Tannous v The Queen

[1989] HCATrans 270

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S85 of 1988

B e t w e e n -

SAM SAMAAN TANNOUS

Applicant

and

THE QUEEN

Respondent

Application for special
leave to appeal

MASON CJ DAWSON J TOOHEY J GAUDRON J

McHUGH .J

Tannous

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 NOVEMBER 1989, AT 9.48 AM

(Continued from 8/11/89)

Copyright in the High Court of Australia

C2Tl/l/HS 11 9 /11/89

MASON CJ:	Yes, Mr Maurice.
MR MAURICE:	Your Honours, we have had copied some of the

transcript omitted from the application books being

pages 919 to 923, if I may hand those in.

MASON CJ:	Thank you.
MR MAURICE:	In our submission, Your Honours, they are not

relevant to this application, although they do touch

upon redirections sought by Mr Thomas who was

appearing at the trial for the applicant. We have

not handed in a copy of pages 915 to 918. It was

mentioned yesterday that these too were omitted

from the application book but, from our perusal of

those, they deal with matters of bail.

Yesterday I had reached the stage of taking

the Court to the Court of Criminal Appeal decision
in CHECCONI and to the reference in Mr Justice Roden's
judgment to the need in multi-accuseds' trials for

separate directions as to corroboration. I wanted

to draw the Court's attention to the directions which

were given in this case on the matter of corroboration.

In essence they are wholly to be found at

page 410 in application book 2, the second last

paragraph on that page commencing at line 32 down to

the end of the page, and that really represents the

whole of what the trial judge had to say on the

matter of corroboration in respect of the case

against Tannous. At this stage of his summing up

he was not dealing with the case against Tannous

but dealing generally with the five cases before the

jury. I ought also, in this connection, draw the

Court's attention to page 403 where the trial judge

was dealing with criticisms made by various of the

accused, both directly and through their counsel, of

the evidence of police officers, and particularly

at line 17 His Honour commences to talk about that

in the sentence beginning:

(Continued on page 13)

C2Tl/2/HS	12	9/11/89
Tannous

MR MAURICE (continuing):

In this particular case, you have heard

criticism of the Police Officers'

evidence.

Line 27 makes the observation that they:

may feel that the Police in this case,

have all been in something of no-win

situation.

And then, in the following paragraph, he says

something which perhaps could be seen as

touching on the subject of corroboration. I

direct Your Honours attention to it only for the

sake of completeness.

DAWSON J:  Well, what is said there about the corroboration - that

is on page 410 - is not wrong.

MR MAURICE:	No, Your Honour.
DAWSON J:	So that, really the complaint which you make is

that the trial judge did not, in relation to each

particular accused, identify the evidence which was

capable of being corroboration.

MR MAURICE:  Well, if he had done that, that would certainly

have cured the problem, Your Honour.

DAWSON J:  Well, is it fatal, that the trial judge does

not identify the evidence which is capable of being

corroboration as long as he gives the proper

direction as to what can amount to corroboration?

MR MAURICE:	It may not be fatal, Your Honour, it would depend upon the circumstances of a particular case; but,
in this case, we submit that the general direction
which he did give as to corroboration, it not b~ing
confined to any particular case but applicable to
all of the five cases with which the jury was
concerned was, because of its generality and because
of the way in which it was expressed,.both
inadequate and misleading. Not simply because it did not identify the evidence which could be used as corroboration - - -
DAWSON J:	Well, it was not misleading, was it?
MR MAURICE:	We say it is misleading, Your Honour, with respect.

We say it is misleading because for a number of

reasons, which we have set out in our outline,
Your Honour, but they include that the jury may
well have got the impression that they could find

corroboration of acco2?lice evidence in the admissions

made by accomplices to the police, either in the form

of a record of interview or simply as oral admissions.

C2T2/l/JH	13	9/11/89
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MR MAURICE (continuing): All four of the co-accuseds,

Your Honour, had made admissions of that sort

and it does not make clear that those admissions

could not be used for that purpose. I have to

concede, Your Honour, that at other parts of the

summing up His Honour did say that the admissions
of one co-accused could not be used against
another but he did not make it clear in the

context of discussing corroboration that they

could not be used as corroboration of an accomplice.

This is almost a passing reference to the subject of corroboration and at the end of a very

long trial.

DAWSON J: Certainly not very extensive.

••

MR MAURICE:  Not very extensive, Your Honour. It really

defies imagination, we would respectfully submit,

to believe that the jury could have come to grips with

this difficult concept of the corroboration and had

been able, when they retired to the jury room, to

recall what His Honour had said and to be able to

apply that in an analytical way to the evidence in

each of the cases against the five accused. That is

why this case, we submit, there was a need to deal
separately with the subject when sunnning up the

case against each accused. There are other complaints

about it, Your Honour. One is that - the last

sentence on page 410 expressly invites the jury to
find corroboration of one accomplice in the evidence
of another.

Now, as we have pointed out in our outline, that offends the conventional rule that accomplices

who are participes principaes cannot corroborate

one another.

DAWSON J: Where is the passage where he warns the jury against

using the admissions of one against the other?

MR MAURICE: Well, it is actually on that page, Your Honour.

There are several such references but there is one

on that page, at line 28, I think, Your Honour.

Does Your Honour have that?

DAWSON J: Yes, I see.

MR MAURICE: Another example, Your Honour, if I could - as

I say it is not the only place - another example is page 405 at line 15.

C2T3/l/DR	14	9/11/89
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MR MAURICE (continuing):  And another example, Your Honour,

would be page 414, line 34. I do not suggest

for a moment, Your Honour, that he did not make

that general point clear. It may not have been
clear to the jury that corroboration, whatever

sort of animal that waa, was one to which this

direction applied. In the last sentence on page 410,

he says:

Again you can look at the evidence of the three people I have mentioned -

and they are the three co-accused who gave evidence,
but one of those of course was Jaafar who had

pleaded guilty and he was called as a witness in

Tannous' case. And in fact the tenor of his evidence

was exculpatory so far as Tannous was concerned.

Now this appears to be an invitation to treat the evidence of one accomplice as capable of providing

corroboration of another. In our haste to prepare

our written outline, we have omitted to refer

Your Honours to the fact that there is some

division of opinion about whether the rule that

one accomplice cannot corroborate another applies

only to accomplices called by the prosecution.

Amongst the materials I handed up yesterday there is a photocopy - - -

McHUGH J:  But need we get into that in this particular case,

because the direction at the bottom of 410 refers

to three people and that must be a reference to

Sefian,Bitar and Jaafar,must it?

MR MAURICE:  Yes, Your; F.DnOUr •it :111..lSt be, I tb.i:.'11'.;. For the sake of ccmpleteness,

I do not want to take Your Honours into it in any

detail, but I have given Your Honours a copy of

some pages in Gillies Law of Evidence where the

two different lines of authority are summarized

at page 545 under the headin~ "Accomplices giving

evidence on their own behalf'.

