Ra v The Queen

[1993] HCATrans 327

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S20 of 1993

B e t w e e n -

JOON HONG RA

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

DEANE J
GAUDRON J

McHUGH J

Copyright in the High Court of Australia 1 27/10/93

TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON WEDNESDAY, 27 OCTOBER 1993, AT 10.15 AM

MR G. NICHOLSON, QC:  May it please the Court, I appear with

MR B. CROSS for the applicant. (instructed by

Leigh Johnson)

MR P.S. HASTINGS, QC:  Your Honours, I appear with my

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

(instructed by the Director of Public Prosecutions

(Commonwealth))

DEANE J:	Mr Nicholson.
MR NICHOLSON:	Your Honours, it is probably simpler, given

the state of the application book, if I simply
indicate which of the grounds in the Court of

Criminal Appeal are being proceeded with through today. There is something of a jumble chasing the

numbers through the application book.	The
submissions I seek to put - - -

GAUDRON J: Perhaps I could interrupt you there. I mean,

what you say is absolutely correct, but why should

this Court have unsatisfactory application books

foisted on them?

MR NICHOLSON:  I cannot improve that and I can only

apologize for the quality of this book. It is not

by way of excuse but by way of explanation, I

indicate the book has latterly come to me and I

fully accept the criticism on behalf of those

involved, including myself, for its current state.

The format appears to have arisen because of the

form of the affidavit of my instructing attorney

referring by paragraph numbers to different numbers

in the grounds of appeal in the Court of Criminal

Appeal, and then by a further - yet a third set of

numbers in the respondent's answering material

referring back to the affidavits in my instructing
attorney's affidavit, all of which do not join

issue as to the relevant grounds in the Court of

Criminal Appeal.	However, I can take Your Honours
through as I go by reference to each set of

documents relating them to the grounds in the Court

of Criminal Appeal. Your Honours, I apologize

again for the state of this book, it is appalling.

Your Honours, might I indicate, however, as a

prefacing remark, in order to undo some of the

damage that has been caused and the inconvenience

to Your Honours, that the grounds as they were

before the Court of Criminal Appeal are numbered 1,

3, 4 and 6. They are at page 74 of the application

book, Your Honours.

Your Honours, dealing, if I may first, with ground 1 of that page. I take Your Honours now to

the summary of the applicant's arguments. They are

2   27/10/93

located at pages 110 through to 112 of the

application book.	I will deal first with those if
I may.

The case was a case in which the applicant was

recruited by a person Ma to take possession of, and

hold and deliver to Ma a quantity of drugs.	The
first count is one of conspiracy.	The first point

I seek to raise with Your Honours is the Chow and

Challita point; that an agreement to agree to

supply cannot be a conspiracy. That, although it

may be that the Crown sought to make out, as it is

contended, I think fairly, a case of possess for

the purpose of supply so that the charge put to the jury would have been, if it was put in terms of the

Crown argument, a conspiracy to possess for the

purpose of supply.	In my own view and submission,
that would make little difference.	However, I do
not seek to agitate that point.

What His Honour the trial judge put to the jury was that the conspiracy to supply embraced the

full definition of section 3 of the legislation.

He, indeed, took them through each of the

ingredients of the definition and informed them

that it was open to them to find the conspiracy if

they were satisfied any of those elements applied.

One of those elements was agreeing to supply.	So
the charge to the jury was that a conspiracy to
supply could be a conspiracy between A and Bas
between themselves, one to agree to supply the
other.

Now, it is probably best if I simply re.fer

Your Honours to application book pages 5 and 6

where you will find that material set out in the

summing up. Your Honours will see there the full

definition repeated several times and His Honour's

invitation to the jury, in the context of

conspiracy, be satisfied that a conspiracy can be

made up on any ground. It went a little further

and, indeed, the definition because His Honour

extraordinary proposition, that a conspiracy to	embraced also what is submitted to be a fairly	supply, in addition to the section 3 definition,
would also be made out by reference to the
statutory deeming provision of section 29 which, it
is submitted, is an error, on the face, so clear
that little amplification needs to be made. That I will return to, Your Honours, in the context of
ground 3, the next section which substantially
addresses that issue, but it also arises in
ground 1.

When the matter was agitated before

Their Honours, along the lines I have just

indicated, Their Honours, in judgment, at page 81,

27/10/93

sought to resolve the legal issue concerning

count 1 by reference to another count in the

indictment relating to a different charge and a
different quantity of heroin. It is my submission

to Your Honours that such a line of reasoning is,

frankly, simply defective. It is not possible to

address the argument on count 1 which relates to

the nature of conspiracy.

