Sloane v The Queen

[1991] HCATrans 58

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S102 of 1990

B e t w e e n -

SUNDAI SLOANE

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

MASON CJ
BRENNAN J

DAWSON J

TOOHEY J

GAUDRON J

Sloane 1 5/3/91

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 5 MARCH 1991, AT 11.49 AM

Copyright in the High Court of Australia

MR M.J. NEIL, QC:  May it please the Court, I appear with my

learned friend, MR R.S. BELL, for the applicants.

(instructed by Booth & Boorman)

MR R.N. HOWIE, QC:  May it please the Court, I appear with

my learned friend, MR R.A. HERPS, for the

respondent Crown. (instructed by S.E. O'Connor,

Solicitor for Public Prosecutions)

MASON CJ:	Mr Neil?
MR NEIL:	Your Honours, could I seek leave to hand up an

amended notice of appeal and outlines of

submissions. The notice rewords our former

ground (iii) and we do not press the former

grounds (i) and (ii).

BRENNAN J:  Does that mean that we are concerned only with

the facts of the case, Mr Neil?

MR NEIL:  No, Your Honour, we are concerned with the legal

principles to be applied. In our submission the

Court of Criminal Appeal misstated the principles.

BRENNAN J:  The amended grounds that you have offered us

relate to an error in holding the basis of an

inference and in holding that the trial judge made

no findings to the effect that.

MR NEIL: Yes, Your Honour, yes.

BRENNAN J: That seems to rely solely upon the circumstances

of the case.

MR NEIL:  Your Honour, it does in one respect but not in

this particular case because what happened was the

Court of Criminal Appeal held that in effect the

trial judge had misunderstood or misstated or

reversed the onus of proof and had assigned to the

Crown an onus and that in effect the applicant had

not discharged her onus.	The Court of Criminal
Appeal held that, in those circumstances, the judge

had erred and that in fact the judge had therefore

been wrong in making the findings of the fact based

upon the inferences that he drew and, therefore, it

is our submission that there was an error of law

trial judge for what he did; that the Court of

that led to the holding by the Court of Criminal

Criminal Appeal, in fact, misunderstood the

judgment of the trial judge and assumed something

that was an error of law on the part of the trial

judge whereas the trial judge did not make any

error of law and, therefore, what he found was open

to him and, in fact, he had found those things. In

addition, we say, as to the matters of fact, that

Sloane 2 5/3/91

yes, the Court of Criminal Appeal was wrong in

terms of the facts.

MASON CJ:  Do you oppose the application for leave to amend

the grounds of appeal?

MR HOWIE:	Yes.
MASON CJ:	On what ground? Our impression at the moment,

Mr Howie, is that you would have readily and

enthusiastically consented.

MR HOWIE:  I am sorry, only that they do not raise any

matter of general public importance, I suppose.

MASON CJ: Well, that has nothing to do with amending the

grounds.

MR HOWIE:  No, I am sorry, I do not oppose the amendment of

them as such.

MASON CJ: Very well, you have leave to amend the grounds of

appeal in accordance with the amended notice of

appeal.

MR NEIL:  Thank you, Your Honour.

MASON CJ: But that only, as it were, brings you back to the

point that was identified at the beginning: what

do you say in elaboration of your submission that

there is a question of principle involved here?

MR NEIL: First, Your Honour, if I could take Your Honours

to the way we frame ground (i) and then (ii), it is

this, that the Court of Criminal Appeal simply

asserts that as a matter of law there has to be

some overt evidence brought by an applicant to

which there can be then assigned the character of

that evidence and then that evidence must be used

to discharge an onus of proof.

In our submission, to say that a person who is

otherwise of good character otherwise not shown to

have a disposition towards commission of crime

must, in some way or another, bring positive

evidence to disprove those matters is quite wrong.

If a person establishes the first element of what

is involved here, namely, they were induced, then
if the second arm of the law relating to the topic

is a question of disposition or non-disposition to

commit crime, in our submission, it is

fundamentally a flaw of law to say that you cannot

in fact rely on the presumption of innocence,

because, for example, as we point out, section 413

of the Crimes Act simply says a witness can given

evidence of character; it could be good or bad.

The hallowed cases have said, "No, only if the

Sloane 5/3/91

accused raises character". In other words, there

must be special circumstances before you displace

the presumption of innocence either as to a crime

or as to a disposition to commit a crime.

TOOHEY J: Just before you leave that, is not that really

just ground (i) of your original ground of appeal?

MR NEIL:  It is, Your Honour, a very important aspect of

ground (i) of the original ground but the Court of

Criminal Appeal, when one really looks at the

judgment, did not precisely say that the individual

has to go into the witness box and given the

evidence. We say they were very much impressed by

the fact that the individual had not gone into the
witness box and that may well explain the error.

