Cheung v The Queen S200/2000 [2001] HCATrans 210 (22 May 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S200 of 2000

B e t w e e n -

YING-LUN (GARY) CHEUNG

Appellant

and

THE QUEEN

Respondent

GLEESON CJ

GAUDRON J

GUMMOW J

KIRBY J

HAYNE J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 22 MAY 2001, AT 10.17 AM

(Continued from 3/5/01)

Copyright in the High Court of Australia

GLEESON CJ: Yes, Mr Agius.

MR AGIUS: Your Honours, on the last occasion, a question arose as to whether or not there was available an alternative form of indictment that might have been presented by the Crown in this case and my learned friend presented a draft of such an indictment which alleged two counts - I think the intention was that they be cumulative - the first alleging account of knowingly concerned in the importation between 1 August 1988 and 24 April 1989 and then a second count alleging, in effect, the same offence from 25 April 1989 to 12 May 1989.

In our respectful submission, any such indictment would have been bad and, indeed, it would have been contrary to any good or fair practice to present such an indictment. Firstly, in relation to the first suggested count, there was no importation during the period that is referred to in that count. In effect, there was no offence. The nature of the offence of being knowingly concerned in an importation is that there is an importation and the importation in this case did not occur until 9 May.

Secondly, such a first count would have required that the accused, or the appellant as he now is, be prosecuted on two counts in one indictment for what was one offence of being knowingly concerned in an importation, rendering the appellant liable should he be convicted on both counts to two terms of life imprisonment and that is contrary to all practice of the criminal law, so far as I can determine it to be up to this point of time. It is not a sufficient answer to such a result, which is so contrary to good practice, to say we will just ignore one of those life terms. In our respectful submission, that would be bad in law and any such indictment would be liable to be struck down.

CALLINAN J: Why can you not be concerned in an importation before it actually occurs?

MR AGIUS: You need to allege an importation having occurred at a particular time. We do not dispute that that importation could occur after one's knowing concern in it.

CALLINAN J: If you added after the words in the first proposed count, "concerned in the importation" - - -

MR AGIUS: Which occurred on 9 May, yes.

CALLINAN J: It would have been a feasible count.

MR AGIUS: That would have been a lawful count of itself.

CALLINAN J: What was the date upon which it occurred, Mr Agius?

MR AGIUS: I am sorry, your Honour?

CALLINAN J: Would you remind me of the date upon which the importation actually occurred.

MR AGIUS: 9 May 22, 01

KIRBY J: But we have a practical problem here, and the law normally responds to a practical problem. On one hypothesis the accused was involved in criminal conduct for a very long time and very seriously. On another hypothesis he was involved in criminal conduct for a shorter time, still seriously but less seriously. If the hypothesis is that good practice suggests that the jury should pass upon the differentiation, then procedure just has to bend to the resolution of the question. Therefore, a mode of framing the indictment must be possible to allow the decision-maker to pass upon the difference.

MR AGIUS: Yes, your Honour.

GAUDRON J: On the last occasion when we adjourned we were discussing whether the terms of the section itself did not provide the solution.

MR AGIUS: Yes. Your Honour, I will come to that alternative which suggested a primary count of procuring. We would not dispute that matters of procedure must give way in order to avoid injustice.

KIRBY J: Well, how do you suggest then, from the experience of the Crown? I mean, the accused may not quite know how to frame the counts of the indictment, but there must be a way whereby if the law requires it, or if good practice suggest it, it could be done. Now, how do you suggest it?

MR AGIUS: Well, we do not, your Honour. We say there was only one count ever available as a matter of good practice or law.

KIRBY J: I know that, but assume you are wrong on that. There must be a way to do it procedurally.

HAYNE J: Well, that may invite attention to a distinction between sentencing facts and facts relating to the commission of an offence, and unless that distinction is drawn, then there may be some difficulties with the premise from which the debate is about to proceed.

MR AGIUS: Your Honour, our essential submission is that the law requires unanimity of the jury in its verdict, not unanimity in the path which the individual members of the jury follow to reach that verdict.

HAYNE J: A verdict what? A verdict about an offence.

MR AGIUS: An offence of being knowingly concerned in an importation.

HAYNE J: Just so.

MR AGIUS: And no more than that. Now, what the appellant has sought to do is to put upon the Crown an onus to devise, if it were possible, the path which the jury proceeded upon to get to that verdict. Now, that has not been the law. If we are going to make it the law - let us just say we are going to make it the law from today - - -

KIRBY J: Well, it has been made the law, as you put it, in England, as we had the passages read to us.

MR AGIUS: Well, except that in Efionayi the Court of Appeal was taken to its earlier decision in Dowdall and Smith and the result of Dowdall and Smith is completely contrary to the result in Efionayi and Efionayi can be completely distinguished on its facts. For a start, in Efionayi, the Crown was not seeking to have the accused sentenced for criminality over the whole of the period. So, that was a matter which the accused was not exposed to. The accused became exposed to it because the trial judge determined that he would sentence on that basis.

The Crown in that case had been asked to amend the indictment to reflect two counts in respect of the count of neglect of child. Those two counts would have reflected a period of neglect in relation to the first abuse and a period of neglect in relation to the second abuse. The Crown elected not to do that, at the same time conceding, as it did on sentence, that if the accused was acquitted in relation to the first assault then the only period of abuse for which the accused stood liable for punishment, if convicted in relation to the neglect, was the smaller period and that was plain from the beginning.

HAYNE J: But again, we come back to something I raised at the very outset of this argument, what is meant by a "between dates count"? Is it suggested that a "between dates count" means that at all times between the dates specified criminal conduct occurred or does it mean that within the outer limits fixed by the between dates criminal conduct occurred? Now, in the case of neglect of a child, the period of neglect may or may not constitute an element of the offence. At least, so far as I understand it, the offences with which we are concerned are not offences in which the period of involvement is an element of the offence.

MR AGIUS: With respect, your Honour, that may be yet another reason to distinguish Efionayi. So far as the allegation was concerned in this indictment, the allegation was that in between those dates, not at every moment of every day between those dates, but during the course of time between those dates this appellant became knowingly concerned in this importation.

GLEESON CJ: Well, sexual offences are frequently charged by reference to between dates counts but they do not turn upon the existence of inexhaustible activity.

MR AGIUS: And drug trafficking offences in some States where the offence of trafficking is available are sometimes charged between dates and the Crown goes to the jury with a series of activity, some of which, if taken together, would support the count of trafficking. But the offence is trafficking, not that for every moment of the day that the accused was trafficking, and not necessarily that every event itself amounts to an act of trafficking, and this is a similar sort of offence.

GLEESON CJ: Did not the decision of this Court in Savvas actually turn upon the difference between decisions as to guilt or innocence and decisions as to degree of culpability?

MR AGIUS: Yes, and in Savvas the Court was dealing with a count of conspiracy. This account of "knowingly concerned" is very, very much like a count of conspiracy except unlike a count of conspiracy that crime is completed upon the agreement. Here, the crime is completed by an actual involvement in an importation that does take place. But it is a type of offence, when one sees it in the position where it appears in section 233B of the Customs Act, to take account of the type of the activity which is of itself continuing in nature, as are importations themselves. The count has as part and parcel of its definition an element of continuum.

GAUDRON J: The offence?

MR AGIUS: Yes.

GAUDRON J: But that was not the only offence you could have charged, was it? If you were correct on your - that the appellant was at all stages involved, he was a principal.

MR AGIUS: We could have charged conspiracy over the whole of the period, which - - -

GAUDRON J: And you could have charged "procured" the importation.

MR AGIUS: No, there was a real problem with charging procurement, and I am not avoiding it - - -

GAUDRON J: What about "counsel"?

MR AGIUS: I am sorry, your Honour?

GAUDRON J: What about "counsel"?

MR AGIUS: There was a real problem with charging counselling, or any other offence which reflected only upon the criminality of this appellant at the beginning of this enterprise. It is a flaw, with great respect, in my learned friend's indictment and in the indictment that was put to me in the course of argument on the last occasion. It would have been quite possible, if the Crown had gone to the jury with two counts, a first count of procurement or counselling or aiding and abetting - but designed to capture the early activity - and a second count, designed to capture the later activity, however styled, it would have quite possible for, amongst 12 members of the jury, one of them not to agree that in relation to the first count the offence was made out; that, in effect, in relation to that first period of time, the appellant was not knowingly concerned in the offence.

In relation to the second count, it might have been possible for one member of the jury, a different member of the jury, to not be satisfied that the appellant was knowingly concerned or otherwise involved in the commission of the offence. Yet as we know, because of the verdict in this count, a jury was convinced beyond reasonable doubt that over the whole of the period, taken together, the appellant was guilty of the offence of being knowingly concerned in the importation.

Now, that problem, reflected as it is in that kind of split indictment, would have wreaked a grave injustice upon the community; it would have, in effect, shut the jury out from considering the whole nature of the involvement of this appellant.

GAUDRON J: The injustice you postulate is that you might not get a unanimous verdict on either count.

MR AGIUS: Yes.

GAUDRON J: Where is the injustice in that?

MR AGIUS: Because we did get the unanimous verdict on a count over the whole of the period.

GAUDRON J: I know you did, and we are purely talking hypothetical.

MR AGIUS: Yes, but one needs to measure the usefulness of the hypothetical against the practicality.

GAUDRON J: The question is, is it, conviction notwithstanding the risks to the accused that he might be sentenced on a basis upon which the jury were not agreed?

MR AGIUS: No, with great respect, that does the submission grave injustice. What one is endeavouring to achieve is to have a jury decide as to whether or not a particular course of criminal conduct amounts to an offence, not to construct an indictment as to make it most likely or more probable than not that a verdict will not be reached.

KIRBY J: It comes back to Justice Hayne's point. If you take the view that the jury's only proper province is to determine the offence, then the offence being as it is, it is not its function to decide what facts sustain that offence. To display that reasoning, its role is to decide whether the offence has occurred. Could you tell me this: there is authority in this Court concerning the proper province of courts interfering with the prosecution power to elect how it will frame the indictment and that the latter is part of the function of the Executive Government and the courts do not enter upon that except in a very general way. Now, what is that authority? Do you remember that?

MR AGIUS: The authority that comes to mind is perhaps Jago, where there was an application for a stay.

GLEESON CJ: Well, there is a decision of this Court, is there not - the name escapes me for the moment - following Connelly v The Director of Public Prosecutions. I would have thought Connelly, which was a decision of the House of Lords, was a case on that point, but I thought there was a later case of this Court.

KIRBY J: It may have a special bite in this country because of the separation of powers, that a prosecution has the power as part of the Executive Government to frame its indictments as it elects and the court's only function is to make sure that that is lawful.

GLEESON CJ: My recollection is that a member of the House of Lords - and I thought it was Lord Hailsham, but I may be wrong - in Connelly said that if the courts take it upon themselves to approve or disapprove the form of indictments, the view will soon get around that courts have approved indictments.

MR AGIUS: Your Honour, we will make some effort to turn that up during the course of the morning.

KIRBY J: Perhaps you could have a look at that line of territory, because it is somewhat defensive of your right, which you have not really been asserting in terms of a right, that the Crown has the right to frame its indictments and courts keep out. Now, I thought there was a line of territory that said that.

GAUDRON J: There is no doubt that there is such a line of territory, but that really is not the point here. You can frame it how you like. The question is what the court should do in sentencing if it appears that there may have been some other way of framing the indictment. Now, clearly there are already principles about that. If you frame a count of sexual assault without violence, to take an example, and the evidence is that violence was used and it constitutes a higher charge, you must sentence for sexual assault without violence. You have to sentence on the basis of the indictment. So you cannot sentence for something that was not charged. We are just simply coming to a different line of territory, which is: what happens with sentencing when the charge is sufficiently unspecific as to permit of the possibility that a jury may have reason to a conclusion by different paths, one of which involves considerable culpability and one of which does not.

MR AGIUS: Your Honour, the courts are not concerned with the way in which juries reason towards a conclusion. Jurors are told that they may find their own paths to all conclusions in trials every day.

GAUDRON J: Exactly, but it is a sentencing question. If you say - - -

KIRBY J: What you have just said is not entirely right. Do you remember in that case of Crofts, I think it is, where it was maintaining a relationship and you had to have three offences, the Court did say that the law required the judge to instruct the jury that they had to agree on the same three events. To that extent the law does require an intrusion into the constituents that make up the offence and to make that very clear to the jury.

MR AGIUS: My statement was too broad. I did not have in mind to include in that those sorts of cases where there is an essential factual element that needs to be found by each member of the jury in order to make out the offence through a finding in relation to only one factual circumstance. But that aside - and the law accommodates that situation - juries are told, particularly in cases of this nature, that they may reason their way in terms of which facts they find individually.

GLEESON CJ: What were the names of those cases in which this Court dealt with the question of exactly what has to be proved beyond a reasonable doubt?

MR AGIUS: Shepherd and Chamberlain.

GLEESON CJ: That is right.

MR AGIUS: We have the references to them in our written submissions.

GLEESON CJ: What was the expression that was used to distinguish at one stage between facts that the jury have to find beyond reasonable doubt and facts that they do not have to find beyond reasonable doubt?

HAYNE J: Strands in the cable.

MR AGIUS: This case is very much like a strand in the cable type of case as opposed to a link in the chain type of case, which was the distinction.

GLEESON CJ: No, primary and intermediate facts.

CALLINAN J: I think the case may have been Ahern.

MR AGIUS: Ahern was a case that dealt with the admissibility of evidence, what would otherwise be hearsay evidence, of an informant in relation to the activity of another person.

CALLINAN J: No, I think there was also discussion of the matter raised by the Chief Justice in Ahern, which facts had to be proved as elements and other facts. I think it is Ahern v Director of Public Prosecutions and it did come to this Court. You might look at it anyway.

MR AGIUS: Perhaps we will look that up during the course of the morning and we will provide that reference, if it is - - -

HAYNE J: Can I take you back to the question of the proper role of the jury. Is the proper role of the jury to find the liability of the accused person to a particular level of maximum punishment? De Simoni 147 CLR 383 and that line of country, concerned with aggravating circumstances that could have been changed but were not, focuses upon the need to have the jury return its verdict in relation to matters that vary the maximum level of punishment to which the offender is liable. In this case the debate concerns where the discretionary application of punishment within a single identified maximum should lie according to the particular level of criminality in which the accused engaged.

MR AGIUS: There was no statutory aggravating feature which was missed by this broad indictment. This is not a case like Kingswell or Meaton where an allegation of aggravating circumstances rendered the accused liable to an increased penalty by way of statute from 25 to life imprisonment. This was life imprisonment from beginning to end on no matter which variation of the indictment that was going to be suggested. So, there was no statutory aggravation. The statements by this Court in De Simoni are not unlike what we hear from the English Court of Appeal in Stosiek where there was an aggravating circumstance of assault being upon the police officer which could have been charged, which was a different offence that carried a different penalty, but was not charged.

This case ought to be distinguished entirely from those types of cases. There was no advance in the statutory maximum. The accused always knew that he was facing life imprisonment and the Crown did not seek a penalty at sentence which was not available upon the presentation of the indictment, assuming the jury returned a verdict.

I was dealing with problems of the indictment being split. There is one other problem, in our respectful submission, that ought not to be overlooked. Perhaps it is a problem of procedure, but it can lead to very difficult questions for juries. In any such split indictment the jury would be being asked to view two, in effect, different bodies of facts, but to view them in different ways. In respect of an indictment charging the earlier period of criminality, we had the evidence of the informant. The evidence which corroborates the informant, not altogether, but in the main, falls in the second period, the shorter period towards the end.

If we had a split indictment, either in the way suggested by my learned friend or in the way suggested to me in the course of argument, the jury would need to be instructed that they could look at the material that occurred in the latter period, not as evidence itself of primary material reflecting guilt, but only as material which corroborated the informant, even though that evidence was available to prove in a primary way - - -

GAUDRON J: Well, I do not see that that is correct, Mr Agius, and I do not see that it is beyond the wit of a judge to do it, even if it is.

MR AGIUS: It would lead to a very complicated direction to a jury - - -

GAUDRON J: All of this seems to me to be entirely beside the point. No one is concerned as to the propriety of this indictment or as to the propriety of the jury's verdict. The only question is, for which Savvas appears to be authority on one side and for which there is no authority of this Court otherwise, what is the correct approach to sentencing in a case such as the present where it is not clear from the jury's verdict, where given the imprecision of the offence - and that really is the problem, it is the imprecision of the offence created by statute, and it is a problem which can arise also in conspiracy - what is the correct sentencing approach when it cannot be ascertained from the jury's verdict precisely what the level of criminality is?

MR AGIUS: In any case where motive is alleged, where motive might be not an aggravating feature but a feature which stands in favour of an accused, that situation could arise. What we are dealing with is a matter of principle. There is some other authority from this Court aside from Savvas and it is the authority of the joint judgment in Olbrich [1999] HCA 54; (1999) 199 CLR 270.

KIRBY J: What is the name of the case?

MR AGIUS: Olbrich. That was a case, as your Honours may remember, where an accused had pleaded guilty to a charge of having imported a prohibited import and the question arose upon that accused's sentence as to the role that the accused had played in the enterprise which centred upon the importation and there was an issue as to, essentially, who bore the onus of proof in relation to proving the aggravating circumstances. That was the factual context in which the case arose. But in the course of a joint judgment, at 279 this was said, and the statement was said, broadly, referring to both situations where people have been convicted by jury and when they pleaded guilty. At 279, paragraph 19:

Sometimes, when drugs are imported into this country, more than one person connected with the importation of those drugs (or subsequent dealings with them) is prosecuted. Sometimes, those persons will be charged with different offences under the Customs Act. One may be charged with importing the drugs; others may be charged with conspiracy to import prohibited imports, or being knowingly concerned in the importation of such imports. If several of those persons are convicted of -

and I stress those words -

or plead guilty to, the offences with which they are charged, it will, of course, be necessary to identify any feature that should lead to imposing a different sentence on one from that imposed on another. In that context, a distinction between "couriers" and "principals" may be prove a useful shorthand description of different kinds of participation in a single enterprise. And it may be that in the circumstances of a particular case, different levels of culpability might be identified by adopting those terms.

