Chung v The Queen S162/2001 [2001] HCATrans 455 (25 September 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S161 of 2001

B e t w e e n -

PO CHONG FAN and KAI KONG LI

Applicants

and

THE QUEEN

Respondent

Office of the Registry

Sydney No S162 of 2001

B e t w e e n -

TAT SANG CHUNG

Applicant

and

THE QUEEN

Respondent

Applications for expedition

GAUDRON J

(In Chambers)

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 25 SEPTEMBER 2001, AT 10.05 AM

Copyright in the High Court of Australia

MR C.C. WATERSTREET: If the Court pleases, I appear for the applicants. (instructed by Hardinlaw Lawyers)

MS K. MARINOS: May it please the Court, I appear for the respondent. (instructed by the Director of Public Prosecutions (Commonwealth))

MR WATERSTREET: This application arises for special leave in the circumstances that have arisen since this Court's decision in Cheng. What happened in Cheng is that this Court decided that in terms of quantity, that the procedural fairness of allowing the Crown as a matter of procedure to put in the indictment the alternate quantities alleged and to leave it to the jury as a matter of practice was a satisfactory way of dealing with procedural fairness.

This matter arises in relation to the quality of the drug and raises a unique issue and puts the applicants in an almost impossible catch-22 position, namely, this: section 235(8) demands that the drug itself be put into the indictment. If, on its face then, the applicants' defence is they believed that they were involved in the importation of cannabis, not heroin, no rule of practice, it would seem, would satisfactorily deal with the issue of pleading guilty to an indictment on its face alleging heroin, an issue left open after Cheng, a matter dealt with by procedural matters since Meaton. It leaves the applicants in the situation where, to get the benefit of a discount on a plea, they would have to plead to an indictment involving a drug to which they say they had no knowledge at all and to which the benefits of appeal would not be open if one looked at Cheng. In other words, as your Honour may have recalled from Cheng, Cheng was found to be an unsuitable vehicle - - -

HER HONOUR: Now, Mr Waterstreet, all of this is very fascinating but it is an interlocutory application.

MR WATERSTREET: There is no doubt about that.

HER HONOUR: What, in fact, are you seeking? I just do not understand. What are you seeking? To be able to frame the indictment yourself?

MR WATERSTREET: No, no.

HER HONOUR: To have the indictment charge "cannabis" when it patently was not cannabis?

MR WATERSTREET: Yes, no, but to have the charge to be pleaded to so that the jury instead of being directed that the quality of the drug was irrelevant as must be - - -

HER HONOUR: This is, at first blush, close to the bizarre. Tell me what you want in your indictment. What do you say Judge Shadbolt should have done?

MR WATERSTREET: It was a matter - his Honour used the word "demurrer" when in fact this is what the - - -

HER HONOUR: Just tell me what he should have done.

MR WATERSTREET: He should have stayed the current indictment until the indictment was amended to include the alternative for decision by the jury of cannabis.

HER HONOUR: What do you mean? You mean, you want alternative counts in the demurrer?

MR WATERSTREET: In the indictment.

HER HONOUR: In the indictment, yes. One charging heroin; the other charging cannabis when it patently was not cannabis?

MR WATERSTREET: No, but it was believed to be cannabis.

HER HONOUR: But that does not matter, does it?

MR WATERSTREET: Well, it does, in our submission, under the rules of interpretation of section 233B(5). Can I just say in fairness to that, is that as Cheng indicated, in relation to quantity, the matter may never arise again because as a matter of procedure the Crown put in the alternate quantities. In relation to the quality of the drug, if the Crown were - - -

HER HONOUR: It is not the quality of the drug. It is - - -

MR WATERSTREET: The nature of the drug; whether it is cannabis.

HER HONOUR: Yes.

MR WATERSTREET: Well, your Honour, as a matter of construction, they must allege that drug in the indictment. If the belief of the accused is that it was not heroin that they were knowingly concerned with, but cannabis, we would submit that as a matter of - - -

HER HONOUR: This is only relevant to a plea in mitigation in the event of a plea of guilty or a guilty verdict, is it not?

MR WATERSTREET: No. With respect, if they plead guilty, they are pleading guilty in a situation where it puts them in the situation of Cheng where they can never reopen the issue of their knowledge of a - - -

HER HONOUR: This is a question then that only arises in the event that they are found guilty. It is a plea of mitigation, is it not?

MR WATERSTREET: No, it is plea of guilt to which they wish the jury to decide whether or not it was their knowledge of heroin or whether or not it was their knowledge of cannabis. They are not asking for - - -

HER HONOUR: The intention is to plead guilty, is it?

MR WATERSTREET: To cannabis.

HER HONOUR: To cannabis when it was not cannabis.

MR WATERSTREET: Or not, or not. Or to leave it to the jury - - -

HER HONOUR: When it was not cannabis.

MR WATERSTREET: No, but all the tapes and surveillance - all the tapes suggest that prior to arrest they were talking about cannabis. Heroin arrived. What they want the opportunity to do is let the jury decide and under current - - -

HER HONOUR: Decide what?

MR WATERSTREET: Whether they believed - - -

HER HONOUR: Decide whether they are guilty or innocent of the offence charge?

MR WATERSTREET: Yes, and the offence charged is heroin and they want to be able to have the jury decide whether or not it was heroin or cannabis. They are not asking guilty or not guilty, but under current rulings they are not given the benefit of having a jury decide whether section - - -

HER HONOUR: Well, if you plead guilty, you frequently do not have the benefit of the jury deciding. Anything else for expedition that you wish to say?

