Rocco v The Queen [2003] HCATrans 497 (2 December 2003)

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Rocco v The Queen [2003] HCATrans 497 (2 December 2003)

Last Updated: 16 December 2003

[2003] HCATrans 497

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S65 of 2003

B e t w e e n -

ANDREA ROCCO

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON TUESDAY, 2 DECEMBER 2003, AT 1.31 PM

Copyright in the High Court of Australia

MR P. BYRNE, SC: May it please the Court, I appear for the applicant. (instructed by Peter Ash & Associates)

MR G.J. BELLEW: May it please the Court, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

CALLINAN J: Yes, Mr Byrne.

MR BYRNE: Your Honours, there is, initially, a question of seeking the Court’s leave to expand the time within which the application is - - -

MR BELLEW: There is no objection.

CALLINAN J: No objection.

MR BYRNE: May it please your Honours. Your Honours, the applicant was tried on a charge of importing a large commercial quantity of prohibited drugs. At his first trial, the jury were discharged because they were unable to agree on a verdict. At the applicant’s second trial, the jury were apparently having some difficulty reaching a verdict, by reference to the length of their deliberations in a case where the only real issue was whether the Crown had proved the applicant’s knowledge of the presence of prohibited drugs. The jury asked a question, after that lengthy period of deliberation, which is set out at page 25 of the application book. The terms of the question were:

“Please explain why the jury have not heard evidence from . . . Cohen, Margalit, Steinway, Bargalia or persons associated with Group HEFNA to substantiate Rocco’s testimony of no knowledge of MDMA in the pumps.”

Your Honours, as a result of that question being asked, a question which clearly went to the only significant issue in the trial proceedings, namely, the state of the applicant’s knowledge, there was discussion between the learned trial judge and counsel about the appropriate response that should be made to the jury’s question. Can I ask your Honours to go to page 28 of the application book and simply point out a couple of the remarks that were made in the course of the discussion between the learned trial judge and counsel. Alongside line 40, the learned trial judge said in response to counsel for the applicant at his trial:

It’s also a matter for you to present what evidence you want to, too.

Then counsel made reference to what he describes as this:

undercurrent . . . that an accused in fact need not prove anything –

Then his Honour said something which is, in my submission, of significance:

One interpretation of this is the jury want to know. Well, when I say why weren’t these people called to substantiate Rocco’s testimony of no knowledge of MDMA, well, that rather suggests that they’re interested to know why they weren’t called to support your case?

In my submission, that was a perfectly legitimate interpretation of the jury’s question and one which, in effect, underlined what was the essence of the application made by counsel for the applicant in the trial proceedings. That is set out in this passage of transcript, but it essentially amounts, your Honours, to an application by counsel that the jury, in response to their question, be told that it was not their task to speculate, but, most significantly, on the application of counsel, to be reminded of the fact that there was no burden on the accused person in a criminal trial to prove anything and no expectation that he or she would call evidence or call witnesses.

Your Honours would be aware that the applicant himself did give evidence in this trial, as he did in the first trial, but he did not call any witnesses. There was further discussion on page 29 of the application book, where his Honour said, alongside 15:

Should I tell the jury that it’s also a matter for the accused as to who they call, subject of course to their capacity to call people?

The significance of this was that those people nominated in the jury’s question were all people who had been referred to in the course of the evidence given by the accused. One of them was a co-accused who had been charged with the same offence and another was a person whom the accused said had, in effect, put him up to the job of assisting in the importation of what he understood to be a parcel of diamonds.

Your Honours, there was further discussion. Importantly, in my submission, at page 30 of the application book, alongside line 40, his Honour said:

of course, they should always recognise that the onus is on the Crown to prove its case beyond reasonable doubt. I think that would be probably as far as I should go.

Counsel then said:

Well, I’d simply ask also a reminder though, that the accused is not obliged to prove anything –

This was a relatively frequent application that counsel for the applicant had made. Following that, the learned Crown Prosecutor suggested that in fact there may be some disadvantage in giving the jury a direction about the lack of obligation on the accused to call evidence and his Honour seemed to accept that.

Can I take your Honours to page 33 of the application book, where there is set out in full the response which the learned judge made after stating the question. Alongside line 20, his Honour said this:

Well members of the jury the law requires you to decide this case on the evidence which is presented to you. The evidence being called by the Crown in respect of the Crown’s case, by the accused’s counsel on behalf of the accused. It would simply be speculation on your part to consider what a witness may or may not have given if that person had or had not been called - - -

CALLINAN J: Mr Byrne, Mr Rocco gave evidence himself.

MR BYRNE: He did.

CALLINAN J: Were any other witnesses called by him?

MR BYRNE: No, your Honour. I am reminded that there was some very brief character evidence given by his brother in the first trial, he being a witness unavailable in the second trial, and that statement - - -

CALLINAN J: So it was admitted on the second trial.

