality of the last sentence and, indeed,

it appears that it would have to be read in terms

of that academic discussion I had referred to

earlier rather than the practical effect on the

jury which is why I answered Your Honour

Mr Justice Dawson's question as I did.

SAAD, which was handed down on the same

day by this Court - - -

DEANE J:	But do you see any distinction between knowing
of a likelihood and believing?
MR JAMES:	That is why, Your Honour, we cite RAAD, the

New South Wales receiving case. Whatever label

one attaches to the mental state necessary, belief,

knowledge, awareness, provided it gets home to

the jury that they have to be satisfied of a

sufficient mental relationship between the accused

and the thing, we would not dispute it.

DEANE J: If it is believing suffices, there is not much

between wilful blindness and believing in the
likelihood, is there?	I mean, you would not

bother being wilfully blind unless you believed

there was a likelihood.

MR JAMES: That, Your Honour, is probably the great danger

with wilful blindness. Really, if I believe

I had something and do not want to know about it, I know I have got it. And that is why I

have accepted that.

DEANE J: That is what I asked you, is there any difference

between knowing of a likelihood where it is

relevant to refer to suspicious circumstances

and believing of a likelihood where the belief

might be quite unfounded on any circumstances?

MR JAMES:	Since it is an evidentiary question, that question of belief could never be proved without admissions or sane surrounding circlllTistances. Knowledge and belief can be admitted. Fran proof of knowledge one can show a case
sufficient for a jury to bring into play their own experience.

C2T59/2/ND	48	13/9/88
TI---~--

MR JAMES (continuing): But one seeks to do that by getting

there by the route of wilful blindness then really

one is raising that belief which cannot be proved

in essence, unless you are able to say that the
action taken by the accused is such as only to

be explicable on the basis that the accused really

did believe or know that that is what would be found

if the parcel was opened. But that is not the

wilful blindness that is being spoken about in this

case, Your Honour. I think I might not be answering

Your Honour's question because I am dealing with a

different concept under the same label and, indeed,

that is probably why there is a real problem if

juries are to be directed in context of wilful

blindness.

Shutting your eyes to suspicion is all very well,

but shutting your eyes to knowledge or belief is

a different thing entirely. Your Honours, if I

could turn to SAAD and simply giving Your Honours

the passages. Your Honours, the Chief Justice,

Justices Deane and Dawson at line 33 commenced,

following reference to KURAL:

We emphasised then, and we do so again, that

our comments were not designed as a direction

or instruction to be read by trial judges to
juries. Our comments are intended to give

guidance to trial judges in order to enable them to formulate such directions as may be

appropriate to the facts and circumstances

of particular cases. In the following

paragraph of this judgment, we apply what was

said in KURAL to an offence such as that

involved in the present case.

If I stop there for a moment, Your Honours. This was a case which was conducted entirely upon the

basis of whether the accused was in possession

or not.

In a case such as the present where it is

necess,ary to show an intention on- the part of

an accused to have in his possession a

narcotic drug, that intent is established if

the accused knew or was aware -

and from what His Honour Mr Justice Deane puts

to me I apprehend that that is not intended to be

a matter of real distinction -

that an article which was intentionally in

his possession comprised or contained a

narcotic drug. That is not to say that

actual knowledge or awareness is an essential
element of the guilty mind required for the

commission of the offence. It is only to say

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that knowledge or awareness is relevant
to the existence of the necessary intent.

Belief, falling short of actual knowledge,

that the article comprised or contained a narcotic

drug would obviously sustain an inference of

intention. So also would proof of the

possession of the forbidden drug in

circumstances where it appears beyond

reasonable doubt that the accused was aware

of the likelihood, in the sense that there

was a significant or real chance, that his

conduct involved that act and he nevertheless

persisted in that conduct. As a practical matter,

the inference of mens rea or a guilty mind

will ordinarily be irresistible in cases

involving the possession of narcotic drugs

if it is proved beyond reasonable doubt that

the accused was actually in possession of the

drug and that he was aware, at the time of

the alleged commission of the offence, of the
likelihood of the existence of the substance

in question in his possession and of the

likelihood that it was a narcotic drug.

Your Honours continue to say that:

the previous paragraph involves no more
than an application of what we said in

our judgment in KURAL ..... that the existence of

the requisite intention is a question of fact

and the outcome will depend on an inference

to be drawn from the facts established by
the prosecution and ..... it is important not
to succumb to the temptation of transforming

matters of fact into propositions of law.

Their Honours Justices Toohey and Gaudron were of the view that it was not an appropriate case to	explore the differences that they discerned in	the different approaches of Mr Justice Brennan
and Mr Justice Gibbs in HE KAW TEH for the question
of knowledge had not been an issue at the trial.

