Sokvari v The Queen

[1996] HCATrans 298

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S103 of 1996

B e t w e e n -

STEPHEN SOKVARI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J
TOOHEY J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON MONDAY, 30 SEPTEMBER 1996, AT 2.19 PM

Copyright in the High Court of Australia

BRENNAN CJ:   We are dealing first with No S103, is that right?

MR D. KNAGGS:   (of Douglas Knaggs)Yes, if it please your Honours.

MR R. KELEMAN, SC:   May it please the Court, I appear for the respondent.  (instructed by S.E. O’Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ:   Yes, Mr Knaggs.

MR KNAGGS:   The main point arises out of the fact that we say the applicant Sokvari is convicted and serving penal servitude on an offence of deemed supply of marihuana.  Your Honours, I will not go very far through a factual summary because it is a very clear‑cut point which does not depend very much on the unfolding of the facts.  Suffice it to say that Sokvari was alleged and found to have marihuana in his possession at what was said to be his home at 18 Raper Street, Newtown.  That marihuana was found to be of sufficient weight to attract the deeming provisions and therefore he was found guilty of deemed supply.

Your Honours, the case went all the way through to his conviction without any evidence being given about the weight which his Honour the Chief Judge of the District Court, Judge Blanch, found was in his possession and therefore which he was deemed to be supplying.  The judgment and the Court of Appeal judgment show, and indeed the transcript shows, that the police did not purport to weigh the marihuana or to give any evidence about any weight.  The only evidence was in a section 43 certificate under the New South Wales Drug Act.  If I can take your Honours to that in the bundle of authorities, it is at page 17 of the authorities.

The two parts of the section which come into play, in our submission, are:

43(1)  Any analyst -

pausing there, your Honours, we say that means only any analyst -

analysing any plant or substance submitted to the analyst or under whose supervision the analysis of any plant or substance submitted to the analyst is carried out may give a certificate of the result of the analysis.....

(4)  In any legal proceedings under this Act, the production of a certificate, purporting to be signed by -

I am sorry, your Honours, I am wrong.  Subsection (2) is the apt one.  I will start again if I may:

In any legal proceedings under this Act, the production of a certificate, purporting to be signed by an analyst, shall be prima facie evidence of the identity of the plant or substance analysed, the quantity or mass of the plant or substance analysed and of the result of the analysis, without proof of the signature, employment or appointment of the person appearing to have signed the certificate.

Your Honours, we say the key words from the point of view of our argument are “shall be prima facie evidence of the identity of the plant”, the mass of the plant and the result of the analysis.  The argument of course then runs this way, that, although there may be an argument for saying that the certificate should not have been admitted at all, the fact is it was admitted.  Regardless of whether that was a proper admission or not, the certificate nonetheless purported to be made under section 43 and therefore was - if it was prima facie evidence of the weight, we say that prima facie evidence was overborne by the oral evidence at the hearing.

BRENNAN CJ:   What evidence was that?

MR KNAGGS:   That evidence, your Honour, is set out in the application book starting at page 25 at line 27.  That is the evidence of Constable Owen.  He says that:

17  On the 19th October 1992 I attended the Sydney Police Centre exhibits room where I took possession of one large black plastic bag.....these items forming part of Exhibit No 86 C100575.

18  I then attended Lidcombe Analytical laboratories and handed the exhibit to Mr Del Villar.  I observed -

and we stress that word, your Honours -

Mr Del Villar empty the black plastic bag and the four clear plastic bags and take samples of the green vegetable matter which they contained.  Mr Del Villar then placed the remainder of the green vegetable matter in an exhibit bag and resealed the bag and handed it back to me along with the plastic bags which had originally held the green vegetable matter.  I also retrieved the brown paper bag containing seeds.

Your Honours, Del Villar was observed by the police officer to do two things only, which is to empty all the bags in the first place and take samples and then place the remainder, ie, other than the samples - the bulk, may I call it - of the green vegetable matter in an exhibit bag and hand it back to the officer.  Your Honours, the key to our argument is that on that evidence of the Crown itself, although the certificate would otherwise have been prima facie evidence of weight, it is only prima facie evidence because of the terms of section 43.

DAWSON J:   Was there evidence that Mr Del Villar gave the exhibit to Ms Laird?

MR KNAGGS:   No, your Honour.

DAWSON J:   What did she say in her certificate?

MR KNAGGS:   She says in her certificate, which is two pages back at page 24, line 18:

“I, Susan Margaret Laird.....certify -

then she names Constable Owen who gave evidence at the hearing which I have just read:

On 19 October, 1992 Constable S. Owen.....submitted the items described below, and they have been analysed with the following results.

