Schevella v The Queen; Smith v The Queen

[1991] HCATrans 139

_H,,r	Replacenient Page
··.h~RST'll.&J.IA,,ioi"	--~))4-,~--~

...... _.••••••• .. ••••••••·••••••••••••••••••••••••••u..t--'t:ttt

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M37 of 1990

B e t w e e n -

THOMAS SCHEVELLA

Applicant

and

THE QUEEN

Respondent

Office of the Registry

Melbourne No M38 of 1990

.B e t w e e n -

DENNIS WILLIAM SMITH

Applicant

and

THE QUEEN

Respondent

Applications for special leave

to appeal

MASON CJ
BRENNAN J

DEANE J

Smith 1 6/6/91

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON THURSDAY, 6 JUNE 1991, AT 2.16 PM

Copyright in the High Court of Australia

MR P.A. DUNN: If the Court pleases, I appear with my

learned friend, MR O.P. HOLDENSON, for the

applicant, Smith. (instructed by Galbally & Rolfe)

MR O.P. HOLDENSON:  May it please the Court, I appear in

this matter on behalf of the applicant,

Mr Thomas Schevella. (instructed by Galbally &

Rolfe)

MR B.D. BONGIORNO, QC: If the Court pleases, I appear with

my learned friends, MR L. LASRY, QC and

MR R.S.L. WILD, for the Crown, in both cases.

(instructed by J.M. Buckley, Director of Public

Prosecutions)

MASON CJ:	Mr Dunn.
MR DUNN:	If the Court pleases, the appeal book discloses

that there are two broad grounds upon which the

application is sought. One relates to conviction,

and that deals with.the Ahern case and how it has

been interpreted in Victoria, and the second is the

sentencing questions. What is proposed, if the

Court pleases, is that as both of these

applications contain identical grounds, that I will

deal with the matters in relation to Ahern and my

learned friend, Mr Holdenson, will deal with the

sentencing matters and that will, perhaps, keep the

matters a little briefer and save duplication.

MASON CJ: Certainly.

MR DUNN:  Now, it is said that there are grounds here for

appeal and matters of considerable public

importance because the Victorian Court of Criminal

Appeal has had to consider the decision of this
Court in Ahern on a number of occasions and there

are considerable differences of opinion between the various courts of criminal appeal when they come to

look at the decision in Ahern.

Smith 2 6/6/91

The appeal book discloses in the affidavit of

Heather Lee Lambrick	that there are a number of
grounds that are set	out in paragraph 14 at page 4
of the appeal book.	Those grounds are that:

(i) the Court of Criminal Appeal -

that is in Victoria -

misconstrued the judgment of the High Court in

Ahern -

and, we say, of course, that the judgment in Ahern

is very clear and could not be clearer.

MASON CJ:  I think we would accept that without any

qualifications.

MR DUNN: Well, I am delighted that I have started on a good

note, sir. We say that:

(ii) the Court of Criminal Appeal -

in Victoria -

failed to apply correctly the statements of

principle enunciated by the High Court in

Ahern.

We further say that:

(iii) the Court of Criminal Appeal erred in

deciding that a trial judge need not make a

determination -

of the type stated in Ahern -

prior to charging the jury.

We further say that:

(iv) the Court of Criminal Appeal -

in Victoria -

erred in not following -

its own decision in the case of Pektas.

MASON CJ: Well, are you right in ascribing to the trial

judge in this case the failure to make a

determination?

MR DUNN: Well, determination - that one word encompasses a

number of things. He certainly came to a

conclusion that there was a combination of the type

and according to the material disclosed in the

Smith 6/6/91

charge - according to his charge - and what our

Full Court looked at, he certainly said there is

other evidence of a type independent from the

actions of the individual applicant that led him to

that view, but the next step in that process is
this, in our submission: that what he has to do

then is, having reached those determinations, he
then has to say and instruct the jury to what use

they can put that evidence, that is, the evidence
of the other persons, other accused, acting in

furtherance of the conspiracy.

Now, what is set out in paragraph 16 is an

amplification of the grounds in dealing with it

this way. We say that:

The application raises the following specific

questions of law:

(i) the tasks to be completed by a trial

judge in a conspiracy trial prior to charging

the jury;

(ii) the determinations to be made by a trial

judge in a conspiracy trial prior to charging

the jury;

(iii) the role of a trial judge in a

conspiracy trial prior to charging the jury;

(iv) the nature and content of the directions
of a trial judge in a conspiracy trial to the

jury concerning the admissibility of the acts

and declarations of conspirators against

co-conspirators.

Now, if I could turn to the outline of argument

which is to be found at page 9 in the appeal

book - and before I say something about that, if I

could briefly say this: the Court has had handed

to it the decision in the Victorian Court of

Criminal Appeal in the case of Pektas and, in that

case, at least two of the justices of the supreme

court found that there were some problems that they

had in determining just what was reasonable

evidence and just what it was that a judge should

do in that circumstance and just as in Ahern where

the Court was looking at the direction given by the

learned trial judge in Queensland, here, our Full

Court was looking at the direction given by the

trial judge in the county court in Victoria in a

drug trafficking trial in Pektas.

