Cameron v The Queen P59/2001 [2001] HCATrans 611 (22 November 2001)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P59 of 2001

B e t w e e n -

JOHN LEONARD CAMERON

Appellant

and

THE QUEEN

Respondent

GAUDRON J

McHUGH J

GUMMOW J

KIRBY J

CALLINAN J

TRANSCRIPT OF PROCEEDINGS

FROM PERTH BY VIDEO LINK TO CANBERRA

ON THURSDAY, 22 NOVEMBER 2001, AT 12.07 PM

Copyright in the High Court of Australia

MR T.F. PERCY, QC: I appear in this matter together with my learned friend, MS D.J. DAVIES, for the appellant. (instructed by D.G. Price & Co.)

MR R.E. COCK, QC: If the Court pleases, I appear with my learned friend, MS L. PETRUSA, for the respondent. (instructed by Director of Public Prosecutions for Western Australia)

GAUDRON J: Yes, thank you, Mr Percy.

MR PERCY: Thank you, your Honour. As the Court will be aware, special leave was granted in this matter on 25 October this year and comes before the Court by way of an expedited hearing. The short issue for determination is whether or not the Court of Criminal Appeal in Western Australia made an appropriate discount for the appellant's plea of guilty.

GAUDRON J: Is that exactly the issue, or is it really whether it failed to properly take account of the circumstances in which the plea was entered?

MR PERCY: That is correct, your Honour, with respect. We would say that is the appropriate analysis of it but, at the end of the day, it comes down to whether there was an appropriate discount. That is the result.

McHUGH J: Discount for what? For pleading guilty?

MR PERCY: For pleading guilty, yes.

McHUGH J: Now, you are in federal jurisdiction. Why are you entitled to any discount in federal jurisdiction for pleading guilty? Does that not discriminate against people who plead not guilty in federal jurisdiction and are then convicted? Is that consistent with the application of the judicial power of the Commonwealth which, I would have thought, required persons to be treated equally, particularly in so far as this discount is based on what is called the "utilitarian value of a plea of guilty"? In other words, people get a discount because it helps clear the court lists. Now, is such a principle consistent with the application of the judicial power of the Commonwealth which, I would have thought, requires all persons who are tried on federal offences and sentenced to be treated equally?

MR PERCY: Perhaps the first point is whether it is a federal jurisdiction. This offender was dealt with under the State Act or was dealt with under - - -

GUMMOW J: That was by reason of the application of the Commonwealth Places Act, was it not?

KIRBY J: Mr Cock points out in his written submissions that the arrest took place at the airport, which is a Commonwealth place, and that, therefore, that attracted the federal legislation, which applies to State laws but it is still a federal jurisdiction matter. First of all, the point that Justice McHugh has just raised has never been raised against you by the Crown and was never raised by you as not been given notice of. Has anybody ever given the slightest hint of this before this moment?

MR PERCY: Speaking for myself, I was not prepared to argue this point. It is not a point that Mr Cock has ever taken either at the special leave application or previously.

KIRBY J: It would really be for him to take the point in resistance to your application, would it not, not for you to take the point? The suggestion is that the equality principle would put you out of court for the discount that everyone, until now, has assumed you are entitled to and the question has been the amount of the discount.

MR PERCY: Yes. I would have thought it is a particularly interesting point, but it is not one that has been within the parameters of this appeal until now.

GAUDRON J: There is, of course, an interesting question as to what "equality" means. It does not mean uniformity, or sameness, ordinarily. It means that proper regard is had to difference at least. The answer you might make, I suppose, is there is a real difference when somebody pleads guilty and it is not simply in relation to the utility of the situation. But if so, what is that difference?

MR PERCY: The difference is that it is indicative of remorse and it indicates that a person has some contrition for his behaviour and, in addition, there is also the utilitarian aspect which has, I think, been the subject of examination of this Court in cases such as Siganto, which is referred to in my learned friend's outline of submissions, the principle there being, of course, that one cannot look at the fact that someone took the matter to trial as a matter of aggravation, but rather that there may be significant reasons why someone who pleads guilty should be looked at more leniently and we would say that it does not - - -

McHUGH J: But Siganto says that that is on the pragmatic ground that the community is spared the expense of a contested trial. Is that seriously a matter that should be taken into account in the exercise of federal jurisdiction, when one is dealing with the judicial power of the Commonwealth? Has economic rationalism gone to the extent that whether or not persons have to serve longer than other persons convicted of the same offences, with the same mental approach, are to serve longer sentences because of economic or pragmatic grounds of expense?

MR PERCY: I think the approach has always been that no one servers a longer sentence. It is just that where there are significant mitigating factors such as a plea of guilty, you can have - - -

McHUGH J: I have no problem with the notion that in so far as a plea of guilty truly indicates contrition on the part of an accused person, it is a legitimate matter to be taken into account, but it seems to be accepted on all hands here that the plea of guilty has a utilitarian or pragmatic ground. So if you stand on your rights but are convicted, you have to serve longer than somebody who has no contrition whatever but says, "Well, for utilitarian purposes I will plead guilty and I get a discount" - of anything up to 25 per cent apparently.

KIRBY J: Thirty-five per cent.

McHUGH J: Thirty-five per cent. At first blush, there does not seem to be too much equality about that.

MR PERCY: It seems to have been the way, whether it is in State or federal jurisdiction, that sentencing courts around Australia have worked for many years in treating the utilitarian value of a plea as being something of considerable significance.

KIRBY J: Mr Percy, I am just a little concerned about the procedural aspect. Section 78B of the Judiciary Act 1902 requires that if a constitutional matter is going to be argued, that notices be given to these law officers of the Commonwealth. You and Mr Cock in your written submissions have certified that you have given thought to that question and both of you have concluded that there is no such need in this case and no notice has been given. So I think if this issue is going to be elaborated in this appeal, we would have to know now - and it is really for Mr Cock, I think, rather than for you to be raising it - whether he wishes to embrace Justice McHugh's proposition. I am not sure whether he does. He certainly has not given the slightest hint of it in his written submissions.

MR PERCY: Yes. Perhaps we should hear from Mr Cock in that regard.

McHUGH J: It may be that you will be flat out finding any Solicitor-General or Attorney-General around the Commonwealth who would want to argue the opposite. They want to clear the lists. It may be that you will not get a contradictor until somebody is convicted after a plea of not guilty and then demands the same discount. But we might hear from - - -

GAUDRON J: Yes. At this stage it would be appropriate for you to go to the merits of the argument as you have put it.

MR PERCY: If your Honours please, yes.

GAUDRON J: Yes, thank you, Mr Percy.

MR PERCY: Your Honours, obviously the facts are well known to the Court. This man was originally charged on 23 April in the Court of Petty Sessions here on a complaint alleging that he had in his possession a prohibited drug under the State Act, and that is a quantity of ecstasy. That charge remained the one that was before the court for some considerable time. He was denied bail and he was remanded through to what we call an election date upon which he was required to say whether he wished to have a preliminary hearing in the matter. Before that date papers were delivered on him indicating that an analysis of the substance had been performed and that it was in fact methylamphetamine.