That statement is not confined to a situation that pertains only upon a plea but it refers in terms to people being convicted and I interpolate that what the Court was speaking of there was the process that followed conviction, a determination by a Court, if it be relevant, of the particular role played by an accused, then a convicted person, in a drug importation exercise and that is exactly what happened here.

That authority would seem to be, with great respect, very much in keeping with what this Court said in Savvas and, with great respect, very much in keeping with what your Honour Justice Kirby said in Chow, sitting in a different court, concerning what is the nature of a plea of guilty, a plea of guilty only being a plea to the elements of the offence. There is no logicality in having a situation where a plea of guilty is only a plea in relation to the elements of the offence but a finding of guilty by a jury needs to be, and that there is an onus on the Crown to ensure that it is, more than that. There is no logic in that situation at all.

KIRBY J: I realise that one can mount an argument, which you do and which is logical, that the jury has its responsibilities, the judge has his or her responsibilities, and the judge just has to decide the matter for himself or herself. But, in a sense, because the judge cannot interrogate and does not know the basis on which the jury has found the offence proved in a case such as the present, there will always be a doubt as to how the jury has reasoned, and it is, at least, a logical proposition that in those circumstances the judge should say, "Well, because there is a doubt, because I do not know and cannot find out, it is proper and just to resolve the difference on the footing that the jury reached the conclusion most favourable to the accused."

Now, remind me of why you say that is not? There have been dicta to that extent, have there not, in Australia, that the judge should, as it were, accept the logical reasoning which is most favourable to the accused. Now, what is wrong with doing that?

MR AGIUS: That proposition has been rejected in New South Wales, Victoria, South Australia, Western Australia and - - -

GLEESON CJ: Tasmania.

MR AGIUS: - - -Tasmania, and I think in Queensland, and all of those authorities - - -

KIRBY J: Well, that is interesting, but that does not bind me.

MR AGIUS: No, but in terms of dicta, there has been no dicta from this Court. The dicta that we find in the other courts all seems to be contrary to that proposition. We have set out in our written submissions the relevant cases from the other courts.

KIRBY J: I understand the state of authority, but why, as a matter of principle, do you say that that is not a proper exercise in - there are such principles. For example, take Crown appeals: there is a principle which judges have fashioned that when on appeal they resentence they opt for the lowest that reasonably and properly be imposed. Now, these principles are not wholly logical, but they are part of the justice of our legal system. What is wrong with that?

MR AGIUS: When a judge comes to sentence, the judge is undertaking an essentially different task to the task undertaken by the jury. That is at the heart of our criminal justice system. Juries are not, by and large, concerned with matters of culpability and matters of punishment. Otherwise, if the dicta were the law, there would be an onus on the Crown to cause a great deal of evidence, irrelevant, perhaps, to the elements of the offence during the conduct of a trial, simply to prove culpability.

GLEESON CJ: To what dicta are you referring? Where do I see those dicta?

MR AGIUS: Well, it does not exist, but his Honour Justice Kirby described this as dicta, and I am simply taking up that expression. There is no dicta in this country to support the proposition that a prisoner ought to be sentenced on a version of the facts most favourable to that prisoner.

KIRBY J: Well, it would not be all that different to the dicta and holdings of the Court of Criminal Appeal that where a Crown appeal succeeds the appellate court sentences not on the basis that logic would require, not on the basis that pure reason would require, but on a softer basis, a basis which is the lowest sentence that can be properly imposed. Now, that is not logical. It is not purely logical; it is kind.

MR AGIUS: Your Honour, I am happy to have logic in my quiver, but it is not the only thing that I rely upon for this proposition. One gets to a position where, if the law were that the sentence to be imposed had to be consistent with the most favourable view of the facts, the Crown would be running, in its trial before the jury, material going to culpability, going to a version of the facts which may be important on sentence but not important so far as the elements of the offence were concerned, before the jury, and still no way of knowing whether or not a jury accepted or rejected or, perhaps, did not bother to consider any of these additional elements.

One would also be driven to this proposition, that one could have a case where the version of the facts most favourable to the accused, but consistent with guilt, flies in the face of any commonsense. It is just totally unacceptable to a tribunal of fact composed by a judge at the time of sentence.

HAYNE J: It is a view, also, that is not consistent with the majority view in Olbrich. Olbrich contemplates that the prosecution may prove matters which go in aggravation of sentence.

MR AGIUS: Yes. Your Honours, when I looked at the English authorities, it seemed to me that this concept of sentencing on the basis most favourable to an accused arose as an extension from a different proposition, and that is that in determining issues of fact after conviction, a judge ought to give the benefit of the doubt to an accused person, which is a different matter entirely.

If there is doubt, if matters of aggravation or culpability cannot be proved beyond reasonable doubt, then certainly an accused gets the benefit. If at the end of a trial the cards fall evenly, after verdict, as to a matter of culpability and the Crown does not seek to prove that matter beyond reasonable doubt, in aggravation, then, of course, the accused will get the benefit of it. But this is not such a case and there are many cases where that is not how matters are determined. The two are analogous, but one is a matter of principle and one may simply be a misinterpretation of that more fundamental principle. Your Honours, I commenced by dealing with the problems of the alternative indictment and I really have put - - -

CALLINAN J: Mr Agius, can I ask you a question about that matter? The trial judge at page 732 said that:

On that view of the facts, it was submitted on behalf of the prisoner and conceded by the Crown that the appropriate sentence would be one which would see the release of the prisoner (who has been in custody for over three and a half years) within at most another two years.

What his Honour was referring to there, I take it, is the case advanced by the appellant that although he was involved in the importation, it was with a view to eventually notifying the authorities in order to protect his informant. Is that correct?

MR AGIUS: Your Honour will see it set out in the transcript.

CALLINAN J: Exactly.

MR AGIUS: It is what your Honour has put to me, plus a little more.

CALLINAN J: Right. For present purposes, just accept that. Then, if one looks at the proposed counts submitted by the appellant with which you have been dealing, take the first count, which deals with the earlier period. If the jury had found the appellant guilty on that count, there is no reason why the jury might not have concluded that the appellant was still engaged in the importation in a wholly criminal sense and not in order merely to protect his informant.

MR AGIUS: Your Honour, I would go further than that. If a jury convicted on that first notional count, it was still possible that the jury might not have accepted all of the informant's evidence.

CALLINAN J: In other words, the counts really do not deal with, or cannot be matched up, as it were, with the submission.

MR AGIUS: It is impossible to draw a count which reflects the submission in respect of which the Crown made the concession before the trial judge.

CALLINAN J: In other words, the preferment of counts, as suggested by the appellant, would not necessarily lead to the conclusion that the alternative position had been accepted by the jury and that the appellant should have been given a much lighter sentence.

MR AGIUS: Your Honour, we would agree with that. If one went to the second count in any proposed indictment, a verdict of guilty in relation to that second count - this is a count for a reduced period of time - would not say anything about the motivation of the accused.

CALLINAN J: No. It could have still have been the same motivation, even on the second count.

MR AGIUS: And we would be having the same argument.

CALLINAN J: Yes.

MR AGIUS: The verdict of guilty did not say anything about whether or not this accused person was acting to save people's lives and with the intention that the importation be discovered, people be arrested, et cetera.

CALLINAN J: On either of those counts there still would have been matters for the trial judge to determine for himself with a view to imposing the appropriate sentence. Is that right?

MR AGIUS: Yes. We would adopt that and ask the Court to have regard to that consideration as a matter of caution when one comes to consider whether there ought to be a principle which requires or puts an onus on the Crown to try and define these things in advance at the time of presentation of indictment.

GAUDRON J: Nobody is talking about that. One is talking about the consequences for sentencing if you do not. What is being put against you is if it is possible and if you do not - - -

MR AGIUS: I did not understand it to be being put against me, your Honour.

GAUDRON J: Well, what is being put against you by counsel for the appellant in these proceedings, that if there is a means of differentiating the different levels of criminality by alternative counts in an indictment and if the Crown elects not to, but to proceed simply with the charge of an imprecise type of the kind to be found in 233B of the Customs Act, then there may be consequences for the base for sentencing. That is what is put against you.

MR AGIUS: The problem with that argument is that one could never define a count, even in this case, which is reflective of the proposition for which the appellant contends.

GAUDRON J: All of that may be right. That is the basis on which the Parliament elected to legislate.

MR AGIUS: But if that is right, your Honour, is not that the end of the matter?

GAUDRON J: Not necessarily. What one then does is have a look to the requirements of the Crimes Act with respect to sentencing and see how, having regard to that and general sentencing principle, the trial judge or the sentencing judge is to proceed, a matter upon which I have heard in support of your argument only that there is dicta in each of the States of Australia to support what happened in this case or that rejects the course proposed, at least in general terms, by counsel for the appellant.

MR AGIUS: Well that is the law in each of the States.

GAUDRON J: Well, I only heard you tell me it was dicta.

MR AGIUS: No, the word "dicta" was his Honour Justice Kirby's word and it - - -

KIRBY J: I think I am responsible for this. I withdraw and I apologise and I will never use it again.

GAUDRON J: When you say it is the law, that is how sentencing principle has evolved in each of the States, is it?

MR AGIUS: And how it is applied in each of the States.

GAUDRON J: Yes. Now, we have a federal offence, a federal Act, we have got section 80 of the Constitution - - -

MR AGIUS: None of those things make any difference.

GAUDRON J: Well, you say not, but in a context in which the Constitution mandates trial by jury, there is, I have to confess, something which is at least capable of causing unease, that when a matter goes forward on an imprecise count, that the trial judge can find beyond reasonable doubt on the evidence of an accomplice, basically only on the evidence of the accomplice, except in the extent it was corroborated by the later events, that this man was the guiding mind, but he was not charged with being the guiding mind. He could have been charged with being the guiding mind albeit that there might have been some risks to the prosecution case in that regard, but I do not see why he could not have been charged with counsel or procure the importation, which is essentially the case you made against him, that he counselled or procured the importation.

MR AGIUS: Your Honour, this is back to the arguments that I have put already, and I do not want to take up time repeating myself.

GAUDRON J: Yes, there was some risk to you if you did.

MR AGIUS: Risk to the community that a person who is ultimately - - -

GAUDRON J: Well, all right, a risk to the community, but, at least as a matter of law, a charge in those terms, reflecting the criminality upon which this man was sentenced, did it not?

MR AGIUS: No, because procuring this importation, said nothing about his management of it in its crisis period at the end, it said nothing about - - -

GAUDRON J: Well, I thought it said much more of it than being knowingly concerned did.

MR AGIUS: No, we would disagree with that; there is nothing more culpable about procuring than being knowingly concerned in an importation, one needs to look beyond those words of indictment to what are the underlying facts.

GAUDRON J: Why was he not guilty of importation? Does importation - - -

MR AGIUS: Well, on the basis of principle in the second degree or on concepts of common purpose he was guilty of importation, he was guilty of conspiracy to import.

GAUDRON J: Exactly. Now if you charged him with importation - - -?

MR AGIUS: Well, we would have had very complex directions of law in relation to his role as a principle in the second degree as to common purpose as to the admissibility of evidence in relation to his connection with the importation.

GAUDRON J: All right. You might have had complex directions, but the question really is, if there is a means by which - forget about the complexities of the trial - you can charge a person so that a verdict on that count will indicate, in a reliable way, the measure of his culpability, and if you elect, for perfectly good reasons otherwise not to do it, why should you not be at risk in the sentencing procedure? The man is at risk in the trial procedure.

MR AGIUS: That is a lawful risk that the law provides because of the distinction between the functions of judge and jury. A count alleging that he was guilty or had committed the importation would not solve this problem, would not solve the question of what role he had in the importation.

GAUDRON J: You keep saying so, but for my part, your assertion of the negative is not persuasive.

MR AGIUS: But, your Honour, what would there be about a verdict of guilty - - -

GAUDRON J: What about assuming, for the moment, so that we can come to grip with sentencing principle - assume, for the moment, that there is such a way, should there be any consequences for sentencing?

MR AGIUS: No, your Honour, not if it is lawful to charge the count that was charged because of the distinction in functions between judge and jury.

HAYNE J: That is, do you nail your colours to the single mast that the only function of the jury is to determine an offence defined by its maximum penalty? Is that the mast to which the colours are nailed?

MR AGIUS: If I need to, yes.

GAUDRON J: Yes, but that still leaves unanswered the function of the judge whom we know has to, in a number of cases, determine culpability for the purposes of sentencing in the case of such an indeterminate sentence as this. If, for example, the guideline judgment that we had in this Court last sittings which directly relates to this, is to serve useful function, at least in New South Wales, it is going to be critical for a trial judge to make these determinations.

I mean, I would have thought, contrary to what you are now saying, and I know they are different cases, the guideline judgment that stands in New South Wales virtually commands a trial judge to determine the level of culpability or the actual role in which the person participated in the offence. It seems to me that a question does arise as to how that is to be done.

MR AGIUS: But, your Honour, we are not here to argue or reargue Wong and Leung, but our submission would be that that guideline judgment, and any other guideline judgment in federal or State spheres of law, does not, and they do not, compel a trial judge to make findings. The situation is - - -

GAUDRON J: All right, well, what could this trial judge have done? Could he have sentences without making findings? Could he have said, "Look, the basis of the jury's verdict might be this, it might be that. I cannot decide for myself which way it is. I shall sentence simply on the basis that it is mid-range."? Could that have been done?

MR AGIUS: The trial judge has to sentence in accordance with findings made on the evidence and if his findings did not reflect what the evidence indicated they ought to, then he would be amenable to a Crown appeal on the one side, or to an appeal by the convicted person on the other.

GAUDRON J: So that means only, does it, that there must be some evidence upon which the sentencing judge could reach the conclusions that he did.

MR AGIUS: He has to be satisfied beyond reasonable doubt in relation to matters against the - - -

GAUDRON J: Where does that notion come from, "reasonable doubt"?

MR AGIUS: I thought it is what this Court held in Olbrich.

GAUDRON J: Exactly. That is judge-made sentencing principle, is it not?

MR AGIUS: Yes.

GAUDRON J: Now the question is: in a federal context, should there be some other sentencing principle besides that the judge, if satisfied beyond a reasonable doubt as to the facts - - -

MR AGIUS: Only if there is some reason for concluding that the concept of a trial in a federal sphere is different in some way in its nature from the concept of a trial in a State sphere. There is nothing in the law to indicate that. The process of trial when the Constitution - - -

GAUDRON J: No. Except that it is the judicial power of the Commonwealth with which we are concerned; except that it is a well understood principle that judges are obliged to exercise the judicial power in a way that maintains confidence in the judicial process. My complaint is not with your conclusion; it is with the way you ignore things in asserting it. Can it be said that the judicial power of the Commonwealth is appropriately exercised in relation to offences of an entirely indeterminate nature, the term of the offence being, in a sense, a way in which you can conceal the level of criminality?

MR AGIUS: That is a very loaded question because the criminality, as I imagine they are all meant to be at this level of legal debate, involved in a charge of being knowingly concerned may be no different in nature to the criminality involved in the concept of a conspiracy.

GAUDRON J: Exactly.

MR AGIUS: The Constitution either requires a particular type of trial for a Commonwealth offence - - -

GAUDRON J: Exactly, and a variety of things have been said about the desirability or otherwise by judges about charge and conspiracy, which may be the one area which is the exception to which Justice Kirby alluded earlier.

MR AGIUS: Our submission would simply be this, that the Constitution requires a trial by jury. A trial by jury is - - -

GAUDRON J: It requires more than that. It requires something about the exercise of the judicial power of the Commonwealth.

MR AGIUS: The provision of the Constitution that is being pleaded against me is section 80, and section 80 requires a trial by jury if the proceedings are on indictment. There is no appeal against conviction and it has been conceded here that there could not be. That ought to be the end of the section 80 point because the trial has been conducted, it was a trial on indictment, it was conducted by a jury and the jury has returned what is conceded to be a proper verdict.

GLEESON CJ: What was the offence of which Savvas was convicted?

MR AGIUS: Conspiracy to import.

GAUDRON J: Or was it conspiracy to distribute?

MR AGIUS: I will just need to turn it up. My recollection was to import.

GLEESON CJ: Conspiracy to import contrary to the Customs Act of the Commonwealth.

MR AGIUS: Well, as I am reminded by learned friends, there were counts in relation to supply.

GLEESON CJ: Yes.

MR AGIUS: But the point that agitated the courts, on appeal, the court below and this Court, was the extent to which other activity might be relied upon by a sentencing judge in determining the nature of the culpability of Mr Savvas for the conspiracy count.

GLEESON CJ: What the trial judge, Justice Hunt, in Savvas set out doing, as I understand it, that was the cause of complaint in Savvas was finding the overt acts for sentencing purposes.

MR AGIUS: Yes. That happens in every conspiracy trial because - it is within the overt acts that one finds a level of culpability.

GLEESON CJ: Did I understand from an exchange you had a little earlier with Justice Callinan in the present case that part of the question that arose concerning the culpability of the appellant in the present case concerned his motivation?

MR AGIUS: Yes, your Honour.

GLEESON CJ: That is to say, a suggestion on his part that he was acting to protect an informer and was going to expose the participants in this importation once he had removed his informer from danger.

MR AGIUS: Yes.

