Batemberski v The Queen B90/2000 [2002] HCATrans 585 (15 November 2002)

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B90 of 2000

B e t w e e n -

ALEXANDER BATEMBERSKI

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J

KIRBY J

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 15 NOVEMBER 2002, AT 2.38 PM

Copyright in the High Court of Australia

MR P.T. LOWE: If your Honours please, I appear for the applicant. (instructed by the applicant)

MS L.J. CLARE: May it please the Court, I appear for the respondent. (instructed by Director of Public Prosecutions (Queensland))

MR LOWE: Do your Honours have the applicant's further summary of argument?

GUMMOW J: Yes, we do.

KIRBY J: Yes, these are the ones you prepared?

MR LOWE: Yes, indeed, and those are the ones that I will address your Honours on today.

GUMMOW J: Thank you.

MR LOWE: Now, your Honours, this appeal would clarify and outline issues of public importance concerning the administration of criminal law in Australia. Firstly, the reliance by the Crown on reverse onus evidentiary provisions in proof of its case against an accused and, secondly, the application also raises issues relating to the functions and obligations of appellate courts in reviewing appeals against conviction where there are unrepresented appellants involved.

The particular special leave issues that arise on this application are as follows: whether the Court of Appeal in Queensland erred in dismissing the applicant's appeal against conviction in that the court failed to consider whether a miscarriage of justice was occasioned in circumstances where the trial of the applicant was rendered unfair in consequence of, we say, three discrete bases: first, the Crown abused the process of the court in proceeding to trial the applicant in respect of production of a dangerous drug contrary to section 8 of the Drug Misuse Act and, at the same time, an alternative count, which is possession of that same drug contrary to section 9, which they also called in aid of proof of that charge section 57(c) of the same Act. That is the reverse onus evidentiary provision, which I will take your Honours to now.

Your Honours will have the respondent's authority, which indicates that 57(c) has now been renumbered by 129 of that same Act.

GUMMOW J: Yes.

MR LOWE: Do your Honours have those?

GUMMOW J: Yes.

MR LOWE: Just keep it there. I just wish to go through the third part of the miscarriage of justice: a failure to consider whether, following the applicant's acquittal in respect of the section 8 count, which is the production count, his conviction in respect of the section 9 count, the possession count, was inconsistent with that prior acquittal. I will also address your Honours on the issue of whether the Court of Appeal in Queensland failed to fulfil its functions and obligations towards an unrepresented appellant in relation to an appeal against conviction by failing to make proper and/or adequate evaluation of the evidence presented at trial and of the conduct of the trial generally of the applicant.

Now, the starting point for this application is, of course, the Queensland Court of Appeal judgment in Batemberski, which is found in application book pages 27 to 33 and that judgment was delivered on 24 November 2000. The circumstances of the trial was that the applicant was charged with production of a dangerous drug, namely cannabis plants, under section 8 and, in an alternative count, a count of possession of those same plants.

GUMMOW J: Now, just a minute, were all of the matters you are putting to us dealing with joint trial, evidentiary provision of 57(c) and consistency of verdicts, were they all put to the Court of Appeal?

MR LOWE: No. They arise, in consequence, we say, of the fact that the appellant was unrepresented at the time of his appeal. At that appeal he agitated the putative invalidity - constitutional invalidity of 57(c).

GUMMOW J: Yes, we have seen that.

MR LOWE: Now, I only saw my client, obviously, after the judgment of the Court of Appeal and I have reformulated - - -

GUMMOW J: Well, it is another one of those cases?

MR LOWE: Indeed, it is, and that is why we have the supplementary grant of appeal which is - if you look at the Queensland Court of Appeal's judgment as to how they deal with conviction, it is cursory and short - a page-and-a-half, I think, from the joint Justices of - - -

GUMMOW J: Anyhow, you have a limited time. We will not get anything out of the Court of Appeal on these three matters. So the question then is, what do you say in response to what Ms Clare says in her second summary of argument on these points?

MR LOWE: We say that she does not deal - well, first, if I take the supplementary appeal ground, she has not dealt at all with the issue of whether the Court of Appeal has dealt with - - -

GUMMOW J: I know that, but what the matters with which she has dealt?

MR LOWE: I rely on the written summary of argument to explain where the miscarriages of justice have been occasioned in this case. We say that there are three separate grounds which give rise to a potential miscarriage of justice. The issue for the applicant, I think, can be crystallised. If we go to the outline of submissions in relation to where we are agitating, that there has been a failure of the trial judge to give a proper and adequate direction about the reverse onus evidentiary provision.

