Pantorno v The Queen

[1989] HCATrans 9

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No Ml2 of 1988

B e t w e e n -

JOSEPH JOHN PANTORNO

Applicant

and

THE QUEEN

Respondent

Application for special leave

to appeal

MASON CJ

BRENNAN' J

Pantorno

DEANE J

TOOHEY J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 9 FEBRUARY 1989, AT 10.22 AM:

Copyright in the High Court of Australia

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MR R. RICHTER, QC:  May it please the Court, I appear with

my learned friend, MR J.H. BARNETT, for the applicant.

(instructed by Grace and XacGregor)

MR L.W. FLANAGAN, QC:  May it please the Court, I appear

with my learned friend, MR G.J.C. SILBERT, for the respondent. ( instructed by the Director of

Public Prosecutions)

~SON CJ:	Yes, Mr Richter.
MR RICHTER:	If the Court pleases, I hand summaries of

the applicant's submissions to the Court.

MASON CJ:	Thank you.
MR RICHTER:	If the Court pleases, this is an application

to extend time for an application for special leave

to appeal. The application to extend time is

not opposed and in those circumstances if the Court

desires me to make submissions about it I will.

MASON CJ:  You might explain the length of time that is

involved, Mr Richter?

MR RICHTER:  If the Court pleases. The length of time which

elapsed in the lodging of the application is not
minimal but it is not as long as in some applications.

It is explained in the affidavit of Mr Grace, which

is to be found at page 33 of the appeal book. The

judgment of the Court of Criminal Appeal, as is set

out at page 34, was delivered on 8 September 1987.

The applicant thereafter applied for legal aid seeking

special leave to appeal to this Court.

MASON CJ:  Yes, we need not trouble you further on that aspect

of the case, Mr Richter.

MR RICHTER:  If the Court pleases. The grounds for appeal are

set out at page 43 of the appeal book and we might	indicate to the Court, as we have indicated to our	learned friends on Tuesday,that ground 1 is not
sought to be argued and that, in fact, the crux of the special leave application is contained in
grounds 4 and 5.

(Continued on page 3)

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Pantorno

~1R RICHTER (continuing): These grounds, in effect, purpcrt

to set out the situation in which the applicant

was at all stages of the process against him,

in effect, denied the right to discharge a burden

of proof which section 7J(l)(b) of the DRUGS,

POISONS AND CONTROLLED SUBSTANCES ACT had cast

on him to establish a mitigating factor in relaticn

to sentence.

MASON CJ:  You now accept the interpretation placed upon

the statute by the Court of Criminal Appeal?

MR RICHTER:  I do, if the Court pleases. That interpretation.

in our respectful submission, is clearly correct
in terms of the categorization of the

subsection (l)(b). That is not to say that it

may not be argued in a different case involving,

for example, juries' findings on particular

allegations but for the purposes of this appeal

we do not seek to argue that that interpretation

is wrong at all and, indeed, for the purposes

of this appeal, in these circumstances, it appears

quite correct.

So that the issue, in fact, raised by this

application is, first of all, whether an accused
person is entitled as a matter of elementary

fairness to know the maximum sentence to which

he exposes himself by a plea of guilty and that

is that the principle which, indeed, has the

endorsement of the Court of Criminal Appeal, of

the Full Bench, in delivering its judgment, either

the proposition that we put to the Court is that

that court, in itself, in altering the understanding
of the law as it existed up until the delivery

of judgment and in dismissing the appeal at the

t i me that i t d i d an d i n t h e man n e r t ha t i t d i d ,

in fact, compounded the problem by once again

not allowing Pantorno the opportunity to go on

oath and claim what was asserted on his behalf

at	the plea, namel½ that the drugs were for
his own use.
That being so, the accused Pantorno, in

our respectful submission, at first instance,

had a right to know what it was that the prosecution

was asserting by way of the maximum sentence

to which he was exposed, whether it was the five

years provided in paragraph (c) or the one year

provided in paragraph (b). The basis upon which

the plea proceeded below, and the plea is a very

short one and is set out at page 5 of the appeal

book, is quite clear.