(Continued on page 16)

C2T4/l/CM	15	MR MAURICE,	9 / 11 1 89
Tannous

MASON CJ:	Mr Maurice, neither Justice Toohey nor I seem to have this, but read it out.
MR MAURICE:	Yes, thank you, Your Honour.

An alleged co-perpetrator of a crime

may elect to give evidence on his or her own behalf, which evidence implicates in whole or in part a co-defendent. Must a

warning be given, in relation to the impact

of this evidence upon the co-defentant's

position? One approach evident in Australia

and in England has been to treat the giving of

a warning as being within the discretion of

the trial judge. Other Australian courts

have inclined towards treating the need for

a warning as being a mandatory one, so that

a failure to warn does, subject to the

application of the proviso, render a guilty

verdict bad.

But the author in footnotes 26 and 27 lists the

cases on either side and we merely wanted to refer

Your Honours to that division of opinion and to

make a couple of brief observations. The

Victorian position seems to be well established and

that is that generally speaking, even if the accomplice

is called in his own case, so to speak, the rule that

his evidence must be corroborated still obtains and

the principal authority for that is the decision of

TEITLER. Tlat is amongst the additional material

we handed up yesterday, a photocopy of the court's

decision in (1959) VR 321, and in particular I would

like just to refer Your Honours to a passage in the

judgment of the majority at page 329, at about point 4
on the page where Their Honours say:

Corrmion sense suggests that it is equally desirable to give the warning about the

evidence of an accomplice, or of one

whom the jury find to be an accomplice,

whether he be called by the Crown or

be a co-defendant giving evidence on his

own behalf. Also, it would not seem

logically to be material whether the Crown
had, in support of its case against the

appellant, relied on his evidence or not.

If the jury was told the evidence could
be used against appellant, the crucial question

would appear to be whether the jury took it
into account in convicting him, and not whether

the Crown asked them to do so.

That, in our respectful submission, is a wholly

logically defensible position and the only explanation

C2T5/l/FK	16	9/11/89
Tannous

for the cases which go the other way would really

seem to be this, that there appear to be, or there

can be, cases which arise in practice where it would be

inappropriate to give a direction about the requirement

for corroboration principally because it would not be

in the interests of the accused to do so.	For example,
where two - - -

McHUGH J:	Hr Maurice, I am not sure I am following this.
In this particular case the trial judge did give a warning about Jaafar's evidence.
MR MAURICE:	That is so, Your Honour, that is so, yes.

McHUGH J: Well, whe.redoes this lead to?

MR MAURICE:  I am just anticipating the suggestion, Your Honour,

that it was unnecessary for him to do so.

McHUGH J: It was unnecessary for the trial judge to do so?

MR MAURICE: Yes, Your Honour. Just anticipating that - - -

M.ASON CJ: Well, I think you have got enough obstacles without

dealing with obstacles net yet raised, Mr Maurice.

MR MAURICE:  Yes, Your Honour, thank you, Your Honour. ~ell I

will not dwell on it beyond observing, of course, on the spot, thought this was an appropriate case in which to give a direction as to corroboration, then

that really should be the end of the matter.

(Continued on page 18)

C2T5/2/FK	17	9/11/89
Tannous

MR MAURICE (continuing): If I could then move on, Your Honours,

to our next point, and deal with it very quickly.

The only evidence against the applicant at the

end of the Crown case was an oral admission of

which evidence was given by the senior police officer

in charge of the investigation, Detective Sergeant

Stevens.	The defence case was that this was what
is commonly referred to as a verbal.	The text

of it appears in volume 1 at page 85 and continues

on tothe following page. It was really very brief.
I will just outline shortly to Your Honours the
circumstances in which it came to be made. The
evidence was that two other policemen - this is

at pages 142 to 143 of the appeal book - had stopped

Tannous driving in a vehicle at Parramatta and

asked him to accompany them to Parramatta Police

Station. He was then conveyed in a police vehicle

to drug squad offices in Sydney where he was placed

in an interview room and some time later this conversatio

is alleged to have taken pbace. It was a confession

which might well have excited the suspicions of any

ordinary person.

MASON CJ:  But it did not excite the applicant's counsel

into any objection or application for redirections,

did it?

MR MAURICE:  No, it appears not, Your Honour.

MASON CJ: That is the whole trouble with this case.

MR MAURICE:	Yes, indeed.
MASON CJ:	These points that are sought to be raised are

points that were not taken at the trial. Some

of them were not argued in the Court of Criminal

Appeal.

MR MALRICE:  Well, this point was raised, Your Honour, in

the argument that the conviction was unsatisfactory

having regard to the weight of the evidence. (Continued on page 19)

C2T6/1 /LR	18	9/11/89
Tannous

MR MAURICE (continuing):  And this was canvassed as is

apparent frora the reasons of the Court of

Criminal Appeal obviously as an important part of that submission, Your Honour, and, as I said

yesterday, Your Honour, in our submission, the

applicant was entitled to have the Court of

Criminal Appeal review the evidence - - -

~.A.SON CJ:  Yes, I follow that. The point is that the

objection was not taken at the trial.

MR MAURICE:  No, it was not taken at the trial, Your Honour.

Well, there are a number of observations,

Your Honour, which could be made about this

alleged confession all of which would, in our

submission, lead to the position where this was

one of those cases where, in accordance with the

decisions of this Court in CARR and DUKE, a

requirement clearly arose for a warning to be

given by the trial judge about using it -

MASON CJ:  Yes, but this Court has regularly refused to

intervene in relation to points that have not been

taken at the trial.

MR 1"11URICE:  Yes, Your Honour. Well, I raise it, Your Honour,

because the dissatisfaction was expressed before the

Court of Criminal Appeal about His Honour's

treatment of the question of corroboration. One

aspect of his treatment of the question of
corroboration was he said that, in effect, in
giving his general direction, "You can find
corroboration so far as the applicant is concerned

in the oral admissions he is alleged to have made

to the police". We say that the dissatisfaction

which the applicant had with that and with its

treatment before the Court of Criminal Appeal was
that that in itself was evidence which in the

circumstances called for a warning. Then, the next

point in our submissions is really to do with the
separate trial issue and I told Your Honours

yesterday no separate trial application was made but,

in our respectful suomission, notwithstanding that,

the Court of Criminal Appeal still had an obligation

to review the whole conduct of the trial to satisfy

itself that this applicant received a fair trial

regardless of the sins or omrn.issions of his counsel

in failing to make a separate trial application or at

a later stage in the case, perhaps, applying to have

the jury discharged because of the accumulation of

prejudicial material inadmissible against his client,

a.nd, indeed, we make the submission that the trial

judge himself had an overriding duty to ensure that

the applicant, Tannous, received a fair trial.