But, what they did say was, in effect, that there

has to be some active proof of non-disposition by

the applicant. Alternatively, Their Honours

said that the trial judge had, in effect - or

Their Honours' judgment appears to be saying, not in as many words, but appears fairly clearly to be

saying that His Honour put the onus on the Crown. So the second arm of our submission is, if you

have circumstances in which there is no evidence of

prior disposition and you are entitled as an

applicant to rely on the onus of proof then, yes,

it is the case that the Crown is left with an

evidentiary burden to discharge of proving prior

relevant disposition.

Now, what the Court of Criminal Appeal finally

came to was saying, "YoU:need an onus to be

discharged positively by the applicant.	You do not
have any onus on the Crown.	What an applicant must

do is positively come to court and discharge an

onus and prove that he or she had no prior

disposition to commit the type of crime".

TOOHEY J: But, put that way, Mr Neil, the argument seems to

be that the Court of Criminal Appeal placed the

onus incorrectly.

MR NEIL:  Yes, Your Honour.

TOOHEY J: But that does not emerge, does it, from either of

the grounds of appeal as reformulated?

MR NEIL:  Your Honour, I do apologize if we have not

formulated the error accordingly, but what we seek

to do and what our submissions seek to say is that

the error is in doing that. The error is - and the

special leave point very much revolves around our
point number 2, which party carries the onus of
proof on the question of disposition or otherwise

of the accused to commit the crime alleged or

Sloane 4 5/3/91

similar crime, and how does the presumption of

innocence apply to the question.

MASON CJ:  You really attack this sentence on page 52, do

you not, commencing at line 28?

MR NEIL: Yes, Your Honour, and we attack further at 53

point 10:

What was significant was that there was no

basis for -

the inference and His Honour made no finding when

one puts the two together.

MASON CJ:  I must say, listening to everything you have said

so far, I cannot quite understand why you have

abandoned ground (i) in the original notice of

appeal, which seems to me to be more directly a

challenge to the sentence at line 28 on page 52 of

the application book, than either of your current

grounds.

MR NEIL: Perhaps, Your Honour, I should have amended

ground (i). The reason was that ground (i), we

thought, had been couched a little too rigidly when

one looked at the actual judgment of the Court of

Criminal Appeal. If ground (i) had read:

The Court of Criminal Appeal erred in stating

there is a requirement or obligation on a

party to -

positively discharge an-onus in proving his or her

case, we would have to concede that the Court did

not say that the party must personally give

evidence.

MASON CJ:  The difficulty, it seems to me, is when you look

at your outline of submissions that you have just

handed up, your second special leave point seems to

raise the question of principle that you are

seeking to agitate, but I do not find a specific

correspondence between that and either of the

grounds of appeal.

MR NEIL:  Your Honour, we have therefore - and I do

apologize - failed to spell out in the word "erred"
in the notice of appeal as amended what we are

seeking to convey to the Court as being the kernel

of the problem. I suppose, if I could seek a

further indulgence, to ask Your Honours to look at

the form of ground (i), the formulation I just gave

a moment ago:

Sloane 5 5/3/91

(i) the Court of Criminal Appeal erred in

stating there is a requirement or obligation

on a party to litigation to give evidence -

or discharge an onus of proof of non-disposition to

commit prior crime of a similar nature, is what I

am really seeking to agitate and what we were

seeking to say is the error that we are referring

to in our new amended grounds. I would ask, in

order to avoid a gap, a further amendment along the

lines I have just formulated on my feet.

MASON CJ:  You do not object to that, Mr Howie? Very well,

we will proceed on that footing, Mr Neil.

MR NEIL: Thank you, Your Honour. Then, Your Honour, in

this case it is our submission that it was

abundantly clear and never really understood to be

otherwise in the mind of the Court of Criminal

Appeal that the first arm of the activity had been

instigated by the police. Indeed, the Court of

Criminal Appeal acknowledges, at page 49, at about

point 6:

It is quite clear that the particular

transaction in which the respondent allegedly

engaged, and which involved a supply of
cocaine, or material represented to be
cocaine, was one that was initiated by the

police officer, Harris, and the police

informer, Donn. Donn has since disappeared,

but Harris was the witness who gave evidence

at the pre-trial application before

Judge Newton and he made it plain that, having

been given to understand that the respondent

was part of a syndicate that supplied cocaine,

he deliberately set out to induce her to

engage in a transaction of supply and, in that

respect, to trap her.	There is ..... nothing
unique about that -

and the real question is whether you go beyond

providing opportunity, in effect:

police activity aimed at exposing criminal
behaviour and activity which incites or

encourages the commission of crimes that would

not otherwise have been committed.