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MR RICHTER (continuing):  The plea below proceeded on the basis

that the judge was bound to follow the interpretation

in BRIDGES' case of the nature of 73(1) (b) and that

interpretation, which was contained in BRIDGES' case,

(1985) 20 A Crim R 271 - in BRIDGES' case the

Full Court construed the section and the subsection

as an aggravating feature, a feature going to

aggravation of sentence and, therefore, a matter of

which an accused had to have some notice by way of an averment, for example. The practice - and that

practice is referred to in the judgment of the

Full Bench in the appeal book at page 22 - the

practice had, in fact, developed whereby if there

was an assertion that the drugs were in possession
for a purpose related to trafficking, that would be

averred in the presentment and, indeed, this Court

would have seen a sample of such presentment in the

special leave application of DEZYLVA on Tuesday

where the presentment alleged or rather, averred,

the purpose related to trafficking.

So that, when one combined the judgment in

BRIDGES' case which purported to follow what this

Court laid down in KINGSWELL's case which had been

decided in 1985, in respect of section 235 of the

CUSTOMS ACT, t~en one combines the interpretation

in BRIDGES' case of the nature of the subsection as

to whether it is mitigatory or aggravating in nature,

together with the practice which developed of averring

the purpose relating to trafficking as an aggravating

feature, it is quite clear to see that the plea was

made on a certain basis and that basis was that counsel

believed, as he had the right to believe, that he was pleading to an offence, the maximum penalty for which

was one year or $3,000 and that appears at the bottom

of page 7 of the plea. It was not gone into because

certain assumptions were made but what counsel for

the applicant said at that stage was:

(Continued on page 5)

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MR RICHTER (continuing):

The Act under Section 73(1)(b), where it

is not a traffickable amount, and the

Crown doesn't suggest for one moment that

this is a traffickable amount, gives the

sentence as being I think 30 penalty units

which is $3000 or twelve months imprisonment,

or both. It would be my submission, Your Honour

that, bearing in mind his position at the

moment that he has a substantial sentence still

to serve at the Geelong Training Prison,

that Your Honour impose a custodial sentence

and make it concurrent with the sentence

that he is currently undergoing.

At that stage Pantorno was undergoing a sentence

of four years with a minimum of three and the

sentence which the learned trial judge ultimately

imposed, that of 12 months with a minimum of six

months,was made fully cumulative upon the sentence

undergoing. So, in effect, the sentence that

His Honour had imposed is about to commence, I think,

next week because the original sentence commenced

in mid-February.

The situation was that counsel is making a

plea on a certain basis, the plea is very short. judge or by the prosecution, who by their silence

appear to assent to that proposition and indeed

they assent to it because the prosecutors had

developed the practice of averring the aggravating

circumstances as a consequence of BRIDGES' case.

So he is never disabused of that. He makes his

plea and indeed the accused pleads to an offence

which he believes and is entitled to believe

carries a maximum of one year. The judge deals

with it in a very short sentence, which is to be

found at page 11, on the basis that he is going

to impose a sentence coming out of a potential

maximum of five years imprisonment under

paragraph (c).

BRENNAN J:	What did the prosecutor say in the course of the sentencing process?
MR RICHTER:	Nothing. That is the full transcript of the

plea and sentence, as I understand it. Nothing

was said about that and the reason why nothing
was said about that is quite clear to discern in this instance. Pantorno is pleading to an offence which carries a maximum of one year.

He is already sentenced to a term of four years

with a minimum of three. The assumption is that

he is not exposed to more than one year and he is

pleading simply on the basis that he wants

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concurrency and that is the thrust of the plea

and that is the understanding of Pantorno and

his counsel engendered by the law as it stood

at that stage, and as it was understood at that

stage.