MR BYRNE: It was admitted, yes, but he did not call any witnesses. The contention was made that that response by the learned trial judge was, in all the circumstances, inadequate, and that was one of the bases – indeed, the primary basis – on which the applicant’s conviction was challenged in the Court of Criminal Appeal. Can I ask your Honours to go to page 48 of the application book, which is part of the judgment of the Court of Criminal Appeal and, in particular, the judgment of the presiding judge, Mr Justice Meagher. Alongside line 40, his Honour said this, having set out the relevant background:

In answer to the question which the jury transmitted to his Honour, his Honour said in effect he would not deal with it, but they must not speculate. They would be speculating if they tried to work out the reasons for not calling these people and he also told them they were obliged to deal with the case on the evidence as it stood.

It appears that the Court of Criminal Appeal accepted the proposition that the learned judge simply did not answer the question that the jury had put after what I would submit was a significantly lengthy period of deliberation. Mr Justice Meagher went on, alongside line 50:

All those directions were correct.

The complaint, however, is not that anything that his Honour said was incorrect; the complaint is that what his Honour said in answer to the jury’s question was, with respect, an inadequate response to it, because it did not alert the jury to the need for them to bear in mind, in assessing whether or not they considered that element of knowledge had been established, that there was no obligation on the accused to, in effect, establish that he did not have the requisite knowledge.

In my submission, what the Court of Criminal Appeal has done in effectively dismissing this ground of appeal, effectively rejecting the complaint about the way in which the learned judge dealt with the jury’s question, was itself inadequate. There was, in particular, no reason given by the Court of Criminal Appeal on the issue of whether or not the circumstances did call for a direction in relation to the onus of proof, which had been frequently requested by trial counsel.

The submission is put in this Court that the circumstances that existed in the trial proceedings effectively entitled the applicant to a direction from the learned judge which was an answer to the jury’s question. It was necessary because of the risk which appears to be implicit in the manner in which the jury asked the question, namely, using the concept of evidence to substantiate the accused’s version.

CALLINAN J: Mr Byrne, say we thought that it would have been better if the trial judge had said to the jury that not only should they not speculate about which witnesses should or should not be called, but that it was for the prosecution to prove the case and that the onus of doing so never shifted whether the accused gave evidence or not, and there was no obligation on the accused to give evidence or to call any evidence. That is the sort of direction you say should have been given, is that right?

MR BYRNE: Effectively, in those terms, your Honour, yes.

CALLINAN J: Mr Byrne, assume you are right about that, it does look a very, very strong case.

MR BYRNE: With respect, your Honour, it cannot be said, in my submission, to be a strong case of this kind, where there has been one jury unable to agree on a verdict and there were - - -

CALLINAN J: I know on other occasions the Court has had regard to an earlier disagreement, but my recollection is that that was – where no objection was taken. I do not know whether we can take that into account, Mr Byrne, the fact that there may have been two or three trials with a disagreement. We do not know whether the evidence was the same, we do not know whether all the witnesses were present. There are all sorts of matters that might intrude.

MR BYRNE: Certainly. I accept that it is difficult to draw firm conclusions from the mere fact of a jury being unable to agree on a verdict.

CALLINAN J: I think you should really address us as to why your client lost the fair chance of an acquittal, or something of that kind.

MR BYRNE: I was, with respect, just about to go to the question. In the circumstances that existed when the jury’s question was asked, it clearly indicated, in my submission, that the jury were having difficulty reaching a verdict. The question of the strength of the case, at that stage, was one which would not necessarily – certainly, not inevitably – be resolved in favour of the Crown. It was a case where they were out for a very long time on a relatively straightforward and simple issue. They were asking questions about that issue, which suggested that they were approaching it in the wrong way.

When the learned judge, in our respectful submission, failed to give them an appropriate direction as to the way they should approach that specific question, there was a situation where it could be said that the applicant thereby lost a potential source of acquittal. It is not one of those cases, in my submission, where the evidence can be said to be so compelling that the conclusion adverse to the applicant at the necessary criminal standard could inevitably be said to be made.

There is, in the written submissions that have been filed on behalf of the applicant, reference to an earlier decision of this Court in Quartermaine v The Queen which, although it was a dissenting judgment of Justice Mason, as his Honour then was, and Justice Wilson – just that brief extract from their Honours’ judgment:

A misdirection at a stage when a jury has returned to seek an answer will generally be a matter of grave import, requiring serious consideration in any appellate review –

I apologise, I am reading from page 62 of the application book, your Honours –

for the reason that being isolated from the charge itself it is likely to carry great weight with the jury.

Similarly, your Honours, there is reference made, a little further down page 62 in the application book, to the decision of Justice Cory in the Supreme Court of Canada, where general statements of principle regarding the manner in which a jury question should be dealt with are set out.