Now, as your Honours know, that reverse onus evidentiary provision is conclusive evidence. It is a conclusive evidence evidentiary provision. Now, my learned friend says that insofar as I refer to the issue of it being a defence, all I say there is where an accused gives evidence regarding his knowledge, under the possession count, the ultimate onus is cast on the Crown to disprove matters raised by the defence. When I refer to "defence" there, I mean it is an evidentiary burden cast on the accused which is in the nature of exculpation, justification or vindication. At trial, he made a simple denial of knowledge as to the crop being near his premises where he was residing.

At paragraph 20 of my argument I refer to the failure of the judge to give a proper and adequate direction of the reverse onus evidentiary provision. The applicant submits that his Honour erred by failing to give a proper and adequate direction on this issue. In this case, and in all cases, we say, where such a reversal of proof provision falls to be considered by a jury, it is incumbent on a trial judge to draw the attention of the jury to evidence which might satisfy the onus of proof or the absence of evidence applicable to it.

If one reads the summing up, in toto, there is a failure of the trial judge to draw the jury's attention to that very issue. The evidence, we say, which should have been brought to their attention because it is relevant to the rebuttal of the reversal of proof provision which is a denial of knowledge on the applicant's part, his frequent absence from the residence, the fact that the hose was concealed, the fact that the crop itself was concealed by the growth of the grass, the age of the crop which is three months, all of these issues his Honour should have directed the jury on so that they could determine whether in fact the accused, in giving that evidence, has displaced the conclusive evidence provision. In that situation, his Honour should also have directed the jury that where he has given this evidence, the onus falls back on the Crown, very much like defence of honest and reasonable mistake of fact. They had to negative his explanation.

KIRBY J: Could you satisfy a little curiosity I have, because this is not the first occasion that this has happened, that we have counsel before us who prepare quite detailed and carefully written submissions, but there is no representation before in the proper place, which is the Court of Criminal Appeal or the Court of Appeal. It is an attempt, really, to turn this Court into a national court of criminal appeal, which, we have said repeatedly, we cannot be, and will not be.

MR LOWE: My client attempted - he was in gaol at the time - to get legal aid for the appeal and was refused. Hence the reason why he appeared before the Queensland Court of Appeal unrepresented.

KIRBY J: This is the second time today and maybe the third, and we have had many cases like this in the past. It is just not a rational deployment of funds, and it is not a correct deployment of the role of this Court.

MR LOWE: I accept that, your Honour, and hence I might just advert to the supplementary ground of appeal - - -

KIRBY J: Because, in a way, you are seeking to lift into this Court points that you say arise out of the way the Court of Appeal had to deal with the matter, without a representative for the applicant, which would not have happened if he had been represented there, instead of here.

MR LOWE: Exactly, but that is - - -

KIRBY J: It is just not a rational way to go about the business of criminal appeals.

MR LOWE: I accept that, and, your Honours, paragraphs 23, 24, 25, 26 and 27 deal with that issue, the very issue that your Honour has just raised with me.

KIRBY J: At the base of all this is the question of whether your client has suffered a miscarriage of justice - - -

MR LOWE: That is so.

KIRBY J: - - - and when one actually looks at the evidence at the trial - the close proximity of the crop to his own property, the fact that other parts of the surrounding crop had been destroyed, but, just coincidentally, not the part near his property, it does not seem a very strong case on the merits. At least, it was open to the jury to reach that verdict.

MR LOWE: Just on that issue, both my friend, at paragraph 2.3 of her summary of argument in relation to the argument we put on, indicates that the hose ran from the house towards the crop. That is contrary to the evidence led at trial. The hose led from the crop for 50 metres, but the hose ended before it left the grassy area. It was completely concealed. There was no hose - - -

KIRBY J: Well, that may be so, but why was it just happening to be trickling towards your client's property? Just coincidental.

MR LOWE: I do not think the evidence goes as high as trickling towards my client's - - -

KIRBY J: You can pull the other leg, really.

MR LOWE: - - - property, with respect, your Honour.

KIRBY J: Yes, but it was leading, as I understand the facts, towards your client's property.

MR LOWE: Yes, and your Honour would be aware - - -

KIRBY J: Assuming him to be guilty, he is not going to leave the whole works exposed when so much effort has been made to hide the crop within other foliage, and therefore he is not going to leave the hose running to his own water supply. But if it is running in that direction, and needs a connection from there to a water supply on your client's property, then at least it is open to the jury to take the view that the proximity and the water connection possibilities are such as to confirm what the reverse onus of proof establishes.