BRENNAN J:  How does the judge know what the facts of the case are?

(Continued on page 7)

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MR RICHTER:	He had depositions.
BRENNAN J:	What is the practice in Victoria?
MR RICHTER:	The practice is that the judge has the depositions

which include the witnesses' statements and any

record of interview so that he informs himself by

the depositions or, alternatively, by a surmnary given

by the prosecutor. In this particular instance,

as I understand it, the matter was called on for

hearing; the accused pleaded guilty and admitted

a number of prior convictions, none of which related

to drug offences. Mr Sarah then proceeded to outline

the material in fact in the depositions, or rather

to give a very brief summary of the accused - -

BRENNAN J:	How did he come to admit the prior convictions?
MR RICHTER:	They are put to him after he pleads.
BRENNAN J:	By whom?
MR RICHTER:	By the judge's associate. There is a second part

of the presentment which sets out the prior convictions

which are alleged and the second part of the

presentment is not, in fact, in the appeal book but

it is put to the prisoner after he pleads if there is

the allegation that he has been previously convicted.

So that the practice is that the judge's associate asks

the prisoner whether - he puts the allegatas to him

and asks him whether he has previously been convicted -

or rather he first asks the question about previous

convictions, whether he admits them or not and the

accused, the prisoner admits them and he is then asked

the formal questions and the plead then proceeds.

And the plea proceeded with Mr Sarah outlining the

case. Nothing else was put to the judge.

BRENNAN J: Is the plea taken before or after the admission of

previous convictions?

MR RICHTER:  Before. The accused is arraigned on the first

part of the presentment, which contains the count -

he pleads to that. Having pleaded guilty he is - it

is, in fact, set out on top of page 5. Not the

substance of it but - the second part of it, the

presentment, is in fact available although it was not

inserted in the appeal book because it did not appear

to have any particular relevance to the issue that

is raised.

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BRENNAN J:  And then the Crown does not even refer to

the facts of the case. The judge just looks at

the depositions in silence.

MR RICHTER:  Yes, Your Honour. Alternatively, there may

be cases in which the factual material is complex a~d
the Crown is invited to summarize them and to direct

the sentencing judge to the relevant passa~es in the

transcript of the committal, or the deposition.

BRENNAN J:  Is there any provision of the CRIMES ACT or

Criminal Practice Rules which authorize a judge to apprise himself of the facts of the case bv reference to the depositions?

MR RICHTER:  There is no specific rule that I know of, but

that is the established practice in Victoria, and

it has been the established practice from my time

immemorial, at any rate, for some considerable

time. Mr Flanagan's time immemorial runs further

than that, but that is as I understand the situation.

BRENNAN J:	Are the depositions on the public record?
MR RICHTER:	The depositions are on public record.
BRENNAN J:	They can be searched?

MR RICHTER:  Yes, indeed. The depositions are - the accused

has a copy of the depositions, of course.

BRENNAN J:	Yes, but does the public have a copy of them?
MR RICHTER:	They are available as a public record, in fact,

and they will comprise either a transcript of what
occurred at the committal proceedings, if there
had been viva voce evidence in cross-examination, plus

the exhibits, or alternatively if there has been what

is described as a "hand-up" committal, it will be

the volume of the statements of the witnesses whose

evidence it is sought to rely on, and that volume

goes to the judge.

GAUDRON J:  Could I ask this, I am sorry. Was any argument

addressed to the Court of Criminal Appeal as to the

natural justice considerations that you now rely on?