And the trial judge had no difficulty in finding -

and I should take Your Honours to a passage where

there seems to us, with respect, to be a slight

error in the transcript - at page 41, line 12,

having concluded that:

prior to the implementation of the scheme to

entrap or entice her in the supply of cocaine

Sloane 6 5/3/91

in order to provide evidence against her there

was and is no evidence that she had never

sold, supplied or imported cocaine or had any

intention of doing so; that she was

susceptible and responsible for the entrapment
or enticement procedure is however

indisputable on the evidence.

That may mean what His Honour clearly was intending

to say and His Honour may have used or meant to use

those words but we would have thought perhaps the words, "she was susceptible and responsive to the

entrapment or had been" - what His Honour is really

saying was, "she was susceptible and, in fact, had

fallen for the entrapment or enticement", and His Honour finds that was indisputable on the

evidence.

So that, in our submission, the first arm of

what we are concerned with, really, is not in

issue. The only question then really that was in

issue was whether or not His Honour had applied, in

effect, wrongly an onus of proof to the Crown that

they should not have had applied to them and

whether or not, therefore, His Honour had erred.

Your Honours, as to the second point, we have

submitted that if, as was the case here, there was

no evidence of prior disposition to commit this

type of crime so be it. It is not wrong to say or to have the concept applied that the Crown then is

left with an evidentiary burden to displace.

Thirdly, in our submissions, at page 2, we

point out that the material in the transcript that

in fact shows that although the applicant did not

give evidence there was, in fact, available to her
abundant material that ran the other way; namely

that indicated she was not disposed, firstly, as

appears at appeal book 27 point 4, the police made

inquiries not only in New South Wales but

extensively throughout Australia - that is the end

of 26 - 26 point 40, then the top of 27:

Federal Police around Australia? A. Yes.

Q.  And you had satisfied yourself that she

was not adversely - there were no matters of

adverse record against her on police files?

A.  As best as I can recollect, yes.

Nextly, that it was true that she was working in

the ordinary job of hairdresser. Nextly, at 27

point 12, large amounts of cocaine were never

involved and, as appears at 24 point 25, ultimately

only sugar was ever recovered. And, then

Detective Sergeant Harris said two things of

Sloane 7 5/3/91

importance upon which the judge was entitled to

rely; firstly, at 24 line 5, he was asked this

question:

Q. What I am saying is that by the time the

State Police carried out the raids of

8 May - the Federal Police in Sydney had

carried out their raids on 8 May - you had no

evidence of any importation as far as Sloane

was concerned, did you? A. Not to my

knowledge, no.

And at 26, line 30 through to 40:

Q. A few matters more, if I may. After you

had spoken to Mr Don in early April 1987 and

before the phone calls were made on 14 April I

think it was, 1987, you as a police officer

had no evidence so far as Sloane was

concerned, or indeed as I think you have

agreed, at any time, of her being involved in

importation of cocaine? A. That's correct.

Q. Before the phone calls were commenced on

14 April, 1987, so far as Sloane was

concerned, you had no evidence that she was in

any way involved in the supplying of large

quantities, such as kilos, of cocaine? A.

That's correct.

Now, the learned trial judge simply picked that up

and throughout his judgment he said there is no

evidence that she had been previously involved in

supply, sale or importation of cocaine. He was

held to have erred grievously by the Court of

Criminal Appeal who said that, in effect, he had

based his decision on the failure of the Crown to

prove independently of the transaction that the

respondent was:

involved in importing, selling or supplying

drugs -

but that was by no means conclusive on the issue.

What was significant was that there was no basis

for inferring that had it not been for the

inducement of Harris and Donn the respondent would

not have engaged in the transaction of the kind in

question and His Honour made no finding to that

effect and the court said that, in effect, the

judges repeated references to this question of no

evidence that she had been previously involved in

importing, selling or supply, seemed to indicate -

this is 52 line 30:

The repeated references in the reasons for judgment of the learned judge to the fact that

Sloane 8 5/3/91

there was no evidence to that effect indicate
that his Honour misdirected himself on this

important issue.

Perhaps I should just go back a little and read at

52, line 29 and across the page, If I may, for a

moment:

In the application for a stay of

proceedings there was no onus on the Crown to
prove, independently of the transaction in

question, that the respondent had on other

occasions been involved in importing, selling

or supplying drugs. The repeated references

in the reasons for judgment of the learned

judge to the fact that there was no evidence

to that effect indicate that his Honour

misdirected himself on this important issue.