GLEESON CJ: Do I understand it then to be the case that the level of culpability of the appellant in the present case related not only to the length of time during which he was involved in this enterprise, but also to the purposes with which he acted?

MR AGIUS: Yes, your Honour. Amongst other things, but, yes.

GLEESON CJ: Well, then, does that mean that this is a case itself - we have been talking in abstract terms about some cases where motivation is relevant to culpability and who decides motivation, but is this a case in which motivation was directly relevant to culpability?

MR AGIUS: Yes. The Crown case was, at trial, that the jury ought to examine what the appellant said to them in his dock statement about his motivation and not accept it and convict him if they find intent, but reject it, and by going through the process which would lead to its rejection, testing it against other evidence, determining that it was a fabrication, thereby find intent.

GLEESON CJ: Mr Agius, there is one thing perhaps we need to get completely clear and it has not been made entirely clear so far. When we are talking as a matter of principle about various courses that were open to the Crown or various courses that were open to the trial judge, we perhaps ought to be clear what the parties are submitting about one thing. There used to be a view, reflected, for example, in the judgment of Justice Stephen in the case of Veen 143 CLR 466 and 467, that the proper course for a sentencing judge to take in a case like this would have been to interrogate the jury. I do not understand Mr Scrivener to support that suggestion in his argument. What is your submission about whether that was a course that was (a) available and, if so, (b) appropriate?

MR AGIUS: In our submission, it was neither available nor appropriate. The reasons why it was neither available or appropriate was because that would be to seek from the jury something which is not part of the duty with which they are charged. They are not charged upon being unanimous in relation to particular findings in a case like this, and to put upon them that duty is to go well beyond the requirements of the law.

KIRBY J: I think we were told in Cheng, the case from South Australia, that the practice is followed in South Australia that if there is a serious question of fact which could concern sentencing, that the practice is followed of taking a special verdict on the particular fact.

MR AGIUS: I know that in Tasmania there is a legislative provision that would permit that, and juries can be asked particular questions, but they are told that there is no requirement upon them to provide responses.

KIRBY J: Can I explain to you what I understand to be the relevance of the section 80 point? Lange and Pfeiffer and other cases in this Court say that no principle of the common law, or one might add a principle of equity or a practice of judges, can be incompatible with or inconsistent with the Constitution, and, therefore, the suggestion, as I understand it, is that one draws from the jury guarantee in the Constitution a norm that will attach to the practice of indictments so that the indictment will not, as it were, undermine the jury right, but will uphold it.

Now, that can lead in two directions. One can lead in the direction, well, forever judges have been deciding sentencing facts and this is what they did there and, therefore, there is no incompatibility with the norm. The other is to read into the jury right the entitlement to have the jury pass on those matters which are critical to liberty and that, therefore, the jury should have the opportunity to differentiate the two cases, because there were two cases in this trial. I think that is how the proposition is advanced. I simply say that so you will not think that I necessarily accede with your proposition that because there is not appeal against conviction, that is the end of the matter.

MR AGIUS: Your Honour, there were two parts to one case, and I understand what your Honour has put to me in relation to section 80, and, hence, follows a decision in Brown. The parties could not contract out of a trial by jury of 12 because of the provision of the Constitution.

We would say if this sort of material needs to be decided by a jury and if a jury needs to rule upon the precise role of a person charged with an offence, as is being put against me in support of an argument which relies upon section 80, then how can a person, consistent with the Constitution, plead guilty to a Commonwealth offence where there is an aggravating feature going to culpability and have that feature decided by a judge? If there is a constitutional guarantee of the nature, which this Court has held there is, in Brown's Case, if this matter always had to be decided by a jury, how could an accused person ever plead guilty and then contest his culpability or his motive before a judge alone without a jury? One could never have a plea of guilty where those issues were to be litigated.

We say that section 80 of the Constitution and the guaranteed right to trial by jury just does not go that far. When the Constitution speaks of a trial by jury, it speaks of a trial as to the elements of the offence, and the guarantee is a verdict of a jury, not a role for the jury beyond that in the sentencing process.

KIRBY J: A bit more than that. Your contention is the guarantee is a verdict from the jury on the offence, the constituents of the offence - - -

MR AGIUS: On the elements of the offence, or the constituents of the offence.

KIRBY J: - - - and that, once they have done that, you have discharged both the jury's function and the section 80 guarantee. Then, in accordance with what was said in Savvas, it is for the judge to decide the facts. Now, I took a different view in the Court of Criminal Appeal in Savvas, and similarly in Olbrich, but the point must be approaching where I just have to accept that that is not the way that the law has developed in this country. In Savvas, the Court said that it is for the judge to decide the facts, and that is just our system.

MR AGIUS: Yes, your Honour.

KIRBY J: It still leaves a sense of vague disquiet that in this case there were two cases; the jury masked by its verdict which of the cases was accepted, it then fell to the judge, and he opted for the higher case and that made a difference in liberty of many years.

MR AGIUS: Not of many years, your Honour. Certainly a difference - - -

KIRBY J: Let it be a day.

MR AGIUS: One needs to be careful not to fall into the trap - and I say this respectfully - set by my learned friend, which blurs the alternate case of the Crown with the proposition argued for on sentence by the appellant's representative. The two were not the same; in fact, they were quite distinct. It was the Crown case, on either view, that the appellant played a significant role in this importation; he was an instructor, he was a person whose job it was to ensure that this importation was successful, and - - -

KIRBY J: But the difference would measure in years, in sentence.

MR AGIUS: In our submission, no. This was the worst type of case on no matter which view one took of the alternate put forward by the Crown.

CALLINAN J: Is that right? Because you did make a concession - I know it was a highly qualified concession, but you did. Was not the sentencing issue whether he should be sentenced as a well-intentioned but misguided police officer, or as a knowing, fully-fledged participant - as a police officer in an act of gross criminality?

MR AGIUS: The terms of that issue were defined by the appellant's counsel.

CALLINAN J: Yes, but was that not the way it was put?

MR AGIUS: Yes. The appellant's counsel really accepted that, so far as he was concerned, the appellant was either a saint or a sinner, and there were no shades of grey.

CALLINAN J: But he was still guilty as a saint, because he had been knowingly involved in the importation.

MR AGIUS: He was compelled to accept that, but he was perhaps a little less saintly, but still a saint. It was the appellant's counsel that drew that definite line and, in our respectful submission, that is an acknowledgment that no matter which way the Crown case was accepted by the jury, this was a worst case scenario, on the Crown case.

CALLINAN J: Well, no. What Justice Kirby has said to you, with respect, is correct, is it not, that if he were well-intentioned but misguided and compassionate with respect to his informants, then it would have attracted a significantly shorter term of imprisonment, would it not, the offence?

MR AGIUS: The Crown made a concession that - - -

CALLINAN J: I know what the concession was, but if you could attend to my question, please. Would it not have attracted a significantly shorter sentence, had that proposition been accepted, that he was compassionate and well-intentioned, but misguided?

MR AGIUS: Yes, a sentence of, we conceded, five years, and that was not a concession that that path to conviction was a path open to the jury or that that path to sentence is a path that the trial judge ought to have followed. The way in which the appellants counsel approached these sentencing proceedings, in our respectful submission, supports the Crown's position that no matter whether you accept the first of the two alternate paths suggested by the Crown or the second, the appropriate sentence was in that special category reserved for the worst type of case. That is part and parcel of the submissions by counsel for the appellant.

CALLINAN J: Could I ask you this? When you were arguing the matter previously you said that that concession was subject to six qualifications and you listed six matters. Do you recollect that?

MR AGIUS: Yes, your Honour.

CALLINAN J: And your proposition is, however, that the jury would have needed to have been satisfied, or whoever had to decide this matter would have had to have been satisfied, of all of those six matters, but the jury's verdict obviously negated one or more of those six matters. Is that right?

MR AGIUS: Well, it certainly negated intention. In our respectful submission, it negated all of those matters because none of those matters were put to the jury as a method of conviction.

CALLINAN J: And if it had negated any one of them, that would have been sufficient for your purposes?

MR AGIUS: Yes, that is right, your Honour. The concession was not a concession that that path to the verdict was open to the jury, nor was it a concession that that path ought to be followed by the trial judge in sentencing.

CALLINAN J: Well, take the last of those matters that you mentioned. I think it was that the appellant would remain involved only so long as was necessary to enable his informants to escape and survive. I take it there was evidence before the jury that, in fact, he remained involved long after that, because he remained involved after the heroin had left Hong Kong. Is that right?

MR AGIUS: Well, he remained involved after the heroin had left Hong Kong and after the date upon which, on his own story, he believed the heroin was to be handed over - - -

CALLINAN J: Yes.

MR AGIUS: - - -and still did nothing, and after a date upon which he knew that his informants in Hong Kong were no longer at risk, and he still did nothing.

CALLINAN J: And take the third of those matters, that he acted in the knowledge and the expectation that the heroin would be seized. In fact, there was a great deal of evidence that at least suggested that the heroin would not be seized or found or discovered, in any way, so long as he remained silent.

MR AGIUS: Yes, so far as he knew.

CALLINAN J: Yes, looking at his situation. So you say that, plainly, some or all of those six matters were negated by the jury verdict and, therefore, his claim to being compassionate and well intentioned must have also have been negated and the trial judge was entitled to sentence him as a very serious offender?

MR AGIUS: Yes.

CALLINAN J: That is really the whole of your submission, is it not?

MR AGIUS: Well, yes. Your Honour, there is a submission that I have put and, in our submission, it is perhaps the most important submission to be put about the way in which the Crown case ran. The Crown case, at no time, suggested that there was any truth in what the appellant said to the jury about how he came to be involved or what his role was. It was never put to the jury that they could accept everything that the appellant said and find intention and convict. That was not part of the Crown case. In fact, on either version of the Crown case it was necessary to examine what he had said, reject it, and if you rejected what he said about his motivation, as to how he came to be involved, the only evidence you are left with was the evidence of the phone calls by themselves, which paint him as a principal. So it was not a matter of accepting what he said and finding intention; it was a matter of rejecting what he said. That is why, when it came to sentence, counsel for the appellant drew such a stark contrast between, if you accept the Crown case, it is the worst kind of case and we would not argue against the worst type of sentence, but we say, no, there is a saintly version in here that is still open.

CALLINAN J: Mr Agius, would you, at some time - perhaps you could ask your junior to look it up - give me the reference to the evidence which would show that he remained involved far beyond the time that he needed to be involved in order to protect his informants?

MR AGIUS: Yes, your Honour. Your Honour, this brings me to a document that we have produced in response to a question directed to us in the course of our submissions, concerning the nature of the Crown case without the informant. We have not produced written submissions but we have produced a schedule which lists the various elements of the Crown case without the informant, where those elements are to be found, both what the elements are, where they are to be found in the summing up, and where they are to be found otherwise in the evidence, principally in the evidence of the appellant before the magistrate in Hong Kong and in his statement from the dock. I have nine copies of that schedule.

CALLINAN J: Thank you, but does it deal with that matter that I just asked you about, Mr Agius?

MR AGIUS: That material is contained within the schedule but it is not identified by a heading which would immediately assist your Honour.

CALLINAN J: I would like it to be identified at some stage please.

MR AGIUS: There are nine copies of this schedule. The particular topics are referred to in the left-hand column and the various elements of the Crown case without the informant are there set out. The references in the summing up, because this Court does not have the transcript before it, and then the reference in such evidence as there is in the appeal books in the third column. Your Honours, I just want to spend a few minutes in an effort to demonstrate why we submit that on either view of the Crown case the appellant criminal activity put him in the worse case scenario.

It seems to me that there has been a misconception, at least with respect in my friend's submissions, that there is such a divergence in the approaches of the Crown as itself to work an injustice to the accused or the appellant as he was. In our submission, that submission is not borne out if one looks at the evidence itself. Can I demonstrate that by reference to perhaps simply one matter? In his statement to the magistrate in Hong Kong and again in his statement from the dock, the appellant said, as one of the reasons why he never reported this to his superiors, that he never had enough information.

It was as simple as that, "I never had enough to warrant a report", and one will find many statements of that nature in his - let me take the evidence that he gave to the magistrate in Hong Kong because it will be said against me that we were armed with that before we presented the indictment. In particular, at appeal book 904, line 20, he said at - and this is after his first telephone call to the informant in Australia:

The information was still not enough for me to act on as a law enforcement officer.Statements of that nature are repeated throughout his evidence. When one looks at his statement to the magistrate, one finds that up to that point in time, contrary to his assertion that the information was still not enough for him to act on as a law enforcement officer, he knew the following. Perhaps I will not take up time by going to each page reference but I have the page references noted. He knew in September 1988 that the syndicate had planned to export the heroin from Hong Kong to Australia. That is at appeal book 886, line 26. He had already told the informant that Vanuatu was not a source country for dangerous drugs. The plan eventually was to move this heroin through Vanuatu to Australia. That is at 887, line 40.

He knew that his informant, referred to variously as Ah Kam or Mr Ng, to be personally involved in this importation plan at 888, line 15. He knew as of March 1989 that Mr Ng was working with the informant in Australia, Cheung Siu-Wah, in some business, although in March 1989 he did not know precisely what type of business. That is at 889, line 32. In mid-April he knew for certain that Ng and Cheung Siu-Wah were working with the syndicate to export the heroin to Australia, that delivery was to have been in late February or March, that there had been threats to kill Mr Ng and that Mr Cheung Siu-Wah, the informant who eventually came to Australia, was destined to go to Australia to explain why the delivery had not yet occurred. He knew that in mid-April. That is at 891, line 25.

On 19 April he knew that Cheung Siu-Wah, the informant, was in Vanuatu. He knew that he was short of money. He knew that he was required to go to Australia to explain why the importation had not yet occurred. He made arrangements to advance the informant $US800 from his own funds on account of a reward which he claimed was due to the informant for information that the informant had given him about another matter, in respect of which there was within Hong Kong no record of any entitlement to any reward for the informant.

KIRBY J: Can I just interrupt you to see where this is going. I understand its forensic value to you, but in terms of principle we would not resentence the appellant. All we would be doing would be to send it back and these matters would then be reconsidered and if it were a difference of a month or a week, then that would have to follow.

MR AGIUS: It is going to support the submission. This is the second way in which the Crown put its case to the jury. I am attempting to demonstrate that even if the jury had followed this path, even if we get to the point where all my other arguments fail - and we are now trying to discern what facts must the jury have found as a bare minimum to convict the appellant. What sentence would he thereby be liable to and would there have been a disparity in sentence? Was this anything less than the worst case? Our submission is no, this was never less than the worst case, even on the second alternative put to the jury. If everything else fails, there has been, in fact, no injustice because the position that the appellant finds himself so far as sentence is the same.

KIRBY J: But in order to answer that we would have to have some conception of how one would differentiate the sentence of somebody who was in it from the beginning and somebody who though in it was in it without direct or immediate or close directorial involvement. There would - - -

MR AGIUS: This exercise seeks to demonstrate that on the second approach which was left open to the jury by the Crown and by the judge in his summing up, clearly the appellant was involved as a director and as a principal, using his position as customs officer to advance its importation. Now, this second avenue does not spell out that he was the one that recruited the informant in Australia, does not spell out that he was going to receive $X by way of financial reward, but those things are necessarily inferred, to the extent to which they are relevant, if one accepts the second alternative of the Crown case simply because of the process that one needs to go through to accept the second alternative.

What we are demonstrating here is that when he said he never had enough information to report this - and this is his case to the jury - it was patently false. This was a plank in the Crown's platform of its second alternative. If the jury found that this was a deliberate lie - they had no other evidence in this case as to how it would be that he came to be involved in these telephone calls or in the importation - they would be driven back to the only other evidence, and that is, that he was involved as a principal. Now, that evidence can be found, again, out of his own mouth, when we come - and I will not take up time - to the three telephone intercepts. They paint him as a principal, using his position to advance its importation.

CALLINAN J: Mr Agius, I am sorry to go to the facts, but would you go to page 771 which, as I understand it, is a telephone call made on the day of the importation, is that right?

MR AGIUS: Page 771, yes, that is the third of three telephone calls made by the appellant.

CALLINAN J: And that occurs on the day of the importation itself, is that right?

MR AGIUS: Yes.

CALLINAN J: Was the importation on 9 May?

MR AGIUS: Yes.

CALLINAN J: Now, was there any explanation why that telephone conversation occurred in the dock statement or otherwise? It is a very cryptic telephone conversation, but it is - - -

MR AGIUS: Your Honour, what one obtains from these three telephone conversations is that the informant in Australia had promised delivery on an earlier date. He had been saying, "The heroin is already here. I cannot get hold of it yet and I have to keep delaying the date of delivery". In the course of this call there is talk of yet another delay in the delivery.

CALLINAN J: If you look at the foot of page 771 - you might be able to explain this - I think this is the appellant, is it not, saying:

Just to prove this matter. Now, the others absolutely do not believe that there is in fact such a matter at all.

That is the appellant, is it not?

MR AGIUS: Yes, that is the appellant.

CALLINAN J: Over the page, then:

I see. But, at present, other people are not allowed to enter the den.

Now, what is that all about?

MR AGIUS: That is the informant offering an excuse as to why he has not delivered the drugs. The drugs are being held somewhere - that is the den - and nobody is allowed to go there and he cannot extricate them.

CALLINAN J: But in the fact the drugs were in Australia by this stage.

MR AGIUS: The drugs had arrived then. The problem was that the informant had said in earlier conversations to people in Hong Kong that the drugs were available to him. Unfortunately, the drugs were not. The ship was delayed and it did not arrive here until about 9 May. Accordingly, he had to keep making excuses as to why it was that he was not able to make delivery and so he kept delaying the delivery by a day here or two days there or three days there and after some of these delays it was apparent that people in Hong Kong, and indeed people here, were becoming very nervous about whether they would ever get any hands on the heroin or in the words of the appellant "whether they believed that there was any such matter at all", whether the heroin actually existed.

