Granger v The Queen [2004] HCATrans 478 (19 November 2004)

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Granger v The Queen [2004] HCATrans 478 (19 November 2004)

Last Updated: 26 November 2004

[2004] HCATrans 478

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A41 of 2004

B e t w e e n -

DAVID PHILLIP GRANGER

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

FROM ADELAIDE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 19 NOVEMBER 2004, AT 12.07 PM

Copyright in the High Court of Australia

MR A.E. SCHAPEL: If the Court pleases, I appear for the applicant. (instructed by Johnston Withers)

MR C.J. KOURAKIS, QC, Solicitor-General for the State of South Australia: May it please the Court, I appear with MR M.G HINTON, for the respondent. (instructed by Director of Public Prosecutions (South Australia))

GUMMOW J: Thank you.

MR SCHAPEL: Your Honours, the special leave point which we say exists in this case is this, it concerns the extent to which the presumption of innocence can be modified or abrogated by a State legislature and, indeed, whether in the whole of Australia persons may be convicted of a criminal offence in spite of the existence of a reasonable doubt.

KIRBY J: There have been many provisions, federal and State, reversing the onus of proof on particular issues, have there not, over the history of the Commonwealth?

MR SCHAPEL: There have indeed.

KIRBY J: Is that not an indication that you really need a truly extreme case where there has, in effect, been a removal of the right to fair trial before a constitutional question would arise as to the Parliament concerned, federal or State, going beyond that which Chapter III permits.

MR SCHAPEL: I would agree with that and we say, in this particular case, that the operation of section 32(3) of the Controlled Substances Act does give rise to an unfair trial and, on that basis, we would suggest that section 32(3) and the regulation under which the presumption shifts is, in fact, an arbitrary piece of legislation which does give rise to an unfair trial.

GUMMOW J: In Nicholas v The Queen [1998] HCA 9; 193 CLR 173 at 278 in paragraph 252, Justice Hayne said:

It is possible to imagine changes to evidence or procedure which would be so radical and so pointed in their application to identified or identifiable cases then pending in the courts that they could be seen, in substance, to deal with ultimate issues of guilt or innocence.

Now, that does not readily indicate that 32(3) is of that character.

MR SCHAPEL: No, and, indeed your Honour Justice Gummow said at paragraph 156 of Nicholas that a law which deemed a fact to exist or deemed a fact to be proved:

albeit procedural in form, might well usurp the constitutionally mandated exercise of the judicial power –

What I say in this case - - -

KIRBY J: So we are looking for quite an extreme case and here a lot of drug is in possession and the devil himself knoweth not the mind of man, therefore the Parliament has said if you want to, as it were, say that you had it for some innocent purpose or by accident or did not know you had it in possession, you have to show that. Now, what is so extreme or radical about that?

MR SCHAPEL: It can operate unfairly in a number of ways. Firstly, in a situation where an accused person’s defence is, “I simply wasn’t in possession of the substance”, now, in that particular case, unless he can point to something on the prosecution case which might rebut the presumption, he is in no real position to be able to rebut the presumption because his defence is, it simply was not mine. In that case, what I say is that the presumption virtually acts as a deeming provision, namely, that once the prosecution establish a quantity and possession then that is the end of the trial.

KIRBY J: It was originally a deeming provision, was it not, and then it was substituted - - -

MR SCHAPEL: It said “deemed” and then it was changed to “presumed”.

KIRBY J: And then it changed, nobody quite knows why they changed that. It does not seem to change the substance of it, does it?

MR SCHAPEL: I say it does because plainly Parliament intended it to have a different meaning otherwise the whole amendment would have been superfluous.

GUMMOW J: They streamline Acts from time to time.

KIRBY J: We have heard earlier in the week about streamlining. Justice Gummow cannot get the word out of his mind.

MR SCHAPEL: All right, I will not use that any more.

KIRBY J: No, you did not use it.

GUMMOW J: You did not use it.

MR SCHAPEL: All right, I will not use it then. The point about the amendment that we make is simply this, that presumably it was an informed decision on Parliament’s part when they enacted the amendment in 1999. Given what has fallen from this Court in recent times as to there being a rule of statutory construction, that where there is ambiguity a piece of legislation should be seen to conform with what are said to be human rights – and the presumption of innocence is one of them – then the piece of legislation should be construed in accordance with that human right.