(Continued on page 9)

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MR RICHTER:  No, it was not, because it did not need to be raisej,

in our respectful submission. That is the point at
issue, in some sense. It was never addressed to the
court because it did not need to be raised. Because

of the way that the appeal was conducted it was clear

that the trial judge had acted in ignorance of

BRIDGES case; he had not had that argued before him

because counsel for the applicant took him to know

that decision and, indeed, took him to know the

practice of averring the aggravating circumstances

which had developed so that, in fact, by the time it

came to the Court of Criminal Appeal at first instance -

and that court was constituted by three justices,

the Chief Justice and two other justices - it was clear

that the judges sentence- if the three justices had

decided the appeal, the judges sentence would have

had to set aside. The reason it would have had to be

set aside is because the three justices would have

considered themselves bound by BRIDGES' case tbat had
been decided not long before and the judge, having

imposed sentence on a basis contrary to BRIDGES' case

and the practice which had developed, his discretion

would have necessarily miscarried.

Indeed, he would have been seen as acting without

jurisdiction because he was acting on the basis that

the maximum sentence available was one of five years.

Now, that being so- and that is, in fact, referred to

discussion of BRIDGES 1 case, the judgment of the full	in the appeal book at page 24 where, after a
bench says this:

In these circumstances the application came on

for hearing before the Court constituted by the Chief Justice, Crockett and Vincent JJ. It seemed to that Court possible that the learned

sentencing judge's discretion might have

miscarried in that His Honour had treated

himself as entitled to sentence the applicant

pursuant to paragraph (c) of section 73(1)

rather than pursuant to paragraph (b) without

reference to the decision of this Court in Continued on page 10)

REG V BRIDGES.

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MR RICHTER (continuing):

If His Honour's discretion had miscarried in

that way it would have fallen to the Chief

Justice, Crockett and Vincent JJ to resentence

the applicant. But a court constituted by

three judges is not at liberty to reconsider

a recent decision of a court comDosed of

three judges and it seemed that,· in the

light of the observations of the High Court,

it was desirable that RV BRIDGES should

be re-examined as soon as possible.

GAUDRON J:  Well, was that not also the time when the grounds

of appeal should have been re-examined and if they

were not then re-examined would it not have been

more appropriate when the judgment of the Court of

Criminal Appeal was handed down to ask to make

further submissions before any order was perfected?

MR RICHTER:  At that stage, with respect, the judgment had

been made, had been delivered. Indeed, the court

reserved and simply published its reasons on the

occasion of the return. At that stage there would

not have been an opportunity one would think -

theoretically there might have been if there was

counsel present to receive judgment who was apprised

of what was involved. But no opportunity is given

normally because there is no split, as it were, in

the processes of the Court of Criminal Appeal.

DEANE J:  But regardless of the significance - I mean, is

there any point in you trying to suggest that there

was not a stage at which it being known that BRIDGES'

case was under attack this point should have been

raised in the Court of Criminal Appeal? It obviously

should have been said, "If Your Honours are going

to say BRIDGES' case is wrong we want to submit that

we were denied natural justice."

'MR RICHTER:  At some stage but, with respect, notwithstanding

that the judgment of the Full Bench was in error because

what it ought to have done was to resolve on a

resentencing rather than to dismiss the appeal

because on the grounds of appeal as they stood

they, as it were, had to succeed and the sentence

had to be reset and the reason it would have had

to succeed was because the learned county court
judge, as the law stood at the time, really acted

outside his jurisdiction.

DEANE J:	But once BRIDGES was under attack it was obvious if
that attack succeeded that your client had been
sentenced under the correct subclause.

MR RICHTER:  The problem wa3 this. It would have been possible -

or rather what counsel for Pantorno might have done

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had he thought of it was to apply to discharge

the burden of proof after judgment was delivered,

but that could not have been done during the

running of the appeal. The reason it could not

have been done would have been because the

assertion below that he was an addict and that

it Has for his own use was made from the bar

table. The accused could have given evidence of

that in the county court but it did not for the

obvious reasons that it was not necessary because

as the law stood it would have been apprehended

that he would be treated as someone who ~ad ~tin

possession for a purpose not related to trafficking.

