Rosenfeld v The Queen [2009] HCATrans 217 (4 September 2009)

Last Updated: 8 September 2009

[2009] HCATrans 217

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Sydney No S88 of 2009

B e t w e e n -

BENJAMIN ROSENFELD

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

GUMMOW J
BELL J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 4 SEPTEMBER 2009, AT 4.54 PM

Copyright in the High Court of Australia

MR H.K. DHANJI: May it please the Court, I appear for the applicant. (instructed by Hugo Schleiger)

MS W.J. ABRAHAM, QC: May it please the Court, I appear for the respondent. (instructed by Commonwealth Director of Public Prosecutions)

GUMMOW J: Yes, Mr Dhanji.

MR DHANJI: Your Honours, the applicant in this application for special leave to appeal was tried with respect to an offence against section 307.1 of the Criminal Code (Cth) of importing a commercial quantity of a border-controlled drug. The elements with respect to that offence are not in issue. They are set out in the applicant’s summary of argument and also in the respondent’s summary of argument in a slightly different but - - -

GUMMOW J: Is there not a point that arose that the trial judge cleared up?

BELL J: Page 55 of the application book.

MR DHANJI: Yes, your Honour. Your Honours, in the applicant’s submission there certainly was a point that arose, and indeed it was the view of both the Crown counsel and the applicant’s counsel that the directions were insufficiently clear with respect to the fault element with respect to the importation of a substance.

BELL J: Which is why a redirection was sought. Ultimately, on application book 55, Mr McClintock for your client, submits what the correct direction should be. His Honour says:

I thought that was clear.

MCCLINTOCK: It may have been.

Then his Honour reiterates the position.

MR DHANJI: Can I perhaps answer it in this way. In a general sense the first point that can be made with respect to that redirection is this. There was nonetheless a failure and one which repeated the earlier failure to relate the directions to the facts of the case.

BELL J: This is what I was coming to. Ultimately, as I understand it, you do not contend that the direction, as finally given, on the application for a redirection was wrong. Rather the complaint, as I read your submissions, was in the Zorad line of territory, namely a failure to adequately relate the legal directions to the issues on which the trial was fought. Is that right?

MR DHANJI: It can be put in two ways, in my submission, your Honour: firstly, in that Zorad way of failure to relate the directions to the issues in the trial, but secondly, and perhaps in an overlapping way, a failure to – let me put it this way, one could not, reading the entirety of the directions, be satisfied that even absent a failure to connect them to the issues in the trial there was an adequate direction given to the jury with respect to the fault element in relation to the importation and even taking into account that redirection, his Honour still says it is the importation of a substance that has to be intended but there is still no – and this is why they overlap – identification of precisely what substance is in issue. Is it the cartons? Is it the tanks? Is it the canisters within the tanks?

BELL J: It is hardly reasonable, is it, to think that the jury would have taken from that, in the context of the way this trial was conducted, that the reference to “a substance” was a reference to the hot water tanks?

MR DHANJI: The difficulty, and I accept looking at that in isolation one would readily take that view, but the difficulty has to be also seen in the context of the – up until this point – occasions in which the directions with respect to intent were conflated with the directions with respect to recklessness. The other point that should be made is that this aspect of the matter is unclear as to whether what his Honour is doing there is reiterating to counsel his understanding or in fact giving a clear direction to the jury. The Crown Prosecutor does go on and say:

Yes your Honour and your Honour was intending to do likewise for the alternative charge.

Then going on - - -

BELL J: The jury are present throughout this exchange?

MR DHANJI: They are present, yes. When one goes on, your Honours will see towards the bottom of page 55, and this is turning to the alternative, but the issues unfortunately in relation to this intent aspect overlap, his Honour says at about point 9 on the page:

In relation to that, again the criminal –

and I stress the word “again”. His Honour is making it clear he is talking about the same concept –

element involved in that is the criminal element of recklessness. Was the accused aware of the substantial risk in attempting to possess a substance that the substantial risk that the substance was a prohibited substance and being and if he was so aware, was he justified in attempting to possess such a prohibited substance.