McHUGH J: But, Mr Nicholson, was not the Crown case that so

far as the 44 kilograms were concerned, that there

was, what was put by the trial judge:

a fairly far reaching and large scale scheme

afoot for heroin, and a large quantity of it

to be released into the community.

That was the conspiracy, that they were in possession of this heroin for the purpose of

releasing into the community at large, whereas the

second count was concerned with supply one to

another.

MR NICHOLSON:  Your Honour, the second count is of total

irrelevance, with respect, to determining the

content of the legal argument concerning the first

count. They are separate transactions. No comfort

can be gained, with respect, by looking at the

quantity of separate heroin and a separate charge

on the indictment when seeking to address the

flaw in the charge concerning the first count which

are, "What are the permissible objects of a

conspiracy of this type?" In this case,

impermissible objects were given to the jury in a

direction which was to them to enable them to find

the first count made out.

McHUGH J: Well, that is not the way the ground of appeal is

framed. It is put on the basis that you just could

not have this count at all, full stop.

MR NICHOLSON:  One certainly cannot have a count - with

respect to Your Honour, I have not sought to

agitate the arguments that sometimes flow from submission to the simple proposition to singular,

that one cannot have an agreement to agree

comprising a conspiracy of this nature by

incorporating section 3 definitions between two

people. Secondly, that it is simply outside any

permissible range of interpretation to involve

section 29 in the question of a conspiracy as an

object of the conspiracy on proof of conspiracy.

GAUDRON J:  I can understand what you said about that, but

does that really have any significance given the

way in which the case was conducted?

4   27/10/93

MR NICHOLSON: It has precise significance, Your Honour.

The jury was charged in the terms that I have just

addressed Your Honour.

GAUDRON J: Yes, but the case was one of conspiracy to

release into the community, was it not?

McHUGH J: At the bottom of page 14 and page 15:

what the Crown set out to try and prove was

that there was a fairly far reaching and large

scale scheme afoot for heroin, and a large

quantity of it to be released into the

community.

MR NICHOLSON:	Your Honour, that is a general description of "far-ranging evidence" introduced with the case.
It is generic in its description, it is not a
charge to the jury as to how they were to determine
the case.  The points to which I have taken
Your Honours are the charge to the jury as to how they will determine the case, what would satisfy them when deciding this issue of guilt or
otherwise.  The section to which Your Honour goes
is descriptive of a scenario. It is not such a
charge and nor would it be any answer, with respect
to Your Honour, that what is involved here is a
deadly serious matter.  The question is whether the
issue of guilt was properly determined, and the
submission that I make in respect of count 1 is
that the charging of the jury was clearly overtly
flawed.

Secondly, that in seeking to determine the

flaw in the count 1 issue, the appellate court

sought to refer to the content of a separate count

in the indictment relating to a separate issue, and

frankly it could not follow as having the slightest
relevance to count 1. It is the determination of
the legal argument on count 1 by reference to a

totally irrelevant factor. It does not touch the

argument.	I am at a loss to understand, quite
frankly, how there could said to be an association

in legal reasoning as set forth in the judgment

between that count 1 argument on basically the Chow

and Challita point plus section 29 by reference to

something in another count. Whatever it may be -

and I have not been able to discern or identify

it - I submit to Your Honours that it simply cannot

follow. It is clearly in error.

Your Honours, it would be convenient, if I

may, because it is embraced also in ground 3, to

move to ground 3 which touches some of the same

matter. In relation to ground 3 - - -

27/10/93

DEANE J:  Mr Nicholson, where redirections asked in relation

to any of these matters?

MR NICHOLSON:  In so far as I have raised the matters to

date, no. Your Honours, it is important if I place

before Your Honours what I placed before the Court
of Criminal Appeal. This was a matter in which the
applicant was represented, on short notice in the
circumstances of this case, by a young barrister

appearing in that young barrister's second trial.

It is a ground and, clearly by reference to the

types of issues agitated in this trial,

Your Honours might view the absence at that time of developed experience as a factor when considering whether justice has been served or not.

DEANE J: Yes, except when you have a point such as your

first point which relies, as it were, analysing a

particular paragraph of the summing up in the

context of a general direction such as that to

which Justice McHugh has referred you, and where

that general direction would seem to accord with

the way the case was conducted, it would be not the

tactics of an inexperience barrister, it would be

the tactics of a very wise barrister - - -

MR NICHOLSON: Certainly, with respect, no, Your Honour.