KIRBY J: Is that what is popularly known as speed, is it?

MR PERCY: That is correct, your Honour, yes. There are various types of it, but this is obviously - - -

KIRBY J: Looking at these longwinded chemical names, one would think that you would have in brackets the popular name of it in the regulation, but apparently not so. How would an ordinary person know what these chemical substances are?

MR PERCY: That is right, particularly ecstasy, which is about 24 syllables long with a couple of digits interspersed with it as well. It was said in the statement of material facts that it was alleged to be ecstasy. The certificates of analysis were not immediately available but became available to the prosecution which at that stage was being carried by the police, as is normal in Courts of Petty Sessions in this State. They were at all times, after 28 June, aware of the fact that the substance which had been obtained from him was in fact methylamphetamine. That arises from the affidavit which was not before the Court at the time of the special leave hearing. It now appears at page 101 of the appeal book in the form of an affidavit from the police officer in charge of the case, one Julie Willdigg.

KIRBY J: May I just get this clear. This is a point I think Mr Cock makes in his written submissions. The offence itself is common whether it is ecstasy or speed?

MR PERCY: Or anything else.

KIRBY J: It is suggested that at an early stage you could have pleaded guilty to the offence and awaited correction of the particulars.

MR PERCY: That would be possible if the accused had known that it was open to him to move the court for an amendment to the complaint, but it was particularised in the complaint that it was ecstasy.

GAUDRON J: It was not particularised as such. The charge was ecstasy, was it not? The charge was not "possession of a prohibited drug", then "particular such-and-such". The charge said, did it not, "possession of speed"?

KIRBY J: It is page 1 of the appeal book, I think.

MR PERCY: That is right. It says:

Had in his possession a Prohibited Drug, namely -

and then it specifies the chemical name for ecstasy -

with Intent to Sell/Supply.

GAUDRON J: That is the complaint.

MR PERCY: Yes.

GAUDRON J: Later there appears a charge.

MR PERCY: An indictment.

GAUDRON J: An indictment, I am sorry.

MR PERCY: By the time that came into existence, he had already pleaded guilty.

GAUDRON J: Thank you.

MR PERCY: What happened was that he - - -

KIRBY J: Just help me with this. At page 3 is the indictment and that refers to "a quantity of methylamphetamine".

McHUGH J: The reference to ecstasy comes from the statement of material facts, does it not? That is where it comes in at line 30 on page 2.

MR PERCY: It comes from ecstasy there, but ecstasy is nominated as the prohibited drug in the complaint. That is the process that brought him before the court specified "3, 4 Methylenedioxy, Alpha-Dimethylphenylethyl Amine", which is ecstasy.

KIRBY J: Can I just get this clear. The complaint when originally made was the complaint as typed at page 1?

MR PERCY: That is right.

KIRBY J: It is only subsequently after the chemical analysis was completed that the chemical composition for methylamphetamine was written in, is that correct?

MR PERCY: That was written in by the magistrate when the matter was brought before the court expeditiously by counsel for the accused when it was known that he was going to plead guilty in accordance with the certificates of analysis. That was in November.

KIRBY J: And the indictment was framed after that at page 3 of the appeal book?

MR PERCY: That is right.

KIRBY J: That correctly charges methylamphetamine, which is speed?

MR PERCY: That is right. He pleaded guilty to that before anyone sat down to draw the indictment. So the situation was that he was arrested 22 April, charged 23 April, the matter proceeded through a number of perfunctory remands until - - -

GUMMOW J: Four, was it not?

MR PERCY: I think so, yes. They were ones where he would simply be part of 20 or 30 accused at the prison who had come before a video situation such as we have here and simply be processed through to the next date. It was a completely perfunctory court appearance which was dealt with essentially in bulk by a presiding magistrate and a legal aid officer with no particular familiarity with the file. So he went through those until such time as the certificates of analysis came to hand. They confirmed that the complaint as it stood was wrong and he elected to have a preliminary hearing.

When it was made known to the Crown - and that apparently was not until November - that the complaint was wrong - because these matters would simply continue in the hands of the police until such time as the preliminary hearing drew nigh and then someone would be allocated to investigate the matter. There is in the affidavit of the Crown Prosecutor in question, Ms Longden, which appears at page 106 of the appeal book, that it was apparently not known to the Crown until 4 November. This is at page 107 of the appeal book.

KIRBY J: Just pausing there, please, this is an affidavit by a Crown Prosecutor sworn 9 November 2001. Is this placing new evidence before the Court, because the Court says it cannot receive new evidence.

MR PERCY: Yes, we are aware of that.

KIRBY J: This was not before the Court of Criminal Appeal?

MR PERCY: No, it is not but I think it is an agreed fact between myself and Mr Cock that that is the state of the matter. It is an agreed fact, in effect, and I think it is referred to in the chronology in the submissions and it is a matter we would say the Court could act on because it is a matter we both agree on.

KIRBY J: It may be better that we act on the basis of the agreed facts between counsel as to what happened rather than an affidavit, because the Court has taken a firm line in Mickelberg and Eastman that it will not receive new evidence.

MR PERCY: Yes, of course, your Honour, and we would say that that is, with respect, entirely appropriate, but it is simply an agreed fact that the matter proceeded in the hands of the police for some months notwithstanding that the error was quite patent by 28 June. As of that date, the police officers were aware of and had in their possession certificates of analysis showing that the substance was conclusively methylamphetamine and not ecstasy. Nevertheless, there was no attempt to amend the complaint by the police. The accused simply went through his remands awaiting his preliminary hearing until on 4 November the Crown - - -

KIRBY J: Was he notified of the chemical analysis or was his solicitor notified?

MR PERCY: I think there is no evidence that he was. I am unable to say that. On the last occasion when the matter came before the Court by way of special leave application, an affidavit was put before the Court, I think at the request of the Court, by a Ms Amsden from Legal Aid. That indicates at page 92, the last paragraph there:

There is no information contained on any Legal Aid file that indicates Mr Cameron received copies of all relevant material.

So, being in custody, it may well be that the relevant documents were simply retained by Legal Aid, but there is certainly no evidence that he knew the result of the chemical analysis at that stage.

GUMMOW J: Anyway, this could all be explored if the matter went back to the Court of Criminal Appeal.

MR PERCY: Of course, your Honour, yes. That is probably more properly, with respect, a matter for them. All we say is that the police, who were the prosecuting authority at that stage, knew from the end of June onwards that the complaint was wrong and there was no attempt to amend it.

The first time there was any suggestion that it be amended was - and I think this is in the agreed facts - on 11 November Legal Aid wrote to the Crown and agitated the matter saying, "This complaint is wrong in accordance with the certificates of analysis. If you want to bring it back on early before the date set for the preliminary hearing", that is, 19 November, "we will amend it and we will plead guilty or you can amend it and we will plead guilty".

KIRBY J: Now, can I ask you there, if your client was not notified of the official chemical analysis, but volunteered this at this late stage, why could he not have done so earlier?