We say that is wrong, the judge had the evidence

from the police:

There was evidence that, before the

commencement of what was alleged to be the

process of entrapment, the respondent had

directed Donn to a place where he could obtain

supplies of cocaine. There was evidence that

the respondent was a user of cocaine herself.

There was evidence concerning an alleged

routine, involving the use of the code word

"conditioner", relating to supply of cocaine

through the hairdressing salon. It was common

ground that the police suspected the

respondent of trafficking in cocaine, and it

was not suggested that the suspicion was

unreasonable. When the respondent was

presented with a business opportunity by the fact that the Crown did not prove, on the

application for a stay of proceedings,

independently of the transaction in question,

that the respondent was involved in importing,

selling or supplying drugs, was by no means

conclusive on the issue in question.

Now, the court there has not said that those prior
features amount to evidence of prior disposition,

it has only said they amount to suspicion and quite

rightly so because even the suspicion conveyed by

the informant Donn to the police Sergeant Harris

was said by Donn, in great measure, to be material

that he had learned somewhere else, it was Donn's

hearsay upon hearsay and that related in particular

to matters such as conditioner and so on. The

learned trial judge knew of these matters, knew of

the suspicion, understood the dividing line between

whether he was dealing with a person reasonably

Sloane 9 5/3/91

suspected and a person who, in fact, was previously

disposed to large scale trafficking.

DAWSON J: Is that not a rather simplistic approach to it

there had been prior transactions. That

and not the approach which the Court of Criminal whether

may be a way of proving that the person was not

encouraged by the police to enter into the

transaction in question and therefore was induced.

But you have to look at the whole of the situation, and it may be that although on the evidence this

was the first time, nevertheless you could conclude

that she was in the business of supplying the

substance, even for the first time, and therefore was not induced by the police to do what she did.

That was what the trial judge did not find. He

concentrated on the question of prior transactions,

but prior transactions are not the only way of

proving that a person was not induced by the

police.

MR NEIL:  Your Honour, could we, with respect, answer that

this way: that the trial judge, in fact, reviewed

all of the circumstances. He found that she had

used - at page 40 there is a short summary of some

of his findings.	He had amplified these in other
areas.	He found there was evidence she had used

cocaine previously; that she had some knowledge of

sources of supply and possibly large amounts; that

she had participated in the supply of a small

amount, I think three grams, by courier express to

Donn -

TOOHEY J: What does that mean, Mr Neil, that she had

participated? Do you mean for commercial purposes,

or as a friendly gesture, or what?

MR NEIL:  Your Honour, it seems that the man Rice had sent

this small material to Donn. His Honour seems to

be saying that he is prepared to accept that in

some way the applicant had been involved in that.

But it was what I might call a preliminary

operation, if one might call it that, but it was

within the scope of the entrapment. It was not

something prior that went to the question of prior

activities. It was, in effect, a part of the - it

was a trial run, if one might perhaps call it that.

But it was not within the scope of her prior life, her prior disposition.

His Honour said there was -

evidence that she participated in the scheme

to defraud Donn by purporting to supply him

Sloane 10 5/3/91

with quite large amounts of cocaine she she

probably wo~ld have provided -

them if available.

The question then that His Honour had to

determine on all the circumstances was her overall

prior disposition, and His Honour came to deal with

that at page 42, and starting at about line 20

quoting from Vuckov and Romeo:

It seems to me on the authority of Vuckov and

Romeo and the many authorities therein

referred to, that the "wrongfulness" may
simply arise from the legal or social

undesirability of police officers and

informers and the like, setting out to bring

about the commission of crime by persons not

otherwise disposed to commit them. I do not
think the word "disposed" requires an
examination of the qualities or lack of it or
resistence or moral finesse or fragility of
the person importuned. It can hardly be

desirable in the community interests and the

interests of justice to persuade a susceptible

person to commit a crime which he or she had

no intention otherwise of committing, then or

at any other time. I think the authorities

established that it would be otherwise with a

person involved generally in criminal
procedures of the kind which he is in a
particular case induced to commit or a person

looking for an opportunity to become so

involved.

In other words that, combined with the general

overall findings of His Honour where he said it was

a clear case - - -

DAWSON J: That is where he goes wrong, or where the Court

of Criminal Appeal anyway said he was wrong.	The
mere fact that there has been no prior dealings
does not prove that the person was necessarily

induced by the police. There has always got to be

a first time. And what the Court of Criminal

Appeal says at page 52, what the trial judge did

not find, he did not, was that she was a person -

who would not have committed, or who would have been unlikely to commit, the crime of

supplying cocaine, but for the encouragement

of the police.