After discerning a whole host of difficulties, at page 244 His Honour Mr Justice Murphy at about

line 10 stated what we say is a fairly obvious

principle to be found in the case of Ahern, and

Smith 6/6/91

that is this: that once the judge has determined

what it is, that is the combination, and once the

judge has determined that there is this other

independent evidence of a type that leads him to

believe that the individual accused who he is
looking at is party to the conspiracy, he then

considers what it is that the jury function is, and

at line 10 says:

It is also a jury function to decide what

acts done or words uttered by a person were

done or uttered by a proven participant, and

as well whether they were done or uttered in

furtherance of the common purpose of the

combination. The jury will, of course, only

decide these matters when considering its

verdict.

Now, one may think that that is almost a trite

principle of law because the Court in Ahern clearly

stated very much the same thing, that that is, it is the jury's task when they come to consider the

evidence to say - and the Court in Ahern referred

to what they called "a proper direction", what

weight they attach to the acts and words done by
the co-conspirators and are they, to use the words

here:

acts done or words uttered by a participant in

furtherance of the common purpose -

or are they separate and that is a matter, of

course, of some considerable significance and it is

a matter that a trial judge should draw a jury's

attention to because one can imagine this

situation. You have a number of people charged

with a criminal offence. There are a variety of
actions that they have performed. Let us say that

the charge is conspiracy to rob a bank and that you

have one person who is in the bank, one person who

is driving a car but that car is, let us say,

around the corner from the bank.

The Crown says - and their allegation is, that

these men are joined in combination to rob the

bank. The judge has to look at the evidence

separate from the acts of the co-conspirators, look

at that independent evidence in the way that Ahern

describes, to say, "What is there that indicates to

me that these men were acting in combination?", so

that the jury then is entitled to look at the

broader range of evidence in what used to be

called, or still is called, the co-conspirator's

rule. Having that evidence being included, the

jury then has to say to themselves when they look

at these actions, "Were these actions done in the

furtherance of the conspiracy or is there some

Smith 6/6/91

other explanation?". So, in the case of the man

whose car is parked around the corner, was the car

parked around the corner and can that be used as
part of the evidence against the man in the bank
pursuant to the agreement between the two of them,

or was that parked around the corner for some other

unconnected reason?

That, we say, is a fairly simple proposition

and that is something that a trial judge should

indicate to a jury on each and every occasion that

a conspiracy trial is joined and a jury has to

consider its verdict. Therefore, what we say is

that if one looks at the outline of argument at

page 9 in the appeal book:

In a conspiracy trial, it is the duty of the

trial judge himself to make a number of

determinations prior to charging the jury.

The first thing he has to decide is:

(i) whether there was a combination of the

kind alleged.

In the example that I gave, is there a conspiracy

to rob the bank?

(ii) whether there were acts done or words

uttered -

sometimes called by the Americans "verbal acts" -

uttered by a participant in furtherance of the

common purpose of the said combination; and

(iii) whether there is reasonable evidence,

apart from the acts and words in placitum (ii)

above, that the accused was a participant in

the said combination.

An authority for those very simple propositions is
to be found in Ahern and Pektas.	Upon reaching an

affirmative conclusion, that is, that there is

reasonable evidence that the accused who one is

looking at was a participant to the combination,

the trial judge must direct the jury as to how to

use the evidence of the alleged co-conspirators and

he:

must direct the jury that if the Prosecution

has satisfied it beyond reasonable doubt that

there was a combination of the type alleged,

and also that (say) B, C or D were

participants in it and did -

Smith 6 6/6/91

the various acts or said various things, they did

so:

in furtherance of that combination -

then that evidence, that is in furtherance of the

combination may be used, that is, the evidence of

B, C or D, may be used:

although occurring outside the presence of the

accused A, in so far as they go to assist to

prove A's participation in the conspiracy -

and, again, rely upon Ahern and rely upon Pektas

and, in particular, Pektas at page 244:

In the instant matter, the learned trial judge

failed to make the determinations in

accordance with paragraphs 1.1. herein.

Further, the learned trial judge, in directing the jury, failed to explain to the jury the notion of "in furtherance of that

combination".

Why we say that there is a difference between the

two courts in Victoria that have dealt with this

matter, that is, the Full Court, the Court of

Criminal Appeal in the matter of Smith and

Schevella and the Court of Criminal Appeal in the matter of Pektas is, whereas in the matter of

Pektas the court concerned itself to understand the

direction they have been given by this Court and

apply that to the law as they understood it and

give guidance to judges in this State, the court in

Smith and Schevella took quite a different course.