CALLINAN J: Was there evidence that the appellant knew which ship the drugs were on?

MR AGIUS: No, not that he knew the ship. But there is evidence that he only became involved on the phone when the delay became too much to bear. There are earlier calls, which your Honours do not have, where Mr Ng complains about what the informant is telling him concerning the delay, and he says to him, "I will get your big brother to phone you", and the next call is the appellant's first call to the informant, and your Honours will find that first call at 763.

CALLINAN J: On this issue, I come back to it, that the evidence that the appellant was participating at a very late stage and after the informants could have escaped, has the appearance of possibly being conclusive on the question of the appellant's motivation. It seems to me at this stage that it does have that - - -

MR AGIUS: Well, your Honour, one could be forgiven for that view.

CALLINAN J: Well, that is why I would like to know where the evidence is. Has your junior found it yet?

MR AGIUS: No, your Honour. My learned junior was not in the trial or in the earlier appeal, so we will just take a moment to turn it up.

CALLINAN J: Well, somebody can find it, can they not?

MR AGIUS: The point was that it can be established from the telephone calls that the appellant knew that the delivery would be on a certain day.

CALLINAN J: Or believed that they would be on a certain day.

MR AGIUS: Sorry, believed it to be on a certain day. On that day, when the heroin was to be delivered in Sydney and his informants who are allegedly being held to ransom were being released in Hong Kong, the evidence was - this is in his own statement to the jury - he went off to Macau to have a sexual liaison with a girl and did not attend to the importation at all. So at a time when, on his own story, he would have been going to the Hong Kong authorities or the Australian authorities to tell them about this importation, because the danger to his informants had passed, he went off for a break to Macau in respect of which he had never applied for any leave; he simply took off, and he was arrested on the docks when he came back from Macau.

CALLINAN J: It may have been a very alluring distraction, Mr Agius.

MR AGIUS: It may have been, your Honour, but the point was it told very much against his story that his prime motivation for delay was to wait for a time when his informants were free, and his prime motivation being that he always wanted this heroin to be secured by the authorities. At a time when he expected the drugs to be delivered, he completely ignored his duty.

CALLINAN J: Well, he went off for rest and recreation.

MR AGIUS: He went off for rest and recreation. We do not hold that against him, but it does not fit with the rest of his story. The jury were entitled to conclude that his explanation as to why he did nothing and why he had held off doing anything and why he had made these phone calls was utterly false.

To convict, it is our respectful submission, if they had followed what they were instructed by the judge or what had been put to them for seven weeks in the course of the trial, they would have done that. There is no other conclusion available but that they would have, and that is why we say the concession that was made to the sentencing judge was not a concession as to the available path by which they might have got to a verdict. It was no more than a concession of an available, in the sense of legally available, range of penalty, if the appellant's argument was accepted on sentence.

Your Honours will find reference to the appellant's involvement after 9 May in his statement to the jury at appeal book pages 451 and following. There is other material which would assist in the telephone intercepts themselves.

CALLINAN J: Thank you.

MR AGIUS: So, your Honour, just to complete the submission that I was making, as at the time of his first phone call to the informant in Australia when he said that he had insufficient information as an investigator, "not enough information to act as a law enforcement officer, I was listing the various pieces of information that he had", he had the informant's telephone number in Australia. One could infer that through that telephone number he had the whereabouts of the informant, because it was the telephone number of a hotel and he knew that the route of the heroin to Australia would be "by vessel" at 898, line 37, and he knew that the drugs were to be delivered on 6 May 1989 and that the informant at his hotel in Sydney was to be responsible for the delivery.

Now, on the strength of all that information, all of which he admitted that he had - there is no real issue of fact as to whether or not he had that information - he asked the jury to accept that he had insufficient information to report the matter. Now, in addition to their commonsense, the jury had a great deal of evidence from officers from Hong Kong, set out in the summing up between pages 544, line 33, to 565, line 60, from very experienced officers in Hong Kong indicating that the appellant was a very experienced and capable customs officer, that he was one of their best operatives, that he had a duty to report this information, and that there was more than enough information here to warrant an investigation, the inference being that he would well have known that.

This was the second limb of the Crown case without the informant and against that background he made the phone call which is transcribed by the interpreter called in the defence case at the trial at 774, which is replete with instructions and directions to the informant. In fact, that is the sum total of this telephone conversation. There is almost no inquiry by the appellant and here we have chapter and verse of the appellant acting as instigator, director, supervisor, of this importation. The appellant is VB and he volunteers excuses that the informant should use. He tells him to "stay calm". He volunteers an excuse, which is entirely fictitious:

you say: "that...that...that the person in charge, because of the boss's other engagements, has been taken away for a few days. Will be back soon". You say: "I am also waiting for him/her".

Keep in touch with other people, stay calm, don't you know?

just keep calm, just say: "that the person in charge...eh...has just been told by the big boss to leave for a few days...eh...I am compelled to wait for him/her". You say: "I am still waiting for him/her now".

None of this, on the appellant's own case, was something he had been told to say by any of the operatives in Hong Kong. This is all from his own mind. Further down the page he tells him to "hold on". The informant tells him that he is short of money. He tells him that a fine has had to be paid to people in Hong Kong because of the delay, and there is no mention of that anywhere else in the evidence; this is something again from the appellant's own mind instructing the informant.

CALLINAN J: I take it the collection and preparation for trans-shipment of heroin in Hong Kong would be a very serious offence in that city, is that so?

MR AGIUS: It is an offence to put it together. It was an offence to export it from Hong Kong. Any kind of trafficking in the heroin, any movement of it with knowledge, was an offence.

CALLINAN J: Even, I suppose, possession of it in Hong Kong.

MR AGIUS: Yes. There was plenty of evidence of that before the jury. So against the background of all the knowledge that he had, and against his statement that he did not have enough information to begin an investigation, and against his statement that he was worried for the lives of his informants, and against his statement that he was seeking to gain information that would assist in an investigation, we have that first telephone call.

CALLINAN J: How many informants were there?

MR AGIUS: How many informants?

CALLINAN J: To him.

MR AGIUS: There were three. There were two in Hong Kong and one in Australia. The two in Hong Kong never came to Australia as part of this importation. In the Crown case they had different roles: one of them was the financier and the go-between between the syndicate controlling the importation and the appellant and others; the other one was something of a gopher who physically arranged for heroin to be in certain places and who was the liaison between the syndicate and the informant in Australia.

The relationship between the appellant was a relationship between the appellant and the informant in Australia. They were business partners. They were good friends. They travelled to Mongolia together. They had taken part in a scheme to bring migrant workers to Vanuatu in returns for payment of money. They were, in fact, business partners. That was the strength of their relationship. None of this was denied in the course of this trial.

So on the strength of that call alone, let alone all the information that the appellant admitted that he had, the jury could well have concluded and, in our respectful submission, must have, by their verdict, concluded not just that this appellant was involved in some minor way, but that he was a controlling force in this. He is, in this call alone, controlling the informant in Australia.

The second call is more telling. Your Honours will find it at 779. By this time there has been a promise to deliver the heroin on the Saturday. The informant puts off the delivery until the Monday. What one learns from the appellant's own statement was that he had met Mr Ng at a restaurant in Hong Kong, although the jury might well have understood that to be rather inconsistent with Mr Ng being held to ransom and his life being at risk, because the two of them met together in a restaurant near the appellant's house. He was told that the delivery had been postponed until 8 May. He was told that the informant in Australia had a car, that he was meeting with a person in Australia to hand over the drugs. He was given the name of that person. He was told that that person had come from Hong Kong to Sydney and that delivery was now to take place on 8 May.

Against that background, he said he still did not have enough information to launch an investigation and he said, further, that he believed that people would be killed, lives would be at risk, if this heroin was not delivered. That is why he made this call. Not only is this transcript replete with more and more instructions as to what should or should not be said, but at the very end of the conversation he says - and, again, he is VB - at page 782, line 23:

Because now a meeting has been held with them and the deadline is the 8th. If the 8th is not all right . . . (the) game is over.

This is in the context of him saying if delivery was not made on the 8th, people in Hong Kong would be killed. And the very next thing he says is:

If the difference is just half a day, it can be taken as an explanation.

He volunteers to the informant that if he needs to he can delay it an extra half a day. Now, he had no authority on his own case from anybody to extend that to the informant.

KIRBY J: Do you put it as high as saying that, on these facts, it would not be open to the Court of Criminal Appeal, on a proper approach, to sentence the appellant to a sentence less than life imprisonment?

MR AGIUS: Yes, exactly. That would be the appropriate sentence on no matter which version of the Crown case the Court of Criminal Appeal acted on because, plainly, he was an organiser and a director and the evidence of that is from his own mouth.

CALLINAN J: Mr Agius, counsel for the appellant submitted to his Honour the trial judge that it was for the trial judge to make findings about these matters, did he not?

MR AGIUS: To make findings?

CALLINAN J: About the degree, I put it shortly, degree of criminality of the seriousness of the - - -

MR AGIUS: We have the written submissions that were referred to last time.

CALLINAN J: At page 696 the substance of the material is twofold, about line 17, "objective nature", page 696:

secondly, the task which your Honour has to deal with, which is to investigate from a vast labyrinth of factual material the facts appropriate to sentencing.

It seems to be an invitation to his Honour to make findings of the kind which it is now said he should not have made.

MR AGIUS: This was the tactical advantage that the appellant enjoyed at the trial because he went to the jury, and had to be corrected by the trial judge, but he went to the jury on the basis that if they did not believe the informant, they had to acquit. His client was convicted. He then went back to the trial judge on sentence and ran the altruistic argument - - -

CALLINAN J: I know, but if you look at page 696, his Honour said, line 43:

It is not my function to decide what the jury decided. It is my function to see of what facts I am myself satisfied.

Mr Nicholson accepted that. He said, "Yes".

MR AGIUS: Yes, he did. Indeed, in his written submissions, your Honour, which the Court does not yet have, but which I understood that my learned friend had obtained from the Registry - we have a copy of some of them - - -

CALLINAN J: But he said then at the bottom of the page:

That approach to the factual material before your Honour is open to your Honour and consistent with the evidence of Cheung Siu Wah where there is support for it elsewhere in the evidence.

So that, it just seems to me, at this stage, that his Honour was carrying out the very task for which he is being criticised in this Court.

HAYNE J: Well, criticised in a way that does not find evident support in the way in which the ground is framed either. If we go to 954 in ground (b), which seems to be the only one that founds this whole edifice of argument, the complaint is lack of "consistency with the verdict" and encroachment on "right to trial by jury".

MR AGIUS: Your Honours have the written submissions, or a copy of them, that were handed up by counsel for the appellant before the trial judge. At page 13, counsel for the appellant urged the trial judge to follow the procedure laid down in the decision of Martin by the New South Wales Court of Criminal Appeal, (1981) 2 NSWLR 641.

GUMMOW J: Where do we have these submissions?

HAYNE J: I do not think we have them, Mr Agius.

MR AGIUS: I am sorry, your Honour, I thought it had been handed up. We have managed to locate the written submissions. There are nine copies. Perhaps if the Court took my learned friend's bundle because that contains all of them. The first 12 pages are matters of fact going to character and things of subjective nature, then from about page 12 onwards Mr Nicholson deals with the factual basis of sentencing. I believe that the copies that your Honours have are copies made of a copy of the submissions that were found on the Supreme Court file in Registry. I do not attribute the authorship to Mr Nicholson of the handwritten notes.

HAYNE J: Given that they are concerned with what directions the judge should give to himself.

GLEESON CJ: Yes. There is internal evidence on the bottom of page 12 as to the authorship.

MR AGIUS: At page 13 at about point 1 on the page, the judge is invited to undertake the very task which he did undertake, because that is the substance of the decision in Martin.

GLEESON CJ: This might be a modern version of what used to be called the judge's notes.

MR AGIUS: And much of what one finds here is the subject of debate between counsel and his Honour. Your Honours will see that in the transcript. The very last matter of evidence on this question of the alternative Crown case was the third telephone call, which is at 783 of the appeal book, volume 4. I have been careful to take the Court to the transcripts of these telephone calls relied upon by the appellant at the trial. There are transcripts tendered through a Mr Fung on behalf of the Crown, but for the purpose of this argument and before the judge on sentence relied upon the appellant's own transcripts, we come to page 2 of this transcript and the statement by the appellant:

give 35 persons to him/her first? Give 35 persons to him/her first?

There was a real issue in the trial as to whether that was an instruction or whether it was a question in the sense of seeking information. The appellant in his statement to the jury said that by now he knew that 70 blocks of heroin had been imported to Australia and that they were to be delivered, 70 blocks amounting to a total of 50 kilos gross weight.

In the course of cross-examination, and this is the point taken up by the trial judge, the appellant's interpreter conceded that that statement "give 35 persons to him/her first" was an instruction given politely amongst near equals in the form of a request, and his Honour reviews all of the evidence in relation to that portion at appeal book 744, line 45. We do not have all of the evidence in the appeal book but it is summarised in his Honour's remarks on sentence - the point being that there was no reason why, consistent with the appellant wanting to save lives or not advance the importation but simply gather information so that he could later mount an importation for him to be politely saying, in the form of a request, the instruction, "give 35 persons to him first".

This was, on the alternative Crown case, an instruction by him to the informant as to how he should go about making the delivery which was about to be made.

GLEESON CJ: Now, can I take you back for a moment to the written submissions that were handed up to the trial judge and could I ask you to go to page 18 of those written submissions?

MR AGIUS: Yes, your Honour.

GLEESON CJ: And, you will see a proposition that has earned a judicial tick at the bottom of the page. I want to ask you about the meaning of the last sentence in the last full paragraph on page 18. Do you see that sentence beginning with the words, "Your Honour is requested"?

MR AGIUS: Yes, your Honour.

GLEESON CJ: I want you to tell us what was the task being referred to in that sentence.

MR AGIUS: That was the task that the submissions opened with, that the trial judge should undertake the task set out in Martin, go through the evidence and determine what evidence he was prepared to accept beyond reasonable doubt as the basis for sentencing and he was being requested to go through the evidence and to determine for himself those facts which he was prepared to find beyond reasonable doubt and if he was going to do that to list them so that they would be available as part of the remarks on sentence. What his Honour did was exactly what he was asked to do by the appellant's counsel. Your Honours, what I have sought to demonstrate - - -

GUMMOW J: How does that then square with ground (b) on page 954 of the notice of appeal?

MR AGIUS: Well, it does not. These points are novel on the special leave application.

KIRBY J: But I think, as I understand the way it would square would be the point argued in this Court is a point of law. It derives from the Constitution. The fact that people do not notice or do not take points earlier if they are pure points of law do not prevent them from taking them now. I think you have got as much forensic blood out of the stone that you could possibly get, and I might say, being very telling in the process but, in the end, if a view is taken that it is possible that a sentence shorter than the higher sentence that is known to our law, life imprisonment, might be imposed if an error of law has occurred in the process of reasoning to it derived from the Constitution or derived from the common law, compatible with the Constitution, then it just - it would seem to me, it has to go back to be redetermined in the Court of Criminal Appeal. We cannot resentence.

MR AGIUS: The only submission that your Honours have to assist you in that regard in relation to the role of the Constitution in this is a submission which turns upon section 80, and my note of it was that a trial involves the sentencing process, that a trial by jury involves the sentencing process.

GUMMOW J: That is what I understood the submission to be, and asked some questions about it.

MR AGIUS: In our respectful submission, that would be an altogether novel approach in federal or State law.

KIRBY J: Depends what "involves" means. If it means "is relevant to", it may not be so novel. If it means "the jury is engaged in the process of sentencing", it would be entirely novel.

MR AGIUS: Well, it would be in a whole new jurisprudence so far as the prosecution of Commonwealth offences were concerned in this country.

KIRBY J: Well, that may just derive from reading section 80 as a constitutional provision, not as something which is to be mocked.

MR AGIUS: I was not seeking by that submission to mock it, but it would be contrary to a number of decisions of this Court, in particular, Olbrich and Savvas. It would seem to be contrary to the decision in Brown, and it would really bring a new jurisprudence which is not to be found anywhere in my learned friend's written or oral submissions. The reference which I had in mind was my learned friend's oral submission at page 24, line 1035:

The sentencing, we would submit, is part of the trial.

In the sense of the word "trial" as it is used in the Constitution. Your Honour, there are just three - - -

KIRBY J: Given Martin, it really would not have been possible for Mr Nicholson in the Court of Criminal Appeal to be arguing in a way inconsistent with Martin. If Martin is not the law, it had to be dealt with elsewhere.

MR AGIUS: Could have sought to have Martin reconsidered. Martin had been the law since, I think, 1982 up until that time. Your Honour, there are three further submissions. I had previously addressed in relation to the significance of the Court of Appeal decision from England in Stosiek. That was the decision about the assault and the appellant being punished for assault upon the police officer when that offence had not been charged. Since then I have located the decision of the Court of Appeal of New Zealand of Heti (1992) 8 CRNZ.

A similar problem arose before the Court of Appeal. There was a charge of assault, that is, assault with intent. The defence case at trial had been that the complainant was armed with a knife and that the appellant was attempting to deal with the complainant attacking him with a knife, and that that was the factual background in respect of which he assaulted the complainant. He was convicted. When the matter came to trial, the issue of culpability arose. Was this a question of excessive self-defence, or was there ever a knife in the first place?