C2T7/l/JH	19	9/11/89
Tannous

MR MAURICE (continuing): As I have indicated, at the end of

the Crown case the only evidence against Tannous

was this disputed oral confession and yet much of the

Crown case had been taken up in the presentation of

confessional material said to emanate from his four
co-accused, all of whom, in one way or another,

directly implicated the applicant in the commission

of this offence. So we say the Crown achieved an

unfair forensic advantage, the prejudice of which

this applicant had no hope of recovering.

At the end of the trial, whilst there are other

little bits and pieces, perhaps, the three main bodies

of evidence the jury had before it concerning the

applicant Tannous were these: the disputed oral

confession, the evidence of two co-accused who, in
the result, the jury found, in effect, to be not

worthy of credit, people who said that they were only

innocently involved and who disavowed confessions

which the police said had been made to them by those

co-accused and, thirdly, much inadmissible - that is

as against the applicant Tannous - prejudicial material

in the form of the co-accuseds' admissions, and I

might say about that this, Your Honours, a great

deal of the defence cases was taken up with cross-

examination by the Crown prosecutor on those admissions

concentrating at times upon what had been allegedly
said by these co-accused by way of implicating the

applicant Tannous in the commission of this offence.

So, in our submission, in those circumstances,

it was impossible for Tannous to get a fair trial and

in returning to a theme I commenced on yesterday, the

presumption of innocence with which he started out was

really sacrificed on the alter of expediency of a joint

trial. Perhaps I have said what I need to say about

the Court of Criminal Appeal's duty there. In the

outline we have referred to what this Court said

in DARBY about the desirability of separate trials in

charges of conspiracy, applying the dictum in the

Canadian case which is set out in the Court of Criminal

Appeal decision in GULDUR, cited in that outline in	paragraph 4, at page 16, the Canadian case being
GUIMOND, at page 16F where:

nine judges of the Supreme Court of

Canada held, with two of their

numbers dissenting, that in a

conspiracy trial:

" ... whenever it is apparent that the

evidence at the joint trial of two
alleged co-conspirators is substantially stronger against one than the other, the

better course is to direct the separate

trial of each, particulary when the

Crown is tendering in evidence a

C2T8/1/HS	20	9/11/89
Tannous

damaging statement made by one

under circumstances which make it

inadmissible against the other.

That was a statement of principle adopted by this

Court in DARBY and, of course, in GULDUR the Court of Criminal Appeal held that there had been a miscarriage of justice, after a thorough review of the evidence and we would submit that the present case was an even stronger one, but we did not have

the benefit of a review.	Those are our submissions
on that point, Your Honour.

That brings us to the final point which I

might label as the CHOW point.

MASON CJ:  The what point, Mr Maurice?

MR MAURICE:  The CHOW point, Your Honour. I do not claim to

be the first to have so described it, Your Honour.

The point arises out of the decision of the Court

of Criminal Appeal in CHOW, the reference to which is given in paragraph 5 of the outline. I need to

say a little bit about the purposes of the conspiracy

alleged in this case to observe firstly, Your Honours,
that the indictment with its usual lack of
particularity says little about the purpose of the

conspiracy alleged, other than that it was for the

supply of the prohibited drug, heroin.

(Continued on page 22)

C2T8/2/HS	21	9/11/89
Tannous

MR MAURICE (continuing):  The problem arises out of the definitio~

of "supply" in the POISONS ACT, 1966, and that definition

is set out at page 569 of the report in CHOW, about

point 6 on the page. Your Honours will see that

it includes "agreeing to supply" and, as well, it

includes "sell" and Your Honours will see that the

definition of "sell" which is set out irrrnediately foEowing

includes "agreeing to sell".

Now, the offence of supplying a prohibited

drug is made so or, was made so, under the provisions

of the POISONS ACT. It has been since replarPn

by the DRUGS MISUSE AND TRAFFICKING AC~ 1985,

which legislation came into force before the decision

in CHOW but which picks up or which adopts virtually
identical definitions in section 3(1) of the words
"supply" and "seJ.l" as those which were found in
the POISONS ACT so that the problem is not being

cured by the passing of new legislation.

As I indicated to Your Honours yesterday,

one has to go to the summing up to see how the Crown put its case as to what the object of the conspiracy

was here and I have referred Your Honours to page 409

and also to the remarks on sentence at page 454. The

substance of it appears to be that Tannous had the
purpose on this night of 15 May 1984 of supplying a

man called Mick, an undercover agent, with one kilogram

of heroin and that that transaction was to take place

at these premises in Cornelia Street, Punchbowl.

(Continued on page 23)

C2T9/1/SH	22	9/11/89
Tannous

MR MAURICE (continuing):  And to help him effectuate that

purchase, Tannous recruited his five co-accused

all of whom had different roles to play: some to

keep watch; some to carry the money away from the

place where the transaction was intended to occur;

one to provide the house; another to look after the tables. Indeed, it seems from His Honour's

remarks - that is the district court judge's

remarks - on sentence that the man Mick was

probably in the house at the time of the police pleaded not guilty along with the applicant -
raid but those who were caught at the time - and

two of them who were actually on the premises

fled when the police arrived but were caught; one

of them threw a tin containing the heroin over the

back fence into the adjoining premises and the

heroin was recovered.

Now, it would seem then that, in all probability,

the man Mick himself could have been charged as
a party to this conspiracy but for obvious reasons was

not.

TOOHEY J:  Did the Crown at any stage allege that this man was

a party to the conspiracy?

MR MAURICE:  No, Your Honour.

TOOHEY J: Well then, I am not clear as to how CHOW stands in

the way of a conviction in the circumstances of

this case?

MR MAURICE: Well, we would submit first, Your Honour, it

would not matter whether the man Mick could have

been charged or not and, indeed, that would be the

view of the Chief Justice at the moment and it

would be the view of Mr Justice Enderby and I will

refer Your Honour to the relevant passages in the

judgments they have delivered in that connection.

But the Crown do not, in effect, invent conspiracies.

What makes a conspiracy are the facts and if the	facts reveal that the man Mick would have been
amenable to the same charge of conspiracy precisely
because he was a party to it then the fact that the Crown do not mention him in the indictment is of
no consequence, in our submission, Your Honour.

McHUGH J: But there are two different agreements: one is

a vertical agreement and one is a horizontal

agreement, is it not? I mean, the agreement from

the vendor to the purchaser - and that is what

the statute is surely talking about, agreeing to

supply - that is the vertical agreement. The

horizontal agreement is the agreement among the

various people to supply to the outsider. Now,why

is that not a conspiracy? If A, Band C agree to

supply to~ A, Band C commit a conspiracy to
supply.

C2Tl0/l/DR	23	9/11/89
Tannous

MR MAURICE:  Yes, Your Honour.

McHUGH J: Well, that is this case, is it not?

MR MAURICE:  But is A, Band C commit a conspiracy to supply,

in our submission, what they have done is to agree

to supply and that is covered by - - -

McHUGH J:  But they have agreed among themselves which is quite

a different thing from what the definition in CHOW

is talking about. When CHOW talks about agreeing

to sell it is talking about an agreement between a

vendor and a purchaser, is it not?