DEANE J:  - - - to stay silent, on the basis that you could

then hone in on one paragraph.

MR NICHOLSON:  With respect, Your Honour, I think that would

be attributing far too much Machiavellian intent to

those at the bar.

DEANE J: Well, I was not suggesting that was the case.

Obviously, it would not have been. I am simply

drawing to your attention that one does not

overcome the importance of drawing attention to

these matters before the jury.has reached a verdict

when they can be corrected by saying there was a

young barrister involved.

MR NICHOLSON:  Your Honour, I cannot but make the

observation that Your Honour's words are obviously

correct. The matter should have been picked up

during the trial, on both sides, giving assistance

to His Honour and rectifying the matter at that

time.

DEANE J: But one cannot help having the impression that if

the effect of the summing up was that the jury were

told the issue was was there a conspiracy between

two alleged conspirators that one would supply to

the other, in the context of this case, that the

Crown and the accused would both have told

6   27/10/93

His Honour that that was not what the case was

about.

MR NICHOLSON: With respect, it was what the case was about,

Your Honour. The reference by Justice McHugh to

that generic term - the section of the summing up

to which he referred, is a generic description, not

a directional charge to the jury. It is setting

the scenario within which - obviously it is large

scale because there is a lot of heroin involved.

McHUGH J: But there are also a lot of people involved.

There was Ma, and there was Barros, and there was

Wong, and there were Choi, to begin with, and it is

all against a background of a large amount of

heroin. Then you get a situation where your client

is found in possession of, what, two sets of scales

and a knife and gladwrap. It is obviously going to

be distributed high, wide and handsome.

MR NICHOLSON: Yes, but not by Ra.

DEANE J: Well, maybe not by Ra, but that only goes to

indicate that he is just one of the persons in the

general conspiracy, and that is the way it was put

at page 15, that:

They must face such responsibility as attaches

to them for their own actions, and a

consideration of the actions of other people

who are not before the court in this trial is

quite irrelevant.

MR NICHOLSON:  Your Honour, those broad comments of

His Honour, of an imprecise nature, do not take the
matter of the specific charge in the case mounted
here any further. They are a general comment to

the jury; they do not address the issues of this

trial.

DEANE J: Well, they do, they identify what the conspiracy

is. The Crown says it involves, for their own

part, the two men who are standing their trial as

well as a number of other people, some of whom are

known and identifiable, and some of whom are not.

MR NICHOLSON:  Your Honour, the case against Mr Ra was that

he was to pick up, hold or deliver to Mr Ma, the

heroin. That is the conspiracy against Mr Ra.

His Honour's obvious comments that, "This is part

in the community of some larger exercise", are

better understood to have told the jury that, "This

is no doubt what it is all about, but that is not

what we are trying here.	What we are trying here -
you must put those matters out of your mind.	We
are trying him on this charge".	He had given to

the jury specific directions as to how they were to

27/10/93

determine this charge of guilt, and in those

charges to the jury there were certain flawed

comments, particularly appropriate to this count.

McHUGH J:  Well, he gave them a definition of "supply".

Can you make anything more about it?

MR NICHOLSON: Well, the definition of "supply" cannot stand if Chow and Challita are good law. A conspiracy to

do what is in the definition of supply cannot

stand, nor can the incorporation of section 29 into

a conspiracy, the point to which I wish to move.

GAUDRON J: Before you do that, Mr Nicholson, page 17, the

trial judge, at about line 10, points out the Crown

case was:

that this was not a unilateral arrangement,

that there were a number of people involved in

it.

So it was much more than the two-person arrangement

that your client was admitting, as it were.

MR NICHOLSON:  Your Honour, taking Your Honour's view that

the case was so presented and putting my response

to that view, the case that would need to go to the

jury for determination in those circumstances would

be balanced by reference to that view and the other

view, depending on the factual scenario found by

the jury. It is the latter part which is absent.

It is the former part which is present embracing

the error. That would not have overcome the

problem.

DEANE J:  Mr Nicholson, I am just looking for the conspiracy

charge. Is it set out anywhere other than at

page 76?

MR NICHOLSON:	Not that I can see in the application book, and I apologize, Your Honours, it should be there.
DEANE J: Well, do you know what it was?
MR NICHOLSON:	Yes, Your Honour, I brought it down, indeed,

when I realized the state of the application

book.