Obviously the sentence might be different. If there was excessive self defence, dealing with a complainant armed with a knife, as opposed to no knife at all and a very vicious and nasty and perhaps unprovoked attack. The Court of Appeal had to deal with that because both interpretations were available on the verdict of guilty from the jury. At 566, point 3, their Honours referred to Stosiek and noted that it:

appears to turn on the feature that it was open to the Crown to lay a more serious charge, conviction of which would have removed the ambiguity present in the jury's verdict. The case was so explained in Solomon and Triumph where there is a valuable review of the authorities.

That review of the authorities is set out in our written submissions and I spoke to it on the last occasion. This case is authority which clearly is persuasive in distinguishing Stosiek in these proceedings. Here there was no more significant charge that could have been laid against the appellant, which would have solved this question of what was his motive in relation to his activity.

The next submission concerns the English decision of Efionayi and we have located the decision of Justice Wright in Tasmania, a decision of Ronald Leslie McKenzie at [1999] TASSC 54; 106 A Crim R 309. There is a legislative provision in Tasmania that permits juries to be asked questions with no obligation upon them to respond to those questions in addition to any verdict. In this case the appellant had been charged on one count, a single count, alleging trafficking in drugs. There were three separate factual scenarios that supported that count: one was possession of a quantity of the drugs on a date in January; the other was possession of another quantity of drugs and the third scenario was the supply of similar drug over a period of eight days between October 1997 and January 1998.

The jury returned a verdict of guilty in respect of the single count of trafficking, but did not answer the questions; provided no decipherable answer to the questions which were directed to the jury. The factual basis for sentencing on the count of trafficking then fell to his Honour and in the course of argument he was referred to the Court of Appeal decision in Efionayi and he had to deal with it. In the course of dealing with it, he said at 312, line 11:

In Dowdall and Smith the English Court of Appeal expressed strong opposition to splitting a count to obtain a jury verdict on disputed versions of fact, either of which would support a guilty verdict. This should only be done where there is a difference in law between the two versions contended for.

Now, when we were last here I had referred this Court to Dowdall and Smith with the submission that it had not been referred to in Efionayi. Further down, at paragraph 13, about halfway through paragraph 13, having determined not to follow Efionayi, his Honour said this, and we would adopt this by way of submission:

Some jurors may have reached that ultimate conclusion by different routes, but this is frequently the case in criminal trails. It would be unfortunate indeed if accused persons could successfully argue that a trial judge must always approach sentence from the standpoint most beneficial to the defence case unless the jury makes specific unanimous findings to explain or illuminate the outcome in those cases in which the prosecution provides several alternative paths to a guilty verdict.

His Honour drew a distinction between the paths available to a jury to reach their verdict and the nature of that verdict itself. A distinction to which we would also draw attention, with respect.

Your Honours, we have set out, in our written submissions, submissions dealing with section 80. We would adopt the submissions of my learned friend the Solicitor-General for the Commonwealth concerning section 80 and the impact of the Constitution and we would, in addition, submit only this. One needs to keep steadily in mind, with respect, a distinction between matters of statutory aggravation which render an accused person liable to an increased statutory maximum penalty and matters of factual aggravation which might go to the role or motive of an accused person.

The two are different. One, it seems, attracts, on one view, section 80 of the Constitution. In our respectful submission, the other does not. That is made plain by the decisions in Kingswell and more recently in Olbrich. Unless there is any other matter - - -

GLEESON CJ: Yes, there is. Mr Agius, on page 67 of the transcript of the proceedings on the last occasion, notice was given to the question that counsel for the parties were going to be asked concerning Justice McHugh.

MR AGIUS: Your Honour, we have no objections to that. It is a course for which we consent.

GLEESON CJ: Thank you. What do you say, Mr Scrivener?

MR SCRIVENER: I have to say that I thought he would be here this morning because I think it is essential he is able to take part in the questioning of counsel.

GLEESON CJ: Well, you do not consent?

MR SCRIVENER: I do not think I can in the light of that. If he had been here first thing this morning and then he could have questioned us, I would have consented, I think.

GLEESON CJ: No, that is all right, we all understand your position.

MR SCRIVENER: Sorry to be difficult.

GLEESON CJ: No, not at all. Yes, Mr Solicitor.

MR BENNETT: May it please the Court, my submissions will cover three areas, hopefully briefly. The first is some general submissions about the problem under section 80 in relation to sentencing facts. Secondly, I will very briefly show your Honours the extent of the authority in the area, to the extent it has not already been shown to the Court, and, thirdly, I will deal with Stosiek and Efionayi.

On the first proposition, one starts with this. If there is a distinction, as we say there clearly is, between the jury deciding guilt or innocence in relation to the offence charged and the judge deciding facts relevant to sentence, there are always going to be hard cases where what is decided by the judge is of greater significance to the accused than what is decided by the jury. That is because, obviously, every offence known to the law necessarily has a range of criminality. Murder can be a sadistic serial killing or something close to euthanasia. Any offence one can say that about.

Leaving the scene of an accident may be something done to avoid detection for a major piece of criminal conduct on the roads or it can be something done out of impatience with the slowness of the police with the intention of reporting it as soon as possible at a police station. With every offence you are going to have a range. Now, the problem then is this, that many cases, including this one, present not two stark versions of the facts where one says, "There is version A, there is version B", it is a completely different type of offence with a completely different type of penalty.

Normally what you will have is exactly what you have here, which is a continuum between minor and great criminality. I do not want to go into the facts of this case obviously, but in this case itself it is not simply a matter of saying, "Did the accused accept the informant?", in which case one has all the periods and the whole range of guilt, or reject the informant, in which case one has a benign participation in the second period.

There are at least three separate parameters in that distinction. There is the time parameter - first period, second period - there is the motive parameter - doing it in order to save lives and perhaps conduct a private sting operation, on the one hand, and doing it as one of the principals in a criminal organisation, on the other - and there is the source element as to the extent to which it comes from the evidence of the accomplice and the extent to which it was independently corroborated.

Those three separate parameters in this case would have resulted in separate divisions of what we are talking about. One cannot simply say there were two cases. As I say, I do not want to get involved in the facts of this case, but that will be so in almost every case of importation, because where one has conspiracy or where one has knowingly concerned in an importation, there are going to be usually more than one overt act. Once there is more than one overt act, there is a range of possibilities for sentencing. If there are 20 overt acts - I have not done the mathematics but the number of possibilities as to what the jury could have accepted and rejected is very large.

Is each one to be put as a separate question: "Do you find overt act No 1? Do you find overt act No 2?". Is one to put motive and say, "What was the motive of overt act No 1? What was the motive of overt act No 2? Do you accept this witness's evidence of this account or that witness's or something in between?". The practicality becomes quite impossible because necessarily in criminal cases the facts relevant to sentence are infinite, or close to infinite. "Infinite" may be an exaggeration.

That is not necessarily true in relation to conviction. In relation to conviction, one asks the jury, "Do you find, beyond reasonable doubt, that this offence was committed?". The jury says yes or no. But once one comes to weigh what one gives between a bond and life, and what is the appropriate sentence and the appropriate non-parole period and so on, one has to take into account a huge range. Section 80 simply cannot require, either as a matter of prior authority or as a matter of commonsense and practicality, that that sort of question be put to the jury in order to satisfy the requirement that there be trial by jury.

Putting that a bit differently, once one accepts a distinction between the jury determining guilt and the judge determining the facts relevant to sentence, one simply cannot say that section 80 requires that the jury determine any fact relevant to sentence merely because it might make a huge difference to the accused, even, in the extreme case, a difference between a bond and a life imprisonment.

One can imagine a case where that might be so. One could imagine a murder case where the Crown's case is that it was a cold-blooded murder by a son of the son's mother for gain. The accused's case might be, "She asked me to do it, and it was a form of euthanasia - she was in great pain". The difference in sentence, if one accepts one or the other, would be enormous. But there, as here, there is, in fact, a continuum. There may have been a mixture of the two motives. It may have been substantially one or substantially the other. It may have been all one or all the other. One cannot, by asking a simple question, get the jury to tell one on which basis one can sentence. That is why we submit section 80 simply cannot have the construction put on it by counsel for the appellant in this case. Now, the second part of my submissions is concerned with the - - -

GUMMOW J: I just ask you, Mr Solicitor, what do you see that construction as being? What do you see the point that you are replying to?

MR BENNETT: I am sorry, what do I see?

GUMMOW J: What do you see as the point being made against you on section 80?

MR BENNETT: Yes. As we - - -

GUMMOW J: I am not at all clear at the moment what it is that you have to meet.

MR BENNETT: No, your Honour, as we understand it, it is this, that where one has a case where there is a bright line distinction between two possible versions of the facts which could have been put to a jury by means of two different counts and the Crown fails to do that, then the Crown should not on sentence be permitted to ask the judge to find the more serious version. Your Honour is asking me to put the appellant's case at its highest, but that probably is it.

GLEESON CJ: Well, suppose that the Commonwealth ever took the view that it had power to pass a law with respect to trading in financial corporations and enacted a law that made it unlawful and subject to penalty to fail to exercise due diligence as a director of a company and a person was charged with a contravention of that Commonwealth law. What would be the distinction between the functions of the jury and the functions of the sentencing judge?

MR BENNETT: Your Honour, the charge would be in that case of an omission rather than a commission.

GLEESON CJ: Suppose they said between two dates a year apart the accused failed to exercise due diligence as a director?

MR BENNETT: Yes. The jury would have to find whether or not at some point between those two dates the accused failed to exercise due diligence as a director.

GLEESON CJ: And who would decide the extent of the accused's negligence?

MR BENNETT: The trial judge, and the trial judge would then have to make his or her own finding beyond reasonable doubt on the evidence and on any additional evidence called consistent with the verdict of the jury as to what the extent of the omission was.

HAYNE J: The limit on that function is the De Simoni limit, because, assumedly on this hypothetical statute there would be an offence of intention, and the judge could not sentence in the case put to you on the basis that there had been an intentional course of conduct engaged in. He or she could sentence only on the basis of carelessness.

MR BENNETT: To give you a good De Simoni example of the case where there may be something in my learned friend's - in the principle he is supporting, although even here it would be our submission there is not, but the extreme case might be this one.

It is the facts of a case called the R v Khandu in India in the last century which I can give your Honours reference to, where the accused struck the deceased with a stick, then believing he had killed him, burned the building in which the body was, in order to destroy the body. There was a question as to whether the deceased had died from being hit with the stick or from burning. Now, if the accused died from burning, and if one could separate the two actions, one would say the first action was attempted murder and the second action was manslaughter, as, in fact, the judges found in the particular Indian case.

It may be that there may be a problem in that case if one did not split it, not because of the different degree of criminality of the two actions, but because there may well have been two separate offences of murder charged. There would be two separate acts of murder charged which required two separate charges.

But that is an example of the sort of case where one might say a problem would arise with not splitting an indictment, but in the normal case it is difficult to see how one can do that and, certainly, not in a case like this where it is merely a matter of separate acts done while being knowingly concerned in an importation.

Your Honours, in relation to the authorities, which is the second part of my submissions, we have given your Honours a document headed - - -

HAYNE J: The submissions you have just made, I think, may carry with them some unstated premises about what are the elements of the offence, in particular, some unstated premise about what are the elements of the offence with which we are now concerned, that the particular - the distinction that springs to mind is motive versus overt act. Motive is no part of the elements. Overt act may be and probably is part of the elements.

MR BENNETT: Yes, that is so, your Honour. And also, in relation to an importation, normally, however many overt acts there are, or things done which the Crown alleges is its particulars, they are simply parts of the one charge: being knowingly concerned in the same importation. One could perhaps imagine a case, although it is hard, where a person takes some part in relation to an importation in Hong Kong and then some weeks later, by complete coincidence, not even knowing it is the same importation, takes some part in relation to the importation in Sydney. One might have an extreme case of that nature, where it might be that, on the Crown's case, there were two offences.

Even there, where it is the one importation, it might be difficult to say that. But in normal circumstances, there is one offence with a number of acts constituting it, and that might be so in the case of the murder with destroying the body, too. If the Crown's case is "Either you killed him with the stick or you burnt the house with reckless indifference to whether he was dead, and either way you're guilty of murder", it may well be that there were two separate offences charged. If so, that would be the reason that that case would be in a different category, not because there is some principle which says: if it is fairer to the accused, you have to split it.

HAYNE J: Is that a submission that invites attention to the rules about duplicity? That is, if there is no duplicity, then there is no problem that is presented by the application of section 80, whereas, if there is duplicity, then there is duplicity, and so be it.

MR BENNETT: Yes, your Honour. In effect, that is the result. We have handed to your Honours a document entitled "Summary of Cases in Support of Attorney-General's Submissions", and it is in three sections. The first deals with a point which I understand my learned friends to concede, which is that a trial judge is to form his or her own view of the facts for the purposes of sentencing, provided that that view is consistent with, or does not conflict with, the verdict of the jury. The second is what was consistency with the verdict mean, which I will come to it. Then the third is it does not require the judge to take the view most favourable to the accused.

On the first one, my learned friend started with Reg v Isaacs and accepted this proposition from it. Can I just remind your Honours that in relation to the first three cases, without taking your Honours to them, in the first passage cited from Kingswell at page 276, the Chief Justice and Justices Wilson and Dawson used the words "not in conflict with the verdict". Justice Mason simply used the phrase "consistent with the verdict". In Savvas, the judgment of Justices Deane, Dawson, Toohey, Gaudron and McHugh, used the phrase "not conflict with", at the page referred to, and in De Simoni Chief Justice Gibbs used the phrase "not inconsistent with" and Justice Wilson used the phrase "consistently with" taking the maximum punishment.

The other cases are State cases. The Isaacs Case was referred to. I do not understand that first proposition to be in dispute. The second proposition which is where the appellant's submissions do depart is that my learned friend submits that consistency means consistency with the reasoning by which they reach their verdict, not merely with the actual verdict. We simply give your Honour these references. I will not take your Honours through them. In each case we have set out the sentence which we say is inconsistent with that submission and we have, as your Honour sees, cases in Queensland, Victoria and Tasmania which refer to that. In each case the passage cited interprets consistently the way we have submitted it should be interpreted rather than the other way.

The third proposition that consistency does not require the judge to take the view most favourable to the accused is said in each of these State cases we have referred to there and in particular in Isaacs in the passage which my learned friend cited at the beginning of his submissions and he indicated to your Honours that he accepted it. So, that proposition does not appear to be in issue. The two English cases which my learned friend refers to are Stosiek and Efionayi. Your Honours do not need to go to them at the moment. Can I say this in addition to what has been said about them by my learned friend, Mr Agius.

In relation to Stosiek it was referred to in an unreported decision of the Full Court of the Supreme Court of Tasmania in Parker v The Queen which we have given to your Honour. It has been handed to your Honours. It is an unreported decision of 9 March 1994 and the distinction was drawn between giving the accused person the benefit of the doubt, in other words, finding the facts beyond reasonable doubt, which the judge is bound to do, and finding the most favourable version, which is not the same thing.

That appears in a passage at page 10 of the judgment of Justice Zeeman, which is towards the end of the document your Honours have, about five pages from the end of that document, and your Honours see at the top of the page in the first full paragraph, in referring to Stosiek, his Honour says this:

His Lordship does not appear to have lent any encouragement to any practice of asking a jury to explain their verdict. To the extent that his Lordship may have suggested that a sentencing judge ought to give an accused person the benefit of any doubt as to the basis upon which the jury convicted, as distinct from the benefit of any doubt arising on the evidence, the law of this State is to the contrary.

In other words, the judge does not say to himself, "What was the basis the jury found on?" He rather says to himself, "What is my view of the facts consistent with the verdict?"

It is for a sentencing judge to make his own findings of fact, applying the criminal standard of proof, not inconsistent with the verdict of the jury. It is not for a sentencing judge to surmise what view the jury took of the evidence.

My learned friend, Mr Agius, has referred to Heti's Case in New Zealand and I will not take your Honours to that. In relation to Efionayi, that was the subject of a comment. It is a statement - it appears in the

(1994) Crim LR 870 and - - -

KIRBY J: Have you moved from the point of the Constitution into the merits of the appeal because if so I would like to know why the Commonwealth should have two advocates to advance its cause?

MR BENNETT: I am not dealing with the merits of the appeal, your Honour. I am dealing with - - -

KIRBY J: It sounds like it. It sounds as though you are rerunning the points that Mr Agius very ably put to the Court.

MR BENNETT: No, your Honour. What I am doing is, in order to show what section 80 does not pick up I have to demonstrate that - may I start again? The appellant's submission is, here are Efionayi and Stosiek; they lay down a rule which is applied in England and which is appropriate to section 80. I am seeking to say, not only for the reasons I have given is it not appropriate to section 80 as a matter of policy and broad consideration, but also those cases do not represent the law in England or Australia and that is a further reason why one should not take them to that extent.

GLEESON CJ: Perhaps you could come back to this at 2.15. What is the reference to the Criminal Law Review article - - -

MR BENNETT: It is [1994] Crim LR 870 to 871.

GLEESON CJ: All right. We will adjourn till 2.15.

AT 12.47 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.16 PM:

GLEESON CJ: Yes, Mr Agius.

MR AGIUS: Your Honour the Chief Justice referred to decisions of this Court concerning the reluctance of courts to interfere in the charge laid by the prosecution. There are two authorities we can find. One is Maxwell v The Queen (1995) 184 CLR 501 and the particular references are at 513 to 514 in the joint judgment of their Honours Justices Dawson and McHugh, and at 534 in the joint judgment of their Honours Justices Gaudron and Gummow. That was referred to favourably by this Court in DPP of South Australia v B [1998] HCA 59; (1998) 195 CLR 566 at 579.

GLEESON CJ: Thank you.

MR AGIUS: His Honour Justice Callinan referred to the decision of Ahern. That is Ahern v The Queen [1988] HCA 39; (1988) 165 CLR 87 but in that case I could not find any reference to the point that had arisen in argument, your Honour.