MR MAURICE: Well, in the facts of that case, that is

certainly so, Your Honour, but the view has been

subsequently taken that it is not limited to

that particular fact situation. And indeed in

CARUSI's case, which is the latest decision of the Court of Criminal Appeal, His Honour the

Chief Justice expressly rejected that view and he

had rejected it in his earlier decision in TRUDGEON.

And may I say this, with respect to Your Honour, we

are not only concerned with the definition of "sell",
which has "agreeing to sell", we are concerned with

the definition of "supply" which talks about agreeing

Wales at the present time is that supply simply	to supply which the majority view in New South
means to furnish, provide or make available. It does
not carry the extended meanings given to the word
"supply" elsewhere in the Act by the definition section. So that to constitute the substantive offence of
supply, all one needs to find is an agreement between
two or more people to furnish, provide or make
available to another or others, a quantity of a
prohibited drug without importing by implication or
otherwise - as the Chief Justice would say and as
we would respectfully urge on this Court, without
importing any doctrine of privity of contract whatsoever. This case, in our respectful submission, clearly comes
within the plain meaning of the words "agreeing to

_ supply". That is what these five co-accused did:

agreed to supply a kilogram of heroin to the man Mick,

using "supply"in its ordinary sense and using

"agreeing" in its ordinary sense.

McHUGH J: Yes, but anterior to that agreement, was another agreemer

It was an agreement between the accused, among Tannous

that he should supply.

DAWSON J:  Or really an agreement by the other accused with

Tannous that he should supply.

McHUGH J: Yes.

C2Tll/l/CM	24	9/11/89
Tannous

(Continued on page 24A)

MR MAURICE:  That may be so, Your Honour, but it amounts to

the same thing, we would respectfully submit.

McHUGH J:	I do not think it does.
MR MAURICE:	An agreement with Tannous that he would supply.

The common objective which they then have and

which must be found to make it a conspiracy,

is to supply.

(Continued on page 25)

C2Tll/2/CM	24A	9/11/89
Tannous

TOOHEY J:  But was not the vice that is found in CHOW the

agreement alleged to be the conspiracy was an agreement

to supply - I will avoid that word - to provide

a drug to one of the conspirators?

MR MAURICE:  Yes, Your Honour. It is a straight vendor and

purchaser.

TOOHEY J: Well, it is not so much that it is a vendor and

purchaser situation but that one cannot isolate

the conspiracy from the substantive offence. But

that is not the situation here, unless CARUSI takes

the doctrine in CHOW rather further than is indicated.

MR MAURICE: Well, could I just deal with this? If it is

suggested that there were in fact two agreements

here, perhaps one between Tannous and Mick which had, as its objective, that Tannous would supply

or sell to Mick the heroin, that is not the conspiracy

or the agreement which is the foundation, it would

seem, of the charge in this case. That is if there

are two. We would submit there is only one. But

if there are two agreements and there was some

antecedent agreement, an agreement between the
six co-accused in this case that they would combine

to supply Mick with the heroin, that still comes

clearly within the words "agreeing to supply"

in the definition of supply in both the old legislation

and the new.

Unless one says that the word "agreeing" there

some how imports the doctrine of privity of contract,
why should it be confined, in our respectful submission

to that situation where a wou·ld-be seller of heroin

enters into an agreement with a would-be buyer

to supply a would-he buyer with heroin? In CARUSI

which Your Honours may or may not appreciate,

was a case in which the co-conspirators were at

the receiving end in Australia of a

large quantity of heroin recently imported into

this country, therewas no evidence as to any specific

arrangements which they had made for the on-supply

of this heroin to any other person or persons.

The inference to be drawn from the quantity of

heroin involved and all the circumstances was that

their purpose was to put it on to the market, so

to speak.

The view taken by all members of the Court

was that their activities could properly be described

as obtaining a stock of heroin for the puLpose
of subsequently putting it on to the market. It

was on that basis that CHOW was distinguished.

But one of the matters agitated by the Crown before

the Court of Criminal Appeal in that case was that

CHOW should be confined to cases where both the

supplier and the intended recipient were parties

to the agreement.

C2T12/1/LR	25	9/11/89
Tannous

MR MAURICE (continuing):  And, His Honour the Chief Justice,

just as he had done in the earlier decision of

TRUDGEON, rejected that submission and that apoears

at page 9 of his judgment in the second paragraph,

where he says:

The variety of possible arrangements which

might in practice be made concerning the
supply of drugs is so great that it is

undesirable to attempt to paraphrase the words "agreeing to supply" in such a way

as to limit their application to certain

classes of arrangement. I am unable,

however, to accept the submission that

there is something in the context of the
definition of "supply" which confines
agreeing to supply to cases where the

intended recip~ent is a party to the

agreement.

GAUDRON J:  Why does that not then ::ean that there is no

offence known to the law of conspiracy to supply

or is that your submission?

MR MAURICE:  We would make that submission, with respect,

Your Honour, but we would say that we do not have

to go that far.

McHUGH J:  Why not? Suppoing A, Band C agree to enter into

a general business of supplying heroin in New

South Wales on the submission that there is no such offence, is there, of conspiracy to supply?

MR MAURICE:  Well, on the view of the majority in the Court

of Criminal Appeal in New South Wales, at the moment,

there is still an offence of conspiracy to supply

because what the majority say is, that the definition

of "supply" has artificial elements so that what

would not ordinarily be understood as conduct

amounting to a supply is to be treated as a su~ply
and yet, in the collocation" agreeing to supply '

in the definition of "supply", the word "supply"

is to be given its ordinary meaning and not this

extended meaning. So that, if you can do what the

Crown did in CARUSI, and say, "Well, look this wasn't an agreement to supply, this was an

agreement to have in possession for the purposes

of supply", .you have gone beyond the words "agreeing

to supply", got yourself into the extended

definition of "supply" and conspiracy still lies

and that, in effect, is the gravamen of the

decision in CARUSI because the Crown put its case

that the agreement there was not one to supply but

one to have in possession for the purposes of supply

and Your Honour will see that the definition of

"supply" includes having in possession for the

purpose of supply.

C2Tl3/l/JH	26	9/11/89
Tannous

MR MAURICE (continuing): We would, of course, make the

submission that the word "supply" in the collocation
"agreeing to supply" has the extended meaning given

to it by all the other parts of the definition and

that was the view taken by Mr Justice Roden in LAM's

case, which we have given Your Honours a reference to

in our list and I think we have handed up a copy

of the unreported judgment; that is the only case,

apart from CARUSI, in which the intended recipient was not also charged as having been a party to the

conspiracay alleged by the Crown but Mr Justice Roden

there took the view that the offence of conspiracy to

supply no longer existed in New South Wales.

Now, that was a view which the Chief Justice

in CARUSI disagreed with and that is dealt with in

his judgment at page 7.

