Sultana v The Queen S160/1994 [1995] HCATrans 154 (11 May 1995)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S160 of 1994

B e t w e e n -

JOSEPH SULTANA

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

BRENNAN CJ

DAWSON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON THURSDAY, 11 MAY 1995, AT 10.23 AM

Copyright in the High Court of Australia

MR G. NICHOLSON, QC: I appear with my learned friend, MR B.W. CROSS: for the applicant. (instructed by Hovan & Co)

MR R. KELEMAN: I appear for the respondent on this application. (instructed by S.E. O'Connor, Solicitor for Public Prosecutions (New South Wales))

BRENNAN CJ: Yes, Mr Nicholson.

MR NICHOLSON: Thank you, your Honour. Your Honours, the application raises certain matters which I will endeavour to persuade your Honours are matters of general importance in interpretation of the law in this State. The first, if I could put it succinctly, deals with the content of a summing up in terms of balance on fairness and attempts to extrapolate from section 402 of the Crimes Act that by virtue of the order of addresses set in that section that it is wrong in principle to so structure a summing up as to reverse the effect of section 402 on the jury; that is, that there was a perceived advantage in section 402 in the defence having the right of last say and that when a summing up is so structured as to commence with the Crown case, to have in the centre of the summing up the Crown case, and conclude with the Crown case on three occasions in that structure, it has a structure which is inconsistent with that anticipated by section 402 of the Crimes Act.

BRENNAN CJ: Mr Nicholson, what is the possible legal basis for that submission?

MR NICHOLSON: That in granting a reversal of order of address in section 402 originally, there was perceived to be an advantage in so doing. That, in comparing section 402 to the previous existing structure where the Crown went last, some variation was sought to be made to the status quo. A summing up, the sore point is, ought to follow that structure, not to reverse that structure.

DAWSON J: But no point was taken about this at the trial and leave to argue it was refused at the Court of Criminal Appeal.

MR NICHOLSON: Yes, there were three aspects. May I just deal with them quickly and I will move on. That is the first aspect. The second aspect is the question of Robinson where in the summing up the words of the prosecutor were repeated that he had the greatest interest of all effectively in protesting his innocence and so that the structure to which I have made reference, combined with Robinson, was said to be the basis of unfairness appealed to the Court of Criminal Appeal.

As your Honour quite rightly says, the point was not taken at the appeal and the Court of Criminal Appeal applied rule 4 and that was across the board. The question flowing from that is whether rule 4 can ever be applied where the questions of unfairness or lack of balance attend in a summing up. Rule 4 is dealing with direction, failure to direct or admissibility of evidence. It should not, with respect, be applied to inherent qualities of unfairness or balance which are outside the ambit of the rule.

BRENNAN CJ: What does rule 4 say?

MR NICHOLSON: Effectively that where no objection is taken at trial - - -

BRENNAN CJ: Perhaps if you read it to us.

MR NICHOLSON: Certainly.

No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground of appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.

So the short point is that rule 4 should not be applied to questions of this nature and I seek to agitate that point.

BRENNAN CJ: What is the special leave point?

MR NICHOLSON: The special leave point is the proper interpretation of the application of section 4 to cases where questions of unfairness and lack of balance in a summing up are sought to be argued, that it is wrong in principle to apply rule 4.

BRENNAN CJ: You have heard what we have just said in relation to Crump's Case. Do you have anything to add?

MR NICHOLSON: I do not wish to take it further. In relation to the next area sought to be agitated relates to whether there should be - and I attempt to interest the Court generally - in defying the parameters of what may permissibly be omitted in circumstantial evidence cases where questions of propensity are likely to be raised, that is, to the fact or the purpose of possession.

In this case briefly a person was found, there was disputed possession, there is a motor vehicle, with five grams of heroin in his wallet. The question for the trial was whether that was planted or not. Evidence was allowed in that in the person's home two weapons, one disabled and one unloaded, and a mobile telephone, amongst other items, were found. The mobile phone was found in a car.

The question is whether the admissibility of that evidence could be justified circumstantially as anything other than naked propensity evidence, lacking immediate relevance to the actual trial issue which is the fact of possession disputed. The trial judge allowed it in and instructed the jury that these were effectively the indicia of drug traffickers. There was also a question of a large sum of money, about $30,000 found at the home, and that was also said to be relevant to whether or not the person had a disputed five grams of heroin in his possession. The point sought to be agitated - there are other aspects of circumstantial evidence to which I do not refer - but in respect of those items; two weapons, a mobile telephone and a sum of cash, almost $30,000 in his home for which there were bank records, the - - -

DAWSON J: And you have got to add a coffee grinder with traces of heroin - - -

MR NICHOLSON: Yes, I do not dispute.