MR WATERSTREET: Yes. There are a number of cases where, as a result of Cheng, the accused are in this catch-22 situation, namely, if they plead to an indictment, that on its face, they are their advisers indicate they are not guilty, then it would be bizarre that they are forced to plead guilty in order to achieve the benefits of a guilty plea, that is erosion of their sentence. If they plead not guilty under current rulings, then the courts time, throughout Australia, because there are a number of cases on this situation, are wasted until a guilty finding is made when they are plainly saying, "We are not guilty of heroin; we are guilty of cannabis", but they are never going to be allowed to have that question decided by a jury under current rulings. Under current rulings, the judge will say, "Regardless of whether they thought it was cannabis or not, you have to find them guilty". But they have to go through that charade. Countless trials will have to go on when the issue is either the Crown would accept a plea to cannabis or would allow a jury under section 80 to deal with - - -

HER HONOUR: When it is not cannabis.

MR WATERSTREET: No. As it turned out but the gravamen of the offence is knowing concern, not what actually took place. So that if, for example, people conspire to import A, if one party has product C in mind, the other party has a product D, there can be hardly a meeting of minds in relation to the nature of the product. Here, procedural fairness, we would indicate, puts people where they thought the drug was different in an inferior position than those who, by rule of practice, have the benefit of a jury decision on the quantity of drug. In other words, Meaton gives those persons where they say, "I thought it was a smaller quantity than the larger quantity", the benefit of a jury decision on that, whereas people who thought it was drug A, not drug B, do not have the benefit of a jury decision on that, and that is the threshold point. In other words, by practice and procedure, this Court has told the lower courts that as a matter of practice the jury should be allowed to determine the quality.

HER HONOUR: Has the matter been listed for trial?

MR WATERSTREET: The matter is listed for trial in March. We understand though that if the special leave was heard this year, that the trial, if special leave were successful, could be vacated; if special leave was unsuccessful, it would go on, obviously.

HER HONOUR: Why should it not go on regardless? That is the usual rule in respect of criminal trials, is it not? This Court has said many, many times it does not intervene at the interlocutory stages.

MR WATERSTREET: Except it would lead to a number of trials throughout the Commonwealth going ahead on the false basis of preserving their rights in relation to pleading not guilty because the indictments says "heroin" when they believed it was cannabis and it would lead to a façade, a charade - - -

HER HONOUR: I do not see that at all. It is either a defence or it is not a defence. It is as simple as that, is it not? It is either a defence or it is not a defence.

MR WATERSTREET: Yes, but if it is a defence, it is a defence that should be left to the jury, with respect, in the same way that quantity is left to the jury. Why should the nature of the drug not be a jury question? That is what we are asking this Court to determine.

HER HONOUR: Well, that is a matter of substance. If you have anything to say to the urgency - forget about the substance which does not seem to me to be great at this stage.

MR WATERSTREET: The urgency is that should the trial be called on before this Court decided the special leave matter, those advising defendants and accused across the Commonwealth would need to advise them to plead not guilty in order to preserve their rights.

HER HONOUR: Well, if they are not guilty, they are not guilty. It seems to me you are missing something very obvious here. It is either a defence or it is not a defence. If it is a defence, they are not guilty; if it is not a defence, they are guilty, and the matter can surely be raised by way of mitigation before the District Court judge or whoever the judge is, the sentencing judge. It seems to me to be bizarre what you say.

MR WATERSTREET: Well, if in quantity matters it is decided by a jury, why should it be different, I ask rhetorically?

HER HONOUR: Exactly. That is why, as I said, it is either a defence or it is not a defence.

MR WATERSTREET: Well, we say it is a matter of constitutional imperative, that the trial of the very nature of the substance be determined by the jury, not by the judge, as it is now by procedure; not by statutory interpretation but by fair practice, the Commonwealth - - -

HER HONOUR: I take it your clients are charged with importing a prescribed or something quantity of prescribed drug heroin.

MR WATERSTREET: Yes.

HER HONOUR: Right. Now, it is either a defence that they thought they were importing cannabis or it is not a defence. Is that not right? They are absolutely mutually exclusive alternatives - true alternatives, right? It is either a defence or it is not a defence. The whole universe.

MR WATERSTREET: And then there is another trial on cannabis.

HER HONOUR: Why? They are not charged with cannabis. They did not import cannabis. There cannot be another trial on cannabis. There is no cannabis.

MR WATERSTREET: On the trial judge interpretation, he would tell the jury this, that if they thought it was cannabis, that is not a defence.

HER HONOUR: Very well. Well, that can be dealt with later if the issue arises. Mr Waterstreet, it seems to me your application for expedition is bound to fail because the application for special leave does not really have any substantial merit, it seems to me, and it would be wrong to displace other matters in the list or in the queue for a matter when this Court has said time and time again the Court will not intervene in interlocutory aspects of criminal proceedings.

MR WATERSTREET: I hear what your Honour says. I put what I can. I say that they are in a catch-22 because they are now condemned to go through lengthy criminal procedures of which their defence, as it were, cannot be run by mitigation but can only be run within the trial and public administration and public funds would be used up in preserving the rights at the end of the day.

HER HONOUR: Yes, thank you. I do not need to hear from you, Ms Marinos. Criminal matter - no order as to costs?

MS MARINOS: Yes, that is correct.

HER HONOUR: Application for expedition is refused. There will be no order as to costs.

AT 10.20 AM THE MATTER WAS CONCLUDED