GAUDRON J:  I must say, I do not - if you accept the premise

in the Chief Justice's judgment in CARUSI, is it not the case that conspiracy to supply is simply

an alternative verdict to any verdict of supply

as charged. If you accept, that is to say in any

of the situationswe are hypothesizing in this

particular area, you could charge supply and you

could charge conspiracy to supply as an alternative

verdict if facts were established being agreement

to have in possess ion for the purposes of supply,

that did not constitute the main effects in which

event, if the question then proceeds, what is wrong

with your having being convicted of a lesser offence,

from - - -

MR MAURICE:  No. Well, it is only one view of it that it

is a lesser offence, with respect, Your Honour,

and, indeed, in CHOW, the observation was made that

from a penalty point of view it may not be a lesser

offence.

(Continued on page 28)

C2Tl4/l/SH	27	11/9/89-
Tannous

MR MAURICE (continuing):  Not a single judge in New South Wales

has resiled from the central proposition in CHOW

that if what was hitherto a conspiracy to supply has

been subsumed by the substantive offence, then it can

no longer be charged as a conspiracy.

GAUDRON J:  But the question then becomes whether or not you

do not interpret the provision of the Act, as it

were, as a code which totally displaces the offence

of conspiracy altogether. If you do not do that I do

not see why it is not simply the alternatives.

MR MAURICE:  I am trying to place it this way, Your Honour.

One can commit a conspiracy in one of two ways: by

agreeing to do an unlawful act, or by agreeing to do

an lawful act by unlawful means. If the very

unlawful act which is said to have conspired to do

consists of the agreement to do it, then it is

difficult to see, with respect, how it can be both

conspiracy and the substantive offence.

DAWSON J:	I do not understand that - maybe I do not understand
what is being said  in New South Wales. But if you
do not have to rely on the definition it does not
matter.  What is said here is, these people agreed
or conspired that the drug should be supplied, in the
ordinary sense, to someone.  Maybe they knew who, ~aybe
they did not. That is, they agreed amongst themselves
that supply should take place in the ordinary sense.
MR MAURICE:	Yes, Your Honour.
DAWSON J:	No one is suggesting that they agreed with the person who is to be supplied; you do not get to that
part of the definition.
MR MAURICE:	We submit that to come within the substantive offence as now defined, Your Honour, you do not have
to agree with the recipient.  I do not know if that
answers Your Honour's - - -

DAWSON J:	Well, you do not have to, but it was not a matter of them being in any sort of relationship with the ultimate recipient of the drug. Their relationship
was amongst themselves. That is the agreement.
MR MAURICE:	Yes, Your Honour.

C2Tl5/l/FK	28	9/11/89
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McHUGH J: It was an agreement to do an unlawful act, mainly

to do acts in contravention to the statute.

DAWSON J: That is "supply" in its ordinary sense.

MR MAURICE: Agreeing to supply. Yes, I see what Your Honour

means. Yes, but, Your Honour, we would respectfully

submit, you cannot ignore the fact that it has now

been made a substantive offence - the substantive

offence of supply.

DAWSON J:  Well, if it is not relying on that part of the

definition it does not matter.	You do not ever get
to it.

MR MAURICE: Well, if it did not that would be so, Your Honour.

McHUGH J: But in practice does it make any difference in any

event? In practice all you do was to put each

accused up on a count of agreeing to supply and they have

used separate counts in the one indictment, would

they not? It comes to the same thing.

MR MAURICE:  No. Well, with respect, not unless this Court

were to take a view different to that which has

been expressed in New South Wales and by several

judges, that either it does not come within the

definition of "supply" or you cannot charge it as

conspiracy.

McHUGH J: No, I am not talking about conspiracy. I am

saying, but is there any practical difference in

the result? Instead of these accused being

charged on a single count in one indictment, why

could not they each have been charged with

agreeing to supply as a substantive offence in

the one indictment. Under the TRIPODI

doctrine, their acts and statements

would all be admissible against each other.

MR MAURICE: Certainly, Your Honour, the procedural advantages

the Crown would be the same.

McHUGH J: Yes.

MR MAURICE:  But what, in fact, they would be charged with

would be, with respect, supply; the particulars of
which may be that they had agreed to supply but,

procedurally, we would concede that Your Honour is

right. That is the only real difference, as was

observed by the Court in CHOW, is when it comes to

penalty.

GAUDRON J: Well now, can I take this a little further,

Mr Maurice. Let us assume you are right. What

should happen? The indictment should have been

quashed?

C2Tl6/l/DR	29	9/11/89
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MR MAURICE:	No, the difficulty in New South Wales is that the indictment - unless you took the view that
Mr Justice Roden took in LAM, that conspiracy to
supply simply no longer exists - - -
GAUDRON J:	So, on that view, you would quash the indictment?
MR MAURICE:	On that view you would quash the indictment which
GAUDRON J:	Now, what should have happened in this case?

The indictment should have been amended to charge your client with supply?

MR MAURICE:  No, once it had become clear that what the Crown,

in fact, were alleging under the guise of a
conspiracy was the substantive offence, supply,
then the trial judge should have taken some action -
not to quash the indictment because it is not bad
on its face. This is the trouble, these indictments

are so - - -

GAUDRON J: 

What was there there that could not have been

cured by the prosecutor applying to have the
indictment amended to charge supply and the trial

judge granting that amendment?

MR MAURICE:  Because there is no power - once a jury has

been empanelled, with respect, Your Honour -

to add a new count of an entirely different

character and that, I think, is supported by this

decision of this Court in MAHER.

GAUDRON J:	So, simply, that trial should have been aborted, the jury discharged and there should have been a
new trial on a charge of supply.

(Continued on page 31)

C2Tl6/2/DR	30	9/11/89
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MR MAURICE:  Well, what he should have done, with respect

- and I think this is what was suggested in CHOW

ought to have been done had the trial judge realised

the problem, and the point in CHOW was not raised

at the trial - was to direct that - - -

GAUDRON J: It was not raised at this trial either, of course.

MR MAURICE:  No. It was to direct a verdict of acquittal

on that count because the evidence led by the Crown

simply did not disclose that offence.

GAUDRON J: Well, it is the later step that I have some great

difficulty with, if you accept that there is still

none tl:e lessMoffence of conspiracy to supply.

One would imagine that if the offence still exists,

it is not a question of whether verdicts should

be quashed or the like -one would still see there

were alternatives - it is a question that, by merger

or something in the realm of autrefois acquit and

convict,that takes over the offence that might

otherwise have been charged.

MR MAURICE:  Well, I do not know if I have grasped Your Honour's

point. The fact that the Crown may have secured

a conviction on consµiracy to s~pply would not

prevent them from proceeding to prosecute Tannous

for the substantive offence of supply.

GAUDRON J:	I am not too sure about that.
MR MAURICE:	With respect, Your Honour, that is the effect

of the decision of - that was something that was recognised by this Court in HOARE 1 s case.

GAUDRON J:  I am not too sure that that is in effect what HOARE's case says. Could there have been an indictment

which charged your client supply alternatively

conspiracy to supply in this case?