Therefore, at the Court of Criminal Appeal stage

it would not have been fresh evidence for him

to give it on oath because it was at all stages

known to the defence that he could give such
evidence and through a choice made in the county

court he was not called to give evidence on the plea because it was, and on reasonable grounds, perceived that it was not necessary to call him.

(Continued on page 12)

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MR RICHTER (continuing): So that what happened was that

because of the appellate process and the way

that it proceeded during the appeal it would

not have open to put to the court that the

applicant should be heard because -

BRENNAN J:  I do not follow that, Mr Richter. Why would

it not have been the case that one says, "In

this case, if BRIDGES' case was wrong then the

judge sentenced on the correct basis." But so

to hold in this court, that is the Court ct Cr1minal

Appeal, would involve denying the appellant the

opportunity of dealing with the onus.

MR RICHTER: lt was possibly not done for one of two reasons,

either because it was not thought of or, alternatively.

because the view would have been taken that the

court would have had to quash the sentence in

any event because whether or not it agreed with

the interpretation of BRIDGES' case the judge

acted contrary to a decision that bound him at

the time. So that he did not consider the law

as it stood and as it bound him. So that, from

that point of view - - -

BRENNAN J:  But it did not bind him if it was not the

law as the Court of Criminal Appeal held. 1

mean, the way in which it ended up was that the

judge sentenced on one basis and on your argument

the plea was taken on another.

MR RICHTER:  Yes, Your Honour, but the law, as it stood,

bound him until and unless it was overturned.

DEANE J: That is like saying, "When it was overturned

they couldn't interfere with what he did because

he followed the law."

MR RICHTER:	That is right, with respect, Your Honour.
DEANE J: With respect, Mr Richter, I just find it

incomprehensible.

MR RICHTER: It is a circuitous argument, in this sense,

that as the sentence was delivered it was delivered

contrary to law until and unless BRIDGES was

overturned. At the point at which BRIDGES was

overturned the accused had not had the opportunity

to discharge the reverse burden to that point

of time and the judgment which reaffirmed the

sentence did not give that opportunity. At the

time the judgment was given it was too late to

exercise that opportunity.

DEANE J:  I do not want to delay things. All we are discussing

is that it was incumbent upon counsel to raise

the matter in the Court of Criminal Appeal.

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MR RICHTER: It is arguable, in cur respectful submission,

that it was net and we would seek tc make that

submission because counsel would have acted,

or might have acted, and would have been entitled
to act on the basis that the sentence would have

to be recast because the court would have to

find that the judge acted at the time contrary

to law.

(Continuing on page 14)

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MR RICHTER (continuing): That being so, he had never

properly applied the sentencing discretion and

that would have been a view which, in our

respectful submission, would have been quite open

to counsel who acted for pantorno and, presumably,

if one discounts the proposition that he had not

even adverted to it, that would have been the basis

upon which it was not raised by anyone and was,

indeed, not raised by anyone at that stage because

PANTORNO was simply seen as an examination of whether BRIDGES was right or wrong and, in the

event that BRIDGES was found to be right, then
the appeal had to succeed. In the event that

BRIDGES was found to be wrong and was going to be overturned, there would still have had to have

been the clear finding that, at the time, the

judge misapplied the law in the sense that he

failed to follow a judgment which bound him,

albeit, a judgment that turned out to be wrong

because it was overturned.

So, it was for that reason that it happened.

Now, what this case raises, therefore, in our

respectful submission, is a situation not unlike

HUNTER, although obviously different for a number

of reasons. HUNTER, 79 ALR 423,

dealt with a situation where the applicant was, in

effect, denied the right to be heard on sentence at

all because of the procedure followed in the Court

of Criminal Appeal. He was denied the right altogether.

