Stuart-Jones v The Queen B15/1998 [1999] HCATrans 105 (16 April 1999)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B15 of 1998

B e t w e e n -

SHIREEN JOY CHLORIS STUART-JONES

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J

HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 16 APRIL 1999, AT 1.35 PM

Copyright in the High Court of Australia

MR G.D. WENDLER: If the Court pleases, I appear for the applicant. (instructed by John D. Weller & Associates)

MR R.V. HANSON, QC: If the Court pleases, I appear with my learned friend, MR G.C. DAVEY, for the respondent. (instructed by the Commonwealth Director of Public Prosecutions))

KIRBY J: Yes, Mr Wendler.

MR WENDLER: Your Honours, the applicant recognises and concedes from the outset that there is no legal point of general importance in this application. The applicant also recognises and concedes that there has, relatively recently, been significant treatment by this Court of the question whether or not there has been a miscarriage of justice by reason of the inconsistency of verdicts, and I refer or allude, of course, to Mackenzie v The Queen and, more recently, Osland. Nevertheless, the applicant submits that, in all the circumstance, there has been a demonstrable miscarriage of justice and therefore, in the context of section 35AB of the Judiciary Act, it is in the interests of justice that there be a grant of special leave to appeal.

The applicant was convicted of one count of being knowingly concerned in the importation of a prohibited import. It was pleaded that the prohibited import was not less than a commercial quantity of cocaine. She was acquitted on the alternative charge on the indictment of being in possession of the same quantity of cocaine.

In essence, the applicant complains that no reasonable jury who had applied their minds properly to the facts or the true nature of the Director's case against the applicant could have arrived at the verdicts that they did so arrive at. In other words, it was not a sensible outcome having regard to the nature of the case against the applicant. There is no sensible way in which those verdicts can be reconciled.

HAYNE J: Was the possession alleged possession in the hotel room?

MR WENDLER: Yes, it was.

HAYNE J: Why then could the jury not be persuaded beyond reasonable doubt of being knowingly concerned but not persuaded to that standard of possession?

MR WENDLER: Because the only way the jury could have acquitted the applicant of the second count of possession was if the applicant had demonstrated to the sufficient standard that she did not know or had no reason to believe that the narcotics were in the place of which she was an occupier. In other words, to make out the defence which is in section 57C of the Drug Act of the State of Queensland. That is the only way that she could have been acquitted of that second count because section 57C provides that once narcotics are found in place in which a person is an occupier, that person is deemed to be in possession of those narcotics and the onus then falls upon that person to demonstrate, on the balance of probabilities, that he or she did not know and had no reason to believe that there were narcotics in that place.

KIRBY J: That is a statutory fiction, really, is it not?

MR WENDLER: I am not sure what your Honour means by "statutory fiction".

KIRBY J: Well, it is not possession in the ordinary sense, it is casting the obligation on your client to try to escape a possession of a particular kind which Parliament has said will be attributed to the accused.

MR WENDLER: It is an evidentiary provision, I suppose, is a - - -

KIRBY J: Why would it not be open to the jury, that notwithstanding, to say that they were not convinced beyond reasonable doubt that your client was in possession, that being the matter charged? Because of the fact that she was in the bathroom when the police arrived, it was never demonstrated that she actually had the drug on her person and though it would have been to them to apply the statute and, as it were, deem her to be in possession, that they would treat it as a question of whether she was in fact proved to be in possession. In other words, a somewhat merciful approach to the issue of possession.

MR WENDLER: That is certainly how the Court of Appeal for the State of Queensland resolved it, your Honour.

KIRBY J: Well, why is that not an appropriate way for a jury to approach the matter with the rigour that is required of a criminal trial and a criminal accusation?

MR WENDLER: Because the evidence was that the person who brought the narcotics to the room had an association with the applicant and that association went as far as an arrangement, on the evidence, between the applicant and a person by the name of Boyd who was also arrested in the room at the time the narcotics were seized, an arrangement that he would take the narcotics to Sydney and that arrangement was between the applicant and this person, Boyd.

