Weininger v The Queen

[2002] HCATrans 37

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Sydney  No S79 of 2001

B e t w e e n -

DANNY WEININGER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

McHUGH J
GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 FEBRUARY 2002, AT 12.27 PM

Copyright in the High Court of Australia

MR P. BYRNE, SC:   May it please the Court, I appear with my learned friend, MR H.K. DHANJI, for the applicant.  (instructed by Legal Aid Commission of New South Wales)

MR P.S. HASTINGS, QC:   May it please your Honours, I appear with my learned friend, MS M.M. CINQUE, for the respondent.  (instructed by the Director of Public Prosecutions (Commonwealth))

McHUGH J:   Do not sit down, Mr Hastings, there are some important questions involved in this case.  Perhaps we might hear from you first.

MR HASTINGS:   If it please, your Honours.  I assume your Honours are therefore are appraised of the issues.

McHUGH J:   Yes, and what you have going for you, I suppose, is the question as to whether or not Olbrich can be said to be directly applied in this case.

MR HASTINGS:   Yes, and, your Honour, we say we do.  There are two passages in particular in Olbrich which we say squarely meet the arguments of the applicant.  They are to be found in paragraphs 24 and 33, I think it is.

GUMMOW J:   Paragraph 24 and ‑ ‑ ‑?

MR HASTINGS:   Paragraph 24, your Honour, on page 280 of 199 CLR when the majority said:

Courts of criminal appeal in Australia have considered the subject of fact finding for sentencing many times in the last thirty years.  Not all of the questions that have been examined in those decisions must be considered now.

This passage we rely upon:

For present purposes, it is enough to say that we reject the contention that a judge who is not satisfied of some matter urged in a plea on behalf of an offender must, nevertheless, sentence the offender on a basis that accepts the accuracy of that contention unless the prosecution proves the contrary beyond reasonable doubt.

We would say that is precisely the position here because ‑ ‑ ‑

McHUGH J:   That is a general statement and it is maybe another matter when you are talking about criminal offences being the matter that is relied on or, in any event, it may be that it requires a Briginshaw-type stand.

MR HASTINGS:   Your Honour, we say it is covered by the general proposition that he who asserts must prove and that this was a claim by the applicant for leniency in sentence on the basis of good character in order to ‑ ‑ ‑

McHUGH J:   Yes.  I know, but he, having made that point - he has the onus, there is no doubt about that, but you seek to destroy his prima facie case by pointing to these other matters and it may be that before a sentencing judge should reject other prima facie evidence of good character, that the judge ought to look to a rather higher standard of proof than a mere balance of probabilities when you are dealing with matters such as you relied on in this particular case.

MR HASTINGS:   Your Honour, we would say that is contrary to the views of the Court in Olbrich.

McHUGH J:   I mean just as a general statement, and as Justice Holmes once said, general propositions do not decide concrete cases.

MR HASTINGS:   But even on the specifics of this case, your Honour, we would say it would have been a perverse result for the applicant to have raised good character by producing some testimonials to the effect that he was well regarded in the Israeli army and a good de facto father, when there was evidence from his mouth in the form of recordings to demonstrate that he had been a participant in drug trafficking over a longer period of time than that covered by the charges.  Indeed, one would think it was a bold claim to make in any event, given the concession that was made on his behalf and the finding by her Honour that he was a middle‑ranking executive in the organisation of this drug trafficking venture.  Unlike a courier who may have an opportunity in those circumstances to explain that he was there by chance or some other duress, when a person is a middle‑ranking executive in a well‑organised drug venture, it precludes the possibility that the person is a novice.  They are there because they have the expertise to fulfil the managerial role that they undertake.  So even to undertake a claim of good character in a situation like that, we would say, was always faced with failure.

McHUGH J:   The case is complicated, is it not?  If you look at it in the way that Justice Simpson looked at it, she thought that Judge Latham had wrongly rejected the claim on the basis that the evidence before her established that the applicant had been guilty of cocaine importation in relation to shipments different to that which were the subject of the charges.  I mean, do the cases not hold, curious though it may seem to some, that provided that the criminal offences are not different, then you can rely on good character if the criminal offences are all part of the one enterprise.  That seemed to be her approach in the matter, was it not?

MR HASTINGS:   Yes, but, your Honour, we would say the error in her approach, which was in turn embraced by the applicant, is to classify this issue as an aggravating circumstance and it was in that context that her Honour took the view that it was inappropriate for this matter to be upheld without proof beyond reasonable doubt.  We would say that is an erroneous classification of the context in which this claim is made.  It seems to imply that in nearly every case the norm is that people get a discount for good character, but in this case the applicant received a higher sentence because the Crown was able to refer to some facts which were unfavourable to him in which case it then became an aggravating circumstance.  We say that just wrongly interprets the situation.  There is no assumption or presumption that a person gets a discount for good character, they have to establish it.  This was simply a failure on the part of the applicant to establish that matter on the facts presented to her Honour.

McHUGH J:   Yes, but that depends upon what view the judge can take about other aspects of the evidentiary material in the case and you seek to negate the claim of good character by relying on the admissions that you allege are in the tapes.  It may be a question of to what extent?  It may be that in the end you would succeed in any event, even if there has been an error here, but it does seem an important question of principle and this case is also in that strange area of what, I think, has been described as the metaphysical distinction between increasing a penalty because of aggravating circumstances and declining to decrease a penalty because of failure to prove mitigating circumstances. 

MR HASTINGS:   But it is a position which is well known and recognised.

McHUGH J:   I know it is and ‑ ‑ ‑

MR HASTINGS:   And it has been addressed by this Court.

McHUGH J:   Yes, I know, I know.

MR HASTINGS:   So, there is no novelty in that, your Honour, with respect.

McHUGH J:   No, I know there is not.

MR HASTINGS:   Your Honour, we would say this is a matter governed by principle simply because Olbrich has set down the principles and it is a

factual exercise which was open to her Honour to conduct.  If it please your Honours.

McHUGH J:   Yes, thank you, Mr Hastings.  Yes, Mr Byrne, what do you say?  It is a pretty weak case of yours on the merits, is it not?

MR BYRNE:   Your Honour, not if one accepts the reasoning in Justice Simpson’s judgment.  Her Honour would have reduced the sentence by two years and the non-parole period by 18 months, so it is a matter where the stakes are ‑ ‑ ‑

McHUGH J:   I do not mean in terms of conclusions.  I mean in terms of the case against you.

MR BYRNE:   The strongest point that can be made in the applicant’s favour is that there was a specific finding by her Honour Justice Simpson that the material before the primary judge was insufficient ‑ ‑ ‑

McHUGH J:   I know, yes.

MR BYRNE:    ‑ ‑ ‑ to enable her to reach a conclusion beyond reasonable doubt that the applicant had been involved in prior importations of prohibited drugs.

McHUGH J:   Just remind me again, I read this material last week or the week before.  Justice Simpson thought it was insufficient to establish a different criminal enterprise, was it?

MR BYRNE:   Yes, and the material the Crown relied on were tapes made by an undercover agent which caught this applicant, as it were, bragging about his experience in the field.  Now, it is an area where claims of that kind are readily made by people in order to make themselves appear to be much more experienced than they are.  A mere admission of that kind is not enough in that context to establish the fact of the importation, let alone how much ‑ ‑ ‑

McHUGH J:   Yes, we do not want to hear any more from you. 

Yes, the application for an extension of time is granted and there will be a grant of special leave in this case.

MR BYRNE:   If it please the Court.

AT 12.38 PM THE MATTER WAS CONCLUDED