They said, for example, if one looks at the appeal book at page 33, they dealt there at the beginning

of the second paragraph on the page:

It was submitted by counsel who appeared

for Smith in this Court that His Honour's

directions concerning conspiracy were

inadequate and that in the light of Ahern's

case the trial judge was obliged to consider -

a number of matters and those matters are:

(1) whether there was evidence capable of

supporting a finding ..... of a combination of
the type alleged, (2) whether there was

evidence capable of supporting a finding by

the jury that any acts or declarations upon

which it is intended to rely were done or

uttered by a participant -

Smith 7 6/6/91

and we would add the words, although they are not

here, "in furtherance of the conspiracy":

in which it is alleged the accused

participated and (3) whether independently of

acts or declarations of other conspirators not

done or uttered in the presence of the

accused, there was other "reasonable evidence"

capable of supporting a finding by the jury

that the accused was a participant in the

unlawful combination of the type alleged.

Moreover, it was submitted that the judge was

obliged not only to consider those questions

but also "personally to determine them"

(whatever that might mean).

Well, it is very simple what that might mean, in
our submission, and of course a judge is required

to do that because this Court said he must, but our

court in this case, unlike the court in Pektas,

took a contrary view and they went on to say that:

Counsel for Ashford made a similar

submission and added that in his charge the

learned judge did not distinguish between acts

and declarations in furtherance of the

conspiracies and acts and declarations

simpliciter. Counsel for Schevella adopted

similar submissions.

At the top of page 34:

So far as the general criticism that

His Honour's directions concerning conspiracy

were inadequate is concerned, we are satisfied

that there is no substance in the complaint.

Having set their view out there, the next sentence

is:

It was in fact conceded that there was nothing

wrong in the direction -

and, we say, that is just plainly not so.

MASON CJ: What, that the concession was not made?

MR DUNN:  That concession was not made and I did not argue

the matter in the Court of Criminal Appeal although
my learned junior and friend Mr Holdenson did and
he certainly has got his outline of argument here

and the matters that were put to the court.

MASON CJ: But this seems to be a recurring problem in

Victoria.

MR DUNN:	I am sorry about that.
Smith	6/6/91

MASON CJ: Well, I am equally sorry, but it is a problem.

MR DUNN:  Yes, it is a problem and it is a problem that

should not be.

MASON CJ: It certainly should not be.

MR DUNN:  If I can move down the page -

BRENNAN J: Well, it goes further than this. It is a

problem which, so far as this Court is concerned,

does not exist for our consideration.

MR DUNN:  Yes. I follow that, Your Honour.

MASON CJ:	You heard the discussion this morning.
MR DUNN:	I head the discussion and I listened to it with

interest. I have drawn the Court's attention to

this and I will move on.

The Court said this, a little further on,

after that phrase I have read to the Court:

but it was said that since the facts of the
case were not straightforward His Honour
should have inter alia explained to the jury

why there was an exception to the hearsay rule

and the basis for it, namely, the agency

principle -

and a reference is made to Tripodi.	The court then
says this:

But to explain such a principle to the jury is quite unnecessary and would be likely to

confuse rather than assist them.

Much of the argument before us appeared

to proceed upon a misunderstanding of what

Ahern's case and the case of Pektas actually
decided.	We are of course bound by both

decisions but there is very little that we
need say about the latter. Much of the
reasons of the court is taken up with a

discussion of the consequences of the decision

in Ahern's case but the actual decision in

Pektas was that directions to the jury in that

case were not in accordance with the law as it

was understood before Ahern as expressed in

Minuzzo.

Then the court go on to deal with what they call:

The argument before us seemed at times to

assume that in Ahern the High Court was

concerned with procedure. Even in Pektas,

Smith 9 6/6/91

Gray J referred to the "procedure" laid down

in Ahern and before us it was suggested that

the "procedure" in Ahern had not been

followed.

Then they deal with what they call the high water

mark which is an observation clearly obiter by

His Honour Mr Justice Murphy as to how he should

deal with the determination of participation.	The
court goes on to say:

We do not read the judgment in Ahern as

requiring such a course to be inevitably

followed and no other reason was suggested to

us.

The judgment in Ahern's case was not

concerned with procedure but with the

determination of the question of the

admissibility of evidence as an exception to

the hearsay rule.

Now, to go back to the outline of the argument, it

is submitted that the judgment in Ahern's case

certainly, while setting out that rule of inclusion

and determining how a trial judge in giving

guidance to trial judges should proceed in matters

of conspiracy, made it perfectly plain that in the

right cases and in proper cases the appropriate

guidance should be given to juries and that is,

that they should have explained to them what it was

and how they can use the evidence of the

co-conspirators. So, it is submitted, that it is

clear that there is a conflict between the two

Victorian Courts of Criminal Appeal in their

approach to Ahern whilst we say Ahern is clear.