Certainly he found there were no prior dealings,

but that was not enough. He did not make the

finding that she was not a person -

Sloane 11 5/3/91

who would not have committed, or who would

have been unlikely to commit, the crime of

supplying cocaine, but for the encouragement

of the police.

That is how they put it.

MR NEIL: That is how the court put it, Your Honour, but

what we are submitting is that - - -

DAWSON J: That unless there are prior dealings you cannot

come to that conclusion.

MR NEIL:	No, Your Honour.
DAWSON J:	Or unless there is an absence of prior dealings.

MR NEIL:  No. Two points: one, in this case, a most

substantial question was absence of prior dealings and if there was an absence of prior dealings that

would be very important and might, of its own, lead

reasonably to a view that there was no prior

disposition. But, secondly, that is not all that

His Honour dealt with. His Honour looked at all

these features and all these factors that were

before him. He looked at the things that she had

previously done and it cannot by any means, we

submit, be fairly said against him that he put the

case solely on the basis or even highly

exaggeratedly on the basis of no prior actual

dealings.	He looked at, for example at page 38,
line 12:

This seems to me t6 indicate the likelihood that the applicant was a person familiar with

aspects of the availability or non-

availability of cocaine, but does not in

itself indicate that she was involved

personally in its supply -

thereby looking at some questions in the record of

interview.

What we are saying, Your Honour, is that it was a regrettable simplification by the Court of

Criminal Appeal to think that His Honour had

thought that the mere lack of prior trade

determined the issue. His Honour looked at all of

the circumstances, including the circumstances of
the alleged rip-off, including the circumstances of

the prior situation of the applicant, including the

matters I have just mentioned, and he looked at

questions of intention.

DAWSON J: But could you point to any part of His Honour's

judgment where he found that the applicant, as she

was, was not a person otherwise not disposed to

Sloane 12 5/3/91

commit the crime of supplying cocaine, that is,

apart from the encouragement by the police?

MR NEIL: Well, Your Honour, that is the next point we have

to - - -

DAWSON J: Well, can you point to any passage where that is

found? That is to say, she was a person who would

not have committed or would have been unlikely to

commit the crime of supplying cocaine but for the

encouragement of the police.	Does he find that
anywhere?

MR NEIL: Well, His Honour, unfortunately, does not, in

those precise terms, say that. That was what the Court of Criminal Appeal held, therefore, was the

fount of his error.

DAWSON J: Indeed, the Court of Criminal Appeal said the

very circumstances of what was said to be the

entrapment point in the opposite direction.

MR NEIL: Well, with respect, we do not know what they said,

Your Honour.

DAWSON J: It is a summary of what they had indicated, is it

not?

MR NEIL:  They indicated there was suspicion but the Court

of Criminal Appeal itself did not go so far and, we

submit, nor could they have gone so far as to have

said those suspicious circumstances amounted in

fact to evidence of prior disposition and therefore

the judge was clearly further wrong. There was no

doubt that the case was argued; legal principles

were put before the judge; he referred a number of

times to the question of disposition and,

importantly, that is noted by the Court of Criminal

Appeal.

DAWSON J:  But they saw the question as being one to decide

between legitimate police activity aimed at

exposing criminal behaviour and activity which

incites or encourages the commission of crimes that

would not otherwise have been committed.

MR NEIL:  That is so, Your Honour.

DAWSON J: And they found that this case fell on one side of

the line.

MR NEIL: With respect, no, Your Honour. They never went

into that. They found that the judge had

misdirected himself by over-reliance or basing the

whole decision upon the fact of no prior sales,

supply or importation and that therefore the whole

of his decision had to fall. Indeed, they did not

Sloane 13 5/3/91

review for themselves whether or not the whole of

the facts - - -

DAWSON J:  Well, I may have put that inaccurately. They

found that the applicant did not discharge the onus

because there was no basis for inferring on the

evidence that she was not a person who would not

otherwise have committed the crime in question.

That is what the Court of Criminal Appeal found.

MR NEIL:	That is what they held, Your Honour, yes.
DAWSON J:	Yes, because they held it was insufficient in

all the circumstances that it had not been

established that she had not otherwise committed a

crime of this nature.

MR NEIL:  But what we are submitting, Your Honour, is the

error is that they failed to read what the judge overall had said - they referred to parts of his

judgment where they said, at page 51 point 12:

The learned judge did not entirely overlook

these considerations. In the course of

referring to a passage in the judgment of

Cox Jin R v Vuckov and Romeo concerning

"wrongful importunities of a law enforcement

authority" his Honour observed that

"wrongfulness" may simply arise from the legal

or social undesirability of police officers

and informers and the like setting out to

bring about the commission of crime by persons

not otherwise disposed to commit them".