DEANE J: Perhaps, you could read it to us, the conspiracy

charge?

MR NICHOLSON:  Yes, Your Honour. Whilst Mr Cross turns that

up, I am just pending that, may I use the time?

DEANE J: Yes. Also, were there particulars of the charge

asked for or before the jury?

8   27/10/93

MR NICHOLSON:  No.

DEANE J: They were not asked for?

MR NICHOLSON:  No. The case is one in which complicated

issues were presented by a vastly inexperienced

counsel, and that is where the matter has started,

I am afraid, stayed. There are many questions of

discretions of a statutory type, for instance,

219B, and these questions simply did not occur

during the trial.	I do not seek to agitate that
here.	I am content to raise the matters which I
think has more substance.	My friend has presented

me with the form of the charges.

DEANE J:  If you could just read the conspiracy count on to

the transcript.

MR NICHOLSON: Certainly. "That" - so far as it refers to

Ra - "did, between about the first day of September

1988 and the 21st day of October 1988, at Sydney in

the State of New South Wales and elsewhere,

conspire with each other and with divers other

persons to supply an amount of a prohibited drug,

namely heroin, which was not less than the

commercial quantity applicable to heroin and which

was not less than the large commercial quantity

applicable to heroin."

DEANE J:  And it names the three people?

MR NICHOLSON: It does, indeed. Your Honour, I would like

to address, before moving to the section 29

question, the basis for determination of this
question by the Court of Criminal Appeal. The
basis of determination of this question on the
lawfulness of count 1 was sought by reference to a
consideration of the content of another count of

supply in another amount of heroin in the

indictment. I seek to agitate that that line of

reasoning was an incorrect, an unavailable line of

charge in count 1. reasoning, when interpreting the lawfulness of the Your Honours, dealing with the question of

section 29 - and if I may just ask Your Honours to

take this on board in relation to ground 3 as well

as ground 1, where it finds its way into each -

the summary of argument at application book,

page 115, sets forth the argument. Would it assist

Your Honours to have a copy of section 29?

DEANE J: Yes, we have that.

MR NICHOLSON:	In the summing up, page 3, charging the nature of the conspiracy - we are dealing here, as
I have indicated before, Your Honours, with the

9   27/10/93

objects of the conspiracy - at about point 20, reference to the deeming provision, section 29, as

having application in a conspiracy. It is my

submission to Your Honours that a deeming

provision, by definition, is evidential in nature

and cannot be, itself, an object of a conspiracy.

Secondly, my submission to Your Honours is

that the agreement comprising the conspiracy must
be antecedent to the fact of possession, so that
the conspiracy itself could not be improved

evidentially by section 29, nor could section 29

be, itself, an object of the conspiracy. That is

repeated in the summing up, page 6 of the

application book, at point 10.

Your Honours, this was ground 3 of the Court

of Criminal grounds and a ground to which rule 4

was applied.

McHUGH J:  The Court of Criminal Appeal refused your leave

to raise that ground, did they not?

MR NICHOLSON:  Yes. Now, if Your Honours look at

application book, page 83, you will see there that

the Court of Criminal Appeal in relation to this
point could not see any error. Leave was denied.

My submission to Your Honours is that there is clearly an error in so regarding section 29, it is

fundamental in nature, and it is a wrong

application of rule 4.

This application raises, itself, the proper

ambit of the application of rule 4. The grounds

before the Court of Criminal Appeal were precise
in substantial questions of law. With the

exception of the first ground, the rule was

applied.	The basis of the rule 4 being applied by
the court in relation to all but ground 1, is set

out at page 80 of the application book, where these

words occur:

However, there are additional problems in

relation to those other grounds arising from

the fact if the matters the subject of the

grounds had been raised at the trial steps

could have been take at the trial to deal with

the problems raised. I will go through the

individual grounds in turn.

In substance, above that, point 10:

In relation to the remaining grounds -

apart from ground 1 -

10   27/10/93

if they had been raised at the trial then the
problems which they raise could, to a large

extent, have been cured. For reasons that will appear I do not consider there is any

substance in any of the grounds of appeal and

that is of some relevance to the proposal

that -

should be "leave" -

leave be refused in relation to the grounds

other than ground 1.