It is further submitted that if Pektas is right, at page 244, as to how a judge should charge

a jury - and Ahern does not say that although we

say it does, well then, that is something that

correct and Smith and Schevella, in what seems to	should be rectified - but if Ahern and Pektas are
be a sidestep by the Court of Criminal Appeal to
the clear principles laid down, then what we have
is a conflict between the two and a conflict of
such importance that this Court should rectify it so that in the ordinary way of court business being proceeded that judges in this State know which way
they are to charge juries and how they are to do
so.

MASON CJ:  When you say a conflict between the two, a

conflict between Pektas and the judgment in this

case in the Court of Criminal Appeal?

MR DUNN:  I say a conflict between Pektas and this case.

Smith 10 6/6/91

MASON CJ: Yes.

BRENNAN J: In respect of, what, the direction to the jury

or in respect of the admission of evidence?

MR DUNN:  In respect of the direction to the jury and the

use the jury should make of the evidence of

co-conspirators.

BRENNAN J: If then it is a question of the direction to the

jury what do you say about what appears on the

bottom of page 32 and the top of page 33 with
reference to counsel's acceptance of the manner in

which the trial judge directed the jury?

MR DUNN: What I say is this: that the failure of a counsel

to object to a judge's misdirection or
non-direction - a misdirection, first of all, as to
the law, is not fatal to an appeal because the law

is the law and a jury should be properly instructed

and an accused person has the right to be tried in

accordance to proper principle.

MASON CJ: But this Court has repeatedly held that it will

not grant special leave in circumstances where

counsel fails to ask for the direction to the jury

that the accused contends should have been given.

MR DUNN:  Yes. I follow that, Your Honour, but what we are

saying in this case is that, here you have a

conflict between two Victorian Courts of Criminal

Appeal as to how to deal with a case that, we say,

is abundantly clear, that is Ahern's case, and when

there is a conflict between two courts as to the

way that should be done, the fact is that,

admittedly, in this case what happened when the
jury are being tried at first instance, counsel did
not draw the judge's attention to it though, I may
say, that the learned prosecutor did in one sense

because he drew the judge's attention to the

co-conspirator's rule and what then happened is	that the matter proceeded to be ventilated more	properly when it got to appeal and when it got to
appeal the matter was argued and the court said,
"Well, it's of no consequence".

MASON CJ:  As I understand your argument, it rests primarily

on Pektas - - -

MR DUNN:	Yes, it does.
MASON CJ:	- - - rather than Ahern.

MR DUNN:  No. We say Ahern is the guiding principle

properly interpreted in so far as it relates to the

charging the jury by Pektas.

Smith 11 6/6/91

MASON CJ:  Can I direct your attention to page 39, the first

sentence in the paragraph commencing there.

MR DUNN:  Yes, Your Honour. Commencing "In the present

case"?

MASON CJ: Yes. Now, if that be a correct view of how the

trial judge instructed the jury, does that not

substantially comply with the requirements of

Ahern's case?

MR DUNN:  It substantially complies with part of the

requirements in Ahern's case but Ahern's case says,

as we understand it, that the judge has to make

this determination of participation. Assuming

there to be the combination, then does evidence,

separate evidence, indicate that the individual

accused who one is looking at is party to that

combination? If the judge decides that that is so,
he then includes evidence to the jury's

consideration of acts and words that are done in

the furtherance of the conspiracy but what Ahern

says, at a number of different places throughout the judgment, is that it is proper for the judge then to draw to the jury's attention that it is for

them to say whether those acts were done in the

furtherance of the conspiracy or not.

Now, of course, what the judge did here was

correct but he did not go far enough and though we

complain about that, that is only a part of our

complaint. Our complaint is that as a result of

Smith and Schevella, compared to Pektas, in

Victoria you have got two conflicting decisions as

to how judges should charge juries. In one case,

in Pektas, they are saying what we are submitting.

In the other case, what they are saying is, it is not necessary.

In a nutshell, that is the argument and they

are the submissions that I wish to put before the

Court.

BRENNAN J:  Mr Dunn, if in order to deal with the

co-conspirators rule, His Honour the learned trial

judge raised the question expressly with counsel

and put to counsel the direction that he proposed

to give and counsel then accepted that

direction - - -

MR DUNN:  With the exception of the prosecutor who rightly

drew his attention at one stage to the

co-conspirator's rule.

BRENNAN J: That is what led His Honour to put the

proposition that is reproduced at the bottom of

page 32. The case was fought at trial on the

Smith 12 6/6/91

footing that that was the proper direction. Now,

it is not just a case of counsel not having raised

a point that was translucently clear, it is a case

of the case being fought on a particular basis but

this Court can scarcely give special leave in order

to say that there was a miscarriage of justice when

the basis on which the case was fought was

consciously adopted by the parties.