His Honour must therefore have seen as

important the question whether the respondent

was a person who, but for the importunities of

Donn and Harris, was a person not otherwise

disposed to commit the offence of supply

cocaine.

Now, His Honour the trial judge said a number of

times - for example, at page 40 point 10 he said in

his view there was:

no evidence that she then intended to do any of these things. There is evidence that she

was then acquainted with someone to whom she

referred Donn for a supply of cocaine for

personal use. I think it probable she may

have had some wider knowledge of supply, but

there is no evidence of this of a specific

kind. There is evidence that she probably

used cocaine personally, but no evidence of

the extent of this use. Since she was, it

would seem, working regularly at the Lock and

Roll Salon, it may well be that any such use

Sloane 14 5/3/91

was not great.	I am of the view that I may
accept -

these facts, and he set out the facts that he may accept. Then His Honour, at page 41, was saying:

there was and is no evidence that she had

sold, supplied or imported cocaine or had any

intention of doing so -

and that is an important point -

that she was susceptible and responsible -

and so on. So there are two references to her

intention which she derived from the whole of the

evidence and at page 42 I have read to Your Honours

the part where His Honour deals with the question

of the law, the requirement as to disposition.

His Honour quotes from a judgment of and His Honour said at the top of page 44:

I think this participation was on the evidence

a somewhat reluctant one. I think that all

telephone calls she received from Queensland

from Donn were in pursuance of an exercise of

entrapment by him or by him and Sergeant

Harris.

In short, I think that every action taken

by her after referring Donn to the man John at

Kings Cross for a supply for his personal

needs was in response to entrapment

procedures. If entrapment of the person not

involved in or intending to commit a crime is

wrong in the interests of the community and

justice, then I am of the opinion that the

procedures involved in these acts of

entrapment were wrong.

His Honour clearly had in mind that on the whole of

the evidence this person had not been a person who

would have intended to commit this crime but for

the police entrapment.

MASON CJ:	If you look at the sentence that commences on page 42 line 24 does that sentence not negate what
you have just said?  In other words, the judge
disowns the need to decide that question in
relation to the applicant?
MR NEIL:	Your Honour, our answer, with respect, would be

that His Honour is saying you do not have to go

into an examination of this particular person's

moral finesse or fragility, you do not have to go

Sloane 15 5/3/91

into great inquiries as to their inner personality,

because His Honour goes on, on page 42:

It can hardly be desirable in the community interests and the interest of justice to

persuade a susceptible person to commit a

crime which he or she had no intention

otherwise of committing, then or at any other

time.

That, in effect, is a finding, we would say, a

clear indication that His Honour considered that

you do not have to go into, as a matter of law, the

interstices of the personality if you can find that

she was susceptible and had been the subject of

inducement and if she had no intention, otherwise,

of committing, then or at any other time, then the

matter is established. The authorities establish

it would be otherwise with a person involved

generally in criminal procedures of the kind which

he is, in a particular case, induced to commit. His Honour had very much alive before him the

question of whether this person was generally

involved or whether this person - - -

DAWSON J: That is exactly what he had in mind but what he

did not have in mind was whether the features of

the particular entrapment indicated that the person

readily entered into the transaction in question

and was not induced to do so by police

encouragement.

MR NEIL:  Your Honour, we would submit that His Honour has

held that she was susceptible - he said that -

that she had no intention, that she was - - -

BRENNAN J:  How could he find that without her having given

any evidence?

MR NEIL:  Your Honour, could I answer that this way - I will

not repeat the onus of proof of argument and so on

but a judge is entitled to take into account that

as one of the matters, on all the material, the
nature of the importuning that went on, the nature
of the persistence, the nature of the activity, the

nature of the inducement and to say, without going

into what this ordinary person's position would be,

if it would so impact upon the ordinary person -

not necessarily this particular person - he can

take that into account. He can look at those

inducements, he can look at those circumstances.

Secondly, he can look at all the material that we

have put in our written submissions that was in her

favour.

Sloane 16 5/3/91

BRENNAN J:	He can look at all that material but he is being asked to stay the ordinary criminal processes to
determine her guilt or innocence of a criminal
charge and it is said, with what authority I know
not, but it is said that if she was entrapped into
doing that which she would not other have done,
that that gives him some jurisdiction to stay those
proceedings as an abuse of the court's process.
But she abstains from giving any evidence that that
was the fact.
MR NEIL:	Yes, that is so, Your Honour.
BRENNAN J:	How does the judge come to the conclusion that in this case it is an abuse of the court's process?
MR NEIL:	Your Honour, firstly, the judge pointed out there

was no evidence from the applicant - - -

BRENNAN J: It is not a question of no evidence from any

other source. The thing is that if the proposition

is that the jurisdiction attaches when somebody has been induced to do that which that person would not

otherwise have done and that person abstains from

giving evidence, how does a judge come to the

conclusion that it is an abuse of process to allow

the proceeding to go on?