In due course Their Honours found - and I will take

Your Honours to it in due course also, as we get to

it - that a strong Crown case which was simple in

its nature, perceived to be so by the court, and in

circumstances where the points were not taken at

the trial, themselves, comprise reasons for the

exercise of discretion under rule 4 to refuse leave

to agitate those points before the Court of

Criminal Appeal.

Effectively, it is my submission to

Your Honours - and I do not wish to overstate it -

that that view is akin to a guillotine view; it

does not address fundamental questions of justice.

And if that is the basis of the exercise of

discretion in declining leave under rule 4, then

the basis of the exercise of the discretion is

under challenge. So that a point this appeal seeks

to agitate if leave is granted, is the proper ambit

of the application of rule 4 in the Court of

Criminal Appeal, whether, as in Morabito,

fundamental questions of justice themselves provide

a platform, whether there may be, in a proper

construction of sections 5, 6 and 28 of rule 4, a

need to closely define for the guidance of the

Court of Criminal Appeal, the way in which the rule should be applied and the extent of the permissible

discretion to apply rule 4, given the apparent

grant of an unfettered right to appeal on questions

of law under section 5 of the Criminal Appeal Act.

Those matters taken in conjunction with the

law in Morabito would suggest, in my submission,

Your Honours, considerations of justice and would

render a strong Crown case, not being a relevant

consideration; a simple Crown case not being a

relevant consideration and the fact that a point

could have been remedied if taken, not a relevant

consideration. The fact that it could have been

remedied, had it been taken at trial, with respect,

should be considered as an irrelevance to the
question of whether, it not having been taken,

leave should be considered and granted under

rule 4. It is circular to do otherwise. It

11   27/10/93

defeats the purpose of rule 4 if rule 4 deals with

circumstances where a point was not taken at trial

to say, had it been taken at trial it could have

been cured. Such a proposition is undoubtedly true

and undoubtedly worthy of criticism professionally,

in circumstances of various matters. However, it

is not an answer to the exercise of discretion,
granted under rule 4, or to be exercised in

applying rule 4, to point out that the very

circumstances which attract rule 4 exist.

So that is a matter which is sought to be

agitated on the appeal if the application is

granted. It is rule 4 applied to each ground in

the Court of Criminal Appeal, with the exception of

ground 1, including that question of section 29.

Your Honours, in relation to ground 4, this still

deals with the first count.

DEANE J:  I have lost the page, Mr Nicholson.

MR NICHOLSON:  I apologize, Your Honour. I apologize for

many things in the application book and my lack of

reference to it then. Page 74 of the application

book sets out the grounds and I am about to move to

ground 4, the summary of arguments of which are

located at application book 116.

The mental element in conspiracy here is

raised. This was a question to which, again, the

rule was applied. I seek not to travel into the

full argument flowing from an intention being for

the formation of the agreement and the intention to

further the agreement but, rather, I am looking at

the much more narrow question here of when a
conspiracy charges a precise minimum volume, and in

this case it was not less than the commercial

quantity. When a conspiracy is so framed, is it an

essential part of the Crown case to prove that the

which is in the charge. agreement forming the charge embraced exactly that In other words, if a conspiracy to supply not

less than what is said to be a commercial quantity or a large commercial quantity is expressed in the

charge of conspiracy, it not being simply a

substantive charge but a conspiracy charge, the

Crown having elected to so charge, must it prove

that mens rea? Because, in this case there is no

evidence as to what was to be agreed between Ma and

Ra, except some reference to a term, "fifty

pieces". The evidence appears to have been

consistent with what turned up was rather more than
expected but that is not relevant to the question
of conspiracy. There is no evidence in this case

of what the weight was or quantity was, in an

intelligible way, the subject of the agreement.

12   27/10/93

But the agreement charged, a conspiracy charge rather than the substantive supply, an agreement to

supply not less than a specified quantity.

If leave is granted, the appeal seeks to

agitate that if the Crown elects to charge a

conspiracy in a precise way of that nature, that is

the conspiracy it must prove, that it is not open
to a jury to be satisfied that objectively a

greater weight was in fact substantively supplied

but that the agreement to do so was of the required

quantity.

GAUDRON J:	Was this a live issue in the trial?
MR NICHOLSON:	No.
GAUDRON J:	Was there any issue really in the trial that

they got more than they thought they would?

MR NICHOLSON:  Yes.

GAUDRON J: Was it actually put forward as - - -

MR NICHOLSON:  Yes, the defence version was that the

conversation was to the effect of "fifty pieces",

and there what turned up - it was a surprise that

rather more than that, and what turned up was in

excess of fifty - - -

GAUDRON J: But was it a live issue that fifty pieces might

have been less than the commercial quantity?