She then quotes the number ‑ ‑ ‑

DAWSON J:   She does not say who gave it to her but she says what she analysed, which was that which came from Constable Owen.

MR KNAGGS:   Yes, your Honour.

TOOHEY J:   So it is not the analyst’s certificate that you are challenging or seeking to overbear by other evidence, is it?  Your argument seems to be that there was a missing link in the chain.

MR KNAGGS:   It can be put that way, your Honour.  It can also be put this way, that if there is no evidence of weight - and we say you cannot call what Susan Laird said evidence of weight because she could not have weighed it because Del Villar handed it straight back, the bulk.  Owen makes it clear that Del Villar did not weigh it either.

BRENNAN CJ:   Paragraph 18 of Constable Owen’s statement is certainly fairly abbreviated.  Having regard to the fact that this was not explored at all at the trial, it must have proceeded on the basis that maybe there was something excluded there, because the analyst’s certificate says that she in fact analysed quantities of material from the relevant security bags, which are obviously the security bags, one would think, referred to in paragraph 18.

MR KNAGGS:   Your Honours, that might well be but, if all that Del Villar retained was a sample, and Owen says so - if Owen had not said, “Del Villar gave me back the bulk”, then it might be possible to conjecture ‑ ‑ ‑

BRENNAN CJ:   But Del Villar might have taken the bags into Ms Laird, dumped them on the scale, she says, “Take a sample out of those”.  He takes a sample out of those, puts the rest back.  She has already got the reading from the scale and gives them back to the police officer.  It is conjecture what might have happened but, not having been explored at the trial, it is a hard thing to come along at that stage and say there was some miscarriage there.

MR KNAGGS:   Well, your Honours, we would say that Owen’s paragraph 18 does refer to having observed what Mr Del Villar did.  After taking the samples he says that:

Del Villar then placed the remainder of the green vegetable matter in an exhibit bag and resealed the bag and handed it back to me ‑ ‑ ‑

BRENNAN CJ:   How did this statement come to be tendered at all?

MR KNAGGS:   How did it come to be tendered?

BRENNAN CJ:   Yes.

MR KNAGGS:   By consent, your Honours.

BRENNAN CJ:   Is it customary for witnesses’ evidence to be given in the form of a statement tendered by consent?

MR KNAGGS:   Yes, it is, your Honours.  It is quite customary to hand it up as an aide memoire for the judge and allow the officer to simply adopt the statement.

BRENNAN CJ:   Surely it must be on the basis that there is nothing contested about this, it is all mere formality.

MR KNAGGS:   Your Honours, the first thing to be tendered was the certificate.  Because the Act makes the certificate prima facie admissible, then it may well be not much could have been done about objecting to the tender of the certificate.  But we say that if the Crown then destroys the prima facie value of the certificate by either showing that it was not weighed or throwing sufficient doubt - and I will come to a couple of cases that use such an expression - on the weight as to make it no longer prima facie evidence, then we say it was not for the defendant or his representatives to do anything.  The Crown has simply in its own evidence, we say, destroyed the value of the certificate and left that with the judge.

Your Honours, the main case, if I may come to that now, as to the relationship between a prima facie certificate and the rest of the evidence that comes out at a hearing, is Hall v Larsen which your Honours will find in the bundle of authorities at page 5.  The passage we wish to refer to is at page 216 of that judgment which is the page hand numbered 10 in the bottom right‑hand corner of the bundle.  If I can read the first complete paragraph on 216, his Honour Justice Douglas says:

I do not think that it was ever contemplated -

this being a Queensland Court of Appeal judge -

by this regulation that a statement as to any matter which was not itself receiveable in evidence could be made so by including it in a statutory declaration.  This statement does not purport to be that of any facts which are within the declarant’s knowledge or of any acts done in the general course of business or to exhibit copies of any documents or records from the Commissioner of Main Roads -

Your Honour, we say the same observation can properly be made about the certificate in this case, that since the likelihood that Analyst Laird’s evidence about weight was only hearsay, then it cannot be any stronger evidence because it is in the certificate which has a deeming prima facie effect under section 43 of the Drugs Act than it would have had if Analyst Laird had given the evidence from the witness‑box.  We say that section 43 can only mean that the only person who can give the evidence about weight is the analyst who actually weighs it.

DAWSON J:   The section does not say that the analyst who gives the certificate must be the one that conducts the analysis.