MR NEIL:  Your Honour, on the remainder of the evidence.

His Honour pointed out that he did not have the

benefit of her evidence or Rice or Donn. He still

has a judicial duty none the less to determine the

issues on such evidence as is before him.	He was
alive to that problem.	He was not unaware of it.

BRENNAN J:  He might have been alive to it but he came to a

very curious conclusion about it.

MR NEIL:  Your Honour, what went into evidence was some

records of interview in which he had said certain

things, some statements and records of interview of

Rice. There was no actual statement of Donn.

There was the hearsay material given by Harris of
what Donn had told him and the depositions.	It may

be an unusual situation but His Honour held that

this was - it is clear His Honour was upset in one

sense of the term about the lack of evidence but,

on the other sense of the term, he had no

difficulty in finding that this was an absolutely
clear case. His Honour seems to perhaps have taken

a lot of time and trouble about the decision and he

has taken the various matters that we submit he was

entitled to look at, analysed them and he has been

able to conclude - and we submit he is able to

conclude - the law does not require that she

personally go into the witness box and aver - and

Sloane 17 5/3/91

there are a number of practical reasons for that,

no doubt.

Firstly, the law, as we understand it, is

still unclear as to the effect of statements or

cross-examination made prior to the trial. It may

still be a matter of some doubt and it may be a

matter of the difficulties of discretionary

argument as to whether the Crown can use them later

in the trial, particularly if the person only gives

a statement. It is not something that may

necessarily ordinarily be advised to a person.

Thirdly, a person who has some prior record in

this area would not be likely to necessarily aver

and it could well rebound on them if they said,

"I'm not a person who's got a prior disposition.".

When they have got a prior record; it could be very

bad for them. But, in this case, a person with no

prior record should not have to be forced to give

evidence of something that, in our submission, the

judge could quite reasonably infer from the

totality of the evidence, namely, she is an

ordinary citizen, not otherwise disposed - - -

DAWSON J:  Why should a judge infer that and in fact what he

did find would make that inference questionable?

MR NEIL: 

I am sorry, Your Honour.

DAWSON J: 

Why should he infer that and in fact what he did

find positively would make that inference
questionable, that she was a cocaine user and the
various things that are set out in those numbered
conclusions?

MR NEIL: There, Your Honour, we are in the situation of

argument on whether or not the judge, in all the

circumstances, having looked at all this material

in front of him and seen Harris and so on, was

wrong on his facts.

DAWSON J: The point is the judge did not infer that, the

judge did not infer that she was a person who was

not just accepting an attractive offer but was in

fact entrapped. That is not what His Honour said.

He said, "She had not engaged in previous dealings

and therefore I find entrapment.", but he did not

carry the reasoning through.

MR NEIL:  Your Honour, in our submission, he found firstly

the inducement; secondly, that she was

susceptible; and thirdly, that certainly she had no

other record; But he has found on a fair reading

knowing the word "predispose" was in issue, having

heard argument, having read the authorities, his

only failing is not to spell out what is manifestly

Sloane 18 5/3/91

implicit in his decision because he knew the

issues.

DAWSON J: Well, it is not clear that he did, you see. In

every commercial dealing there is an inducement and

that is what the Cour~ of Criminal Appeal says, and

the police are entitled to enter into commercial

dealings where drugs are concerned in order to find

where the offenders are. Now, why do you say this

was anything more than that? And His Honour really

says in answer to that, "Well, she never engaged in

these sorts of transactions before", but that is

not enough.

MR NEIL:  Your Honour, we have submitted that in this case

it would be enough.	We do not make that as
the - - -

DAWSON J: Well, I see you submit in various terms, you say

that she could rely on the presumption of innocence

but that surely is not possible in a case of this

sort?

MR NEIL:  Your Honour, His Honour looked at the suspicious

material; His Honour knew the issues involved and

it had been drawn to his attention that the two

elements that he had to consider were whether there

was an inducement and whether she was predisposed.

A fair and reasonable reading of his judgment

indicates that he said, "I'm not satisfied that

these matters of suspicion amount to a

predisposition. I don't think they're relevant to

this type of trafficking. They may be, in some

way, relevant to personal supply". He has found

that she did not have the intention that was

alleged, namely, to be a person who would intend to enter into these types of activities. He has taken

into account the features that we have referred to

and he has also taken into account the question of

no prior sale, supply or importation.