MR NICHOLSON: There is no evidence touching what "fifty

pieces" meant, and the Crown did not seek to adduce

any. To that extent it remained a live issue.

GAUDRON J:  I am asking how the defence ran this issue. I

am asking how this became a live issue in the

defence case.

MR NICHOLSON:  Because more turned up than was expected.

That is all.

GAUDRON J: Yes, but was anything made of it at the trial,

so far as you know?

MR NICHOLSON:  Only the factual assertion that he was not

anticipating what turned up by weight. Beyond

that, nothing more was made at the trial than that

issue.

GAUDRON J: If it were not a live issue at the trial, it is

very difficult to see how you can turn it into one

later, is it not, in the face of rule 4? What you

say about the guillotine effect in relation to,
"could have been cured" is one thing, but a quite

13   27/10/93

different consideration, surely, apply if it were

not a live issue?

MR NICHOLSON:  Your Honour, if the submission that I have

made is good in law that the charge, having been so

framed, there must be evidence to support the

charge - of conspiracy, not the fact of delivery -

and if the evidence touching the fact of delivery

is that that is more than was expected, we are left

only with a void as to what was expected. The

evidence would not have been sufficient to satisfy

in law a jury on that question. So, although the

point was not appreciated at trial, the factual
material put forward by the appellant at trial gave
rise to the issue which was simply not appreciated,

unfortunately, by young counsel appearing.

GAUDRON J:  I have to say it is not appreciated by me at the

moment either because it seems to me that we and

everybody else is being asked to speculate about

this in the sense that the conspiracy at least

involves heroin for which $120,000 was seen to be

the appropriate price by the people involved.	I
can well understand why nobody would go around
suggesting that if you get a quantity of heroin
that is worth $120,000 or for which somebody is

prepared to pay $120,000, that there is any scope

for argument that what was agreed was something

less than the commercial quantity.

MR NICHOLSON:  Your Honour may be of the view - and I can

see that it may be attractive to the bench - that
notwithstanding the merits of the argument, this is
not a suitable vehicle, and I must say that the

evidence also disclosed that the applicant actually

picked up a bag containing the weight upon its

arrival. Now, whatever the merit of that argument

may be, Your Honours may well come to a view as he

had that some time to appreciate the weight of the

bag, and as a conspiracy does continue, it does not

stop, it continued through and may have been

hatched with the relevant ingredient later. I draw

that to Your Honour's attention in view of Your

Honour's comment.

GAUDRON J: Yes, it just seems to me that this is a dotting

the "i" an crossing the "t" point rather than

a - - -

MR NICHOLSON:  Yes, I do not wish to be caught in that

position when seeking to argue rule 4, Your Honour.

Perhaps I might hastily move along.

DEANE J: With point 6, is it not?

MR NICHOLSON:  Yes. I wish to limit this argument.

Your Honours will have read what is available as to

14   27/10/93

a submission concerning the poor quality of a

certain witness's evidence and basically it is the

difficulty of simply understanding what an

interpreter said. If I use the term, "garbled", it

is not meant to be offensive. However, it is

against that background. I do not seek to attach

this argument solely to that point but rather to

the identification purposes for which a certificate

was used under the Commonwealth Telecommunications

(Interception) Act, section 61. Would Your Honours

be assisted by a copy of this section?

DEANE J: We have it, I think, Mr Nicholson.

MR NICHOLSON:	A live issue was whether the certificate as such could be used to identify a speaker on .....
The summary of argument is to be found at page
117, and in particular, 118 about point 10. The
Court of Criminal Appeal held that the certificate
was so capable of proving identity. That is, if
the name of somebody appeared on a certificate,
however it got there, providing the certificate
accords with the section, then that is proof. Not
that it is only the transcript of the conversation,
but that the speaker of the conversation was the
person named. That was the method of proof of
conversation in the trial. It was a point I sought
to argue in the Court of Criminal Appeal. The
Court of Criminal Appeal held first that the point
had no merit and secondly, denied leave under rule
4.
DEANE J:	Where is the relevant ruling of the Court of

Criminal Appeal?

MR NICHOLSON:  Page 9, Your Honour. It commences at about

page 9. I think there are two pages 9. This is a

summing up which was divided into two sets of

consecutive paginations.