CALLINAN J: No, I think it was dealt with, on reflection, in the Court of Criminal Appeal, Mr Agius, before it got to this Court.

MR AGIUS: Thank you, your Honour.

GLEESON CJ: Yes, Mr Solicitor.

MR BENNETT: Your Honours, before the adjournment I was taking your Honours to the passage in the Criminal Law Review.

GUMMOW J: Well, we have read that now.

MR BENNETT: Yes, well, if your Honours have seen that - - -

GUMMOW J: It is not a major piece of scholarship.

MR BENNETT: No, it is not, your Honour, but it is interesting in so far as it shows that the case is regarded by at least one commentator who stated it publicly as having a fairly limited relevance and as having some problems. The two cases referred to in it - the first was Young. That is quite a good illustration of the problem. That was a case decided at the time when buggery was still an offence. Where it was committed with a woman, the question of consent was irrelevant to whether there was an offence or not and the indictment was split into "with consent" and "without consent" so that the judge would know on sentence what to do.

On appeal, the Court of Criminal Appeal said this, in the judgment of Lord Justice Neill, giving the judgment of the court. This is at page 281 of the report in 12 Cr App R (S) 279, and his Lordship said:

It seems to this Court that the course that was followed at the trial, though understandable, was not justified in law. It meant that the judge was leaving to the jury an issue which it was not for them to determine. Furthermore, he allowed to be included in the indictment a statement and particulars of an offence which included an immaterial averment, namely the absence of the consent of the victim. Accordingly the decision of the jury on that third count, because they were directed to decide an issue which was not for them to decide, is something which in our judgment should be disregarded.

In circumstances such as this it is for the judge himself to decide a question of consent if that is in issue. It may well be, as could have happened in this case, that having heard all the facts as the evidence was given at the trial, the judge could have concluded at the end of the case that he had heard enough to enable him to decide the issue for himself.

That is a very good example. At first sight, one might say what a huge difference in that offence between with and without consent. But when one thinks about it, if one is deciding innocence or guilt and there is some intermediate or questionable degree of consent, the jury can be asked the right questions as to whether this was consent or not consent, and then make a decision as to which side of the line it falls on. But if you are deciding sentence, and it is an intermediate degree of consent, there is not a black and white question you can ask the jury, because the question is not whether you are on one side or the other of legal consent, the issue is what degree of consent was there in order to determine what degree of criminality there was.

So it is a very good example of the sort of problem that arises if you try and get the jury to decide facts relevant to sentence. And that goes back to what I started with. The difference between conviction and sentence and the questions you ask is that, on the conviction, you ask which side of the line does this case fall on. Yes or no. On sentence, you ask where, in a continuum of possibilities, is the degree of criminality. By its very nature, that is not a question the jury can answer, unless, as in some American States, the jury decides sentence as well.

The other case referred to in the extract is Dowdall and Smith (1991) 13 Cr App R (S) 441. This is another decision of the Court of Appeal and this is the one which the commentator says it is unfortunate that it was not referred to in Efionayi. This was a case of theft where there were two possibilities, one was that the accused was himself the original thief from the owner; the other was that he had found the goods in circumstances where their retention constituted theft. Even in that sort of case where one would have thought a brighter line could be drawn, the Court of Appeal said no. Lord Justice Taylor, delivering the judgment of the court, at page 445 at the bottom of the page, said this:

Accordingly, in our judgment the learned judge fell into error in allowing one count to be split into two, and the conviction on Count 1 must therefore be quashed. Apart from the reason given in Young that the alternative averments added in each of the counts were immaterial to guilt, and the problem envisaged by Professor Smith, it would be wholly undesirable to lengthen indictments and complicate the jury's task simply to anticipate (if possible) alternative accounts involving different gradations of guilt. As Lawton LJ said: "The golden rule should be `Keep it short and simple'."

The result of departing from that rule here was to complicate and prejudice what should have been a simple trial of both appellants on Count 3.

Et cetera. Finally, may I just mention to your Honours, without taking your Honours to it because it is not on any list, that the decision in Young was cited with approval by the criminal division of the Court of Appeal in the very recent case of The Queen v Wood [2000] 1 WLR 1687 in paragraphs 16 to 17. It is dicta, because that was a case looking at the question of life imprisonment for a second serious offence and the question there was how you determined how serious an offence was when the jury had not decided which type of situation it was.

They referred in that context to Young's Case with approval and, in our respectful submission, that, rather than the Stosiek and Efionayi approach, seems to represent the position in the United Kingdom, as well as, for the reasons I have given, the position in Australia. But at the end of the day, our submission is that section 80 cannot require a contrary result. That was not the position in 1900, it has not been the position at any time since then and it is a result which would be impractical to apply and while one might think of examples of cases where it might at first sight seem fairer to apply such a rule, it is going to be productive of far more difficulty simply because of the difference of the nature of the question the trial of fact is deciding on a sentencing issue. May it please the Court.

GLEESON CJ: Thank you, Mr Solicitor. Yes, Mr Scrivener.

MR SCRIVENER: May I logically begin again with the principles in Isaacs so I may define carefully where the argument lies. It is for the judge to decide sentence and we accept that, we accept that Isaacs was correct. But what he has to take into account are various matters, some of which will be entirely for him to decide because they are not matters for the jury because all the jury will do is to return a verdict which is concerned with the elements of the offence within the four corners of the indictment. Say, for example, in Young the reason why the decision in Young was as it was was that to put in consent was an immaterial averment. Consent was irrelevant at that time in England on that charge, so it did not have to be pleaded. It is quite wrong to set up an indictment and put in it counts which do not allege material averments, and I will come on to demonstrate that a bit more in a moment.

So one of the things which the judge has to consider is that his sentence must be consistent with the verdict. That is, if you like, the strongest control there is upon the exercise of his discretion, but it is his judgment. He makes up his mind what it is. What is the basis for that requirement which we find stated in all the cases in this jurisdiction and in the United Kingdom? It is based on fairness. Here in this jurisdiction, we submit, is based firmly in part as a result of the Constitution and it may be also the De Simoni principle comes into it, but the principle exists.

It must be a corollary to that that if that is the principle the judge must take into account, he must take reasonable steps to discover what does the sentence mean. It may involve doing a bit of detective work, like those two cases I cited to the Court when I began my submissions a few weeks back, Jama and Ajit Singh. If your Honours remember, in one case, the Ajit Singh Case, he had been found not guilty of wounding with intent but guilty of unlawful wounding when his defence was self-defence. The jury had clearly rejected self-defence and the judge therefore had to make some sense of it. The Court of Appeal said he did not draw the right conclusions, and in the Jama Case, whether it was a weapon or not. He had to decide that on looking at what the evidence was, whatever clues there were.

So it does involve an interpretation of the verdict. Normally it will be on the basis of the indictment, the facts known in the indictment and the prosecution case as presented, only matters which went before the jury to decide. There are a large number of issues relevant to sentence which have nothing to do with the jury at all. The best relevant example for this case is motive. As the learned judge said in his summing up to the jury, motive is irrelevant; intention is important. So there is no ruling on motive by the jury. So there has to be, in our submission, some inquiry made by the judge, and that is the second stage of the argument.

The third is this. That it may well be at the end of the day the verdict will be ambiguous. It is much easier to be certain as to what a defendant pleaded guilty to when it is a plea. A great deal of care is gone into by a court to make sure the basis of his plea is firmly understood by him and by the court. It is more difficult to do that when you have a jury's verdict. So you look and do your best on the information available, and it may be at the end of the day you are left with an ambiguous verdict. There are two possible meanings which cannot be cleared up and could not have been cleared up, and the judge then has to do his best. It is his decision in that case, and we have not sought to argue otherwise.

If I can pause there for a moment, and look at the learned Solicitor-General's three points, which are all supported by numerous authorities, and we would submit that that is a very valuable contribution to the argument. In the first place, the point 2 - he has given us some of the important quotations from the leading cases as to what it means consistent with verdict. We would support all of those, and think, indeed, that they are correct. Just casting an eye down those tests, the Storey test, a leading case, it involves:

The facts implicit in the verdict or plea of guilty cannot be controverted.

"The facts implicit in the verdict." The Morrison Case:

must be consistent with the jury verdict or plea of guilty; facts implicit in the conviction cannot be controverted.

The Emery Case the test was four lines down:

consistent with the express or necessarily implied findings of the jury.

The next case consistent with that determination, the Rowbottom Case over the page:

He must of course accept all the findings of fact necessarily involved in the jury's verdict.

And Richmond is on similar lines. All those quotations, we would submit, are valuable contributions, well-established jurisprudence, and identify precisely the test which judges have to apply.

But applying all those tests, there may be cases where you are still left with an ambiguous verdict. Now, we do not contend, as point 3 in the Solicitor-General's document says, we do not submit that consistency does not require the judge to take a view of the facts most favourable to the accused. If you cannot make head or tail of it, the general principle is that you do not have to find the facts most favourable to the accused, and that is a solid body of jurisprudence which establishes that.

What we say is in one exceptional area you do take the view which is most favourable and that is what, in very shorthand, this case is about. The question is whether there is one exception clearly identified which has been established in England and Wales which should be brought into this jurisprudence backed by proper authority and by proper logic. That principle is the one we find in Stosiek and Efionayi which is where, for instance, something could have been done, the indictment could have been amended, because the verdict is consistent with two views of the facts and it would have been possible to amend the indictment to obtain the jury's view. In that situation, if that was not done, then the view most favourable to the defence should be accepted.

So that the question for your Honours to decide is whether an exception along those lines is a proper exception or not. First of all, may I say, this does not in any way impinge on the prosecution's duty - and I use the word "duty" advisedly - on the presentation of the indictment. The prosecution is responsible for the indictment. The Connelly Case, which I think the Chief Justice referred to this morning, makes it clear that the court must not get itself in the position of being responsible for the prosecution and I think the paragraph in Archbold is 4-49 where you will find a short summary of that.

The cases establish in this jurisdiction that you cannot judicially review a failure to prosecute. The law was different in the United Kingdom. It is nothing to do with the court to dictate the form of the charge or, for that matter, what charges should be laid. That is a matter entirely for the prosecutor, but the court still has a function to play, and when the prosecutor has exercised his judgment in respect of those matters the court may be called upon to say whether it was an abuse of process or whether the charge is valid in law or whether it would be oppressive to allow the charge to go forward, the court still has functions to play.

All this principle establishes is if it was within the ambit of the prosecution's powers to prevent this dilemma - and the word "dilemma" is the word used in Stosiek as you will see again in a moment - and it was not done, then really it is down to the prosecution that this mistake, this error, this difficulty, has occurred. If that is so, then the court must take that into account and at that rare - maybe rare - situation it is the right approach in that situation is to say it is the view most favourable for the defence. Now, we would submit that that principle is even stronger where you have a written constitution, as here, where there is an obligation to protect trial by jury and trial on indictment.

Now, because I am urging the exception that is applicable in that limited form only, may I invite the Court for the moment just to go back to Stosiek 4 Cr App R (S) 205. The reason why I have invited your Honours to go back to this case is that because the citation in Parker which your Honours looked at this morning stops before the most important sentence which you will find in the judgment. This, as your Honours will recall, was the single count for an assault occasioning actual bodily harm the offence would be increased if it was a policeman and less if it was not a policeman. What Lord Justice Watkins, giving the judgment of the court, said at page 208, in the first complete paragraph - in the previous paragraph he has identified the dilemma, which way you should say it, should the judge have assumed it was a police officer or not. He said this:

In those circumstances, the court has to be extremely astute to give the benefit of any doubt to a defendant about the basis on which a jury has convicted. Judges are discouraged from asking juries upon what basis they have reached their conclusions and this Court does not want, by what it feels impelled to do in this case, in any way to cause judges to depart from what is regarded as the usual and proper practice of refraining from inviting juries to explain their verdicts.

Your Honours, may I repeat that as our assertion and submission in this case -

But the prosecution almost always has the opportunity to avoid dilemmas of this kind when drafting the indictment. It was obviously open to the prosecution in this case to indict the appellant for assaulting a police officer in the execution of his duty. A conviction for that offence could not in any sense have been less than clear in its meaning. Judges too can avoid such dilemmas by avoiding directing, save where there is a clear requirement to do so, juries to consider convicting upon a number of alternative bases.

Then it goes on to say that if that is the situation, if this principle applies to it, then you do exceptionally take the view most favourable. Now, we urge for nothing more, nothing wider, than what was stated in Stosiek and which was followed Efionayi. It is the same basis. There is nothing exceptional about it. The general rule still applies. If I can just take you back for a moment to Efionayi and the knowledge that your Honours have looked at it more than once, and I can deal with a commentary at the same time.

GUMMOW J: The critical passage from that case seems to be set out at pages 35 and 36 of the transcript of 3 May. Is that not so?

MR SCRIVENER: I am sorry, I am looking at Efionayi, 16 Cr App R.

GUMMOW J: Yes, I know, I am looking at the transcript of the argument in this case on 3 May, pages 35 and 36.

MR SCRIVENER: I am looking at 35 - 35 of the argument last time?

GUMMOW J: Yes.

MR SCRIVENER: It is where the Chief Justice said:

the proposition that the Crown conceded that there was a large practical difference in the sentencing outcome, depending on which of these cases was accepted.

My pagination is at the top of the page. Maybe I have different numbering.

GUMMOW J: It does not matter.

MR SCRIVENER: Yes, the document I am now looking at is different from the others, different numbering I have been given. If your Honours are referring to the observations I made at that time, the answer is that is correct. What I wanted just to draw attention to was that it was not necessarily here, that the problem was not caused, as it was in the other case, by not putting on a separate charge of a different offence. What went wrong here was not being able to deal with the - by leaving the indictment too wide, instead of making it more particular on date. If the charge had been more specific there would not have been the problem.

But, again, the court took the view, following Stosiek, that since this was something which the prosecutor could have put right by drafting the indictment, then in that situation the defence should be entitled to say, "Well, you must take the view which is most beneficial to the defence", because we are dealing with an ambiguous verdict in any case.

CALLINAN J: Mr Scrivener, could I ask you this question. In the United Kingdom is there a separate offence of assaulting a police officer in the execution of his duty?

MR SCRIVENER: Yes, there is.

CALLINAN J: That is a different offence from the offence of assault.

MR SCRIVENER: Absolutely. This is why I have drawn attention to Efionayi, because the same point cannot be made in respect of that case.

CALLINAN J: Yes. I mean, it is a complete answer to your Stosiek point, is it not?

MR SCRIVENER: No. The principle is sound. It so happened in that case - - -

CALLINAN J: No, but look at page 206 of Stosiek, at about point 3:

The judge directed the jury that they could convict on several bases, one of which was that the appellant knew he was being detained by a police officer, and struck him with that knowledge;

Why was the trial judge entitled at all to give a direction in those terms when, as I understand it, the accused was not indicted on a count of striking a police officer in the execution of his duties?

MR SCRIVENER: Simply because on an assault charge, which was the only charge presented, it would be immaterial averment whether the person was a police officer or not.

CALLINAN J: Yes. But that was the error, if any, on the part of the trial judge, really, inviting the jury to convict of an offence of which he was not charged - of which the applicant - - -

MR SCRIVENER: No, he was rightly charged with assault.

CALLINAN J: Yes, but - - -

MR SCRIVENER: And if you look at the format of the charge, it was correct.

CALLINAN J: Yes, but he was not charged with an assault upon a police officer in the execution of his duty. That is so, is it not? Therefore, the trial judge should not have given a direction that he might be convicted on that basis, because that is tantamount to saying that he might be convicted of an offence with which he was not charged.

MR SCRIVENER: That might have been said, but that was not the way the court approached the matter. The court looked at - - -

CALLINAN J: I know. I mean. the Court of Criminal Appeal could have approached the matter that way and it would have been an orthodox and correct way, with respect, to doing it.

MR SCRIVENER: If you say that when someone is assaulting a police officer, you have to charge that specifically, you cannot charge him with ordinary, say, like common assault - - -

CALLINAN J: No, I am not suggesting that, but I am suggesting that if he is not charged with that, he cannot be convicted on the basis that that is what he did.

MR SCRIVENER: You can, strictly speaking, because the fact that the victim was a police officer is not a material averment to the charge of assault. So all you want to do to prove assault is prove the assault, and that is enough.

CALLINAN J: And that is what the trial judge should have done, but the trial judge went further than that and said that he might be convicted on the basis that he assaulted a police officer in the execution of his duties.

MR SCRIVENER: I think it went more to that - it was the actus reus. He was either hitting a man because he thought he had been wrongly arrested or he thought this was an intruder interfering with what he was doing, and the two factual bases are quite different.

CALLINAN J: Well, I have put to you what appears to me, Mr Scrivener. I cannot put it any differently.

MR SCRIVENER: If your Honour could just look at the bottom of page 207:

The jury were not, we are informed, as is usual, invited to tell the judge after they had brought in their verdict against the appellant, of the basis upon which they had convicted him. So the judge was left in a state of ignorance about how the jury came to their conclusion. It is possible that they concluded that the appellant really did not know that he was hitting a man whom he recognised at that time as a police officer, having been told so. It is equally possible, so it seems from the papers, that the jury convicted upon the basis that he had violently over-reacted to what could be said to have been a technical assault upon him by a person whom he did not know was a police officer.

Those are the two alternatives. Both those two alternatives would fall within the indictment, and whichever view the jury came to could be a guilty verdict. What the judges went on to say was, dilemmas of this sort - and the word "dilemma" is used in Stosiek:

It was obviously open to the prosecution in this case to indict the appellant for assaulting a police officer in the execution of his duty. A conviction for that offence could not in any sense have been less than clear in its meaning.