MR PERCY: It appears that it might well have been open to his counsel to do it, but that appears the first time that anyone had really turned their mind to it and it appears, on the agreed facts, that the certificates were not actually received at Crown Law until some time in November. So, after the charge had actually been amended it went back before the court and - - -

KIRBY J: What was the date of the amendment?

MR PERCY: The date of the amendment, I think, was 17 November 1999.

GUMMOW J: Now, could we just look at page 86 of the appeal book, which is what seems to me to be the crucial passage in the Court of Criminal Appeal, line 14? It was submitted "it was not possible" and then a couple of lines down:

it would still have been open to the applicant at a much earlier stage to indicate -

Well, the necessary factual footing for that was not before the Court of Criminal Appeal, was it? Is that not why we are trying to investigate it now? It was not investigated then.

MR PERCY: I think that is probably correct, your Honour.

GUMMOW J: So there was no factual footing for that assumption. It seems to me to raise a problem, a problem for the prosecution.

McHUGH J: And it also raises a problem from your point of view, does it not, because the fact that this was speed and not ecstasy seems to have played no part in your client's decision to plead guilty. He was caught with the goods and he elected to plead guilty at a later stage. To whatever the drug was he was pleading guilty to it and as for all we know, it appears that it was a matter of complete indifference to him. He was pleading guilty to this charge and it was his solicitors who wrote off and after all their letter of 10 November seems rather iffy. It says:

I would be grateful if your office could please determine whether or not they are of the opinion that the appropriate particular is possession of MDMA, as the analysts certificate indicated . . . the complaint as it's currently drafted is incorrect and should be amended to properly reflect the drug which was in Mr Cameron's possession.

The identity of the drug does not seem to have much to do with his decision to plead guilty.

MR PERCY: With respect, we would say that he was happy to plead guilty to the correct drug, that is that it was methylamphetamine. He was not going to plead guilty to - - -

GAUDRON J: Was not his account that he had brought it for a friend and he did not know what it was? Was not that his account at trial?

MR PERCY: Well, it did not go to trial but that was his account.

GAUDRON J: I am sorry, on the plea.

MR PERCY: On the plea, yes. He was not entirely certain as to what it was but he was not going to plead guilty to ecstasy and once he had an analysis from a pharmacist to say what it was he was very happy to plead guilty to methylamphetamine.

KIRBY J: Well, happy might overstate it. He was prepared; he was prepared to plead guilty once the proper substance was identified and the particulars were changed.

MR PERCY: That is right and he did it instantly and one would say that was appropriate because, in the absence of him having some pharmaceutical knowledge of exactly what it was, its purity and whatever, it was inappropriate for him to enter such a plea.

KIRBY J: Now, I do not know about this, but is there a higher level of punishment for possession of ecstasy than for possession of speed?

MR PERCY: No, it is dealt with the same. As of recent times in this State in the last couple of years they have attracted similar penalties. There used to be a situation in place where it attracted a lower penalty.

McHUGH J: Did he give any evidence before the judge that he only decided to change his plea when he found it was speed and not ecstasy?

MR PERCY: Well, the evidence was in the amendment to the complaint. It was amended on 17 November and he instantly changed his plea upon the amendment being allowed.

McHUGH J: But he was going to change his plea before the amendment was going to be allowed, because his solicitors indicated in their letter of 10 November.

MR PERCY: That is right.

McHUGH J: Is there any evidence from him anywhere which would indicate that the reason he did not plead guilty earlier was because he thought he was being charged with possession of ecstasy? Now, you made that statement from the Bar table but is there any evidence to support it anywhere?

MR PERCY: No, it is only what was said on his behalf at the hearing of the facts on the plea of guilty, but short of that, your Honour is correct. There is no evidence of those matters, but that was always his position. Once he was certain as to what it was, once the correct charge was before the court, he pleaded guilty to it straight away, long before an indictment was drawn or before it saw the light of a superior court.

KIRBY J: I am surprised to hear you say - if ever I knew this I have forgotten it - that the punishments that are imposed by the courts for speed are the same as for ecstasy. I would have thought that because of the problem of the penetration of ecstasy that courts might, for deterrent purposes, impose heavier penalties for ecstasy, but I do not know. Anyway, you tell me that it is the same.

MR PERCY: Yes, I do, and further to that - I think Mr Cock would agree with me - is that until recent years ecstasy was dealt with more leniently than methylamphetamine in this State. The problem for this person - - -

GUMMOW J: Anyhow, this gentleman came from New South Wales, did he not?

MR PERCY: That is correct and there are many lawyers who probably would not know what the hierarchy was in this State, let alone a civilian who is apprehended at Perth Airport, so one could say that it was entirely within a good exercise of prudence on his part not to plead guilty to what was mentioned in the complaint until he saw, in the circumstances of this case, a chemical analysis of it, which he did and he pleaded guilty to the.....

If I could go back to your Honour Justice McHugh's question about whether he could have technically pleaded to that, I think there was a concession on the part of the Crown at the Court of Criminal Appeal at page 75 in the appeal book where Justice Ipp asked the Crown counsel, Mr Dempster, at line 15:

But could he have pleaded guilty earlier?

DEMPSTER, MR: He technically could not have pleaded to that charge earlier, that is correct - - -

McHUGH J: Well, that is true, but, I mean, what you have going for you, I think, is the statement from Mr Hogan, appearing for your client, even though there is no evidence from the appellant himself about these matters. I suppose I am old-fashioned but, I do not know, things seem to be done on pleas of guilty these days which are completely different from what they were in the days I used to practise in this field, which is no doubt a long time ago now. But, I mean, people make statements from the Bar table; the accused does not give evidence and apparently the judges work on that basis.

MR PERCY: Yes.

KIRBY J: Do not answer his Honour's question as to whether he is old-fashioned.

MR PERCY: I have no intention of doing that, your Honour. So what we say is that there is a great volume of matters coming before the courts these days, and they are required - - -

McHUGH J: Yes, I understand.

MR PERCY: And we have to distil, as best we can, what the evidentiary position is from what was said on behalf of the accused and whether there was any issue taken with it, either by the court or by the prosecution. We would say in that regard if counsel makes the point there is no issue taken in response, then we can proceed on the basis that that was the situation.

KIRBY J: What do you say about Mr Cock's argument that of the three grounds that are normally advanced by the courts to explain the discount, you only get up on one, and getting up on one you are only entitled to between 10 and 25 per cent and you got 10.

MR PERCY: We would say that one of those - - -

KIRBY J: It is not the case on one view of remorse, though I saw that you suggested that there is some remorse in a plea anyway. It is certainly not a case of sparing vulnerable witnesses because these were hard-nosed policemen. So, it really is, essentially, the utility argument. Do you accept that for utility alone, the ordinary discount in Western Australia is 10 to 25 per cent?

MR PERCY: Yes, we would say it would be that, the utility alone. I wish to have something else to say about that, if it please, your Honour. Mr Cock indicates there are three grounds. One of those may well be very relevant in cases such sexual assault and homicide, sparing the witnesses, the family. We would say in a case such as this, there really is only two bases upon which to extend a discount; that is remorse and utility. We would say in terms of utility, there was a great utilitarian value to the Crown in this case.