DEANE J: It is page 84.
MR NICHOLSON:	I apologize, Your Honours.  I was referring

to the CCA summing-up page.	Your Honours will see
the initial point at page 84 about point 25.	I am
not concerning myself with the question of discontinuity, but with the question of

identification; only that half of the point there

taken.

DEANE J:  You are objecting to the question:

Having regard to the provisions of subs(4) and

(5) of s61 the certificate proved the

conversations -

MR NICHOLSON:  Yes -

15   27/10/93

and that the appellant was a party to the

conversations.

DEANE J:  Was that argued before the Court of Criminal

Appeal?

MR NICHOLSON:  Yes, that was the substance of the argument.

The first submission is that is was the wrong

application of rule 4. My second application is to

agitate, if leave is granted, the proposition that

such a certificate cannot be identification of the

speaker of the material recorded.	It is simply a
labelling effect.

GAUDRON J: Where is this certificate?

MR NICHOLSON: Regrettably, it was tendered as part of the

material.

GAUDRON J:	I must say, Mr Nicholson, this is another defect of the application book I think, and it does make
preparation of these cases very difficult.
MR NICHOLSON:	Indeed it does, Your Honour.
DEANE J:	If you look at the ground of appeal to the

Court of Criminal Appeal, it did not raise this point, and the Court of Criminal Appeal does not

seem to have treated it as a point that was argued.

MR NICHOLSON:  Your Honour, I did argue the point. I

appeared in the Court of Criminal Appeal.

DEANE J: Well, the ground of appeal to the Court of

Criminal Appeal does not raise it. It raises admissibility. It does not raise any question

about what the certificate proved after it had been

admitted.

MR NICHOLSON:  With respect, that is, I would suggest to

Your Honour, perhaps not the preferred way of

looking at the question of admissibility of

recordings. Prior to them being admissible it is

necessary to prove they are a recording of the

accused. It was a condition of admissibility that

they be linked to the accused. Being linked to the

accused was the certificate naming him. That is

how it is argued in the question of admissibility.

The Crown case was that the accused was on

certain tape recordings and that the certificate

established conclusively, or at least to a

prima facie level, that he was the speaker. It was

a pre-condition of admissibility the recording be
linked to him and the grounds of admissibility

litigated before the Court of Criminal Appeal were

that that certificate could not so provide. Hence

16   27/10/93

it was raised, with respect Your Honour, in

ground 6.

In terms of the response to the argument, I

would seek to refer to Jones and point out that

leave was denied and that in the circumstances the

minimum position would be that the issue had to be

at least determined by the Court of Criminal

Appeal. However, if rule 4 is applied, the

situation does not arise.j

GAUDRON J:	The material was objected to, I take it?
MR NICHOLSON:	No, it was not. These points were not taken

at trial. It is a most unsatisfactory state of

affairs. The totality of the appeal arose out of

the circumstances to which I referred to earlier.

DEANE J:	Did your client deny - - -
MR NICHOLSON:	Yes, that was in dispute.
DEANE J:	He said it was no he who had been recorded?
MR NICHOLSON:	Yes, it was the defence case that it was not

him speaking. There were two separate sets of

recordings from memory. One was proved by a

certificate, and I think another was purported to

be proven by a monitor in a room next door on

another occasion who was not acquainted with the

accused. I do not direct myself to the second. I

am directing myself to the question of the correct

application of such a certificate as identification

evidence.

Your Honours, the last point I seek to raise I

have already prefaced, and it is the correct

interpretation and application of rule 4 in the

context of the Criminal Appeal Act, Morobito and

also Jones, and I refer to the cumulative effect of

a number of denials of this type to effectively

shut out or guillotine argument.	I would seek to
agitate if - - -

GAUDRON J: But it is really quite a different question when

it comes to not taking an objection to the

evidence. I mean, one would inevitably assume -

even for somebody doing his second trial; I hope it

was a he not a she - - -

MR NICHOLSON:  I must remain silent, Your Honour.

GAUDRON J: Yes, well, even for a person doing his or her

second trial, you would assume if no objection is

taken the matter is not seriously in dispute.

17   27/10/93

MR NICHOLSON:  It was seriously ignored or not understood,

Your Honour, is a better interpretation in some

circumstances. Surely the question is whether,

viewed as a whole, a cumulative effect of the

application of rule 4 is to mask a cumulative

crescendo of inadequacies so that a fair trial was

not had, albeit at the feet of people not

objecting, and the lack of assistance given to

His Honour at the time. The person who suffers is

the client, not the person appearing.