MR KNAGGS:   It does not, your Honour.

DAWSON J:   It simply says that the analysis must be at least conducted under the supervision of that analyst.

MR KNAGGS:   Yes, your Honour, it says that either the analyst - we say the only way to construe section 43 is in order to give some point to the words “the analyst to whom the plant is submitted” - the only person who can make the certificate is either that analyst or an analyst who is under the supervision - I am sorry.  The only person who can make that certificate is that analyst but that analyst’s certificate can either say “The analysis was carried out by me” or “The analysis was carried by, say, Ms Laird under my supervision”.  But if for argument’s sake Ms Laird had been under Del Villar’s supervision, it could still only be Del Villar who could make the certificate.

DAWSON J:   It might be the other way round.  Mr Del Villar might have been under her supervision.

MR KNAGGS:   Your Honour, there is no doubt that the substance was handed over to Del Villar and we say the certificate had - this is actually the second argument.  The first argument does not depend upon whether it was proper for Laird to make a certificate at all.

DAWSON J:   In any event, unless you challenge the prima facie nature of the certificate, it stands as prima facie evidence.  Apparently there was no investigation in the course of the evidence as to the circumstances in which she came to conduct her analysis.

MR KNAGGS:   No, there was not, your Honour.

DAWSON J:   Then it stands as prima facie evidence.

MR KNAGGS:   Your Honour, on the second argument it does not stand for anything because, although it was admitted as prima facie evidence at that point, as soon as Officer Owen gave his evidence that Laird was not the person he gave the substance to but it was Del Villar, then in those circumstances ‑ ‑ ‑

DAWSON J:   The prime facie character of it is destroyed, you say?

MR KNAGGS:   Yes, your Honour.

DAWSON J:   Yes, I see.

MR KNAGGS:   The only other point that we say - we say there are two things that give weight to the submission, that only the analyst to whom the alleged drug is submitted can make the certificate.  The first is that otherwise, if that were not the case, then the words “submitted to him for analysis” are not really necessary or in fact have no work to do.  There is a case which is also cited of Oliver v The Queen which is at page 1 of the authorities.  If your Honours look at the form of the certificate on page 259, ie, on page 2 of the bundle of authorities, those words do not appear.  In the Act itself in Canada, which is also on page 2, at the bottom of page 258 of the report, your Honours will find the words “submitted to the analyst” do not appear.  The other point we make about that is that Laird’s certificate does not say that the drug was submitted to her by Del Villar.  It says the drug was submitted, but it does not say to which particular analyst.  The drug was submitted by Constable Owen.

My final point, at page 265 of the same case of Oliver which is page 3 of the bundle, a similar phrase occurs as occurs in the Larsen Case.  If your Honours look at page 265 point 6 of Oliver:

the words “evidence to the contrary” -

which in the case of the New South Wales statute is “prima facie” rather than “evidence to the contrary” -

should not be construed so as to confer upon an analyst’s assertions in a certificate any ultimate greater probative value than when those same assertions are adduced under oath in Court.

Your Honours, the effect of Oliver was that all the court saw itself as having defined was that there was sufficient doubt on the certificate.  At page 267 in the third‑last line of the report:

there was.....some evidence upon which the Judge could have, as he did, a reasonable doubt as to that fact -

that the certificate was seeking to prove -

and acquit.

So in short, your Honours, we say it is an important point as to whether under the New South Wales certificate  the certificate of any analyst rather than the analyst to whom the drug is submitted.  We also say that there is no room for conjecture and for any assumption for the Court to make that Officer Owen, an experienced, perhaps, police officer, experienced enough to be handling drug exhibits and taking them to an analyst’s laboratory, would have left out a vital fact such as there was a weighing done.

BRENNAN CJ:   Your time is up, Mr Knaggs.

MR KNAGGS:   Thank you, your Honours.

BRENNAN CJ:   We need not trouble you, Mr Keleman.

The issue of fact which the applicant seeks to raise was not canvassed during the evidence at the trial.  The issue relates to the handling of an exhibit which was the subject of evidence consisting of a written statement tendered by consent and without cross-examination.  The issue is raised in order to displace the evidentiary effect of an analyst’s certificate that was admitted by consent and which, by statute, prima facie establishes the mass or weight of the substance analysed.  Having regard to the way in which the case was conducted at trial, this is not a suitable case to consider the relevant facts.  There is no question of principle involved.  Accordingly, special leave will be refused.

AT 2.42 PM THE MATTER WAS CONCLUDED