MR LOWE: Well, you have those sorts of circumstances, but the jury were not advised of the contrary set of circumstances to rebut the application of the conclusive evidence provision. That is the source of why I say that there has been a failure in the trial judge. We say, each case, that the reverse onus evidentiary provision - which is an erosion of the fundamental onus on the Crown - on each occasion where that occurs, it is incumbent on the trial judge to direct the jury about the evidence which may militate against the application of the conclusive evidence provision. Your Honours will be aware from my argument that the Court of Appeal in Queensland itself has talked about the unsatisfactory nature of the operation of the conclusive evidence provision.

KIRBY J: Reverse onus provisions have been around for a long while. They exist, as Ms Clare points out, in the Customs Act. Federal and State legislation.

MR LOWE: Yes. This is a fairly draconian conclusive evidence provision. It is unlike many other reverse onus evidence provisions, both under Commonwealth legislation and under State legislation.

KIRBY J: Yes, but it is not, in terms of principle, unusual in Australian legislation. It is not unique. It is unusual, but it is not unique, and if you are seeking to challenge that on some general principle - I cannot see it at the moment - you would look for a case where, first of all, it has been fully canvassed in the Court of Appeal below to assist this Court in its consideration of the matter, and secondly, where the point has been reserved at trial, and thirdly, where there is a whiff of merits in the case. Now, they are three points that seem to be missing in this case.

MR LOWE: Well, I hear what your Honour says. I do not concede that there is any lack of merit in my client's case, because - he has been deprived of a fair trial, in my respectful submission . Your Honours will be aware of his Honour's directions to the jury on the issue of the reverse onus provision. They are found at the appeal book, pages 14, 15 and 16. His Honour does not purport to describe any situation, any facts, which militate in favour of the rebuttal of the application of the evidentiary provision. He just canvasses the Crown - the evidence in favour of the Crown.

KIRBY J: Was there an application for redirection on that particular point?

MR LOWE: No.

KIRBY J: Why, at the third level of the judiciary, should we be asked to fix this up, if in the course of a trial where your client was represented the points were not reserved and the jury was not asked to be redirected on these issues? Now, I do take the weight of the long list of points that are made in the applicant's summary. I think these were before you.

MR LOWE: Yes, that is true.

KIRBY J:

No, eyewitnesses . . .

No footprints

No photographs . . .

No seeds

No fertilisers

No insecticides

No loose cannabis -

And so on, but all of that was before the jury and what was there was the proximity, the enclosure and apparent attempt to hide and the water run.

MR LOWE: My client was in hospital at the time that they executed the search warrant. That is another issue that is - - -

KIRBY J: As you know, that is irrelevant. That is not relevant. It is certainly not determinative.

MR LOWE: There is also the issue which is dealt with on the papers about the inconsistent verdicts, which is - if the Crown case is that you, and no one else, was involved in cultivating - if the gravamen of the offence is cultivation - - -

GUMMOW J: Well, what Ms Clare says about that sounds right - - -

MR LOWE: Well, it seems to me - - -

GUMMOW J: - - - as to what she says about the logic of it, on page 3 of her supplementary outline.

MR LOWE: Well, that is contrary to the case of the Crown at trial. All I am saying there is only one person was involved in cultivation, and now to say - if the jury raised the issue of secondary liability - that was after the summing up, the jury came back with a question about whether a third party could be involved, but the way the Crown case unfolded by way of cross-examination of the applicant at trial, it was that he and no one else - and that was the Crown case. It was in consequence of the jury question itself, which gave rise to the issue of secondary liability. Those are my submissions, unless you wish to hear me further.

GUMMOW J: Yes, Ms Clare.

MS CLARE: Thank you. If I could just take that last point, that the Crown case was that it was this applicant and no one else. With respect, that is not exactly right. The Crown case concerned two alternative charges. One was either the production, and, alternatively, that he was in possession. So if the jury were not satisfied that he was responsible for the production of the crop, inherent in that is, of course, the inference that somebody else was - then the Crown alleged that he was responsible for the possession, either directly, as a person knowingly in possession, or by virtue of the deemed possession under section 57(c).

KIRBY J: What do you say about the failure of the judge to draw to the jury's attention and collect the series of matters such as are set out in the application book by the applicant himself, that would have had to be considered in considering whether he had, as it were, rebutted the reverse onus of proof?

MS CLARE: With respect - - -

KIRBY J: I am thinking of the list on page 52.

MS CLARE: Yes. The summing up, in my submission, was appropriate for the way that the trial was litigated. The judge put the defence case at page 13 and it was essentially that the applicant was not involved at all in the production, and had no knowledge of it. It was a very simple case.

