The Queen v Falzon

[2017] HCATrans 212

[2017] HCATrans 212

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M55 of 2017

B e t w e e n -

THE QUEEN

Applicant

and

ROMANO FALZON

Respondent

Application for special leave to appeal

BELL J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 20 OCTOBER 2017, AT 10.54 AM

Copyright in the High Court of Australia

MR C.B. BOYCE, SC:   If the Court pleases, I appear for the applicant with my learned friend, MR J.B.B. LEWIS.  (instructed by Solicitor for Public Prosecutions (Vic))

MR T. KASSIMATIS, QC:   May it please the Court, I appear with my learned friend, MR C.T. CARR, for the respondent.  (instructed by James Dowsley & Associates)

BELL J:   Yes, Mr Boyce.

MR BOYCE:   Your Honours, in this case the Crown could prove that the respondent possessed not only the cash, the subject of this application, in the Essendon residence, but also the other accoutrements, it might be said, of drug trafficking that were contained in that residence and that we summarise in our paragraph 3.7 of our written argument which is found at application book 273.  The Crown could also prove that the respondent possessed the two cannabis cultivation operations found at Sunshine North and Sydenham respectively. 

Obviously, the Crown’s argument in respect of those two operations was that they were in a quantity in excess of what could conceivably have been used by one person or, indeed, given gratis desultorily to members of the car club and your Honours will find the evidence that is found at those two addresses at 3.3 to 3.4 of our written submissions at application book 272. 

But, most importantly, is the majority below identified the cash, the subject of this application, could legitimately bear the description or the complexion of a float for an ongoing drug‑related business and one finds that at paragraph 130 of the majority’s decision at application book 259.

So, from this evidence, it was open to the jury to conclude, so the Crown would have it and, indeed, as it was argued below the Crown would submit, that the respondent was in the business of cultivating and then selling cannabis and if this was so then the existence of this business could prove the purpose for the possession of the cannabis that was located at both North Sunshine and Sydenham, that is to say, possessed for the purposes of sale. 

From the jury’s advantaged position, the Crown would submit, it was in a sense no different – so, if the Crown case was accepted, of course, as if the respondent had, as it were, hung up a shingle outside of Essendon and said “Cannabis for Sale”.  It was no different, in essence, so the Crown would submit, to a case where – although the facts are somewhat different, item is on display in a shop in the window where if one moves to the back of the store or near the entry there is a bench and there is a till and there is a

cash float in the till and where it could be argued that whilst the money or the cash money in the till may or may not evidence past transactions, it is the mere possession of it that could go towards proof of a state of affairs, disposition if you like, to conduct a business in the item – the impugned item that is being sold.

Now, the distinction, therefore, between – and it is an important distinction between evidence that betrays past wrongdoing relied upon because it is wrongdoing or because it is relevant for some other reason is, of course, an age‑old one and harkens back many years, at least as far as Lord Herschell’s famous dictum in Makin’s Case, Makin v Attorney‑General [1894] AC 57 at 65, adopted by the former Chief Justice, Justice Gibbs, in Perry’s Case and it would seem to us, with respect, applied in the cases at intermediate level, that is to say, State and Territory intermediate level and referred to by the court below since Lewis in the Northern Territory (1989) 46 A Crim R 365, accepted, indeed, even in the court below some 20 years ago in Edwards’ Case but not accepted, the Crown would contend now, on the purposes of admissibility in such an ‑ ‑ ‑

BELL J:   Your contention, Mr Boyce, if one were to adopt Chief Justice Gleeson, when Chief Justice of New South Wales, in Sultana, that the fact that a person is in the business of being a drug dealer is relevant to issues in the case for reasons other than for what the common law describes as propensity or under the Act is tendency.

MR BOYCE:   Quite.

BELL J:   That is the contention and it is the approach that Justice Whelan took at paragraph 66 application book 238.  His Honour viewed as an item of circumstantial evidence the cash because of the inferences that could be drawn from that, relevant in a case where the suggestion is the cannabis is for personal use.

MR BOYCE:   Quite.  That is our contention and it is an important question of admissibility and that is why, with respect – that is why we are here.

BELL J:   I think perhaps we might be assisted by hearing from Mr Kassimatis.

MR BOYCE:   If the Court pleases.

MR KASSIMATIS:   There is, in our respectful submission, a fundamental difference between the mere possession of money which might be said to be a float in proof of a present business and, on the other hand, a reliance upon earlier sales in proof of an ongoing business which predates the single day charge.

BELL J:   But the single day charge was a charge that the cannabis was for the purpose of trafficking.  Is that right?

MR KASSIMATIS:   Yes.

BELL J:   That was in issue?

MR KASSIMATIS:   Yes, squarely.

BELL J:   In order to rebut or to negative beyond reasonable doubt that the cannabis was for personal use, why was it not open to draw the inference that – from the possession of the large quantity of cash that on that day the respondent was in the business of dealing in cannabis?

MR KASSIMATIS:   Nothing is the short answer, but fundamental to whether this is a proper vehicle for special leave is the fact that the prosecution – the trial judge did not admit the evidence on that basis and the prosecutor did not rely upon that evidence in that way.

EDELMAN J:   Mr Kassimatis, if a shooter is caught with a smoking gun, is the evidence about the gun admissible for a charge of murder if there is not also a charge of possession of a prohibited weapon?