He had pleaded guilty before an indictment had even been drawn. There was no superior court time allocated. No prosecutors had to prepare anything. The saving to the court, in terms of, say a three-week trial, was enormous. We would say also that - - -

KIRBY J: Would it be three weeks? He was apprehended at Perth Airport. How would it take three weeks He was apprehended. He had a black bag, and they opened the bag and in the bag was an enormous quantity of tablets.

MR PERCY: Let us say it was a week. These trials - - -

KIRBY J: That is better.

MR PERCY: - - -have a habit of taking longer than people would ever expect.

GAUDRON J: In the old-fashioned days, of which Justice McHugh speaks, it would have been a day at the most.

KIRBY J: If that.

GAUDRON J: But, nonetheless, there would have been expense and inconvenience to the law enforcement authorities.

MR PERCY: On the way through it would not have taken long. It depends which way he chose to run it, and what he intended to put to proof. I think we have all seen cases where, what on the face would appear to be the most open and shut case, somehow extends through to a week or weeks in trial. One can only say that he must be given some credit for that.

Secondly, we would say, is that the Crown's position is that this is a plea completely devoid of remorse, is not sustainable. This was a very early plea, in respect of which he pleaded on the first occasion when it was changed to the correct drug and is an acknowledgment that he had done wrong and he came before the court acknowledging that at the time of the plea, and having been in custody all that time. We would say that whilst it is not at the top end of remorse, we accept that there are cases where remorse is more profound than is expressed in this case. That would have been an appropriate matter for the Court of Criminal Appeal to assess.

To say that this is a case completely devoid of remorse, puts it in the same category as someone who would appear and plead guilty on the day set for his trial. I think there have been cases such as that. Someone appears after a long and tortuous trip through the criminal justice system, changes his mind on the day of the trial. Well, enormous resources have been expended but, of course, a long trial is obviated and some discount is allowed. We would say that the discount afforded this offender was of that nature, the same nature - - -

McHUGH J: Mr Percy, how old is the accused? The judge, at page 36, said he was 35 years of age, but I thought I saw somewhere where he was born in 1954, which would have - - -

MR PERCY: That is correct, your Honour. He is 47.

McHUGH J: So that is wrong.

MR PERCY: That is wrong, yes. He is 47. So if I could return to those remarks, in terms of whether there is any remorse, we would say that this is a plea. Not at the top end for remorse. It is not a situation where he has gone out of his way to nominate other offenders, his sources, co-operated with police down the line to ensure other convictions and assured himself of what might be, at the very top end of pleas for remorse, qualifying for the 35 per cent discount in an exceptional case. We say it was a common general fast plea. From the moment it was known he had qualified for a discount of the order of 25 per cent. It was not a plea which could properly said to be devoid of remorse, as the example I have given; someone turns up at the portals of the court, changes his plea. There is a utilitarian benefit in that because we save a week or a month's trial, and he deserves a discount - - -

KIRBY J: In any case, as Justice Gummow pointed out to you, we would not ourselves become involved in resentencing, and you do not ask that. You ask that it go back to the Court of Criminal Appeal for resentencing.

MR PERCY: That is the case, your Honour.

KIRBY J: All we have to be satisfied, it would seem to me, correct me if I am wrong, is that there is utility in sending the matter back, that there was a real difference in the sentence that your client stood to gain if he were accepted in his arguments, and the sentence which the Court of Criminal Appeal confirmed. So that we really are concentrating on whether or not error, on the part of the Court of Criminal Appeal has been shown, in the assumption which they appear to have accepted, that your client could have pleaded guilty earlier and should have pleaded guilty earlier, and was not entitled to more than 10 per cent discount because he had failed to do that.

MR PERCY: Yes, your Honour.

KIRBY J: I think that is the correct legal analysis, is it not? Correct me if I am wrong.

MR PERCY: With respect, we would agree, your Honour, yes. We would say that the error of the Court of Criminal Appeal is identifiable at pages 86 and 87 of the appeal book, where his Honour Justice Pidgeon, with whom the other two presiding judges agree, was of the view that it would still, and if I quote at line 14:

For my part I do not consider that that is the situation. The charge when first brought had the element of being a prohibited drug and if it contained the wrong drug, it would still have been open to the applicant at a much earlier stage to indicate that he did have a prohibited drug but it was methylamphetamine and not ecstasy. It is simply that the particulars were wrong.

His Honour went on to say that there was no saving in Petty Sessions to the administration of justice. There was one in the District Court. He goes on to indicate that there was, "no indication of remorse in these circumstances." The issue we take - - -

KIRBY J: That is not quite right, is it? Because if he had not pleaded guilty, there is the cost and saving to the community of the cost of the trial, and the almost inevitable appeal and perhaps almost inevitable application to this Court. So there is a very considerable saving in costs, one would think.

MR PERCY: Probably went further than what his Honour actually said, and indeed there was some - - -

KIRBY J: I do not know, but I understand that in almost every murder case now there is an appeal to the Court of Criminal Appeal where there is a conviction. It is not like the old days where people accepted the jury verdict. Nowadays, appeals are virtually standard; in many crimes.

MR PERCY: That is so, your Honour. Indeed, we would say - if I could return to the point earlier on, it is not something that one could say was a plea devoid of remorse, and that is the second - - -

GAUDRON J: Could I take you back to line 53 where Justice Pidgeon says, "There was no saving in the Magistrates Court". That is not correct, is it?

MR PERCY: We would say that is not correct either.

GAUDRON J: There was a saving of the preliminary hearing.

MR PERCY: Yes, it was brought forward by two days.

GAUDRON J: What had happened was that there had been a number of perfunctory remand hearings.

MR PERCY: That is right, yes.

KIRBY J: There was a saving, as I think is pointed out, in not proceeding with a subpoenaing of witnesses and having witnesses turn up and taking up the time of a Court of Petty Sessions. The court could get on with something else.

MR PERCY: That is right, and the Crown Prosecutor's day as well. We would say it served another purpose as well, is that by having actually elected the preliminary hearing, this error was able to be identified because it may not have been until the matter came before the superior court that there was any requirement for an analysis of the substance in question. So it has all been clarified by virtue of the fact that he has done that. So, we would say that it is a matter which ought to have gone strongly to his credit and appears not to have been given due weight.

KIRBY J: I am surprised Justice Ipp concurred, given that he was the author of the other judgment that you referred to, though Mr Cock seeks to distinguish that other judgment.

MR PERCY: Yes, and that case of Atholwood is one which was decided before this one and, in our respectful submission, was right on point.

KIRBY J: Mr Cock says not quite, because there were, in that case, several counts, and some were withdrawn.

MR PERCY: That is right.

KIRBY J: Whereas he says in this case there is only the one count and the actual offence is the same. It is simply the particularisation of it that is different and that is how he seeks to distinguish it.

MR PERCY: That is right.

KIRBY J: Well, what do you say about that?