So, without taking the point that your Honour has taken, saying that they ought to have charged another offence and he should not have been found guilty of that offence on that basis, they did not say that because the indictment was wide enough to include it. But they said if you want to distinguish between the two situations identified at the top of page 208, the only way, really, of doing that clearly was a separate count.

CALLINAN J: It seems to me, Mr Scrivener, that the way the indictment was framed in that case made the question whether the victim was a police officer or not entirely irrelevant either to the question of sentence or to the question of conviction, and that the trial judge ought not therefore to have suggested that the offender might be convicted upon that basis.

MR SCRIVENER: Yes, that might have been the reason, but it was not the reason which the court relied upon and it is simply because the format of the indictment alleging assault is immaterial to that charge, whether the person is a police officer or an ordinary citizen.

CALLINAN J: If it is immaterial to the charge, it should have been immaterial to the sentence.

MR SCRIVENER: It is material to sentence but not to the charge, and I would like to go along with your Honour, it would make my task perhaps a little easier, but I cannot because the jury are only deciding the matters within the indictment. There was no ingredient that the victim concerned was a police officer in the indictment, and that is why I believe the court approached it as it did. The reason I wanted to just remind the Court about Efionayi was that that term, "criticism", cannot be made about that case. There the dilemma was not being specific enough in respect of the charge of which both defendants were found guilty. It was either wilful neglect for 14 days or the last 2 days, that was the difficulty, and no one could tell which it was. What the Court said this could have been cured by an indictment which made it clear. It was not a different offence. That was clarifying a factual issue within the indictment, following on Stosiek.

Now, the question is whether it would be right and proper to introduce that principle into this Court. The fact that it has been accepted in the UK is clear. It is referred to in Archbold. It accords with general principle. If there is a duty to be consistent with the verdict, you ought to find out what the verdict is, and if the difficulty - and the defendant has been put in greater jeopardy of a higher sentence, as a result of something the prosecution have done - - -

KIRBY J: What do you say about the rather nasty things Mr Agius said about your attempt to draft a Crown indictment?

MR SCRIVENER: I am going to come to that in a moment, if I may, but - - -

KIRBY J: All right, as long as you do.

MR SCRIVENER: I simply say it is a predictable approach for a prosecutor to make and I think I would have done the same thing if I had been in my learned friend's shoes. But at the end of the day, he is going to have to deal with the point as to how the judge dealt with it in his summing up, the way he saw it and, indeed, the way my learned friend was putting the case before the Court. If I may just defer that for a moment - - -

GLEESON CJ: We know how the judge dealt with it. The judge dealt with it in the manner in which he was requested to by counsel for your client.

MR SCRIVENER: Yes, on the basis that Martin was binding upon him and that was the way to do it, because no one had questioned the point I am now taking and fastening it on to the Constitution.

KIRBY J: I think I suggested that in argument with I think it was Mr Bennett, but normally in this country if you have a point, you make it and reserve it, appreciating that it is not likely to be or will not be reviewed in that court and it does appear as though the judge simply dealt with it on the basis that was put to him. Query, whether that forecloses you in this Court, given that it really is a question of legal analysis?

MR SCRIVENER: I think the first thing one would have to ask in that situation is whether it was a tactical advantage being sought by a cunning counsel. If there was a tactical advantage being sought and made use of, then we are proceeding with the point.

GLEESON CJ: Exactly. If Mr Agius' argument is right - and I have not formed any conclusion or, indeed, read all the material on which he relies - but if his argument is right, there is a very good reason why Mr Nicholson would have requested the judge to make his own findings of fact, because Mr Nicholson, according to Mr Agius' submissions, was inviting the trial judge to put a complexion on the facts which was much more favourable to the accused than either of the alternative bases on which the matter was left to the jury as part of the Crown case.

MR SCRIVENER: I think there are, with respect, two difficulties about that. The first is that everyone was acting on the basis of what Martin said. No one thought to make the point that I am now making, which was made for the first time by my learned junior in the Court of Appeal on the appeal against sentence; that was the first time the point was ever taken. The second thing is that the big factor which the learned judge would have to decide was motive, a matter for him. Intent was for the jury; motive was for him. So it is difficult to see how my learned predecessor was going to avoid having to discuss motive with the judge because that was always within his jurisdiction.

So I think, with respect, in fairness to him, to my predecessor, it was done without thought as to this point. It was not done out of cunning. He got no advantage out of it; in fact, he may have stood a much better advantage if he raised it at the trial.

GLEESON CJ: I am not saying it is the present case - it is not the present case - but suppose that, in fact, on sentencing an attempt was made to mitigate on the basis that the reason the accused engaged in this transaction was because his children were being threatened back in Hong Kong, something that presumably would have had nothing to do with any issue the jury had to decide, but that might have been put forward as a powerful plea in litigation, but entirely for the judge.

MR SCRIVENER: Exactly.

GLEESON CJ: Well, what is the difference in principle between that clear case and what happened in this case?

MR SCRIVENER: Because the fact that there was a threatening is not part of the matters considered by the jury in finding whether there is guilt or not; that is an immaterial avernment. That is the difference.

GAUDRON J: Well, is it not, at least in terms of sentencing principle, this, that there is simply no basis of working out the objective seriousness of the crime?

MR SCRIVENER: I think conceptually that would be correct. I am being more clinical on the authorities.

GAUDRON J: I mean, one can look to personal mitigating circumstances or perhaps circumstances that would negative any possible litigation, but it is the base from which you start in this exercise that is uncertain.

MR SCRIVENER: Conceptually that is correct, with respect, but the reason why the threat does not come into it, as far as the jury are concerned, is because unless there is some argument about duress, which I am assuming there would not be, or any special defences, it is not a matter for them at all, therefore, it does not have to be pleaded.

GLEESON CJ: What is the difference between saying, "I did it because I wanted to protect my children", and saying, "I did it because I wanted to protect my informers"?

MR SCRIVENER: Nothing, not on motive. If I can come onto that in a moment and explain. I think what has happened is we put in our written submission this quotation, which we call a concession, which we understood to be made on alternative 2. My learned friend says in argument, and demonstrated why he came to the view - he said, "I wasn't conceding that at all. I was not conceding that on alternative 2. I was making that concession on the argument before the judge as to whether or not there was an honourable motive behind it all", which is what my predecessor's was arguing before the judge. It had nothing to do with the jury's functions at all. So, if my learned friend says that is the concession he was making in that regard, I accept it.

GLEESON CJ: But is not the fact that Mr Nicholson was trying to persuade the judge that there was a not dishonourable motive - - -

MR SCRIVENER: He was plugging it very hard. He was saying, "Motive for you and we argue as follows".

GLEESON CJ: Was not the fact that he was trying to persuade the judge that that was what underlay your client's complicity in this, that was the very reason he was pushing the proposition that the judge had to decide the facts.

MR SCRIVENER: Absolutely. That was motive, never part of the indictment. The judge quite rightly directed the jury they should not be concerned with motive; they were concerned with intention. Mr Nicholson was quite correct, if I say so with respect, in arguing his motive point before the judge and seeking to prove to the judge's satisfaction that the motive was an honourable one. He failed in that task.

GLEESON CJ: How do you disentangle his motive argument and his length of time of involvement argument?

MR SCRIVENER: They were quite different matters. If I can prevail upon your Honours' patience a moment, I will give you the references. If my learned friend says the concession was made on that basis, I accept it, but what was happening was there were two offences and, indeed, there were two different approaches. Indeed, my learned friend at one stage said that to the jury. If you accepted the accomplice, Cheung, then it meant he was heavily involved in all aspects of this matter. Not only that - - -

GAUDRON J: He was the mastermind who recruited the accomplice.

MR SCRIVENER: As the learned judge pointed out to the jury, if you accepted Cheung and you found the acts proved, the intention had to be there. There was no argument on intention. The issue was whether the acts were proved, whereas the second part, the alternative view, not accepting Cheung, then there was a dispute about intention. The acts are the phone calls and the failing to report. That was admitted but it still gave rise to a further question of intent. The fact of the matter was that the prosecution here set out with the clear view that there were really two cases in one here.

If I can use language from the cases, there from the outset was an importance clearly identified, a clearly identified issue, the existence of which was well known to the prosecution. They knew that there was a chance that Cheung's evidence would be thrown out. There was a lot of material against Cheung, a great deal, and they made it very clear throughout - as the judge took on board and said so to the jury - that there was an alternative view: disregard Cheung. We can get a conviction on that basis.

Those two offences were quite different in size, scope and, as my learned friend said in argument the last time, a different basis for sentencing. What I seek to ask the Court to concentrate on - and I will come back to it in a moment - - -

GAUDRON J: Let it be taken that a sentencing judge had found motive against the appellant in these proceedings, which you concede could have happened even on your argument. The case would have been what, that without profiting he nonetheless turned a blind eye to enable his friend to get away with it?

MR SCRIVENER: Well, we would, first of all, have to look at the list of acts, which the learned judge sets out in detail, as to what - if he believed Cheung - it involved.

GLEESON CJ: Yes, but I think Justice Gaudron is asking you what were the competing possibilities on motive?

MR SCRIVENER: Well, the competing possibilities were that he came into it later. He came into it at a very late stage, indeed, and I think the word "temptation" was used last time during the argument by one of your Honours. He was tempted into it very late, and he should have blown the whistle and he did not. There was no evidence that he made any reward whatsoever out of it. The financial gain goes completely. It is an entirely different case.

GLEESON CJ: What was the temptation?

MR SCRIVENER: Sorry?

GLEESON CJ: What was the source of the temptation?

MR SCRIVENER: Well, the fact that he could have been a party to it and he may have thought he would get something out of it eventually.

HAYNE J: Does not this point to the fundamental difficulty which your argument has to address, and about which I would be grateful for your submission. Your argument is founded upon the proposition that there is a single fact or, at most, single group of facts which could properly have been reflected in a count in an indictment in such a way as to elicit a jury's verdict about those facts?

MR SCRIVENER: Yes.

HAYNE J: Is not the fundamental difficulty in your contention revealed by the debate we have now had over a very long period of time, that there is no single fact, there is no single group of facts, there is the whole range of the evidence that was adduced against your client at his trial including the whole of the range of the evidence of his alleged involvement in the importation, and it is not a case of consent versus no consent or something of that kind? Now, what answer do you make?

MR SCRIVENER: The answer I make to that is that I rely entirely on the way the learned judge dealt with the matter. He treated it as different. He told the jury it was different. He approached it as being different in sentencing, and the whole purpose of the sentencing argument was to see whether or not the maximum sentence that defence counsel agreed should be imposed on one view was the correct sentence.

If I can just find my notes. If you can look at, for instance, at 727, this, after all, is the way the judge left the case to the jury and the way he sentenced the defendant himself. What I am not turning to is the sentencing, how he summed it all up.

HAYNE J: Yes. I am sure we have all read it more than once. What is the proposition that you are advancing.

MR SCRIVENER: The proposition I am putting forward is this:

The Crown case was put to the jury in two ways. First, the Crown invited the jury to accept the evidence of Cheung Siu Wah and to find that it was corroborated in many respects by the evidence, particularly circumstantial evidence. Secondly, the jury was invited to find the prisoner guilty entirely independently of the evidence of Cheung Siu Wah, on the basis particularly of two bodies of evidence, namely admissions by the prisoner that although during April and early May 1989, he had become aware of the fact that the heroin importation was in progress and had accumulated a quantity of information about it, he made no report thereof to his superiors as was his duty.

If accepted, the evidence of Cheung Siu Wah would establish the following facts.

On page 728 there starts a long analysis.

HAYNE J: As I say, Mr Scrivener, I have read repeatedly. I would be assisted by your statement of principle rather that a recitation of what I have read repeatedly.

MR SCRIVENER: You asked me a specific question, with respect, and I have given you my answer. I rely on what the learned trial judge did. He found there was a distinction to be made between those two propositions. There was considerable argument about it and as you saw from Mr Nicholson's written submission, he made a point about it.

If I can just refer to one other matter. The fact that the case was being put on two different bases was not only accepted by the judge but you will find it in my learned friend's opening at page 65 when my learned friend opens it on that basis. Another thing: this morning I think was passed up something my learned friend said in opening in the first trial which became aborted through no fault on any of the parties. It is Wednesday, 17 February 1993 and the page - the numbering at the bottom, page 16 - - -

CALLINAN J: I am sorry, you have lost me, Mr Scrivener. What should I be looking at.

MR SCRIVENER: The document I hope you are now being passed is an extract from the first trial which was aborted soon after starting. It has got, "Second day: Wednesday 17 February 1993" headed, and it was during the course of an argument which touched on some of these matters, and on page 2 - - -

GAUDRON J: Is this in the appeal book?

MR SCRIVENER: It is a separate sheet. We have only just become aware of this document and we pass it around and it has been passed, too, I believe, separately. At the bottom of page 16 which is the second page in the bundle, the Crown Prosecutor says:

Your Honour has an accurate perception of the thrust of the Crown case so far as it deals with all of the evidence that we are going to call, except we have another limb to our case. The further limb to the case is really an extension of our argument that it does not matter whether Cheung Ying Lun was motivated to gather information or gather more information -

that is the defendant, that is -

or to preserve his informants. I want to put to the jury that even if they find, as the accused himself said in evidence in Hong Kong that his motive was to gather information, provided they find that he did that in the knowledge of the importation and in the knowledge that what he was doing when he spoke to Cheung Siu Wah and passed messages to Mr Ng as he says he did himself was a concern in the importation. The jury would be entitled to convict him on that basis. In essence, the jury will be left with the situation that either they can believe Cheung Siu Wah about the conversation in Hong Kong when he says that in effect the accused was a principal in this importation, he was not acting as a customs officer at all but as a criminal he was going to get a share in the profits. There is corroboration of the tapes. If the jury finds that it cannot believe Cheung Siu Wah, and that is a real possibility in this case, given that he did not even mention the accused until he himself was arrested in Vanuatu,, they can convict the accused on what the accused himself said during the course of the extradition proceedings in Hong Kong, together with what they themselves find on the three tapes. What I will be putting to the jury is that I could be running two trials: one with Cheung Siu Wah, or another trial, entirely without him, put every word he says out of their minds, and I could still convict the accused on what the accused himself said to Mr Carlson".

So, I simply say - and whether your Honour accepts it or not is a matter for your Honour, but I can only give an honest answer to the point that if you ask me where does the matter lie I say entirely in the way the learned judge dealt with the matter. That was the way he left it to the jury, and for good reason, because that is what he was told. Now, I will come back to that in another context, shortly, but before I do that I was to go back to the principle as to whether or not this principle, Stosiek and Efionayi, should be accepted in this jurisdiction and I - - -

KIRBY J: Just before you do that, I notice Mr Nicholson invited the judge to take into account the statement of your client at the first trial. Could you just remind me why the first trial went off? Was it concluded or - - -

MR SCRIVENER: I think there was some possibility of a communication from a juror to counsel, something like that.

KIRBY J: I see. It did not go to verdict.

MR SCRIVENER: It was a detective job trying to work out who it came from. The risk was thought to be there.

KIRBY J: Yes, but it - - -

MR SCRIVENER: No, it did not go to verdict.

KIRBY J: Right, thank you.

MR SCRIVENER: No. So if I can go back to its conceptual point. I simply submit this, that in this jurisdiction it has been accepted that the charge should be precise as possible for the purposes of ensuring an appropriate sentence, and I referred to those cases when I opened this appeal. It was Khouzame, S v The Queen and Walsh v Tattersall, and I think I implicated four members of the Court in those remarks, saying that that was one of the purposes of a charge. In our submission, that should be one of the considerations which guide the formation of an appropriate charge, information or indictment. It should be sufficiently precise so that a defendant may know what he is charged with.

CALLINAN J: Mr Scrivener, your suggested counts 1 and 2 that you handed up previously say nothing about motive, of course.

MR SCRIVENER: No, nothing for the jury to decide there.

CALLINAN J: You say, however, that had the appellant been convicted of your count 1, the court would then have had to infer that his motive was not a bad motive. Is that right?

MR SCRIVENER: No. The basic rule, as I understand it, behind charges is that it should contain such information as may be necessary for giving reasonable information to the defendant. That is the basic thought behind the preferring of - - -

CALLINAN J: What I am asking you is how a conviction on either your count 1 or count 2 would throw any light upon the appellant's motive?

MR SCRIVENER: None at all.

CALLINAN J: None at all.

MR SCRIVENER: I think the reason why this error has crept in, because we have quoted, as a concession made by the prosecution, that statement about the five years. Well, as my learned friend has been able to point out, and says, and he made the concession, he was not intending to make the concession on that alternative basis. He was making it on the basis that counsel was able to persuade the trial judge that the motive was an honourable one, and that has nothing to do with this point, that the motive is a matter for the judge to decide. What this charge does, together with the appropriate direction, it tells you if the jury have accepted Cheung, because count 1 covers everything that Cheung says the defendant did.

So if you get a conviction on that, you know what is the appropriate sentence, because it was conceded it was the maximum sentence. If they convicted of 2 as well, fine. No inconsistency between the two. But if they only convict on count 2, what that means is that they have rejected the evidence of Cheung and, therefore, he is only guilty of the facts in the alternative, which the learned judge identified and, in fact, spelt out what the facts were. So an indictment in this form, which causes no prejudice to anybody, to either side, enables that fact quite simply to be specified, and that is the only point we are interested in. It has nothing to do with motive. Motive will always be a matter for the judge.

The dates may or may not be material in an indictment. Quite often they are not. Sometimes they are material, and they are here because the direction by the judge will tell them what count 1 covers, and so the dates are material because they demark the area of the count and show that it is there to deal with the acceptance of Cheung's evidence. That, we submit, is entirely satisfactory and necessary in this case because of the huge difference there is in consequence, because there has been no answer to the point that it is quite possible here, or it cannot be ruled out, that the jury rejected Cheung, the accomplice, but the judge has accepted him and sentenced on that basis.