MR MAURICE:  I regret I cannot answer that offhand, whether

it is ~ossible to charge two counts in the alternative,

Your Honour, in New South Wales. I am afraid I

am not able to answer that immediately, Your Honour.

It would depend on the - - -

GAUDRON J:  But there is nothing about your not having made

the submission that there is no such thing as an

offence of conspiracy to supply, and on the premise

in the Chief Justice's decision in CARUSI, leaving

aside any questions of technicalities or formalities,

the offences must be available in the alternative. If the evidence satisfies one, you convict on that and you do not consider the other; but if the evidence

does not, then you consider whether the evidence

satisfies the other.

C2Tl7/l/LR	3 1	9/11/89
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MR MAURICE:  We would say, with respect, Your Honour, that

on the current approach - first of all it is our

submission, may I say, with respect, that the offence

of conspiracy to supply is no longer an offence

known to the law in New South Wales.

GAUDRON J: Well, in that case that should have been made

by an application to quash the indictment.

McHUGH J: Well, it was. There was an application, was there

not? Was there not a motion to demur to the indictment

in this case?

(Continued on page 33)

C2Tl7 /2/LR	32	9/11/89
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GAUDRON J:	Not by this client, was there?
MR MAURICE:	But, secondly, if I may say this, Your Honour,

following the current approach of the Court of Criminal

Appeal in New South Wales, you have to wait until you

get into the case or you nail the Crown down - - -

GAUDRON J:  That suggests that there is something wrong with the

current approach of the Court of Criminal Appeal in

New South Wales.

MR MAURICE:  And I think it is raised in the affidavit in support

of this application to the system of criminal pleading

in New South Wales but you have to wait until you can
nail the Crown down and find out how they put their

case in a conspiracy to supply.

GAUDRON J:  Only on your submission; not if you see them as

alternatives; not if you see the current approach

as making alternatives available, alternative charges.

MR MAURICE:  But they are not, with respect, true alternatives,

Your Honour, because we would submit that once it became apparent that what the Crown was alleging in

the guise of a conspiracy to supply was something

which came within the definition of "supply" and,
hence, constituted the substantive offence of supply,
the judge would be obliged to direct a verdict of

acquittal on the conspiracy count.

TOOHEY J: Mr Maurice, I suspect there is a fallacy in that

last proposition and I am having difficulty in

identifying it but it seems to me that what you

are doing is looking to a statutory definition,

isolating a particular component of that definition

which may not be the component which forms the subject

of the indictment and somehow bringing down the charge

by reference to a component which is not that relied

upon by the Crown. Now, I do not suggest I put that

terribly clearly but if the allegation is, in fact,

that A, Band C conspired with D to provide X with

heroi~ and the facts support that charge, what is

wrong with a conviction based on those facts and, more particularly, how is the conviction rendered

in some way invalid because you go to the definition
of "supply" and you see that it includes "agreement

to supply" but the only agreement to supply which

constitutes part of the charge is the agreement

perhaps which A made with X; that he would supply

him with heroin consequent upon which A enters into

the conspiracy with B, C and D?

It seems to me that you are taking an aspect of

the definition and using it for a quite different purpose
to that to which it can properly be used in a conspiracy

charge.

C2T18/l/SH	33	9/11/89
Tannous

MR MAURICE:  We are only saying, Your Honour - I hope this

answers Your Honour's question - that the area left

for the operation of the law of conspiracy has to

be determined after one has determined what is the

scope of the substantive offence of supply. The

Crown cannot avoid the consequences of what the

legislature has done by enlarging what would

ordinarily be understood as constituting a supply by

the way in which it chooses to plead the case. It

is the facts which ultimately determine what was the

common purpose of the co-conspirators.

TOOHEY J: But, say particulars had been sought of the indictment

and the particulars were in terms that the accused
conspired together to supply a prohibited drug, namely,
diamorphine, commonly known as heroin, to a man known

as Mick, now, are you suggesting that because in the

definition of "supply there is reference to an

agree~~nt to supply, that so~ehow that cbar3e is

bad?

MR MAURICE:  Yes, Your Honour, most certainly, because if the

very agreement to supply Mick with heroin is embraced

by the substantive offence as now defined by the

legislature of New South Wales, it can no longer be charged as a conspiracy. It has to be charged as a

substantive offence.

(Continued on page 35)

C2T18/2/SH	34	9/11/89
Tannous

TOOHEY J:  But the agreement is between the conspirators.

McHUGH J: There wer~ two separate agreements.

MR MAURICE: Well,I had not understood that was what you - - -

TOOI-F::Y J:  I understand the argument when the allegation is

that there is a conspiracy between a number of named

persons to supply heroid to one of those persons.

Then I can see the problems that can arise because

of the definition. But if the allegation is that

a number of named persons conspired together to

supply heroin to another person altogether, I just,

for the moment cannot see how, by extracting some

component ot the definition of "supply", you bring

down the charge as bad.

MR MAURICE: Well provided their conduct can be properly

characterized as being "agreeing to supply" then

it constitutes the substantive offence. That is

our submission.

McHUGH J: That is the point, is it not? If Tannous had

originally made an agreement with Mick and then he

went with the other accused and said "Now I want

you to help me. I am going to supply some heroin

to Mick". And they agree to it. Why is that

second agreement a common law conspiracy?

MR t1AURICE:	Why is it not a common law conspiracy?
McHUGH J:	Yes.
MR MAURICE:	Well because it is the substantive offence of

supply under the definition of "supply11 in the

POISONS ACT, Your Honour.

MASON CJ:  M:r Maurice, you do seem to have Chief Justice Gleeson

in your favour, or tending to be in your favour on

that point in that middle paragraph on page 9 of

his judgment ..... sentence. But why is

His Honour right when he says that? That he is

unable to construe "supply" as confining "agreeing

to supply" to cases where the intended recipient

is a party to the agreement. Is that not the

obvious interpretation you would give to the definition

those words ' 1 they- follow sell or distribute" and then	in the context in which you find it, particularly
immediately following then is "offering for sale".

MR MAURICE:  We would say no, Your Honour. We would say maybe

it is a matter upon which minds may differ, but we

would submit no. The ordinary meaning of the words is

"agreeing to supply", and we are not here dealing with

"agreeing to sell", "agreeing to supply" do not

necessarily connQte the idea of privity of contract.

Anything that can be characterized as being an

C2Tl9/l/CM	35	9/11/89
Tannous

agreement which has a~ its objective the supply of

a prohibited drug, comes within those words.

:MASON CJ:	Yes.
MR :t-1AURICE:	I mean I cannot - that is what we submit is the

reason behind His Honour the Chief Justice's view

and that is the reason we would urge upon this Court.

The implication of the doctrine of TRIPODI, so to

speak, is not a necessary one. By that - - -

:t-1ASON CJ:	But when you look at the word "supply" you naturally have in mind supply by the provider to the recipient.
And if you look at it in that light in that context, the extension of the definition is quite illogical.
There does not seem to be any reason why the
legislature would wish to define "supply" in such
an all embracing way as to catch within its grasp
agreements that are not between provider and
recipient.