In my submission, the question which the jury asked the learned judge to assist them with was one which clearly carries with it the implication that they at least may have been dealing with the question of knowledge and the proof of that issue in the wrong way, by looking towards the accused as a source for substantiation of the case which he had advanced, rather than looking towards the question of whether the Crown had proved the necessary guilty knowledge to the requisite standard.

It is a relatively straightforward and simple issue, your Honours, as to whether the question was answered appropriately, in all the circumstances, and we would submit, with respect, that it was not. Thank you, your Honours.

CALLINAN J: Mr Bellew, would it not have been correct for the judge if he had said to the jury that the accused is under no obligation to call any evidence at all? This Court has dealt, in recent times, with the obligations of accused to give evidence. I do not think that anybody, except perhaps myself, has expressly rejected the application entirely of Jones v Dunkel to a criminal trial so far as a defendant is concerned, but other members of the Court have come close to that.

MR BELLEW: Yes, your Honour. Your Honour posed the question of whether or not it would have been correct for his Honour to give a direction of that nature. The answer to that isolated question, in our respectful submission, is, yes, it would have been correct. The more pressing question, in our submission, in the circumstances in which this arose, however, is whether or not it was necessary in the circumstances for a direction of that nature to be given, bearing in mind that the complaint which is now made in respect of the directions that his Honour did give is that they were inadequate.

To understand the approach that his Honour took one must start, your Honour, with this proposition. There were two components to the direction that his Honour gave. The first of those components was a reminder to the jury, in effect, that they were required to decide the case according to the evidence and according to the evidence that was adduced by the Crown and by the accused.

CALLINAN J: But that is not an answer to the question. The question is:

explain why the jury have not heard evidence from –

and then certain people are identified. It seems to me, at the moment, that that question just was not answered.

MR BELLEW: Your Honour, it was answered in the second limb of what his Honour said, because his Honour said, in effect, “Do not speculate on what someone might have said had they been called”. Might I say this, that this application is said to – at least in the written submissions – arise out of a possibility or a fear that the jury may have used certain evidence or taken an improper approach to their deliberations. But any risk that that situation existed – the inference being drawn from the terms of the question – in our submission, was cured by the direction that his Honour gave.

CALLINAN J: I do not know about that. It does not make the point - first of all, it is not a direct answer to the question. It is not a stupid question. It is a sensible question. One can well imagine any reasonably intelligent juror puzzling over it, and the question is not answered by saying, “You have not heard from these people, but bear in mind that the accused does not have to produce any evidence and does not have to produce any witnesses”. The jury might well have been left with the impression that there had been some neglect on the part of the accused in not calling people to bolster up his story who could have been called.

MR BELLEW: Your Honour, not in circumstances, in our submission, where they had been reminded in the course of the summing up, on a series of occasions, that the accused bore no onus.

CALLINAN J: I know that. Say we were against you on that. What do you say about the application of the proviso?

MR BELLEW: Your Honour, in our submission, we say two things. Firstly, there are no inferences to be drawn one way or the other by the failure of the prior jury to reach a verdict. Secondly, it was an isolated issue of knowledge. It fell to the jury to determine whether or not, in effect, they accepted the explanation that was provided by the applicant as to his conduct.

That conduct included not only, your Honour, the fundamental fact of his coming to Australia in circumstances where, on one view of the evidence, that journey was not warranted, but, secondly, evidence of his
activities over a number of days in the course of the collection of these pumps and their transportation to a warehouse in the northern suburbs of Sydney and, in the intervening period, lengthy periods of time in which he was a passenger in the vehicle in which the pumps were located, driven by his co-accused, Mr Cohen, over a period of time through various parts of Sydney.

The jury were entitled, in our respectful submission, to infer the requisite degree of knowledge in those circumstances and to reject the applicant’s assertion that he had no knowledge of the presence of narcotic goods and was under the misapprehension, as it turned out, that he was assisting in some importation of diamonds.

Your Honours, could I just make one further submission in relation to what I will call the primary issue. My friend, in his written submissions and today, has asserted that an implication arises, in effect, that the jury was considering the question of guilt or otherwise on an improper basis, that is to say, by speculating on what people might or might not have said had they been called. In our submission, your Honours, even if one were to accept that the direction was perhaps imperfect, whatever fear that the jury may have been considering the question of guilt on an impermissible basis was cured by the terms of the direction that his Honour did give. May it please the Court.

CALLINAN J: Yes, thank you. Mr Byrne.

MR BYRNE: Your Honours, there are just a couple of matters on the substantive issue. When the terms of his Honour’s response to the question are examined it is effectively in terms that there is some form of equivalence. He does not, in any sense, contrast the position of the Crown from that of the accused. “The evidence which presented to you” is described as being:

The evidence being called by the Crown in respect of the Crown’s case [and] by the accused’s counsel on behalf of the accused.