MR PERCY: Well, the question is, when is the first reasonable opportunity to plead guilty? I think in Atholwood his Honour Justice Ipp said you really do not look at the matter mechanically and say if there was any conceivable opportunity for an earlier plea. The real question, as his Honour said at page 468 of that case, is - - -

KIRBY J: This is Atholwood 109 A Crim R 465?

MR PERCY: That is correct, your Honour, yes.

KIRBY J: What page?

MR PERCY: Page 468 where his Honour said:

It is particularly important in such circumstances to establish the time when it could first be said that it was reasonably open to the offender to plead guilty to the offence of which he was convicted.

That is really what we say is that one can postulate that conceivably one could have come to the prosecutor at some earlier stage offering pleas to a charge which was not before the court, but when was it really reasonably open to him to come to the court to do that, and we would say it was at the time the complaint was amended. I think where his Honour also went on to state that at 468 of the same report, in relation to whether one would assume that any delay in the plea is indicative of a lack of remorse, one needs to be fairly careful and his Honour said:

In such circumstances it should not be assumed, mechanically, that the offender has delayed pleading guilty because of an absence of remorse, or that, reasonably speaking, he has not pleaded guilty at the earliest possible opportunity.

There, we say, lies the nub of the question and, perhaps, the error in the analysis of the Court of Criminal Appeal, that they looked technically and mechanically as to when it would have conceivably been open for him to enter a plea on a technical basis to this count, rather than saying reasonably, being a person in custody from a foreign jurisdiction with limited access to legal - - -

KIRBY J: Not foreign. Not foreign. It may sometimes seem so in the west, but it is not foreign.

MR PERCY: Perhaps your Honour would be happy with distant, but what we say is that it was a different jurisdiction which, perhaps, did not appreciate, as Mr Cock does, the difference in sentencing or the lack of difference in sentencing between the different drugs and he pleaded, we would say, at a very reasonable early opportunity.

KIRBY J: Yes.

MR PERCY: And that was where we would say is the error, the twofold error of the analysis of the Court of Criminal Appeal. Firstly, they looked at when it was technically possible for him to plead, rather than when it was reasonably open for him to plead. Secondly, they considered the simple delay as being indicative of a lack of remorse. We would say one would find it difficult to put it more succinctly than Justice Ipp did in Atholwood's Case and that one needs to look at it more carefully than simply to say there has been a delay, ipso facto no remorse.

The result of that, we say, is that the court erred in its analysis of what they saw as being an important question and a difficult question. I think Justice Pidgeon indicates that on at least two occasions in his judgment and it is an important question, a difficult question, but they ultimately resolved it against him. We say we are able to identify the error in their Honours' reasons in that court and for those reasons we would say the matter is more akin to the analysis that his Honour Justice Ipp arrived at in Atholwood and for those reasons the matter ought to be remitted back to the Court of Criminal Appeal to be further dealt with.

GAUDRON J: Yes, thank you, Mr Percy.

MR PERCY: Thank you.

GAUDRON J: Yes, Mr Cock.

MR COCK: Thank you very much, your Honour. The first primary point we wish to make is that despite the discussion of the so-called and colloquial term "fast track", this proceeding bore none of the features of that practice. Your Honours would not be familiar with the "fast track" procedure as it is unique to Western Australia.

Its processes are set out in the judgment of Justice Pidgeon in the decision of Verschuren (1995) 17 WAR 467. I have provided your Honours with that on our list of authorities. It is the second case on our list. Your Honours, in that authority, will see that Justice Pidgeon at page 474 at about E to F on the last paragraph on the page initially discusses the concepts that are relevant in determining the quantum of the discount for a plea of guilty. I will not read it all, but if I could pick it up on about the seventh line in that paragraph:

The acceleration of procedure colloquially known as "the fast track" was introduced in this State in the Justices Act (WA), s 101, and at the time of its introduction it was not common in other jurisdictions and may well be peculiar to this State. It arose as a result of a recommendation made by the Criminal Practice and Procedure Review Committee, being a Committee formed by the Chief Justice which recommended to the Chief Justice the introduction of the fast-track system. It was considered, by the Committee by reason of an initial - - -

GUMMOW J: Well, there would be a question, would there not, in federal jurisdiction as to whether it was picked up and in the light of, amongst other things, the Commonwealth Crimes Act?

MR COCK: Yes, certainly. Chief Justice Spigelman in Thomson's Case, which is the other authority in our list, at paragraph 111 makes it quite explicitly clear that he did not invite the Commonwealth Director to the guideline decision which that case produced and, indeed, expressly observed that the discount that his Honour favoured was not "applicable to Commonwealth" places.

Your Honour, that is not the case in Western Australia, however. Your Honours will see on my friend's list the decision of Radebe v The Queen [2001] WASCA 254. Although erroneously the respondent is referred to as the State Director of Public Prosecutions, your Honours will immediately see that it was a Commonwealth offence and, in fact, the counsel who appeared was, in fact, an employee of the Commonwealth Director. In this case and I can tell your Honours, in many others, the Commonwealth sentences in Western Australia, the Commonwealth Director has not taken any issue whatever with the application of the so-called "fast track" discount despite - - -

McHUGH J: Well, of course, he will not and none of the law officers are going to because they want the system cleaned up and they are very happy with pleas of guilty, but I have to say it concerns me that people who plead not guilty and are convicted get a heavier sentence. As Justice Cox said in his dissenting judgment in Shannon back in South Australia, which provides the first rationale of this discount, I think, that the effect of this change will be seen by people, very reasonably, as an inducement not to plead not guilty with a longer sentence as its sanction. I mean, that is the reality of it. Plead not guilty, you get a longer sentence. You can dress it up with as many words as you like. That is the substance of it and Justice Pincus in an extrajudicial paper has said people are being punished for insisting on a trial, at least in the sense that they may receive a longer sentence if they plead not guilty than they would if they pleaded guilty.

MR COCK: I can only concede the obvious inappropriateness of the law taking that course.

GAUDRON J: One might also say on that same reasoning that this appellant is being punished for not pleading to the wrong charge on that analysis.

MR COCK: Yes. Your Honour, I do not take the constitutional point in this case. It is no part of our argument in seeking to sustain the judgment of the court below. If I could just simply refer your Honours back to Justice Pidgeon's judgment in Verschuren, his Honour explained at the bottom of 474 that police officers through their commissioner had introduced the notion to the committee that:

persons, being arrested, who immediately acknowledged their guilt, and who wished to appear for punishment as soon as possible with a minimum of procedure.

It was that issue that gave rise to a recommendation which is now enshrined in our Justices Act which authorises a magistrate to accept a plea of guilty upon merely having a complaint, a copy of the admissions of the accused to the police and a statement of fact from police. If the person pleads guilty, they are not convicted at that stage, your Honours. They are convicted only upon their appearance on indictment in the Supreme Court or District Court. They plead guilty and are remanded immediately for sentence.