(Continued on page 51)

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1:1R JAMES (continuing):  Your Honours, that is the range,

without going to Mr Justice Brennan, in

HE KAW TEH of the propositions the Court has

put in wilful blindness. Perhaps there are factual

areas in which adverting to that proposition

may have some utility. In the majority of cases

it would not be necessary to refer to it, and

indeed, in so far as it is necessary to refer

to knowledge for the purposes of proof of intent,

the facts would either speak for themselves, or

they would not. There may be a rare case in

which wilful blindness could be of some assistance.

In our submission, this was not it.

Whatever might be a finally settled view

of what it constitutes, in our submission, in

this case it had no real room to play. That

is the submission we put and we reiterate that

the Court of Criminal Appeal does not seem to

have dealt with the problem at all. In our

submission this is an appropriate case for

special leave.

TOOHEY J:  Mr James, could I just ask you one question,

before you sit down. The notice of appeal seeks

a quashing of a conviction and the entry of

a verdict of acquittal, or alternatively, an

order for a new trial. Assuming that there

had been a misdirection in the way for which you

contend, what would justify this Court entering

a verdict of acquittal?

1:1R JAMES:  Your Honour, the offence was a between

1 June and 1 August 1984 offence. She was

sentenced to a term with a minimum term of

six years to connnence on 14 October 1986.

In terms of -

TOOHEY J: Could I just interrupt you? Is that the date

from which the applicant was in custody?

MR JAMES:  That is the date from which she goes into

custody, except for a couple of days of the

period running up to the trial. This appears,

Your Honour, at page 124 of the appeal book.

The sentences were concurrent on the two counts, but even if there is to be a severance, there is

none the less a sort of feedback effect between

the two so that the final product represents

the total criminality involved in the two

counts.

C2T 61 / 1 / JM	51	13/9/88
Pereira

MR JAMES·(continuing): If the sentence were to be, by that

reason, re-examined having regard to the

considerations in DIRECTOR OF PUBLIC PROSECUTIONS

V NARU and FOWLER, both were in this Court, and

REG V LESLIE MORRIS KING, there is material here

to say that she - having already served an extensive

period of time it would not, in the totality

of the matter, necessitate that there be a new

trial.

TOOHEY J:  So the proposition is not put on the basis that

properly directed the jury ought not to have

convicted but rather, having regard to events

since the conviction itself?

MR JAMES:  Yes. I cannot put that it was not open for

the jury to have convicted on both counts and

I cannot put that it was necessarily unsafe and

unsatisfactory in the sense that this Court has

looked at in MORRIS and so forth, but I can

only put that this is a case in which it could

be appropriate not to insist on a new trial.

DEANE J:	Of course, if you are right, your client has
spent a year in gaol while people have messed
about as to whether or not she could be allowed
to get an appeal.

MR JAMES:  Yes. And Your Honour will see that we need

an extension of time and the affidavit of my

instructing solicitor, now the solicitor in the

matter, does set out what has happened at page 140.

The decision in the appeal was on 5 June 1987;

she applied for legal aid on 24 June 1987; it

is some time before a decision given, extempore,

as this was, apparently, is reduced to writing
and the advice from the Legal Aid Commission
was by telephone of 11 February 1988 and confirmed

in a letter dated 16 February 1988, for a deputy

senior public defender to advise as to the merits. (Continued on page 53)

The opinion was provided on 11 March 1988.

C2T62/l /SDL	52	13/9/88
Pereira

DEANE J:	The stage has, surely, been reached where if the
Legal Aid Conunission in New South Wales cannot be properly funded they should tell people that they
cannot take their matters on because of lack of
finance or whatever it is that is creating this terrible situation.
MR JAMES:	I am fully congizant, Your Honour, of that and

of what this Court said in WILDE's case.

DEANE J:	I mean, this lady might have approached the bar
or somebody else and had her application for leave brought forward instead of waiting in gaol for a year until she could even get before the court.
I am not suggesting to attribute blame but,
really, it is horrifying.
MR JAMES:	Your Honour, the New South Wales' public defender

system has very few public defenders. Unfortunately

in the context of this case it has resulted in the

private bar appearing on a funded basis by the

Legal Aid Conunission but she would have every right to complain. Unless I can be of assistance further with anything - - -

MASON CJ: Yes, thank you, Mr James. The Court will take a

short adjournment in order to consider the course

it will take in this matter.

'

T63	AT 3.20 PM SHORT ADJOURNMENT
UPON RESUMING AT 3.23 PM:

MASON CJ:  The Court will consider its decision in this matter.

AT 3.24 PM THE MATTER WAS ADJOURNED SINE DIE

C2T64/l/SH	53	13/9/88
Periera