MR KASSIMATIS:   Yes, but there is ‑ ‑ ‑

EDELMAN J:   Why does not that then fall within these circumstances?

MR KASSIMATIS:   Evidence that he possessed the gun at an earlier point in time, however, might depend upon whether that evidence is admissible under sections 97 and 101 of the Evidence Act.

NETTLE J:   This was evidence of possession on the day of the alleged offence, was it not?

MR KASSIMATIS:   Yes, but it was not in that respect that the evidence was relied upon.  It was relied upon as earlier offending, that is, money from earlier dealing in cannabis and that is the basis upon which it was admitted, also.  For example, when Justice Whelan sets out how the prosecution put its case at application book 236, paragraph 39, what is missing from that passage and important, in our respect, is the balance of that extract which is to be found at application book 256 to 257.

NETTLE J:   You are taking us first to paragraph 59 of Justice Whelan’s judgment.

MR KASSIMATIS:   I beg your pardon, I misread it.  It is 39.

BELL J:   I am sorry, you say 39, but 39 is on page 231 and ‑ ‑ ‑

MR KASSIMATIS:   Paragraph 59 on 236.

BELL J:   Thank you.

MR KASSIMATIS:   Now, that is not really how the prosecution put its case.  The prosecution put its case in accordance with what appears at application book 256 to 257 at paragraph 127.

NETTLE J:   You know, Mr Kassimatis, in the Crown’s final address to the jury there were repeated instances of the prosecutor saying that this cash money shows that this man is in the business of selling drugs.

MR KASSIMATIS:   We have to accept that.

NETTLE J:   It is not an isolated instance.  It is a continuing professional operation.  It was not just one.  I think it was about six or seven.

MR KASSIMATIS:   That is to be distinguished from the passage extracted by the majority which refers to prior sales of cannabis.  It is a very fine distinction but it is an important one.  One is the possession of the cash on the day as circumstantial evidence in proof of the element in issue.  The other is relying upon earlier offending to show or to be capable of showing ‑ ‑ ‑

BELL J:   The subtlety is worthy of a medieval scholastic, if I may say so, Mr Kassimatis.  One finds in the passage to which you have directed our attention at paragraph 127 on page 257 the trial judge noting that the Crown case for trafficking is a circumstantial one and so forth and it is in that context that the ruling was made.  Then, as Justice Nettle has pointed out, the Crown Prosecutors put the Crown case in terms that take up the analysis by way of example of Chief Justice Gleeson in Sultana’s Case and there is a long line of authority supportive of that approach. 

It would be odd if it were not since as a matter of logic it is difficult to gainsay in a case where one is looking at the inferences to be drawn from a person who has a quantity of cannabis in their possession and who says it is for personal use, the relevance of a consideration that they are in the business of supplying it.

MR KASSIMATIS:   With respect, we do not take issue with any of that but what we fasten our submission upon notwithstanding its potential medieval roots is the observation by the – the reliance upon the finding by the majority at paragraph 145 at application book 266 at line 42:

In the present case, however, there was no attempt by the prosecution to show a relationship between the sum of cash found at the applicant’s home and the trafficking – by way of possession for sale –

that is in the appropriate way, the cash float way.

NETTLE J:   But there was - that was the point I was making to you.  The prosecutor again and again in final address, almost ad nauseam, but doubtless effectively said what this shows you is it is a continuing operation.  It is an organised, systematic, cultivation operation.  It is a commercial, profit‑making enterprise with wall charts, timetables, programs.  It indicated that there was trafficking for the purpose of the sale.  Then there is the shredder and more dry cannabis.  It shows you that it is a continuing, professional operation.

MR KASSIMATIS:   In that respect, there is a clear, factual dispute between the majority and the minority. 

NETTLE J:   No, I am talking about what the prosecutor submitted to the jury in closing ‑ ‑ ‑

MR KASSIMATIS:   He also submitted, however, with respect, that there had been earlier sales of cannabis and earlier sales of cannabis brings to the forefront a different analytical process than the possession of cash as a float, as an accoutrement of a present ongoing business.

NETTLE J:   If you are submitting that the Crown relied upon the evidence of the cash as propensity evidence to show that this was a man more likely to engage in drug trafficking than having a smoke by himself, I must say I have not yet found it in the final address. 

MR KASSIMATIS:   That is what the majority found.

NETTLE J:   They may have but I cannot find it in the final address.

MR KASSIMATIS:   It does not get any higher than the passage extracted by the majority.

NETTLE J:   I see.

MR KASSIMATIS:   Even if we are wrong about that or if there is error in the finding made by the majority in the court below, it is a factual error.  There seems to be no division in the Court of Appeal about the relevant authorities and how they apply.  They are simply - and it is expressly recognised by Justices Priest and Beach that the principles will be applied depending on the facts of the case in different ways.  If there is an error in a factual finding made by the Court of Appeal, in any event we say this is not an appropriate vehicle for special leave.  If the Court pleases.

BELL J:   Thank you, Mr Kassimatis.  Yes, we do not need to hear further from you, Mr Boyce.  There will be a grant of special leave in this matter.  Estimated length, Mr Boyce?

MR BOYCE:   I would have thought a day would see it out easily, if only a morning, your Honour – half a day.

BELL J:   Half a day, yes, very well - if your instructors would collect from the Registry the timetable respecting the filing of submissions.  Thank you.

MR BOYCE:   If the Court pleases.

AT 11.11 AM THE MATTER WAS CONCLUDED