KIRBY J: I realise that, but it is a hard barrier to jump, if you are the accused - to jump over a reverse onus. Therefore, at least arguably, in such circumstances, the judge has a duty in protecting a fair trial to ensure that the jury's attention is addressed to a series of facts that are relevant in considering whether the accused has jumped that barrier. The accused says at page 52:

6. No eye-witnesses

7. No finger-prints taken off waterpipe

8. No footprints

9. No photographs of alleged paths at the site -

no DNA samples -

17. No seeds

18. No fertilisers

19. No insecticides

20. No loose cannabis

21. No clip-seal bags for distribution

22. No weighing equipment

23. No secreted monies i.e. bank accounts or otherwise

24. No instruments pertaining to the use of cannabis

25. No cannabis cigarettes.

Et cetera, et cetera, et cetera. Now, should the judge not have, as it were, directed the jury's attention to considering all of those features?

MS CLARE: Well, his Honour gave a very strong direction on circumstantial evidence.

GUMMOW J: Where do we see that?

MS CLARE: Well, for example, page 11, line 40, it goes on to say:

it means that if there is more than one conclusion that can reasonably be drawn, it is the one most favourable to Mr Batemberski that you must apply.

So that was very clear that it was a circumstantial case and that if there was a possibility of an innocent explanation that that is the one that the jury should proceed upon.

KIRBY J: The judge did say at page 8 that:

there is no direct evidence that he was involved in the cultivation of this crop.

MS CLARE: Yes, thank you, your Honour. But when it came to - - -

KIRBY J: It is a very brief - I mean, one does not necessarily have to go on and on forever, but this is a very summation; maybe that is the way it is done in Queensland in these cases.

MS CLARE: Well, it appears to have been a very short case and the issues were not particularly complicated. What perhaps was more complicated was the two different types of onuses and his Honour was very careful to set those out, and I have given the references to those in my outline.

KIRBY J: What do you say, looking at the issue from the point of view of miscarriage of justice, was the strength of the Crown's case? Leave aside the reverse onus of proof, what were the factual strengths in the Crown's case? The proximity of the crop to the applicant's premises, the way the crop had been cleared on each side, but left around the crop itself; the foliage had been cleared except for this little part.

MS CLARE: Yes, by him; he admitted that he had done that.

GUMMOW J: Had done?

MS CLARE: The slashing.

GUMMOW J: Yes, that is right.

KIRBY J: And then there is the waterline.

MS CLARE: Yes, and his admission that the only way in which the plants could have been irrigated was from his property; the plants themselves were, I think, the evidence is - - -

GUMMOW J: Yes, at the top of page 13.

MS CLARE: Yes, well irrigated and - - -

KIRBY J: I suppose the theory has to therefore be that it was somebody in the dead of night who, for his own benefit, was growing this crop around an area that had been cleared by the applicant, by his admission, who was secreting water from the applicant's water source into this crop and doing it whilst the applicant slept.

MS CLARE: Yes, for a period of three months. It is a fairly implausible account, when the evidence of his control of that area was conclusive, subject to his ability to prove that he had no knowledge.

GUMMOW J: We do not need to hear you any further.

MS CLARE: Thank you.

GUMMOW J: Anything in reply?

MR LOWE: Yes, your Honours. The evidence at trial was that my client was for work was absent from the property, was not resident on the property on a daily basis, so it is not merely "dead of night". He did not have to come up with an explanation as to who did it, and the very things that my learned friend relies on, his evidence about he had done the slashing and the irrigation, et cetera, those are matters that he had to give evidence on in relation to the mens rea offence whereas in the alternative, in order to get above that, there was a conclusive evidence provision. In my respectful submission, the issues that your Honour raised, which is what he indicates is the absence of evidence, which was not put before the jury, is determinative, that there was a miscarriage of justice here. Thank you, your Honours.

GUMMOW J: Upon the matters considered by the Queensland Court of Appeal, we are not convinced that error has been shown. The case is not an appropriate vehicle to consider other larger questions which the applicant's counsel has argued this afternoon but which were not raised before the Court of Appeal.

The issue of representation of appellants before the Court of Appeal in its criminal appeal jurisdiction is potentially an important one. However, we are not convinced that there has been a miscarriage of justice in this case. Accordingly, this is not the occasion for this Court to consider what, if anything, follows from the fact that an applicant for special leave in this Court was not represented before the intermediate Court of Criminal Appeal. Accordingly, special leave is refused.

AT 3.06 PM THE MATTER WAS CONCLUDED