(Continued on page 37)

C2Tl9/2/CM	36	9/11/89
Tannous

MR MAURICE:  Well, with respect, Your Honour, all we can say

is that is is a matter of conjecture as to what

they intended.

MASON CJ:	Yes, I follow.
MR MAURICE:	If I just may complete what I have to say,

Your Honour. I did say that His Honour has expressed

a similar view in TRUDGEON. I ought also to point

out to Your Honour that i~ necessarily ·follows

from the fact that Mr Justice Enderby dissented

in CARUSI that he would take the view that the

charge of conspiracy to supply would not lie

in this case either.

DAWSON J:  I do not see why you do not read the definition

distributively. One of the things that is made

illegal is the providing of the drug; that is

certainly included in supply, is it not?

MR MAURICE:	Yes, Your Honour.
DAWSON J:	And, if parties conspire to do that, well then

the other question does not arise. You do not

have to deal with every aspect of the definition

in every case.

MR ~.AURICE:	No, you do not.
DAWSON J:	You select one aspect and say that is sufficient.

Why not?

MR MAURICE:	No, Your Honour, you do not, but I can only - I am repeating myself, Your Honour, but if the
evidence discloses that something that comes within
the definition of "supply", so that it can be said
that the substantive offence has been committed,
then it is not open to the Crown to proceed to charge
it as a conspiracy. That ground has been subsumed
by statutory innovation.

DAWSON J:  The substantive offence which is being alleged here,

in relation to the conspiracy, is the provid·ing of

the drug.

MR MAURICE:  Yes, but the evidence incidentally discloses then,

I may say, Your Honour, that what these people did was to agree to provide the drug and if one then

forms the view, that is something caught by the

definition of "supply", what they have done is to

commit the substantive offence.

DAWSON J:  Well, I do not think you can say that; they did not

agree to provide the drug; they agreed with X that

he should provide the drug which is a different

thing, of course. In other words, the agreement

-was that the drugs should be provided and in that sense it only

canes in the ordinary definition of "supply" and you will never

get to the other extended definition.

C2T20/l/JH	37	9/11/39
Tannous

MR MAURICE:  Yes, well I would only be repeating myself if

I sought to deal with that again.

DAWSON J:	Yes.
MR MAURICE:	I did want to just make sure that Your Honours had the reference to TRUDGEON.
McHUGH J:	Yes, we have got copies of it; 16 December 1988.
MR MAURICE:	I just want to make sure that - I had given

Your Honours the passage. At page 5 of

His Honour the Chief Justice's judgment at point 4, where he says:

Obviously, two people can agree between

themselves that they will together, or that

one of them will on behalf of both of them,
supply a prohibited drug to a third party.

Such an agreement would fall clearly within

the definition of "supply" in the

POISONS ACT, and on the authority of CHOW

could not be made the subject of a charge

of conspiracy.

That, with respect, is entirely consistent with

what His Honour said in CARUSI and supports the

prJposition which I have put here.

Unless there is any other matter I can assist

Your Honours on, those are our submissions, if

the Court pleases.

MASON CJ:  Thank you, Mr Maurice. Mr Solicitor, we need not

trouble you on any point except the last point

that has been put forward here.

MR MASON:  Can I hand up our submissions which I will direct

Your Honours solely to those that deal with the

last point.

(Continued on page 39)

C2T20/2/JH	38	9/11/89
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MASON CJ:  Yes.

MR MASON:  Briefly, Your Honours, our submission is that

CHOW should be confined to what has been described

today as the vertical sale situation and where there

is an agreement between parties made either before or

after the vertical sale agreement has been in place, then that arrangement is capable of being charged as

a conspiracy. We say that that follows because there

is no reason why the extended statutory definition

of supply should preclude and obliterate the common

law offence of conspiracy and why a charge of the

common law offence of conspiracy may not allege any

aspect of the statutory definition of supply as being

the unlawful act to which the agreement tended.

May I say that that view of CHOW's case was

the one which the Court of Criminal Appeal adopted
in CHALLITA's case and to the extent that the statement
by the Chief Justice in CARUSI is inconsistent with it

we would ask the Court to confine CHOW in the way that

it was treated in - - -

DAWSON J:	Do we have CHALLITA, Mr Solicitor?
MR MASON:	It is on our list, and the relevant passage is

at the bottom of page 15, that paragraph commencing
at the very bottom of page 15, and also on page 8,

reading from about line 4 down to the end of the page.,

Your Honours, that would be how, with respect, we

would prefer the case to be disposed because it would

clarify the differences of opinion that have emerged

in the New South Wales judgments. Turning to the

specifics of this case: at page 406 of volume 2 of

the appeal books, at line 30, one can see that the
case that was put to the jury included an agreement
to supply, supply encompassing the extended statutory
definition of supply, and if the approach in CHOW is

to be extended, as suggested by the Chief Justice, it

would presumably only be extended to a situation where

there is an agreement to supply, that relevant supply

being, as it were, the Oxford dictionary definition of	supply, not the statutory definition of supply and
where the unlawful act is supply in the extended statutory sense and it is a conspiracy to supply in
that extended statutory sense, there could not be any
eclipsing of the conspiracy charge by the statutory charge, in our submission.

(Continued on page 41)

C2T21/l/HS	39/40	9/11/89'
Tannous

MR MASON (continuing): Thirdly, Your Honours, we would again

on the facts of this case rely upon the, what I will

describe as the UNGER point, and ask Your Honours

to refer to REG V UNGER, (1977) 2 NSWLR 990, where

there is an extensive discussion by Chief Justice Street

of the approach a court should take when leave to

appeal is sought out of time, with respect to a point

not taken at trial, being a point of law which really

only emerged long after the trial and after the time

for appeal was exercised. Indeed it is a fortiori

here because the appeal right was exercised and the

point is only now taken. And His Honour at page 993C

onwards discussed the approach and referred to an

English case of RAMSDEN in which there had been a conviction for an offence and an application:

Over twelve months later for an extension

of time within which to appeal, basing his

application upon a subsequent decision of

the Court of Criminal Appeal which had laid

down the law differently from that which had been accepted and applied when the appellant

was convicted. The Court of Criminal Appeal,

in refusing the application, assumed that

the summing up at the trial was defective

having regard to the subsequent decision.

The note of the case proceeds: "It seemed

to the court that alarming consequences would

flow from any general policy of permitting the

reopening of cases by granting a substantial
extension of time on the ground that a decision
of a court of authority had removed a widely

held misconception as to the prior state of the

law.

His Honour then goes on to refer to cases where a

similar approach has been taken in civil matters

including, at the bottom of 994, PIENING V WANLESS,

in this Court. He, on page 995 in the middle

paragraph stated that:

There is no difference in principle

between a subsequent judicial decision which has

the effect of exposing a prior misconception in

relation to a principle of law ..... and a

subsequent judicial decision exposing the

invalidity of regulations that were wrongly
treated as valid at the time of the trial.