DAWSON J: And there were plastic bags which were the type commonly used to contain heroin for sale.

MR NICHOLSON: Yes, and I have not disputed that material. I have excluded that from this application.

DAWSON J: It would have to be taken in conjunction with the rest.

MR NICHOLSON: Well, is that so, with respect, your Honour. The question is whether the question of a replica weapon, an unloaded weapon - one had a barrel blocked and one that was not loaded - whether that impacts, or conceivably could impact, upon whether that person had a disputed five grams of heroin in his possession somewhere else.

DAWSON J: It shows he is a drug dealer.

MR NICHOLSON: That is the naked propensity argument.

DAWSON J: No, that is not a propensity. It is not that he had a propensity to be a drug dealer, that he was at the time.

MR NICHOLSON: The question that I sought to agitate is whether that is a proper inference without more to draw from circumstantial evidence or whether there is some closer nexus with the actual fact disputed, that is the fact of possession of five grams of heroin.

BRENNAN CJ: It is hard to turn a question of what inference should be drawn from facts into a special leave question, Mr Nicholson.

MR NICHOLSON: Yes, I appreciate that and that is why I have sought to phrase it in a different way.

BRENNAN CJ: Yes, I can understand why you would seek to phrase it in a different way.

MR NICHOLSON: Bearing in mind what your Honours have just obviously communicated, if I restrict myself to the question of cash to which I have to refer, in the question of cash that was allowed as an indicia of drug trafficking and it elevated a disputed five gram possession to a large sum of cash armed for drug trafficking in the eyes of the jury. The question of cash was attended by bank records and explanation. The question is whether such an inference is available from circumstances of possession of cash in those circumstances or whether some guidance is needed as to what may be properly characterised as circumstantial evidence. If I limit it purely then to the question of the cash, I limit it then on those circumstances of the question of the cash.

Your Honours, I do not wish to be heard on the question of propensity verses possession and purpose. If it goes to possession it will go to purpose as well, but I do seek to interest your Honours in the question of possession of cash, whether that is properly characterised as circumstantial evidence here.

The last area to which I wish to turn - it will take a little more time - is the question of forfeiture.

GUMMOW J: It comes down to this phrase "in connection with", does it not?

MR NICHOLSON: With respect, no. I think that has to be involved in it and I think that is - this is a question of the interpretation of section 13 and section 18 of the State legislation. Might I hand up copies of the relevant legislation to your Honours. Do you have it?

BRENNAN CJ: Yes, I think we have it, thank you.

MR NICHOLSON: Yes, thank you. Your Honours will be aware that the allegation profounding the trial was disputed possession of 5.17 grams of heroin but what was forfeited as to money were three separate components. They were bundled together for the purpose of forfeiture: one was 2 x $50 notes folded in the wallet and, fairly enough, linked to the possession if possession was had; an amount of $500 which was found apparently beside the lounge cushion and an amount of $29,000 odd which was in two containers, one container and a petty cash tin in the house.

At the conclusion of the trial an application was served on the prisoner. There was no separate proceeding by way of hearing. Section 17 of the legislation provides that the sentencing judge may take into account the transcript of proceedings so that the evidence before him on trial was evidence before him on the application of the DPP for forfeiture. That is the sum total of what happened on the application. There was no further hearing. His Honour proceeded to find in his sentencing remarks that he was satisfied that the prisoner was a drug trafficker at large and proceeded to forfeit the full amount.

The provision in section 13(2) provides for the forfeiture of a property when there has been a conviction for the offence. It is a conviction based application. Section 18(4)(b) - - -

GUMMOW J: There is a definition of "tainted property", is there not?

MR NICHOLSON: Yes. That does not take it further, with respect, your Honour. Section 4 defines "tainted property" and your Honours will see a definition there. When you take the definition of section 4 into section 13(2) it is clear that the property to be tainted must be tainted in respect of the offence for which there has been a conviction. What has happened here is that the trial judge has interpreted his powers much more widely than granted by the legislation. He has found at large the question of drug trafficking and proceeded to forfeit in respect of that finding.

This was recognised by Justice Sully in the Court of Criminal Appeal. Justice Sully, having recognised the error of the trial judge, then proceeded to apply the presumptions within section 18(4)(a). Section 18(4)(a) is before your Honours. Effectively it provides that if on an application there is no evidence to the contrary, the court must conclude that it was used. Each of the members of the Bench in the Court of Criminal Appeal have used section 18(4)(a), with respect, to overcome the clearly erroneous finding; an exercise of non-existent power by the trial judge.