There was a dilemma obvious on the verdict, but that dilemma should have been foreseen because right from the very beginning the prosecution set out to present their case in two alternative ways. I have shown that and the learned judge accepted it and the learned judge was persuaded by it, and that is why he set out in detail in his summing up and in sentencing the two alternatives, which evidence went with what, and I kept them quite separate. When the debate as to sentence came on, leaving aside motive, which was an important factor, which was only for him, there was a huge difference between a customs officer who had made a phone call and failed to report and someone who had organised it right from the very beginning and, in fact, recruited Cheung, recruited everybody else, and was expecting to receive huge rewards - an entirely different case. One, the Cheung basis, would attract a large heavy sentence, life imprisonment, entirely appropriate; the other would not.

We simply say that on the special facts of this case, that dilemma was forecasted by the way the prosecution were choosing to present their case. It did not creep up upon them. They were running two cases, and, indeed, my learned friend was frank enough to say so at the first trial in those terms, and if your Honours read page 65 of the second trial you will see exactly that. Now, if that is right, that will lead to a dilemma and that could lead to the problem we have in this case, quite exceptionally, where you cannot be sure that the sentence is consistent with the verdict. That difficulty was caused by the form of the indictment.

I have been asked several times whether I am in favour of a special verdict. I have indicated that, in my view, special verdicts are to be discouraged. In principle they are available. There have been noteworthy cases when they have been used; Warner is the best example I can think of, knowingly possessing something, a drug. "Knowingly" did not mean with knowledge in advance. The jury had to find possession, knowledge imputed, but the judge wanted to find out whether it was with knowledge for the purpose of sentence and he asked the jury to tell him and the jury made a finding on that.

KIRBY J: What was that case?

MR SCRIVENER: Director of Public Prosecutions v Warner. It is cited in one of the cases we looked at this morning. I will give your Honour the reference to it. The question was whether you had to know that you have possession of a drug and the answer was, you did not have to know, but obviously very material to sentencing. The jury were told that, jury convicted, but the judge wanted to know for sentencing purposes whether it was knowingly or not, and he invited them to make a finding about it.

GLEESON CJ: So your submission is the trial judge has a discretion?

MR SCRIVENER: He has.

GLEESON CJ: And in the present case had a discretion consistently with section 80 of the Constitution?

MR SCRIVENER: He did, yes.

GLEESON CJ: Consistently with section 80 of the Constitution, it is for the trial judge in the exercise of his discretion to decide what will be answered by the jury and what will not.

MR SCRIVENER: Yes, I agree, and I had gone further than that because your Honour has pressed me more than once. I think it would be undesirable to use that particular procedure in cases like this. I think, except possibly for manslaughter, it is undesirable. I concentrate on the other one, namely, that this could have been put right. The first thing you do when you are prosecuting, you sit down, you work out how you are going to put the case and you charge accordingly. If you are setting out to prove two alternative cases which have obviously entirely different repercussions on sentence, then you must frame your indictment accordingly. It would be manifestly unfair and it would subvert, in our submission, the whole basis of the jury trial, which is to produce a verdict upon which a judge may act in sentencing, if, as a result of a badly drafted indictment which does not in fact meet the case which has been presented, there is the possibility that a defendant could have been sent to life imprisonment on the basis that the judge accepted the evidence of an accomplice when the jury may never even consider the evidence of the accomplice or may have refused to accept it. Something has gone wrong somewhere.

There is an obvious relationship between the verdict and the sentence, and in fact that is why the rule has grown up. It must be consistent with the verdict. The verdict will give you the jury's view of the matters within the indictment, not irrelevant matters, matters within the indictment. If that is so, then that is the one major restriction on the exercise of the judicial discretion on sentencing. The reason why we have got into this dilemma in this case is simply because of that, because the charges did not coincide with the way the case was being put to the jury. I come back to it a little bit later on. My learned friend has been at pains to address this Court not on that basis but an entirely different basis, rolling out all the facts, as he said, he would like to have put or may have put in the trial. But the fact of the matter was maybe he thought helping the jury he pigeonholed these two arguments and put them in alternatives. It is a matter of common sense that it could lead to quite different results.

May I refer to Dowdall and Smith 13 Cr App R 441 just to explain that case, with respect, and why it really does not come into the equation. This is one of a series of cases - there are at least two more - where there is a situation of two possible takings in a theft case. The original indictment charged the defendant with stealing from the person, actually taking the wallet off the individual. He had said he had found it lying around. To accommodate that alternative, prosecuting counsel then got leave to put on a second count to cover the second possible taking.

Now, the obvious matter there is that it was an immaterial averment. As the court pointed out, the first charge covered both takings; it was quite appropriate. You did not have to specify more than that so far as the wording of the indictment was concerned; they were not different cases. The question then was whether it was a good or bad thing to do. Obviously it became a very bad thing to do because it made the case terribly complicated because, as your Honours will see from the last page, 446, there was another count, count 3, involving a different offence and there was a trial on count 1, the original one. The defendant had pleaded guilty to count 2 which, on the face of it, was identical to count 1, and count 3 was a separate trial altogether. During the trial it emerged that Dowdall had pleaded guilty to count 2. So the jury, first of all, would be prejudiced so far as count 3 was concerned, and they were faced with being told that he had in fact pleaded guilty to an offence which looked identical to the one in count 1. We would submit that the right approach is the approach which was taken in McKenzie, which was one of the cases cited to your Honours this morning. There is a question of fact in each case.

GLEESON CJ: Mr Scrivener, in the present case, if the count had contained an averment that your client was the ringleader of this operation and had recruited Cheung, would that not have been an immaterial averment?

MR SCRIVENER: Yes, it would.

GLEESON CJ: If the count had contained an averment that your client had been involved in this importation right from the time it was first conceived, would that not have been an immaterial averment?

MR SCRIVENER: If it pleaded those words?

GLEESON CJ: Yes.

MR SCRIVENER: I do not think they would have been an immaterial averment because if you specify the date between which the acts are performed, they would be within the indictment. I would be entitled to ask for particulars, in what way I was involved in the importation, and I would have been given those particulars. But to say I was a ringleader is a matter for the judge.

So that is what happened in Dowdall. It is an illustration where things can go wrong. What happened here was the amendment did not make it simple for the jury. It made it complicated and resulted in the last count having to be set aside because count 2, the fact he had pleaded guilty to count 2 had come into the trial. So the words of Lord Justice Lawton, "The golden rule should be keep it short and simple" just were not followed.

There are other cases of separate takings which have gone the other way. I will not take your Honours to them. They are in our reply to the written submissions. One is Bosson, which is a later case, which we have cited in our reply, and there is an earlier case where it came to a different view. Each of those cases, it is much better to have them in separate counts.

CALLINAN J: Mr Scrivener, do you accept that the trial judge found motive against your client?

MR SCRIVENER: Yes.

CALLINAN J: So, the trial judge found that the appellant had a bad motive, as it were, is that correct?

MR SCRIVENER: The problem about that is - of course, I say yes, but that is on the basis that my client falls within category 1 because he also found that Cheung's evidence was correct. That must have influenced his views about motive. But he did, yes.

CALLINAN J: He found motive against your client.

MR SCRIVENER: Yes.

CALLINAN J: Then he found, did he not - and I am looking at page 747, line 10 - that the appellant:

having in some way which the evidence in this trial does not disclose become aware of the availability of a quantity of heroin . . . became involved in the organization of the transportation of that heroin from Hong Kong via Vanuatu to Australia and its importation into Australia -

So the trial judge had found motive against your client, and also has found that he became aware in some way, undisclosed way, of this and, in effect, joined the scheme for its importation.

MR SCRIVENER: Well, initiated the scheme. He did not join it; he initiated it. Because by this time the learned judge has found that he accepted the evidence of Cheung.

CALLINAN J: But his conclusion is expressed in the passage at page 747, which does not say anything there about initiation, but you say that has been found earlier, do you?

MR SCRIVENER: If your Honour would bear with me a moment. I think that that is - if I may, with great respect - a little unfair, because the paragraph actually begins by saying, "In substance I accept the evidence of Cheung Siu Wah".

CALLINAN J: Yes, I have noticed that.

MR SCRIVENER: I think the rest of it follows in the light of those words, that is what I would submit.

CALLINAN J: But do you say that his finding in relation to motive is a consequence or could not stand without his findings adverse to the appellant, and accepting the accomplice?

MR SCRIVENER: I simply say that if he had accepted the evidence of Cheung, the accomplice, in all those categories which the learned judge set out, and that it followed that he had been in it from the beginning, he had, in fact, recruited the others, planned it from the start, then it is not surprising he found motive. In fact, if you accepted Cheung, there is no room for a motive argument at all, in our submission. It would not make any sense. If you look down that list which you saw his Honour set out earlier, found those proved, and then to say there was no motive being honourable, it would be a very difficult submission to sustain.

So I think, with respect, the answer to it is that motive was always a matter for him, but it must have been clouded by the fact - if, for instance, the jury had an indictment to deal with like the one we have drafted and found not guilty on count 1, guilty on count 2, then the learned judge might have a much more difficult task in finding motive proved. It is a scenario which we cannot consider, because it never happened. The reason why it never happened was by the way the indictment was laid and presented. There was never that opportunity given.

I have said more than once that these are exceptional cases. I accept that and, indeed, there has not been a flood of cases following Stosiek and Efionayi, to my knowledge. It may be that indictments are better worded, more concisely worded, more accurately worded, to match the case which is being presented. So could I pass on to the next point, and that is what is the most favourable view, if, indeed - - -

CALLINAN J: Mr Scrivener, take a case without the complication of an accomplice, that two eyewitnesses, each of whom gives a version of an offence which would inculpate the accused, but one version is of a much less serious offence, and the Crown, properly, in pursuance of its duty, calls both witnesses as material witnesses. What do you say should happen in that case?

MR SCRIVENER: I have to ask a question rhetorically: in what way did the prosecution open the case? If the prosecution just presented the case, "You have got two eyewitnesses. It is for you to believe either or both", and so on, that is one thing. If they said, "We want you to look at this case either on the advantage of having X, what he saw, which was not very serious, or, alternatively, if you failed on that one, look at B", then you are running two cases in one. It does not become duplicitous because it is all one activity, but that is what you are doing, and it depends on how you present the case.

I think the most easy example, perhaps, is a fray where you get all sorts of versions going on in a fight, and that is why you often charge in a fray because you have not got to work out all the minute details of it all, but it goes in one charge because you are not running one thing above another. You are not running two alternatives. It is the running the two things in the alternative and not having alternative counts to match it which has caused the problem here.

It would be a very curious system, if there is section 80, there is a written Constitution establishing jury trials and trials by indictment, and, obviously, the jury's verdict must be taken into account by the judge who is passing sentence. It is a very curious system, if it does allow the possibility that the jury may have disbelieved an important witness of fact, but the judge believed him for sentence, and that matter could have been clarified quite easily by an appropriate amendment to the indictment. That, in a nutshell, is our case.

KIRBY J: It is curious if you put that way. It is not curious if you take a strictly logical view that each plays their separate roles. The jury determines whether the offence has been established, and then the judge plays his or her separate role and determines the facts relevant to the sentence.

MR SCRIVENER: I agree with your Honour if, in fact, the law was he did not have to pay regard to the verdict, but the cases establish, and it is well asserted, that he must make sure his sentence is consistent with the verdict.

KIRBY J: Well, then the question is does the verdict merely speak to the ingredients of the offence, or does it go beyond that and speak of the - it is the peculiarity of this case where you say there were two cases that presents the issue but - - -

MR SCRIVENER: Yes. All the averments that we put in our amended indictment are material.

KIRBY J: The problem is that one has to try to formulate a principle for cases that are not like this case, where there may be 15 cases or 15 ingredients of fact, each one of which could be relevant to the sentencing.

MR SCRIVENER: I would submit that you should go back to a well-tried formula that you find in Efionayi, a verdict consistent with two views of the facts, and it would have been possible to amend the indictment to obtain the jury's views, in that situation you should take the view most favourable to the defence. So I do not have play around with words and try and invent a formula. I would go back to a well-tried formula which you will find in Archbold in the paragraph I gave to your Honours earlier. That very precisely states the principle, keeps it in limits, does fairness in this case, and will prevent prosecutors including in one omnibus account two versions; one very easy to prove, one more difficult, and then expect you to get a sentence passed on the more difficult, which is what the law leaves open at the moment.

So the next question is: what is the most favourable view? It was accepted that if you accepted Cheung, maximum life in prison was appropriate. There were then two alternatives. One was less involvement than Cheung. That was based primarily on the failing to report and the telephone calls. It is referred to in Mr Nicholson's written submission at page 18 - the learned Chief Justice referred to it actually in another context this morning - where he asks the judge to take into account what was actually done, and there is a huge difference between his involvement in that way and the catalogue of events and facts which you would have to take into account if he were to be found guilty on the other basis.

The third way he put it was the motive point. Now, I cannot rely on that because motive is for the judge, so what I am inviting this Court to do is to compare the first alternative with the second, look at the acts that were done and ask the question whether he being convicted of the alternative the sentence would have been the maximum known to the law. Serious it might have been, but no one was wasting their time in having these detailed submissions because an attempt was made to distinguish between the two. As my learned friend said on the last occasion, it was a different basis for sentencing and it clearly was. So we would submit that is the correct way to look at it.

The matter has become clouded, it turns out, through our fault because we thought the admission that was made was connected with a second alternative. My learned friend said it is quite clear it is not. His concession was based on the motive point and if that is what my learned friend says, of course I accept it.

Now, may I then just briefly turn to the other points. These are all random points taken from my learned friend's submissions as they were made. The prosecutor's schedule, I do not wish to do a response as if I am making a speech to a jury on the points made by my learned friend which was an eloquent prosecutor's speech; but I would ask your Honours to look at the way the case was dealt with by the judge.

KIRBY J: You have already made that point.

MR SCRIVENER: I have and there is no need for me to run over it again.

KIRBY J: If there are small matters of fact that you want to deal with, may it not be that a sheet of paper would be a better way?

MR SCRIVENER: Only one point I will make. I am not going to deal with it one by one because, in my submission, it does not need that, if I am right, and that is on the alleged Amy meeting. Amy never gave evidence. Cheung, the accomplice's wife, said she saw them in a café together, which the defendant denied. There was no evidence as to what was said and the learned judge, when he came to deal with looking at the facts, found it unproved; he could not find their meeting proved.

I just make those comments on that one particular item because it is mentioned more than once, but there are a lot of points which can be made, not least of which is the point that there was a huge dispute between the interpreters and it would not be right, as my learned friend was suggesting, that an interpreter was allowed to say as to whether there were two equals talking or not. That would be a matter of opinion. So, I leave all those on one side. We are either right or we are wrong.

GLEESON CJ: How long do you expect to require for - - -

MR SCRIVENER: Ten minutes.

GLEESON CJ: Thank you.

MR SCRIVENER: I wanted to deal very briefly with a suggestion that we have not made much of our constitutional point. Can I just respectfully ask your Honours to look at our written submission and you will find that we have four matters we rely upon on that, not all which I develop because I want to keep my oral submission within bounds. The first was based on the fact that these were issues of fact for the jury. The jury's verdict has to have an impact on the sentencing. If that is right, there is a duty to look at that, and there is a duty to find out if it can reasonably do so, and respond to it.

The second submission was based on the fact that there are various essential features of a criminal trial and for the judge to be able to know what the verdict, if possible, is one of them because it then makes a sentence appropriate, and if you allowed this to happen, which has happened in this case, the one charge with two separate offences inside it, in effect, then that would allow the Constitution section 80 to be frustrated and there was a way of getting around it.

GUMMOW J: Getting round what? This is the problem. "Frustrated" is a metaphor.

MR SCRIVENER: Can I explain that. If it is right for the judge to take into account the jury's verdict, it must be to guide him in sentence. If that is accepted, that is the starting point in Isaacs, stage 1. Stage 2, if that is right, the judge ought to have a duty to be able to find out, within reasonable grounds, what it is, what the verdict amounts to, and then we have got those helpful quotes in all those cases which the Solicitor-General put in; that is stage 2. Third, if in fact there is something that could be done which was not, which would enable him to find out, not to do it would be to frustrate the purpose of section 80. So that is how it proceeds in those particular stages. Our third submission was to say these catalogue of offences were so different, comparing the accomplice version and not - they were, in reality, two offences. That is our third submission.

The fourth submission was to latch onto Kingswell and Bright and say, if I am wrong about everything else, these were aggravating features, at least, and unless you are going to confine the Kingswell principle to statutory enhancement only rather than a wider basis, which was suggested perhaps in Bright, and, indeed, in Kingswell, by some judges, then the Meaton rule of practice should have applied. If you are going to get two possible verdicts or two different sentences, then in that peculiar situation you should plead the aggravating features, and they can be easily listed as they were done by the judge. Now, those were the four constitutional points which we made. As I say, we put them in our written submission and they are there quite shortly.

We would accept what was said in McKenzie. Each case depends on its own facts whether it is exceptional enough. The Heti Case, that concerned an irrelevant averment and of course would not be allowed, so that that fits in perfectly with the principles we suggest. The Parker Case, where it cited Efionayi, in fact stopped before the vital sentence, the quotation, and the whole of the sentence should have been looked at. Young, the consent in the buggery case, a non-material averment. So that also is explicable on that basis. Now, that, very shortly, are the points we make in reply.

GLEESON CJ: Yes, thank you, Mr Scrivener. We will reserve our decision in this matter.

AT 3.38 PM THE MATTER WAS ADJOURNED