MR DUNN: Yes. Well, it may be this is the situation: that

it was perhaps assumed by one and all that

His Honour indicating that what he was going to

do - as that appears in particular at

page 32 - that he was going to distinguish

evidence, certainly the unsworn evidence, that it

may well be that it was not appreciated by those at

the trial that the distinction was going to be as clear as it became. The fact is this: that this

is a requirement, we say, laid down by this Court

that the jury should be properly instructed and
that if counsel proceed not to take all of the

objections, it is not necessarily fatal. The trial

proceeded on a basis that these men were not party

to a conspiracy and, therefore, it was of some

significance as to whether and to what quality and

.	what effect the jury would, looking at the various
overt acts, say those acts amounted to. Did they

amount to evidence in furtherance of the conspiracy

or was there some other explanation?

I hear what Your Honour has to say and it is

not the easiest point to get over but the reality

is this: that in Victoria there are now two clear

decisions on Ahern and on the charging of juries

and one, we say, is correct - that is Pektas - and

one - Smith and Schevella - has sidestepped Pektas and, indeed, sidestepped this Court and chosen not to follow what this Court has said. For the

guidance of other courts in this and other States,

it is important that matter be rectified. If the

Court pleases.

MASON CJ: Yes, thank you, Mr Dunn. Yes, Mr Holdenson?
MR HOLDENSON:	Just on the concluding point concerning the

failure to object. It is submitted that

notwithstanding a failure to object by trial
counsel, nevertheless an appellate court, should

there have been a miscarriage of justice, is

entitled to look for itself in order to determine

whether or not the jury has been directed in

accordance with the law and, furthermore, whether

or not the proper and appropriate procedures have

been followed. Such, for example, was the approach

of two members of this Court in the decision of

Kural v Reg, (1987) 162 CLR 502 where

Their Honours, in a joint judgment, Justices Toohey

Smith 13 6/6/91

and Gaudron looked at this very point and held that

such is certainly not fatal should there be a

miscarriage of justice. So, notwithstanding the

role or conduct of counsel at the trial, it is

submitted that the failure to object concerning the appropriate directions is not fatal. Nevertheless, a trial judge is obliged to get it right.

There are a number of matters arising from the

submissions of Mr Dunn which I will put in support

of the application of Mr Schevella in so far as

that application concerns his conviction. In the

judgment of Pektas, in particular, two members of

the court, in considering the meaning and effect

and consequences of the decision of this Court in

Ahern, found that there were a number of areas

which could lead to problems in future trials.

Those areas were the subject of, to use the expression of Mr Dunn, sidestepping by the court

below in Smith and Schevella.

One of those matters was as to what

constitutes reasonable evidence, that is, when it

is encumbered upon a trial judge to determine,

having firstly decided that there was a combination

of the kind alleged, whether or not it was
appropriate that the words said or the acts done by
various of the participants - various members of

the conspiracy - in the absence of the accused

whose case is the subject of consideration can be

considered by the jury in considering that case.

This Court clearly held, in our submission, that

only in certain circumstances, those certain
circumstances being where there is reasonable

evidence apart from those acts and words, that the

accused was a partidipant.

Various members of the Court had trouble in

Pektas as to what constituted reasonable evidence.

For example, in the judgment of the presiding judge

in Pektas, the judgment of His Honour

Mr Justice Murphy, firstly, at page 245 toward the

head of the page at line 5 stated, and I quote: To decide that there is "reasonable

evidence" must at least involve the judge in

considering the evidence of witnesses going to

the existence of the conspiracy to the

participants and to what A himself did or
said -

A, being the accused whose case is the subject of consideration -

This would depend upon the judge's

appreciation of what the evidence was, and

would often require him to determine issues of

Smith 14 6/6/91

credit, probabilities, inferences, reliability

and issues of conflict.

Now, throughout that judgment, not only on page 245 but also on pages 248, 249, 250 and 251,

His Honour Mr Justice Murphy considered the concept

of reasonable evidence and was of the view that the

decision of this Court was such as to create

difficulties for trial judges.

In Smith and Schevella, in the instant matter,

in the court below, the court had no problem and

said, "Reasonable evidence simply means prima facie
evidence, no problem". That is another one of

those matters which, it is submitted on the behalf of the applicant, Mr Schevella, ought be clarified for the court below in the sense that the court

below has not got it right in the sense that there

court below who have a differing interpretation or construction as to the meaning and effect of

are two conflicting judgments within that court.

Pektas. That is one of those matters set out in

section 35A of the Judiciary Act which sets out

those matters to be taken into account by this

Court in determining whether or not the case before

the Court is appropriate for the grant of special

leave. In paragraph (a)(ii) of that section - and

I quote from that provision:

in respect of which a decision of the High

Court, as the final appellate court, is

required to resolve differences of opinion

between different courts, or within the one

court, as to the state of the law.