Again there is some discussion, and then his Honour goes on. This is at line 21 at application book 56:

The substance, but there is a criminal element of knowledge not only in intention, of knowledge the criminal element of knowledge is reckless and was he aware of intending to possess a substance. Was he aware of the substantial risk that the substance was a prohibited substance and if he was so aware was he justified in continuing to attempt to possess. But recklessness comes in there in relation to the substance. If I could make it clear and I hope that does make it clear, the intention in relation to the alternate count is to attempt the intention in relation to the primary count as to import.

Again his Honour has come back to this notion that the intention aspect is in relation to import, and as we have attempted to stress in our summary of argument, there was no issue that this applicant was intentionally importing the container, the cartons in the container, the hot water containers - - -

BELL J: He gave evidence and that was clear, so that when one goes back to the direction relating to count 1, which was the count upon which he was convicted, that it is the importation of a substance that has to be intended, it is difficult to think other than that the jury understood that was a reference to the substance and not to the importation of which he admitted of the hot water containers, surely.

MR DHANJI: Your Honour, I would agree with that entirely if that stood alone, but when that is viewed in the context of the directions before and the directions which follow – and I accept that much of the directions that follow relate to the alternative count, but his Honour makes clear, when directing in relation to the alternative count, that the concepts are the same, and so having had this conflation of intention and recklessness before this, what one might accept in isolation, is a correct direction and then the subsequent conflation of the concepts, there is, in my submission, no basis upon which one could conclude that the jury were properly directed as to this issue.

Can I perhaps address the manner in which the Court of Criminal Appeal addressed this matter and the difficulty in the applicant’s submission that faces the reasoning process that took place in that Court. The reasons of the Court of Criminal Appeal were given by his Honour Justice McClellan, the Chief Judge at Common Law, with whom Mr Justice James and Justice Buddin agreed. His Honour set out at application book pages 79 and following a number of the directions, as we point in our argument - some but not all of the directions which, in the applicant’s submission, confused or misdirected the jury.

His Honour then at application book 84, paragraph 40, draws what appears to be – looking at paragraph 40 – a conclusion. His Honour accepts that:

to a limited agree the direction in [39] above may have been confusing. Recklessness was left at large and not confined . . . However, these directions were preceded by –

some directions and followed by a later exchange, and his Honour, in the final sentence in paragraph 40 says:

I am satisfied that the jury were appropriately directed in this matter.

His Honour does not leave it at that point. His Honour goes on and deals, at paragraphs 41 through 42, with an argument that was put on behalf of the applicant and it is important to note that his Honour is not dealing with that under the heading of the proviso, that is, what difference would it have made in terms of the weight one might give the verdict of the jury, but rather, his Honour is dealing with it in the context of, were the jury properly directed.

His Honour refers to the argument - if I can put it in brief terms it was this. There was no issue that when these cartons arrived - there were six cartons, three of them showed obvious signs of having been interfered with. The packing tape had been removed, they had been retaped. There was clear evidence that they had been tampered with or treated in some way differently to the others. The applicant had given evidence that he was responsible for the purchase of delivery to the shipping yard and ultimately importation of the cartons.

The potential existed, having regard to that evidence, for a jury to – and it is not contended on behalf of the Crown this would be an appropriate line of reasoning, but on the directions that they were given, the potential was there for the jury to reason that if he was indeed responsible for importing cartons which had clearly been interfered with, then recklessness came into play.

BELL J: The purpose of this submission that you are now developing is to support a contention that the directions were confusing and that there was a real risk of confusion having regard to this argument which no party put at the trial, but which might have been a course of reasoning that you say the jury adopted.

MR DHANJI: Yes.

MR BELL: Is your difficulty that the Chief Judge in the preceding paragraph, in the concluding sentence said:

I am satisfied the jury were appropriately directed in this matter -.

having set out the history including the final redirection?