It is astonishing in the extreme that the jury could find that she did not know that the narcotics were in the room when Boyd, in his evidence, said he went to the room to have a discussion with her about pulling out of the plan to take the narcotics to Sydney.

KIRBY J: But the jury could take the view that she was knowingly concerned in the importation but not be convinced that she was actually in possession and declined to apply the statutory fiction. It is a somewhat merciful view and it is not a view that might accord with strict rigour of logic but this is a jury trial.

MR WENDLER: In the overall context of the evidence, it is astonishing in the extreme that even that view could have been taken, having regard to the association between the applicant and the person, Boyd. I mean, he went to that room for the specific purpose of making arrangements to pull out of this plan.

HAYNE J: Assume, in your favour, that the jury applied the strictest possible letter of the law in its resolution of the possession count. How does that avail you in relation to the count on which your client was convicted?

MR WENDLER: They would have had to have been convinced pursuant to, to use your Honour Justice Kirby's description, the "statutory fiction" that she did not know that there were narcotics in the room. When the police came into the room, Boyd was in a state of undress, about to put on body packages. It is obvious, on the evidence.

HAYNE J: And what convicted your client of the knowing concern charge was the various notes and other records which, in the hands of the uninformed third party, tended to suggest that she might have orchestrated the whole thing.

MR WENDLER: The only problem with that or the inferences that might be drawn with that analysis is that the third party was never exposed to have been carrying any of the narcotics found in the room.

HAYNE J: Alvarez.

MR WENDLER: A person by the name of Alvarez.

KIRBY J: He was not found in possession but there are two other hypotheses. One was that the search was not thorough enough and the other was that there was an exchange with Mr Boyd at a domestic airport in Australia where the passengers were intermixed.

MR WENDLER: Well, if that was the case then that does not sit particularly well with the fact that applicant had no knowledge of the fact of narcotics in her room.

KIRBY J: Yes, but this is cocaine. It comes from South America and Mr Alvarez came from South America. The arrangements that were made, including overseas, were covet, disguised and suspicious. He is there. The jury would be entitled to put two and two together and conclude, on either of the two bases I have mentioned, that she was knowingly concerned.

MR WENDLER: If they were prepared to speculate about the evidence, rather than apply a test which requires proof beyond reasonable doubt, that may be why it looked - - -

KIRBY J: It is not really speculation. It seemed to me to be a very strong Crown case. The only question is the one that you raise concerning the suggested inconsistency of the verdicts but even that can be accommodated if you take the view that the jury took, a strictest view of the proof of that count, and concluded that the Crown had not proved that count beyond reasonable doubt, but there was ample evidence to establish the count on which your client was convicted; ample.

MR WENDLER: I cannot put it any higher, your Honours. The situation is this: if they had a doubt about the second count, that doubt should have been translated into the first count, having regard to the evidence in relation to her association with the person, Boyd. That is really it. If the Court pleases.

KIRBY J: The Court will not need your assistance, Mr Hanson.

Two points were argued in this application for special leave to appeal from the order of the Court of Appeal of Queensland dismissing the applicant's appeal against her conviction. In the oral presentation, one of the two grounds was emphasised; but the two are contained in the written submissions and have been considered by the Court.

The first contends that the verdicts of the jury were inconsistent. However, it was open to the jury, on count 2 of the indictment, of which they acquitted the applicant, to conclude that the evidence did not establish to the requisite standard that when arrested, the applicant was in physical possession of the drug before it came into the possession of Mr Boyd. No relevant inconsistency is established in accordance with the principles recently restated by the Court in Mackenzie v The Queen (1997) 190 CLR 348 and in Osland v The Queen [1998] HCA 75; (1998) 73 ALJR 173.

The second ground of the application attacks the admission of evidence concerning the witness, Mr Alvarez, a visitor from South America. However, that evidence was admissible as capable of affording to a jury a rational hypothesis as to the source of the cocaine and how it had been imported into Australia.

The application for special leave is therefore refused.

AT 1.46 PM THE MATTER WAS CONCLUDED