BRENNAN J:  Mr Holdenson, if we go back to this trial -

leave aside the Court of Criminal Appeal for the

moment, we are after all concerned with a

particular case - here the judge made his findings,

did he not?

MR HOLDENSON: 

He effectively determined, either expressly

or by necessary implication, that there was
reasonable evidence, yes, and the preceding matter,
namely that there was a combination of the kind
alleged by the prosecution in the case, yes.

BRENNAN J: 

And the evidence was admitted?

MR HOLDENSON: 

Yes, sir, the evidence was admitted.

However, what was fatal, it is submitted on behalf

of the applicant, is that which is set out in

paragraph 1.4 of the outline of argument, namely,

that:

Smith 15 6/6/91

the learned trial judge, in directing the
jury, failed to explain to the jury the notion

of "in furtherance of that combination".

BRENNAN J: That is a question of a direction.

MR HOLDENSON: That is correct and I am - - -

BRENNAN J:  The passages you have been referring to so far

deal with the function of a judge in admitting

evidence.

MR HOLDENSON:  That is correct, sir. Once that evidence is

admitted, whether or not he makes that ruling or

determination - and it is a subject of some

disagreement between various members of the supreme

court - but be that as it may, once that

determination has been made whether by way of a

formal ruling or whatever, it is incumbent upon a

trial judge, it is submitted, to direct the jury as

to the use which may be made by the jury in respect

of that evidence.

BRENNAN J: That is a subject we debated a little while ago.

MR HOLDENSON:  That is correct. Now, as my learned friend,

Mr Dunn, submitted, the learned trial judge failed

to go on to explain the concept of "in furtherance

of that combination". Notwithstanding the failure

of counsel to object to that lack of direction,

nevertheless, it is submitted, that it was fatal

or, at least, there is an impermissible risk that

that failure to so direct the jury may have caused

or led to the conviction of the applicant,

Mr Schevella.

The jury was provided with no guidance

whatsoever as to the notion of "in furtherance of

the combination"; no guidance whatsoever as to the

purpose of advancing the objectives of the

conspiracy.	The only direction which there was
appears at page 2559, that being in that aspect of

the charge which was provided by myself a little
earlier today to the Court - in other words, in

that bundle which was handed up - where, at about

point 4 or point 5 on that page where the paragraph

begins, and I quote -

MASON CJ: Which page is that?

MR HOLDENSON:  Page 2559.

MASON CJ: Thank you.

MR HOLDENSON:	This is very early on in the charge of the learned trial judge, in fact, only 11 pages into
the charge.  I quote from that passage:

Smith 16 6/6/91

Now, one word of caution in this

particular case is this, that it is clear from

the evidence, I think you will agree - that, of course, is a matter for you - but I think it is reasonably clear from the evidence that

the accused in this case have known each other for a long time, and some of them at any rate, if not all of them, shared mutual interests.

And it is likely that there was agreement

existing between them about those interests

and the pursuit of those interests. Now, it

is of vital importance that you be careful,

therefore, when you consider the evidence, to

avoid mistakenly attributing evidence of

innocent agreement between them for evidence

of criminal conspiracy. You need to be

careful when considering the acts of each

alleged conspirator, to exclude the

possibility that his acts may have proceeded

from the pursuit of some innocent purpose,
before using those acts either as evidence of

the existence of the alleged conspiracy, or as

evidence that the particular accused was a

party to the conspiracy.

It is submitted that that particular

direction - and it is not necessary to go any
further because there is nowhere else to go - is

insufficient in that it fails to provide any

examples whatsoever in respect of the evidence as

to what may well have been for the juries, as a

result of their so finding an innocent purpose, or may well have been an act or a declaration for the

purposes of the combination and, therefore, an act

of, what might be called, a guilty purpose.

There was no tying-up or linking-up of that

particular direction to the circumstantial evidence
direction - the Chamberlain direction - which has,

of course, now been modified perhaps, and I do not

intend to argue this, in the matter of Shepherd.

The submission is that a warning should have been

given in order to ensure that certain evidence was

not assessed in an erroneous manner and not to

attribute to it a significance which it does not

have. All of those matters falling within the

ambit, it is submitted, of that which is set out in
paragraph 1.4 of the outline and, furthermore, in

paragraphs 1.6 and 1.7.

That concludes the submissions of the

applicant in so far as the application relates to

conviction. In so far as the application relates friend, Mr Dunn - the court below dismissed the

to sentence - and these submissions are put in
support of the application of both Mr Smith and

Smith 17 6/6/91

applications for leave to appeal against sentence

of both Mr Smith and Mr Schevella. The relevant

portions of the judgment of the court below are set

out in the appeal book at pages 72 to 78.