The position is my office then file an indictment. In drug matters, as I have set out, we only file an indictment upon receipt of a drug certificate which we seek expeditiously and, in my respectful submission, that is the whole explanation for why a substantial discount in the order of 25, up to 35, per cent is given with in persons of that - - -

GAUDRON J: Why? I just do not understand it. Do you mean you get an extra discount for not bothering to take legal advice? That would seem to me to be what is involved in that and that would seem to me to be a very dangerous proposition.

MR COCK: That is not the process, your Honour.

GAUDRON J: There is hardly any saving. All that has happened in this situation is that there have been a few remands until the certificate came through.

MR COCK: No, your Honour, that is not the case, with respect. In fact, what happens is that on a "fast track" plea, police officers do not prepare statements or depositions at all.

GAUDRON J: And you do not get an analyst's certificate perhaps?

MR COCK: I get one as a matter of procedure within my own office, your Honour, and that is a procedure which I understand is well known to the profession and my friend does not join issue with it as I set it out in my written outline, but there is no effort on the police. As I say, the police in fact were the initiators of the procedure and it saves preparing depositions or statements. No exhibits other than the record of interview or any confession are provided to defence. That is the "fast track" system. It is unique and your Honours may well be surprised to hear its elements.

GAUDRON J: What I do not understand is why it should be thought that you get a discount, as it were, for the "fast track" procedure and not for pleading guilty at the first reasonable opportunity, which seems to be what your argument is.

MR COCK: Your Honour, I accept that a discount is also available in a plea at a first reasonable opportunity.

GAUDRON J: But I am wondering why there should be any difference in terms of sentencing principle. For myself, I do not see it. There may be circumstances in which the first reasonable opportunity does occur at the moment of charge but there may be cases where it does not. If your argument suggests that fast track per se warrants more leniency than pleading at the first available opportunity, I would need to understand why you say that.

MR COCK: Thank you, your Honour. There are two bases for that submission. The first one is that there is in fact an additional saving to the police service, and that is, as I say, acknowledged in the process and the fact that they were the initiators of it, so there is - - -

GAUDRON J: If you put it on savings of that kind, then I have the same sort of problems that Justice McHugh exposed earlier.

MR COCK: I can only explain the system as it operates, your Honour, and the justification which we find, the purpose for which it was introduced into our legislation.

GUMMOW J: What was the second one?

MR COCK: The second one, your Honours, is the greater element of remorse. If a person has in fact upon arrest confessed to police his involvement - - -

GUMMOW J: What does "remorse" mean? It seems like a voodoo word to me.

MR COCK: An acknowledgment of guilt which is capable of assisting significantly in rehabilitation, requiring less personal deterrence and perhaps leaving alone general deterrence as the predominant factor relevant for sentence.

GUMMOW J: You took us to Verschuren 17 WAR 467 at 474 to Justice Pidgeon's judgment to show us the origins of the "fast track" procedure. Does it have any statutory footing today outside section 101 of the Justices Act?

MR COCK: Sections 100 and 101 together are the statutory footing it has and the Sentencing Act of 1995 - - -

GUMMOW J: But does that statutory footing cover and authorise the whole of the application of the "fast track" system? I am trying to find out if it requires underpinning by something other than the statute in order to explain its whole application.

MR COCK: The amendment to the Justices Act was necessary because it was statutory preconditions.....the District or Supreme Court, so it authorised magistrates to commit without having depositions, which was ordinarily what was required, so it is the only statutory precondition.

GUMMOW J: But assume the proceedings take place wholly in the District Court or the Supreme Court. What is the statutory foundation?

MR COCK: The indictment is all that is required to give that court jurisdiction.

GUMMOW J: Yes, that is right, but where does the "fast track" system come from then? It is not coming out of the Justices Act.

MR COCK: No, it still requires an indictment and in Western Australia there has not been, whilst I have been the director, an ex officio indictment which has not been preceded by the "fast track" procedure.

KIRBY J: Where do we find section 101 of the Justices Act? It does not seem to be set out. Everybody in Western Australia seems to know what it says. It goes round in their minds but it is not set out in Verschuren.

MR COCK: No, your Honour, it is not reproduced in any of the authorities that I have put on my list.

KIRBY J: Does it expressly deal with the fast track?

MR COCK: It is the "fast track" procedure, your Honour. Section 100 expressly requires the adjournment of a complaint until a statement of material facts and a copy of statements signed by defendants are served on the defendant and then it authorises magistrates to tell the defendant they are not required to plead but may if they wish on that material alone.

KIRBY J: What is the marginal note of the section?

MR COCK: The marginal note to section 100 is:

If charge not to be dealt with summarily, defendant to be supplied with statement of facts etc.

Section 101 is:

Expedited committal if defendant pleads guilty.

KIRBY J: The question would be whether or not that can live alongside the provisions for sentencing of the Commonwealth Crimes Act. You may not have had the time to look at the decision handed down last week about guideline sentences, but there - - -

MR COCK: I was not aware of it, your Honour.

KIRBY J: There is a question, I think, as to whether once you are in federal jurisdiction you can proceed with State laws as if there is no federal law on the matter, because there is.

MR COCK: I can imagine the argument, your Honour; I am not aware of the result. And it was not an argument I came here to press; at least is not a basis upon which I - - -

KIRBY J: No. Whenever you come into this Court, you or Mr Percy, you have got to be ready to deal with federal constitutional questions if it is federal jurisdiction.

MR COCK: I accept that fully, your Honour.

KIRBY J: I mean, you did help the Court by pointing out that it was federal jurisdiction otherwise that might have been missed.

MR COCK: Anyway, your Honour, that is the "fast track" process and there are a number of authorities of save one on the appellant's list, in Western Australia, where in another federal case under the Crimes Act specifically, the "fast track" procedure was approved and a handsome discount was given. But we seek to distinguish this man on the two bases that there was no sighting to police at the early stages; they had to prepare their depositions, they had to, in fact, serve a brief, which was never done under "fast track" procedure.

Your Honours are aware of the agreed facts of the matter, as set out my friend's written outline, that the certificates of analysis, together with the statements, were served on 28 June. That is found at page 9 of my friend's outline. They were from the Legal Aid Office and that four days later there was an election for a preliminary hearing, and we say that was unnecessary and, in our submission, that is the evidence that justifies the decision of Justice Pidgeon that there could have been a plea at a much earlier stage. Even if there had have been a plea at that stage, your Honours, there would have been a discount greater than 10 per cent, but not 25 per cent, because there would not have been a "fast track" plea, even at that late stage. Earlier than now - - -

GAUDRON J: Is it implicit in your argument that it was for the defence, in the circumstances of this case, or Legal Aid, to draw your attention to the mistake that the police had made? I mean, there does seem to me to be, at least in criminal matters, the prosecutor, whoever he or she be, ought to get the charge right and it is not the duty of Legal Aid, which, as we know, throughout the Commonwealth, is pressed for resources and time to go around rectifying the mistakes of the prosecutors.