The trial judge purported to exercise power which he simply did not have and, with respect, an interpretation of section 13(2) section 4 combines to that effect. Section 18(4)(b) was the appropriate order. That did not happen. The application source, section 18(4)(a),is then sought to be utilised to overcome, as it were to rectify, the earlier problem in the sense that if there was nothing, then the court must go a certain way. Your Honours will bear in mind that - - -

BRENNAN CJ: Let me understand this correctly, Mr Nicholson. Is this what you are saying, that section 18(4) provides these two alternatives in (a) and (b), that the case was resolved against you on the assumption that paragraph (a) applied, but it should have applied paragraph (b).

MR NICHOLSON: Not quite, very close. I just vary a little from that, your Honour. The section 18 deals with forfeiture orders. Section 18(4)(a) deals with the situation where there is no evidence. Section 18(4)(b) deals with any other case. Clearly, in this case, the other evidence was section 17, the trial transcript. Justice Sully recognised that the trial judge did use, under section 17, the trial transcript. So this is properly characterised as another case.

DAWSON J: But the majority - - -

MR NICHOLSON: Dealing with the majority judgment - - -

DAWSON J: That proceeded under (d), did it not?

MR NICHOLSON: Dealing with the majority judgment at appeal book page 70:

His Honour said he was satisfied beyond reasonable doubt that the money constituted the proceeds of drug trafficking.

That is the finding at large, repeated by the Chief Justice concerning the trial judge and his Honour then goes on to recognise that there must be linked to the offence for which the prisoner is convicted and over the page, his Honour the Chief Justice - - -

GUMMOW J: He deals with the South Australian case.

MR NICHOLSON: Yes, and dealing with the South Australian case - could I just point out before I move to the South Australian case quickly, that at page 71, point 10:

The matter appears to me.....appears to have considered that it followed from his finding that the money represented the proceeds of drug trafficking that it was used in connection with the offence involved in possessing 5.17 grams of heroin for the purpose of supply.

And that is where it is left at large, it seems. There is a comment there on the trial judge. Applying Polain, Polain was a case where the scheme in South Australia, although it had a section 4 reference similar to ours, section 4 was a separate power of forfeiture. Section 5 in the South Australian legislation in Polain was a separate power of forfeiture. Section 5 was the section dealing with forfeiture for the offence for which he was convicted. The single judge in that case recognised he could not exercise the power under section 5 but had recourse to the general power under section 4.

That is not the case here. The New South Wales legislation is conviction based and for the offence and in bringing in Polain it appears that there is to be imputed that general power as in Polain by virtue of some substantial connection, or used in. Polain was a case, as I said, where the forfeiture itself was not by reference to the actual offence but at large. That is exactly the point that I urge your Honours to consider; whether this legislation in New South Wales covers that issue. It does appear to be falling outside of section 13(2) which is conviction based for the offence.

So that the question sought to be agitated is whether an application of Polain, in the context of this case to section 13(2) and section 18, gives a court power to go outside the question of the particular offence for which there was conviction and to forfeit for an offence at large. Secondly, the interpretation of section 18(4)(a) where it is dealing with an application under section 13(2), simply put, that is an application for a conviction based forfeiture for the offence, section 18(4)(a) has a presumption in those circumstances if there is no evidence to the contrary. So there is the relationship whether the presumption in section 18(4)(a) can be so interpreted to extend the ambit of section 13(2), a question of significance and, lastly, whether in circumstances where section 17 applies there has been no separate hearing at all, but section 17 applies to taking the evidence, whether there is a question of there being an application with material before the court in which case it fits in with only section 18(4)(b), it not being an application where there is no evidence before the court for section 18(4)(a). Your Honours, that sets out the point in respect of the forfeiture I sought in which to interest your Honours.

The last point is brief and that is where a trial judge has clearly misunderstood the nature of his power to forfeit, and purports to make an order outside his statutory power at District Court level, whether there then can be effectively a saving of that order by reinterpretation of the statute in terms of section 18(4)(a) to save that which was originally without power or, whether, if it is without power that is the end of it. That is the last point I seek in which to interest your Honours.

Naturally, your Honours, I have heard what you said in respect of the earlier matters raised. Clearly, the statutory interpretation of criminal application rests largely on the confiscation question. Thank you, your Honours, I do not think I can take it much further without being repetitive.

BRENNAN CJ: Thank you, Mr Nicholson. We need not trouble you, Mr Keleman. The application raises no question of general importance warranting a grant of special leave. Accordingly, special leave to appeal is refused.

AT 10.44 AM THE MATTER WAS CONCLUDED