So, in other words, what we say in this case is that by changing or amending the word from “deemed” to “presumed”, it was an informed decision. The only conclusion one can draw from that is that “presumed” was meant to have a different meaning and that meaning, in my submission, would have to comply with Article 14 of the ICCPR, namely, to give rise to a construction that it does not place a persuasive burden of proof upon an accused person but merely places an evidentiary burden that he is obliged, as it were, to point to evidence that he did not have it for sale but the prosecution retains the onus of proof beyond reasonable doubt at all times. That is essentially our argument in relation to the second ground of appeal.

As far as the first ground of appeal is concerned, that is the Chapter III point and the Kable point, we recognise that certain dicta in Nicholas - - -

KIRBY J: Kable is not looking very ample lately. Kable is not looking very ample and expansive in recent times.

MR SCHAPEL: It is not and, indeed, in Fardon, a recent decision of this Court, I think Justice McHugh - - -

KIRBY J: You have to remind me of Fardon.

MR SCHAPEL: Fardon - your Honour, it is in my learned friend’s case book.

KIRBY J: I remember it well.

MR SCHAPEL: Yes. Essentially this, that Justice McHugh suggested that encroachments into the what might be regarded as elements of normal judicial process are allowed to be made by the States, and I think he gave example even of modifying the burden of proof. What I say is that there is a limit to how far one can go in that, and those limits have been defined and applied internationally for years now, and that is that the presumption must be seen to be rational. In other words, there must be some demonstrated connection between the fact proved and then the fact presumed and we say in this case that there is no rational connection between the possession of say 101 grams of cannabis and the allegation that, therefore, Mr Granger had the substance for the purpose of selling it.

KIRBY J: Well, the rational basis is suggested that in small quantities it may be that it can be assumed that you might have it for your own use, but the bigger the quantity, the more easy is it rationally to draw the inference that you are in the market. That is not irrational.

MR SCHAPEL: That is right. That is why I say that there has been no necessity for a presumption because when we deal with large quantities then the prosecution is in a position where it can prove guilt beyond a reasonable doubt, but for lower quantities or where there is some other indication of innocence, as there was in this case, then it, unfairly in my submission, places the burden of proof upon the defendant to prove essentially his innocence and where he can be convicted in spite of a reasonable doubt.

We say that is what happened in this case. The learned trial judge made it plain in her reasons for verdict that on the evidence it was possible that he did not have the substance in his possession for the purpose of selling it notwithstanding that he had quite a deal of material in his possession – I think it was something like 17 kilos – but the learned trial judge was not able to conclude beyond reasonable doubt that he had it for sale, but simply concluded that he had not discharged the reverse onus of proof. We say that in all the circumstances if a fair trial is to be implied in Chapter III of the Constitution, that is the right to a fair trial or the right not to be tried unfairly, then Australia is in exactly the same position as countries that have entrenched Bills of Rights which contain, in express terms, the presumption of innocence.

At a State level, we would suggest that when the District Court of South Australia exercises State jurisdiction because it must, as it were, pass muster as far as the exercise of its federal jurisdiction is concerned it cannot be seen to be, as it were, delivering the will of the legislature on to accused persons in an unfair manner.

They are essentially our arguments on the first two grounds, but may I just leave this observation with your Honours. Firstly, we recognise that if this legislation was Commonwealth legislation and it would pass muster as far as the Commonwealth was concerned then a Kable situation does not arise.

KIRBY J: Justice Callinan and I express some reservations of that and I think, perhaps, Justice Gummow is an absolute rule so that I do not - that is Bachrach, is it not, that was decided - - -

MR SCHAPEL: That is correct.

KIRBY J: It is a very useful criterion and, perhaps, in the view of the majority of the Court is decisive, but - - -

MR SCHAPEL: Yes, indeed, that was the test applied by the Court of Criminal Appeal in South Australia. The approach of the Chief Justice was precisely that, that if it passed muster as far as the Commonwealth is concerned then no Kable point arises. But may I simply make this observation finally in relation to this point. If the Commonwealth were to legislate across the board or even in relation to one particular offence that the prosecution can simply rely on the averment in the indictment and that the burden of proving a person’s - - -

KIRBY J: There are such federal laws.

GUMMOW J: There have been for a long time.

KIRBY J: There are such provisions in federal law and, as Justice Gummow says, they have been there for a long time. I think there are several of them in the customs area.