MR COCK: Your Honour, we take the position, as Justice McHugh, I think, referred to earlier in argument, that the letter from Legal Aid on 10 November, found at page 111 of the appeal book, demonstrates an acknowledgment that there was no necessary inhibition in pleading guilty to the charge by complaint as framed and whilst we take no credit for the failure by police to not identify and amend the complaint earlier, if the defendant wishes to receive a discount for contrition or co-operation, your Honour, here is an ideal opportunity to achieve it, and we say the - - -

KIRBY J: Can you help me with this though. I mean, when one looks at the complaint on page 1, as originally framed, it was, "had in his possession a prohibited drug namely", and it then specified ecstasy. I thought you had conceded earlier that as originally framed, it would not have been appropriate to expect the accused to plead guilty to that charge.

MR COCK: No, I have not conceded that, your Honour, and I do not.

KIRBY J: Well, Mr Cock, it really is a proper concession, is it not? I mean, how can he plead guilty to a wrong particularised charge in the complaint?

MR COCK: Because, your Honour, a plea merely as an acknowledgment acceptance of facts necessary to make the elements of the offence. A stealing charge is a better example perhaps. A stole $500,000 from B. A can plead guilty and say, "In fact, I only stole $200 and we will have a trial of issues", but the plea to the elements of the offence remains unequivocal and A gets the benefit of the early plea and the gravity of the offence reflected in the particulars can be determined in all sorts of different ways, either by agreement with the prosecution or through, what is obviously known as, a trial of issues, where the accused is not denied the benefit of the early plea and, indeed, the facts upon which the plea is based can be determined afterwards.

KIRBY J: I can see the theory of that argument, but as our criminal justice system is accusatorial, and that that is absolutely fundamental to its character, it really is asking a lot of a person to say, "Well, it is true that we are charging you with possession of ecstasy and you say it is speed or visa versa, but do not worry about that, just plead guilty". Well, I do not think that is reasonable. Can I say to you, I would understand if a person came from New South Wales, given the hub-bub that has occurred in New South Wales about the use of ecstasy, and I am not aware of the sentencing patterns, that a layman may well think, charged with that it is a more serious offence, because there has been a lot of talk in the public press about deterring people from the use and distribution of ecstasy, so that is what the complaint was.

MR COCK: Your Honour, but the complaint was possession of a prohibited drug, namely a chemical compound which we know now to be ecstasy. Legal Aid's letter demonstrates an acknowledgment by the legal adviser to the appellant that a plea could be made to that charge and, indeed, the letter of 10 November says so expressly. We, with respect, find irresistible the view that that plea could have been made on 22 April, because if he did not know what he had, he only pleads to what he knows, and what the drug certificate demonstrates can only benefit him in the sense that if it is a less serious drug than he thought, then he could only be sentenced on that basis.

GAUDRON J: Well it is not simply that, is it, Mr Cock. I mean, the court records are records, they serve a number of important purposes, one of which is to enable it to be told of what you have been convicted or acquitted, so that you can raise autrefois acquit or convict. It is, at least, theoretically possible that by pleading to a wrongly particularised charge, or a wrong charge, you simply invite a further prosecution down the track, and one might well want to protect oneself, quite reasonable want to protect oneself, from that possibility. I mean, the court records really do, and have for many centuries, played an important role in the administration of criminal justice.

MR COCK: Your Honour, at paragraph 20 of my outline, I seek to explain that upon a plea of guilty under section 101 of the Justices Act, no conviction is entered. The conviction is not entered as your Honour may have thought.

GAUDRON J: Yes, but we would not expect, given that a number of the members of this Bench did not know that until you told them, is it to be assumed that a fellow person from the Eastern States, without legal training, did know?

MR COCK: Your Honour, that is an important question, I grant. It seems to us, with respect, that if there is an argument that seeks to demonstrate remorse or to suggest that a higher discount is applicable and otherwise offered, it is incumbent upon the appellant, then the accused person or convicted person, to establish those facts. That has not been put, was never put, before the sentencing justice or judge, never put before - - -

McHUGH J: Well, that is one of the problems I have in the case, is that there is not a word from the accused, and I am not sure there is from his legal advisers, that he was in any way influenced whatever by the terms of the charge. The most that appears is a page 28, Mr Hogan says, at line 50:

but then it turns out of course it's, as the indictment says, methylamphetamine, so he wasn't able to plead guilty until the election date and then he did. That's why I'm asking your Honour to treat it as if it was a fast-track and give him full credit for that.

Mr Hogan did not go as far as to say, "Well, he has told me that he was not going to plead guilty to ecstasy, but as soon as he found out it was speed he was quite happy to plead guilty." There is nothing like that said. I just do not know where I am.

MR COCK: Your Honour, we can understand that concern, because it is reflected in the record. There is no suggestion, never mind evidence, that the appellant pleaded guilty only to at a stage where he felt he was in a position to do so. We had the letter from Legal Aid - - -

KIRBY J: Only the objective fact that he did plead guilty and immediately the charge was varied and he had to tell you.

McHUGH J: Well, the problem with that is that his letter indicates he was going to plead guilty before the charge was amended.

MR COCK: Yes, and which, in our respectful submission, is an accurate understanding of the legal provisions operative here.

GAUDRON J: But the difficulty is this: I mean, one might have thought, if that were a critical consideration, that he pleaded as soon as he knew the correct substance. The sentencing judge might have alerted counsel to it and said, "Well, I had better hear from the accused", because, I mean, obviously there is now Australia-wide this practice of pleas being done very much in the manner in which they are presently done; it is a practice which I think came about because of the pressures on public defenders and legal aid people in the 70s and 80s. The practice having come about, if factual issues are critical, then the point has probably come where it is a requirement of natural justice for the sentencing judge to indicate that there needs to be evidence about it. I do not know. I mean, if this practice is to continue, that may well be the case. I do not know that it arises precisely in this case, but one obviously has to live with the sort of sentencing practice that was adopted in this case.

GUMMOW J: It was just a matter of practice, was it not? We have had a look at section 101 now. That says nothing about the actual sentencing procedures, does it?

MR COCK: It certainly does not in any way do anything other than authorise the magistrate to commit the matter to - - -

GUMMOW J: That is right. So this "fast track" sentencing idea is just judicial practice, is it not?

MR COCK: The 25 to 35 per cent is judicial practice, yes, entirely so.

GUMMOW J: The question then is how does that stand with section 16A of the Commonwealth Crimes Act?

McHUGH J: Section 16A says you have got to take into account a plea of guilty, if I remember rightly. It does not say anything further.

GUMMOW J: That is right.

McHUGH J: It just simply says you take a plea of guilty into account. That is understandable in terms of remorse.

GUMMOW J: Is there a question whether 16A is picked up consequent upon the Commonwealth Places legislation?

GAUDRON J: I think not. It is only State legislation that is picked up by that - - -

GUMMOW J: I think what Justice Gaudron says is probably right.

McHUGH J: But if you are in federal jurisdiction, maybe section 79 - no, it would not.

MR COCK: Our understanding is that the sentencing is dealt with then under all the State laws picked up by the Commonwealth provision.

GUMMOW J: Yes.

MR COCK: That perhaps provides a better explanation for why we do not seek to go into the Commonwealth provisions, which otherwise might be applicable.

GUMMOW J: Yes.