MR DHANJI: With respect, no, your Honour, because paragraphs 41 and 42 – and your Honours will see at application book 85 there was a clear and separate heading for the proviso – his Honour is still clearly enough dealing with the adequacy of the directions and the adequacy of the directions, and indeed, appropriately so because, as your Honour Justice Bell points out, the adequacy of the directions needed to be viewed in the context of the issues in the trial, the evidence in the trial, and the potential for the directions that were given to cause some mischief.

His Honour is, in my submission, there still clearly enough dealing with the adequacy of the directions and, as has been pointed out in the written argument, there is a, with respect to his Honour, logical difficulty in the manner in which his Honour has dealt with the argument because his Honour rejects the potential for any difficulty to arise on the basis of the applicant’s evidence that he was not aware of any tampering with the packages.

Of course, the applicant’s evidence may not have been accepted in that regard. Had the applicant’s evidence not been accepted in that regard, the jury were left with the circumstances that there was no evidence but that the applicant was the person solely responsible for the transfer of the cartons from the manufacturer through to the shipping yard. Indeed, he had hired a van. There were records in relation to the hiring of a van. He had kept the boxes overnight, and so on that factual scenario, if one rejects his evidence, as indeed his evidence was at least rejected in part, it left the clear potential for a jury to reason by way of recklessness. Having regard to the availability of that process, one goes back to the directions that were given, and I will not go over it again, but the directions conflated recklessness and intention repeatedly.

BELL J: There was an amount of confusion at times, ultimately resolved by a direction about which Mr McClintock, a very experienced criminal lawyer, made no complaint.

MR DHANJI: Your Honour, in context, Mr McClintock made, I think, at least two complaints. There reaches a point where trial counsel is in a position where one has done as much as one can to address the issue. The difficulty Mr McClintock faced with respect to his Honour the trial judge is that any further request was - it appeared on the evidence here – likely to result in greater confusion. It is a case where certainly it was not suggested rule 4 could be applied in this matter, and in my submission when one looks at the efforts of Mr McClintock who, as your Honour points out, is a very experienced trial counsel, but looked at in context, Mr McClintock, I think, did as much as could reasonably be expected.

Your Honours, if I do not get past the miscarriage of justice aspect, I clearly enough do not get to the proviso. In relation to the proviso, perhaps I can just very briefly say his Honour did deal with the proviso and dealt with it in – if I may say so – fairly brief terms. His Honour did not direct himself to the question posed by the statute, that is, was there no substantial miscarriage of justice. Rather there was simply a conclusion that the evidence was overwhelming. There is reference in the written submission to judgments of this Court in Weiss and AK, and of course there have been a number of others.

His Honour was required, of course, to direct himself to the question raised by the statute. In the applicant’s submission, the failure to do so is a clear error, particularly in the circumstances of this case where the miscarriage of justice relied upon is one which goes to directions with respect to the only issue in the trial and it comes down to that fundamental proposition that there was a single issue in this trial. The jury were, in my respectful submission, not properly directed in relation to that issue. There is a difficulty in applying the proviso.

Even if one then takes the view that the proviso could be applied, of course, we raise in the written submissions the need to have regard to the fact that what was substantially at stake here was a credit issue; a circumstantial case in relation to intention in which the applicant gave evidence. It was substantially a credit issue. His Honour, in my respectful submission, further erred in failing to have regard to that aspect of the matter. Your Honours, as I say, however, if I do not get past the miscarriage of justice point, clearly enough, the applicant fails.

GUMMOW J: Thank you, Mr Dhanji. We not need to call on you, Ms Abraham.

We are not satisfied that ground 1, which appears at page 88 of the application book, of the proposed grounds of appeal has merit. That being so, ground 2 would not arise. Special leave therefore is refused.

AT 5.11 PM THE MATTER WAS CONCLUDED