MASON CJ: You cannot take this much further, can you,

Mr Neil?

MR NEIL:  No, Your Honour, but that is the point, that

His Honour has not on a fair reading - - -

MASON CJ: That is your submission, we understand the

submission.

MR NEIL: Yes, Your Honour. I was just answering,

certainly, the question, Your Honour.

MASON CJ:  If the case really is to turn on that point, it

seems to me to be a far cry from a case in which

special leave were to be granted because it all

Sloane 19 5/3/91

turns on, in effect, the correct interpretation of

what the primary judge said.

MR NEIL:  Or whether or not the primary judge's methodology

was at fault because the Court of Criminal Appeal

has really said that he, the primary judge, failed,

in effect, assigning an onus to the Crown. In that
area, there is a need for the law to be clear

otherwise people will not know how to conduct these

applications.

MASON CJ:  I am not sure that these applications ought to be

entertained, anyhow, but let us not venture into

that. That is another matter altogether and that

would be an additional hurdle for you to overcome.

Let us deal with it on the footing that the Court

had jurisdiction to entertain the application.

MR NEIL: Yes. Your Honour, the question then is, how are

such applications to be conducted? It may boil

down to the pragmatics of whether or not it is

mandatory if you wish to succeed to actually give

evidence.

MASON CJ: Why not? The onus of proof is on the applicant

to demonstrate that there is an abuse of process.

MR NEIL: But, Your Honour, that runs against the ordinary

law. There are many, many cases where a litigant

can discharge an onus.

MASON CJ:  Maybe, but you have got to demonstrate a

foundation from which t~e inference can be drawn

and if you cannot demonstrate that foundation

without giving evidence yourself, you have to do

it.

MR NEIL:  Your Honour, we would submit that these types of

cases cannot be different from ordinary cases where

you have to discharge an onus. The will case: the

testator is not at court; the personal injury case

where the plaintiff cannot remember anything about	the events and evidence is given without that
person giving evidence. There is evidence to
discharge the onus on behalf of the person. If it
is to be said that, in effect, in this type of
application there is some foundation that cannot be
established other than by the giving of personal
evidence, that would be drawing, in our respectful
submission, a very, very unfortunate line.

BRENNAN J: Or, by drawing an inference that if the person

had been called, there was nothing that they could

say to support it.

MR NEIL:  Your Honour, we would submit that would not be an

appropriate way to deal with the matter.

Sloane 20 5/3/91

BRENNAN J:  You do that with absent witnesses, do you not,

in the ordinary civil case?

MR NEIL:	Yes.
BRENNAN J:	Why would you not do it here?

MR NEIL: But, that is not what we are dealing with here,

Your Honour. If the Court is to enunciate the law on the procedure of these matters, so be it. It

only heightens the importance of the content of

these cases in the future and heightens the special

leave aspect of the matter.

BRENNAN J: Perhaps the underlying problem is to identify

whether there is anything to be proved at all or
whether the whole nature of the application is

misconceived. But, if there is anything to be

proved, I take it that has to proved, is that but

for the conduct of the investigating officers this

offence would never have been committed.

MR NEIL: That is the ultimate question, Your Honour, yes.

BRENNAN J: That is the only question, is it not, on your

approach to the fact that this ground is a stay?

MR NEIL:  Yes, Your Honour, but it seems to have two

elements. You look at what the actual officers did

and you look at the predisposition because even if

what they did was an entrapment, if you were

predisposed and within that sphere of activity

anyway, you cannot have the benefit of the

proposition.

BRENNAN J:  You look at the effect of what they did.

MR NEIL: Yes, Your Honour.

BRENNAN J: And if you are looking at the effect on the mind

of the accused and the accused chooses not to say

what was in his or her mind, what inference do you

draw?

MR NEIL:  Your Honour, you must, with respect, look at all

the evidence and if the inference arises from other

evidence, you may draw it.

BRENNAN J: Yes.

MR NEIL:  May it please the Court.

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

you, Mr Howie.

Without considering whether official

entrapment affords a ground for staying a criminal

Sloane 21 5/3/91

trial, the assessment of the facts in this case

made by the Court of Criminal Appeal was not

erroneous. The case was not one where the course

of the investigation shows or suggests that the
prosecution amounted to an abuse of criminal

process.

The application for special leave to appeal

is, therefore, refused.

The Court will now adjourn until 10.15 am

tomorrow.

AT 12.40 PM THE MATTER WAS ADJOURNED SINE DIE

Sloane 22 5/3/91