That manner of treatment of that very important issue is, with respect, a breach of what your Honour Justice Callinan said in Azzopardi’s Case. I appreciate I have not got it on the list of authorities, but if I can just remind your Honours that paragraph 192 in Azzopardi - - -

CALLINAN J: Yes, but I went further than the other members of the Court, Mr Byrne, I think.

MR BYRNE: I appreciate that, your Honour, but your Honour there said that:

It was also wrong for the trial judge to treat the appellant as being in the same position with respect to the calling of material witnesses –

as the Crown. Your Honour has said, of course, similar things in the earlier decision of RPS and in the later decision of Dyers. Might I say, just in relation to that matter, on the question of whether this is a matter which is a special leave point or a matter suitable for the grant of special leave, it is also a matter which your Honour Justice Heydon has dealt with, in considerable length, in the decision that your Honour gave in the case of Riscuta and Niga in the Court of Criminal Appeal earlier this year, in February of this year. It is a situation where there is perhaps some need to clarify the precise position.

Can I just very briefly address your Honours on the question of the proviso. In the application book, at page 67, my learned friend sets out part of what might be said to be the strengths of the case for the Crown. Very briefly, alongside line 50 on page 67, it is said:

the Applicant was observed in the rear of the vehicle to be looking inside the pumps. Subsequently, the Applicant was seen to take over the driving of the vehicle before stopping it adjacent to an abandoned motor vehicle. The Applicant was then seen to place the pumps in the vicinity of that vehicle.

Now, all three of those assertions are, in my submission, contradicted by the terms in which the learned judge summed-up to the jury. That just was not the evidence in this case.

On the strength of that, it may appear to be a strong case, but if I can ask your Honours to look very briefly at the summing-up at page 16 of the application book, alongside line 10, the observation is made about the contentions put to the jury by counsel for the applicant:

He points out to you that there is no direct evidence of the accused knowing what was in the pump in the sense that he opened the pump and saw what was in it, no one actually saw that happening.

A little further on, page 18 of the application book, alongside line 30, again summarising the submissions – and this was not challenged:

He points out to you that the surveillance evidence does not establish that the car in which Cohen and the accused were actually stopped in Daydream Street –

that is the location in Mona Vale –

no one saw the two pumps being jettisoned there and that that is a factor which you would also take into account.

There is, in addition, your Honours, on page 68 of the application book, in paragraph 10 of my learned friend’s submissions, a reference to:

Police monitored a tracking device which had been placed in one of the pumps –

There was no evidence at all implicating the applicant as a result of the placement of that tracking device, no evidence of any listening devices at all which would indicate his knowledge of something sinister occurring.

So, in the modern context of cases of this kind, it is, in my submission, misleading to suggest that this is a strong prosecution case. There were no listening device materials. There was no evidence of sightings of the applicant in the incriminating circumstances that are suggested on page 67 of the application book.

CALLINAN J: All right. Thank you, Mr Byrne.

MR BYRNE: May it please your Honour.

CALLINAN J: The applicant contends that the trial judge misdirected the jury in answering a question by them during his trial on a charge of being knowingly concerned in the importation of a commercial quantity of narcotic goods. The question was to this effect, “Please explain why the jury have not heard evidence from” a number of named people “to substantiate [the applicant’s] testimony of no knowledge”. After argument as to the way in which the trial judge should answer that question, the jury were directed in these terms:

Well members of the jury, the law requires you to decide this case on the evidence which is presented to you. The evidence being called by the Crown in respect of the Crown’s case, by the accused’s counsel on behalf of the accused. It would simply be speculation on your part to consider what a witness may or may not have given if that person had or had not being called. So for that reason I simply must tell you members of the jury, that your decision must be made on the evidence which has been presented to you. That’s as far as I can take it. Thank you members of the jury. If you will now retire and continue.

We point out that that answer was not the answer that counsel for the applicant submitted would have been an appropriate one.

The applicant had already given evidence himself. The only evidence called by him was some character evidence. An appropriate direction, in our opinion, would have included a statement or a reminder to the jury that the applicant was not obliged to give or call any evidence at all, that it was for the prosecution to prove the case and that the onus of doing so never shifted, whether evidence was called on behalf of the applicant or not. That having been said, however, it appears to us that this was a very strong case. The applicant offered an explanation to the jury that he had intended to smuggle diamonds and not drugs. The jury plainly rejected it. It was in many respects fanciful, in some self-contradictory and failed to account for his movements to and from various places from time to time.

Any appeal would be most unlikely to succeed. Special leave should therefore be refused.

AT 2.03 PM THE MATTER WAS CONCLUDED