In this Court, the applicants seek to

challenge that portion of the judgment of the court below on the grounds set out in paragraph 14 of the

affidavit in support of the application, that being

the affidavit of Heather-Lee Lambrick sworn on

13 November 1990. Those grounds appear at the foot

of page 4 of the application book through to

page 5. At the foot of the page, number (v):

the Court of Criminal Appeal misconstrued the

sentencing principle of totality -

and, over the page, ground (vi):

the Court of Criminal Appeal failed to apply

correctly -

that principle, and the seventh and final ground is

that:

the Court -

below -

failed to accord any, or any sufficient,

weight to -

that principle. What occurred was this: in

respect of each of the two offences charged against
the applicant Smith for which the applicant was
convicted, the learned sentencing judge imposed a

term of imprisonment of nine years in respect of

each of the two offences. However, made two years

relevant to the second count cumulative upon the sentence of nine years imposed in respect of the

sentence of 11 years imprisonment and the learned	first, concluding with an overall effective head
sentencing judge then imposed a minimum term of nine.

In so far as the applicant Schevella was and

is concerned, the learned sentencing judge imposed

a sentence of six years imprisonment in respect of

each of the two offences for which he was charged

and convicted and made two years of the second set

of six years cumulative upon the first set of six,
rendering a total effective head sentence of
eight years and then the learned sentencing judge

imposed a minimum term of six years before being

eligible for parole.

Smith 18 6/6/91

In his reasons for sentence, the learned

sentencing judge provided reasons for that course

that he had adopted in imposing partially

cumulative sentences upon the applicant. That

reason appears in the reasons for sentence which

were handed up a little earlier today by myself.

In particular - that is the bundle of papers headed

Sentence, the bundle beginning at page 3104 and the

only portion which is relevant is that which is set
out at page 3128, at about point 5 or 6 on the

page, in the paragraph which begins with the words

"May I say". If I could just quote from that

passage:

May I say that in view of the seriousness of the offences it seems to me that it would

be inappropriate that the sentences be -

totally -

concurrent, that is the prima facie result laid down by Parliament. There should, it

seems to me, be some recognition of the dual

nature of the conspiracies and the two drugs

involved.

If I might just interrupt, they are the two drugs

involved being: one, cocaine; two, cannabis.

The learned sentencing judge refers to:

the prima facie result laid down by

Parliament -

That being a reference to section 15(1) of the

Penalties and Sentences Act, a piece of Victorian

legislation, and the Act is dated 1985.	I have
just handed to the Court that particular

subsection, which appears at the foot of that first

page and reads - and I quote:

Notwithstanding anything to the contrary in

any Act, every sentence of imprisonment

imposed on a person by a court shall, unless

otherwise directed by the court at the time

pronouncing the sentence, be, as from the date

of its commencement, served concurrently with

any uncompleted sentence or sentences of

imprisonment imposed on that person, whether

previously to or at the time the relevant

sentence was imposed.

In the court below - in the Court of Criminal

Appeal - it was submitted on behalf of both the

applicant Smith and the applicant Schevella that,

in imposing sentences in this manner, the learned

sentencing judge had failed to have any or

Smith 19 6/6/91

sufficient regard to the sentencing principle of

totality; that principle having been the subject

of reference a little earlier today in the

application of Reed.

As this Court clearly stated in the matter of

Mill and Griffiths - two cases referred to in the

outline of argument - the principle is simply to

the effect that where a number of offences are

committed in the course of a single transaction or

where a number of offences are really part of the

one incident which might be described as a

multi-faceted course of conduct - to use the

expression of Justice Wells in one of the cases

cited and the subject of a quote in, I think,

Mill - the sentences, in such a situation, ought be totally concurrent rather than either cumulative or

partially cumulative.

It was further submitted, in the court below,

that to impose sentences that were partially

cumulative on the basis that the two offences were

serious - and that is one of the opening words in

that passage of the learned sentencing judge at

page 3128. If I might just interrupt myself there.

Of course the offences were serious; that is why

they were the subject of trial in the county court

rather than a magistrate's court. But on the basis

of seriousness, it was submitted that that

constituted an error, an error of sufficient

magnitude or type to vitiate the exercise of the

sentencing discretion, such not being at all

relevant to whether or not the two offences

concerned formed part of the one incident or the

one course of conduct.

As is clearly apparent from page 75 of the

application book, and at page 75 the court below

dismissed this particular argument and if, perhaps,

I read those passages to the Court - at page 75,

the second paragraph on the page, and I quote: A ground of somewhat greater substance is

to the effect that the judge erred in

directing partial cumulation. With some

cogency it was argued that the two offences in

reality involved a single course of conduct

which conduct happened to be concerned with

two different substances. Reference was also

made to the statutory prima facie preference

for concurrency. In the end the judge elected

to pass sentences that did involve a small

measure of cumulation. This was designed to

indicate that there were in fact two separate

offences - both serious. We cannot say the

judge was wrong to have done so. There were

acceptable reasons justifying such sentences.