And then, spoke of the doctrine of merger in its connection with criminal matters, and how the conviction bound up the whole of the issues of

fact and law that preceded it, and at the very bottom

of 995 and over 996, discussed how that was not to

be seen as a technical doctrine, but OD! which enables the court

to feel free to be flexible, but without the consequences

of setting and disturbing decisions in particular cases.

C2T22/l/FK	41	9/11/89
Tannous

Your Honours, on the facts of this case

there is an additional - this case was brought

out of time and, indeed, if one looks at the

affidavit that was referred to, what is not stated,

but what is, in my submission clear, page 476 -

in my submission the real impetus for the appeal

was the decision of the Court of Criminal Appeal

in CHOW and the affidavit does not exclude the

inference which I ask the Court to draw - the

delay prior to CHOW's judgment being handed down

on 29 October 1987, was due to an acceptance of the

state of law and that the activity that occurred

later and the problems that occurred later cannot

overcome the fact that that was the acceptance and

that was the delay.

(Continued on page 43)

C2T22/2/FK	42	9/11/89
Tannous

MR :MASON '{continuing):  Your Honours, this case was brought

under the POISONS ACT which was repealed and replaced

by the DRUGS MISUSE AND TRAFFICKING ACT. That

was the Act which the Court of Criminal Aopeal

was involved with in CARUSI's case and th~~ Act

has, in section 26, a statutory offence of conspiracy

to supply. So the problem, as it were, the

question of whether the common law offence is ecli~sed

by the statutory extended definition of suu~ly is

no longer a problem because we now have an expressed

statutory offence of conspiracy to supply.

DAWSON J: What does that mean? It is probably not relevant

but does that mean you can have a conspiracy to

agree to a supply, if the definition applies to that

section?

HR MASON: Well, you can certainly have some conspiracies to

supply, depending upon - in Chief Justice Gleeson's

view, nevertheless there are some limitations on the

sort of sup:,liers that can be taken up on a charge of

conspiracy to supply. The problem arising out of

the extent of the application of CHOW's - - -

DAWSON J: All I am saying, Mr Solicitor, is tl:i.at the extended

definition may give rise to some problems with that

section 26, may it not, in a nruch more pointed way

than previously?

MR :MASON:	It stil1 gives rise to some problems. Yes, in that they are all within the four corners of the statute.
Now, the tir.1e factor to which I riave referred has ar. added
application on the facts of this case in so far as it is
an application for special leave and the point was not
taken in the Court of Criminal Appeal in this case.
Your Honours, I think that is all I wish to say on
the CHOW point. Yes. If the Court pleases.

MASON CJ: Thank you, Mr Solicitor. Mr Maurice, do you wish

to reply?

MR MAURICE:  Could I just say this on UNGER, Your Honour, that

in that case there was a delay of some two years and

three months between conviction and the apolication

for extension of time, as appears from the· second page

of the judgment at the foot of the page. The only

explanation for that delay was that it had been

incorrectly assumed that the regulation upon which the

conviction was founded was invalid. Despite the

submission made by my learned friend about what

you might infer as being the real impetus, as he put

it, for the anplication for extension of time in this

case and indeed the aonlication for leave to anneal
being the decision in CHOW, we would respectfully

submit that that is not so. It is not revealed by

the materials before Your Honours in support of the

aoplication for extension of time. It is no oart of

our apolication for extension of time t!i.at Tannous

believed the law to be different from that stated

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in CHOW. We rely upon different grounds. This man,

it seems, has wanted to seek leave to anneal for a

long time because he was dissatisfied with the Court

of Criminal Appeal decision.

MASON CJ:  I notice the application for legal aid was made

on 26 October, three days before the judgment in CHOW

was handed down .

(Continued on page 45)

..

C2T23/2/LR	44	9/11/89
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MR MAURICE:  Thank you, Your Honour, I had not picked that

up, but thank you. The other observation we would

make about UNGER is this, Your Honour, that it is

essentially a decision founded upon policy.	The
policy being expressed -

I am afraid my copy has cut off the

page numbers but it is on the second last page of

the judgment where there is a reference to the

Court of Criminal Appeal describing the alarming

consequences following from a general policy of
permitting the reopening of cases. Well, the

policy of allowing convictions to stand where they

were wrongly recorded is a countervailing one and

one which we would commend to this Court.

Your Honour, it is as the Chief Justice there said

in that very same passage, a matter for the Court's

discretion. No doubt it could be taken into

consideration but this would be an inappropriate

case in which to do so,.: As to what may occur in future

cases, ware this Court to grant leave to appeal

on the CHOW point, is a matter which would have to be

considered when those cases come before the Court

upon their merits - upon the merits of the application

for extension of time. That is all we wish to say

in reply.

MASON CJ:  The Court will take a short adjournment in order to

consider the course it will take in this matter.

AT 11.22 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.37 AM:

MASON CJ: In this application for special leave to appeal

the applicant relies onfour grounds.	The first
challenges the adequacy of the trial judge's

directions in relation to corroborative evidence

seek redirections at the trial.

and the Court of Criminal Appeal's omission to applicant did not

give reasons for its rejection of that challenge.

No doubt this fact explains the Court of Criminal

Appeal's summary rejection of the point.

The second ground is that the trial judge

failed to warn the jury of the danger of acting

upon the applicant's disputed confession. Again

this point was not taken at the trial nor was it

argued specifically in the Court of Criminal Appeal.

The third ground is the omission to order separate trials of the co-accused. However no

C2T24/l/DR	45	9/11/89
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application was made by the applicant for an order

for separate trials.

In the circumstan~es.of this case

we are not persuaded that these grounds,

considered separately or in combination, resulted in

a miscarriage of justice. This conclusion makes

it unnecessary for us to deal further with the

Court of Criminal Appeal's omission to give reasons

for its decision.

The final ground is that, having regard to the

definition of the word "supply" in the

POISONS ACT 1966 (NSW), there can be no offence

of conspiracy to supply. In this respect the

applicant relied on the decision of the New South Wales

Court of Criminal Appeal in REG V CHOW,

(1987) 1 NSWLR 561, but there the Court held that

it was not open to the Crown to charge conspiracy

in a case where the accused agreed with another

person that he would supply a prohibited drug to that
person. Here the conspiracy alleged by the Crown was

that the accused conspired to supply the drug to

another person not being one of their number, that

being an unlawful act.

The present case is on all fours with the

conspiracy established in REG V CHALLITA, a decision

of the New South Wales Court of Criminal Appeal

given on 16 November 1988 which, in our opinion,

correctly states the effect of CHOW and that

decision - the decision in CHOW - in our opinion

should not be extended. Accordingly, the

application for special leave to appeal is refused.

AT 11.39 AM THE MATTER WAS ADJOURNED SINE DIE

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