GAUDRON J:  One understands that, but in the context of this

book, what I have read of it	and my attempts to
understand it, you just come	to the conclusion that
it was not really an issue.	It is not referred to
in the summing up.

MR NICHOLSON:  When you say it was not an issue, which part

did Your Honour have in mind?

GAUDRON J:  The admissibility or the use to be made of the

certificate. I am back with the certificate.

MR NICHOLSON:  Your Honour, the legality of the recordings

was the subject of an assurance by the person then

appearing that they were lawful.

GAUDRON J: Well, that is not in issue, is it?

MR NICHOLSON: That fact is not in issue. It was an issue

before the Court of Criminal Appeal. The

application of 219B of the Customs Act here, but I

do not seek to agitate that here as a special leave

point, only the effect of section 61, certificates

not being properly admissible as proof of

identification. Secondly, it is not a proper

application of rule 4 to answer such a legal

argument by simply shutting it out. If it has no

quality of identification evidence, it could not

have been cured. Secondly, the court ought to have given reasons on the issue in accordance with Jones

when determining an issue. As it is, we have

simply a leave denied.

Your Honours, they are the matters I have

sought to agitate on special leave. I can only

apologize for the state of the application book yet

again.

GAUDRON J:  I am still concerned about this certificate.

Where is it? Have you got it? What does it say?

MR NICHOLSON:  Does my friend have it here with the

exhibits?

MR HASTINGS:  I am embarrassed to say, Your Honours, I do

not. I asked for it this morning and we did not

18   27/10/93

have it in the papers because it was not in the

appeal papers before the Court of Criminal Appeal.

MR NICHOLSON:  Your Honours, the situation with appeals in

New South Wales is that exhibits are not provided

to appellants, they stay with the prosecution and

go through the court system that way.	I do not
have the certificate here, I regret.

GAUDRON J: Could I just ask this: there was other evidence

of identity?

MR NICHOLSON:  Not on the tape, no.

GAUDRON J: Not on the tape.

MR NICHOLSON:  The tape where there was allegedly to be a

conversation between Ra and a person, Barros, from

memory. There was no identification. The Crown

was content to rely upon that issue.

MR HASTINGS:  Your Honours, can I just interrupt to say it

was not the Crown case that Ra, the applicant, was

a party to the telephone conversations and that is

quite clear from His Honour's summing up at

page 16. Other people had spoken on the telephone,

one of whom gave him the name Tommy, and it was

never alleged that the applicant was party to any

of those conversations because the way the judge

framed it is that, "Low and behold it is the

applicant who turns up at the door as arranged".

At page 16 of the application book at line 14,

His Honour correctly says:

The Crown relies upon the contents of the

previous phone calls, notwithstanding that Ra

was not a party to them, to establish his

involvement in the plot or the scheme -

so it was never a question of the identification of

the applicant as a party to any of the telephone

calls. It was only in relation to his presence

within the room which was the subject of video

surveillance in the room next door.

MR NICHOLSON:  Your Honours, I do not have the certificate

here and I cannot take the matter further. It

certainly is my impression the Court of Criminal

Appeal, the opposite is the case, and that was

argued before the court by me about Mr Ra and the

certificate. I think my friend's junior here

appeared against me.

Your Honours, I cannot take the matter further

on the material I have here. It is unsatisfactory.

GAUDRON J: What do you say about what appears at page 16?

19 MR NICHOLSON, QC 27/10/93

MR NICHOLSON:  I can only say that that is not my

recollection of the certificate and the way it was

argued. There were two separate groups of

conversations: one involving a motel room, I

think, and some surveillance, and another one

involving telephone intercepts. Mr Ra, I think,

was named on the certificate of the telephone

intercept.

Your Honours, I cannot take the evidence any

further than that is and I quite understand that

deficiency.	Your Honours, I cannot be further
assisted on that point.	Thank you, Your Honours.

DEANE J:  The Court need not trouble you, Mr Hastings.

The Court considers that an appeal in this

case on the grounds which the applicant identified
would fail. In that regard, we are conscious of
the fact that it is conceded that no objection was

taken at the trial to the reception of the

certificate under s 61 of the Telecommunications

(Interception) Act 1979 (Cth). Accordingly, the

application for special leave to appeal is refused.

AT 11.19 AM THE MATTER WAS ADJOURNED SINE DIE

20 27/10/93