Smith 20 6/6/91

And in the next paragraph the court indicates its

reasons for so determining:

In the first place, there were in fact different suppliers and different purchasers

and, indeed, different arrangements in

relation to each of the substances. These

distinctions would allow it to be said that

there were separate enterprises. Secondly -

and so on, and the concluding sentence in that

paragraph is much to the same effect.

BRENNAN J:  What is your special leave point here,

Mr Holdenson?

MR HOLDENSON:  The special leave point is this - there are,

in fact, three: although the sentencing principle

of totality is, in my submission, trite, its

application to individual situations is not so

trite because there is no authority which

determines the manner in which a sentencing judge

is to determine whether or not the offences form

part of the one course of conduct, or the one

incident, or the one transaction, or the one

episode - - -

BRENNAN J:  What is the principle of law then for which you

contend?

MR HOLDENSON:  I am not quite certain that I understand

Your Honour's question.

BRENNAN J: Well, you say there is a special leave point

which justifies the grant of special leave by this

Court in order to lay down some principle.	What is
the principle?

MR HOLDENSON:  As to the manner in which - - -

BRENNAN J: Not as to, what is -

MASON CJ:	What is the principle enunciated for us?
MR HOLDENSON:	In determining whether or not a number of

offences form one course of conduct a sentencing

judge is to have regard to the nexus between the

participants, concurrency of time and concurrency

of place. This question, of what might only be

called characterization, has been the subject of

exposition by courts for many years in the
negligence field because, when one has regard to
whether or not certain damage is or is not

foreseeable, it is incumbent upon a trial judge to

determine whether or not damage of a certain kind

was reasonably foreseeable.

Smith 21 6/6/91

MASON CJ: 

I think sentencing is a difficult enough exercise

without seeking assistance from the realm of the
duty of care.

MR HOLDENSON: Well, bringing it back to strict criminal

law, in the instant case, given that we are talking

about the same co-accused, the same participants,

the same manner in which drugs were purchased, the

same manner of sale - or same method of sale -
given that the overt acts alleged by the prosecutor
were generally the same in respect of each of the

two offences, and also the question of time - in so

far as time is concerned, each of the two counts in

the presentment refer to the same dates, namely,

22 August 1986 to 3 October 1986 - it is submitted

that it could only be determined that there was

total concurrency in respect of all those matters

and, therefore, it could only be determined that

there was one course of conduct.

Furthermore, the second special leave point is

whether or not the gravity or seriousness of the offences is a matter to be taken into account in

determining whether or not the offences form part

of the one transaction or the one course of

conduct. And the third special leave point is as

to the discretion to be exercised by a sentencing

judge in determining whether or not the case before

him is such as to be taken outside the prima facie

statutory situation as expressed in section 15(1),

that is, what matters are to be taken into account

in the exercise of such a discretion.

It is submitted that in this era where

different legislatures are finding it necessary to

enact legislation in respect of the manner in which

a sentencing judge is to exercise his

discretion - and in this regard I am referring to

the 1989 New South Wales Sentencing Act, also the

South Australian legislation which, as I recall, is

dated 1988 and, furthermore, the new Commonwealth

Sentencing Code which came into operation in, as I

recall, July last year which forms part of the

Commonwealth Crimes Act - there are now a number of

prima facie discretions established by statute, or

should I say, a number of prima facie situations

established by statute. And the manner in which a

sentencing judge is to exercise his discretion to

take himself outside that prima facie regime is a

matter which ought be the subject of consideration

by this Court and the ground is, in the instant

matter, that there was nothing in this case to take

the learned sentencing judge away from that prima

facie discretion as set out in section 15(1) of the

Penalties and Sentences Act.

Smith 22 6/6/91

That concludes the submission on behalf of

each of the two applicants in so far as the

question of sentence is concerned, each of those matters having been the subject of expression in

the outline which forms part of the application

book. If the Court pleases.

MASON CJ: Thank you, Mr Holdenson. The Court need not

trouble you, Mr Bongiorno.

MR BONGIORNO: If the Court pleases.

MASON CJ: 

The principal ground urged in support of these

applications for special leave to appeal is that
the trial judge failed to direct the jury in
accordance with the principles enunciated by this

Court in Ahern's case (1986) 165 CLR 87. It is

also said that there is a conflict between the
decision of the Court of Criminal Appeal in Reg v

Pektas (1989) VR 239 and the decision of the Court

of Criminal Appeal in this case on that point.

We are not persuaded that the directions given

by the trial judge departed from the prescription

in Ahern or were otherwise deficient. Further, the

failure of counsel at the trial to seek a direction

of the kind now contended for makes these cases an
unsuitable vehicle for the determination of any

question of general principle.

The other ground taken in support of the

application was that the sentencing judge was in

error in failing to impose sentences which were

fully concurrent. There is no substance in this

point. The applications for special leave to

appeal are therefore refused.

AT 3.12 PM THE MATTER WAS ADJOURNED SINE DIE

Smith 23 6/6/91