MR COCK: It leaves it for another day. Your Honours, there is only one question of fact which I need to correct. My friend, in his reply, suggests that paragraph 1(a):

other than maintaining his right to silence, he did nothing to mislead or inconvenience the police.

That is not so, with respect. He was sentenced on the basis that he denied knowledge of the drug. That is set out, your Honours - it is asserted by the prosecutor at 25, line 50:

He denied all knowledge of the drugs in his luggage.

GAUDRON J: That is ambiguous.

MR COCK: Yes.

GAUDRON J: He may have been denying that he knew what they were. He knew he had something, but did not know what precisely they were.

MR COCK: If there is any misunderstanding, your Honour. The two records of interview with the appellant, one taken in the manager's office at the Ansett terminal of one hour duration, and the subsequent one at the crime office of the local police, which your Honours, as I understand it, have, show unequivocally that he denied any knowledge of the presence of this container whatever.

GAUDRON J: Yes.

McHUGH J: Was he ever asked what he was doing - why he went to Western Australia?

MR COCK: Yes he was. If Your Honour want to look into the facts, yes, he was. He said that he had bought a ticket on the spur of the moment, with cast at Sydney Airport. Travelled in a name not his own but bearing his mother's maiden name, and he was coming to Perth to visit friends. He bought a one-way ticket and when asked why he did not get a cheaper two-way ticket, he said it was a spur of the moment thing and he was going to make his own way back somehow. He had, I think, $1.25 in his pocket when he arrived at Perth Airport. He said he was going to the bank later during the day for an automatic teller to withdraw funds, which he was expecting into his account.

The crucial evidence of course against him, and we put this as a strong case, was that when he was searched at Perth Airport a piece of plastic fell from his clothing which, one can see on the video quite clearly, actually seemed to match the plastic in which the drugs were wrapped. That, in addition with the other circumstantial evidence, creates what we submit is a strong case.

GAUDRON J: That he knew he had something.

MR COCK: He did, indeed, yes. Your Honours, the only other submission I wish to make is it is submitted to your Honours that Justice Pidgeon's judgment, with which the other members of the court agreed, is erroneous in two respects. At page 86 your Honours have been referred to paragraphs 14 and 16. Paragraph 14, we submit, is a correct statement of the law and is corroborated by the letter from Legal Aid at AB 111, that is, he could have pleaded guilty at an earlier stage.

GAUDRON J: In the large part - I would have thought, this is a problem of the sentencing procedure. Whether he could have pleaded guilty at an earlier time may well depend on an examination of what information was conveyed to him by Legal Aid.

MR COCK: Your Honour is right, I accept that.

GAUDRON J: I am sorry?

MR COCK: Your Honour is absolutely right, I accept that.

GAUDRON J: If the Court of Appeal was going to say it, maybe it had to have some factual material before it before it could say that.

MR COCK: Your Honour, with respect, did, as much as one could reasonably hope at the special leave application, seek an advice as to that. The advice really did not resolve that question.

GAUDRON J: No, exactly.

MR COCK: Your Honours, the second argument against us is that there is an error in paragraph 16, in that when his Honour said, "There was no saving in the Magistrates Court", that was wrong, because in fact half a day, which had been set aside for a committal hearing a few days later, was obviously vacated and there was some saving in magisterial time. There is no evidence of whether that magistrate could have been put to any other useful purpose - - -

KIRBY J: Really, pull the other leg, Mr Cock. This is not like your usual, completely honourable, Crown submissions. This is really scraping the bottom of the barrel. Your office could do more, the witnesses were not subpoenaed and brought along, and the magistrate is sure to have plenty to do.

MR COCK: Your Honour, the witnesses would have been subpoenaed; they would have been cancelled. The witnesses would then have had the half a day set aside to do other things, and my prosecutor would have gone down to court a couple of days earlier and spent maybe 10 minutes there rather than half a day in court. I acknowledge all of that.

KIRBY J: Exactly, and that is a saving.

MR COCK: I acknowledge - - -

KIRBY J: When you work under such very stern budgetary restraints, that we know, Mr Cock, every hour counts.

MR COCK: I accept that, your Honour, and before your Honour interrupted I was about to make the concession that at paragraph 16 obviously there was some saving in the Magistrates Court. There was the savings of the extent to which I have referred, but that was not great in the context of what would have been a "fast track" procedure, where the man may have only appeared before the court on one or two occasions. Probably only one occasion.

GAUDRON J: The contrary proposition is that there might have been considerable saving if the police had amended the charge that had been brought to the appellant's notice. One is hypothesising.

MR COCK: It is, your Honour, and I cannot respond because I do not know what was brought to his attention.

GAUDRON J: Yes.

MR COCK: Although we do know that before he elected a preliminary hearing - - -

GAUDRON J: Clearly, we know that it was not brought to his attention that the charge was amended, because it was not amended.

MR COCK: No, his legal advisers said he could plead guilty to it anyway. We rely upon that aspect, your Honour. Your Honours, I do not seek to go through Justice Spigelman's judgment. It represents an analysis of the applicable provisions last year throughout Australia and, so far as my research confirms, it is accurate. Your Honours, they are our submissions.

GAUDRON J: Thank you, Mr Cock. That completes your submissions?

MR COCK: It does, your Honour.

GAUDRON J: Thank you. Mr Percy, do you have anything in reply?

MR PERCY: Your Honour, I do not think there is anything I can usefully raise in reply. It is all set out in our submissions, and I do not propose to take the matter any further.

GAUDRON J: Thank you. The Court will consider its decision in this matter.

KIRBY J: Could I just ask Mr Percy? Assuming you were to succeed in this case, there would be no resentencing. It has to go back to the Court of Criminal Appeal. When is your client - assume he were to get a discount of, say, 20 per cent or thereabouts, 25 per cent, when is he due to be released? He has a very long sentence, does he not?

MR PERCY: I have prepared a schedule of these matters, your Honour, as to when he is likely - - -

KIRBY J: Do we have that schedule or not? I do not think so. I do not think I have seen it.

MR PERCY: No I just prepared it. It is fairly brief. If he were to get 15 per cent discount, he would be eligible for release on 22 December 2002; 20 per cent 22 August 2002; 25 per cent 22 April 2002; 30 per cent 22 December 2001. What we would say is that there would also be eligibility for work release much earlier than that, something like six months earlier perhaps. If he were to get 25 per cent discount from the Court of Criminal Appeal, he would almost be able to obtain his freedom almost forthwith.

KIRBY J: The Court will attempt to get its decision down as early as possible.

McHUGH J: Are those percentages of 20 per cent in addition to the 10 per cent he has already had? Do they take account of that?

MR PERCY: Your Honour, that is a flat 20 per cent. That is not an additional 20 per cent. If he had have got 20 per cent, it would have been - so 25 per cent would be April, he would be almost eligible for release now.

McHUGH J: Thank you. I understand.

MR PERCY: As your Honour pleases.

GAUDRON J: We will adjourn until 9.30 am tomorrow in Sydney.

AT 1.30 PM THE MATTER WAS ADJOURNED