MR SCHAPEL: Yes. Justice Higgins and Williams in Ah On, I think, made an observation years ago that such a situation might not be constitutionally tolerated but I would say, and my submission is, that when a legislature dictates to the court in a Commonwealth scenario that you must find a certain averment proved unless the accused proves his innocence, that, of necessity, must be the usurpation of judicial power. Most of the old cases, in my submission, concern the head of power under which the legislation is enacted. Does such a reverse onus fall within the head of power? Those cases, in the main, were not concerned with Chapter III issues and were, or were not, a usurpation of judicial power.

My submission is that the States can do that no more than the Commonwealth could and that where the State courts exercising federal jurisdiction place unfair onuses of proof on accused persons then, in my submission, the reverse onus of proof can be seen to be an unfair one and, therefore, infringe the principles of Chapter III.

Ground 3 is a matter of interpretation. That is the ground which concerns whether or not, in a charge of possessing cannabis for sale as opposed to possessing cannabis for sale or supply, the presumption may be utilised because when one looks at the terms of the section 32(3) presumption, the presumption bites, as it were, when proof is afforded of possession over a prescribed amount giving rise to a presumption that the accused had the:

substance in his or her possession for the purpose of the sale or supply of that drug or substance to another person –

and I am looking at the second to last page of the respondent’s booklet of authorities.

The Full Court of South Australia held in Rowan that where the charge is one of possessing for the purpose of sale only or supply only, the presumption can be utilised, notwithstanding that the presumption is cast in terms of one of presuming possession for the purpose of the sale or supply of the drug. Our contention is simply this, that in Rowan the Full Court erred by placing an incorrect interpretation on the provision because if, in a charge of possession for the purpose of sale, the presumption is invoked, then it simply operates to presume sale or supply and not sale in preference to supply so that where you do have a charge of possess for the purpose of sale, we say simply, the presumption does not bite. It would only bite in a charge of possession for the purpose of sale or supply.

The fourth and final ground, your Honours, involves this question. Where an accused person is obliged to discharge an onus of proof on the balance of probabilities, is the learned trial judge simply tasked to compare the inherent likelihood or unlikelihood of the account proffered by the accused and convict simply on the basis that the trial judge has, or the tribunal of fact regards it as unlikely that the person had the material in his or her possession for an innocent purpose. In this case there was simply no finding of credit in relation to the accused in relation to his evidence.

We say that an important principle arises here, namely, whether or not a tribunal of fact simply examines the likelihood or otherwise of the story without actually going on to consider the credibility or creditworthiness of the person who is actually telling that story. In my submission, there was a miscarriage of justice in this case simply by virtue of the fact that there was no adverse finding of credit against the applicant and he was simply convicted on the basis of the judge’s view that what he had said did not ring true.

Indeed, as again I emphasise, at the end of the day her Honour, in her reasons for verdict – if I can take your Honours to the relevant paragraphs – in the application book page 18, at paragraph 73 her Honour said:

On the evidence, it is possible that the accused did not have cannabis in his possession for the purpose of sale.

Notwithstanding that observation, her Honour convicted on the basis of the presumption and, indeed, notwithstanding the fact that at least at a certain level her Honour was prepared to give credence to what the applicant had said in his defence. If the Court pleases.

GUMMOW J: Yes, thank you. We do not need to call on you, Mr Solicitor.

In the Court of Criminal Appeal Chief Justice Doyle said that there are close similarities between the limit Chapter III of the Constitution places on the power of the Parliament of the Commonwealth to legislate in respect of criminal procedure in Chapter III courts and the limits imposed on the Parliaments of the States by the doctrine identified with Kable v Director of Public Prosecutions for New South Wales (1996) 189 CLR 541.

This application for special leave, on a ground amongst others, to challenge the validity of section 32(3) of the Controlled Substances Act 1984 (SA) has been argued on that footing.

In Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173 at 278 [252], Justice Hayne, who was one of the majority upholding the validity of section 15X inserted in the Crimes Act 1914 (Cth) by the Crimes Amendment Controlled Operations Act 1996 (Cth) observed:

I have said that the distinction between legislation dealing only with questions of evidence or procedure and legislation dealing with questions of guilt or innocence will not always be easy to draw. It is possible to imagine changes to evidence or procedure which would be so radical and so pointed in their application to identified or identifiable cases then pending in the courts that they could be seen, in substance, to deal with ultimate issues of guilt or innocence.

The State legislation under challenge here does not have that radical quality identified by Justice Hayne and there are absent the necessary prospects of success of an appeal to warrant a grant of leave on that ground of alleged invalidity. There are insufficient prospects of success on the other proposed grounds in the draft notice of appeal. Accordingly, special leave is refused.

AT 12.28 PM THE MATTER WAS CONCLUDED