What this particular application raises is the :1otion

that the procedure adopted by the Court of Criminal the applicant the right to discharge the reverse

burden of proof because that reversal of the burden

of proof on the way that matters stood prior to the delivery of judgment by the Full Court, counsel was entitled to act on the basis that, on any event, the

judge had acted incorrectly at the time

whereas HUNTER is concerned with the denial of right

to be heard on sentence, the point at which, in our

respectful submission, there has really been a gross

although unintended, no doubt, departure from

established principle, is that the applicant was
effectively at all stages denied the right to

discharge the reverse burden of proof cast upon him

and that, in our respectful submission, is a matter

which calls for the interference of this Court because
it is also a matter of general importance that may

apply to a whole range of cases where the Court of

Criminal Appeal effects the change at the time and,
thereby in effect, the applicant does not have the

opportunity to discharge the right that he ought to

have of discharging the burden of proof and that is

what is in issue on this application.

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If the Court pleases, those essentially are

our submissions and they are set out in the summary

of submissions.

DEANE J:	From what you said, do I understand that the Court
of Criminal Appeal would not have jurisdiction to
hear additional evidence on sentencing so that if you were to succeed the matter should go back to the primary court?
MR RICHTER:	No, the Court of Criminal Appeal would have had

the jurisdiction to resentence. It would have been

required to resentence.

DEANE J:	I thought you said it could not have heard the sworn
testimony of your client?
MR RICHTER:	Well, the way in which that was put has to be seen

in the context of section - - -

DEANE J: Well, if you did not say that, there is no problem

but - - -

MR RICHTER:  No.

DEANE J: Well, where do you say, if the appeal succeeds, the

matter should go?

MR RICHTER:  If the appeal succeeds, the matter should be

remitted to the primary judge, to the sentencing
judge,because he had never had the opportunity to

turn his mind to the discharge of the reverse

burden.

DEANE J:	Thank you.
MR RICHTER:	My learned friend says he made no finding of it

but he had never had the opportunity in the light

of the applicant seeking to discharge it. The

applicant never sought to discharge it at first

were for his own use. That was in the context of	instance although his counsel said that the drugs
explaining why he had the drugs and subject to
the one year maximum imposed by paragraph (b)
which, in effect, says that it is not for a purpose
connected with trafficking. So that, in that sense,
the trial judge never had the opportunity of deciding
whether he is persuaded on the balance of probabilities
that the drugs were in possession for a purpose not
related to trafficking. If the Court pleases.

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MASON CJ:	Thank you Mr Richter.	Yes, Mr Flanagan?

MR FLANAGAN:  I hand to the Court the respondent's

submissions. I should direct attention immediately

to the fact that in view of the abandonment of

the other grounds the only relevant part that the

Court need look at is ground 4. ¼111.en I say "grour.d .'.:"

I mean the submission number 4 of the outline,

because it is the only one that is now relevant which

is to argue that the applicant was not denied the opportunity of discharging the onus imposed

by section 73(1) (b). He simply failed to do so and

cannot now complain of the consequences of his own

omission.

If I might illustrate that, we simply say

this, that he was not denied the right to discharge
the onus of the burden of proof. First of all
he had an opportunity, we say, in the county
court itself, but then later upon the hearing

of argument in the supreme, there were two occasions

on which he had an opportunity to do so, in our

submission. Perhaps if I could assist the Court

by amplifying what I mean in respect of two

opportunities in the supreme court. At the original

hearing of the applicant's appeal in the Court of

Criminal Appeal the prosecutor for the Crown raised the question of the validity of the BRIDGES'

judgment and there was quite extensive argument

because it was a very recent decision of the

Victorian Supreme Court and it was an unanimous judgment and there was extensive argument directed

towards persuading the Court of Criminal Appeal

of three that there should be a court of five so as to relook at the matter. Of course the basic contention advanced by the Crown on that occasion

were words that had fallen from this Court when

the matter had earlier been brought on appeal

but where no determination of the matter was

possible.

The whole matter was raised at that stage and

indeed whereas the original grounds lodged by the

applicant to the supreme court was simply one that
the sentence was manifestly excessive, on the
eve of the actual hearing of the applicant's case
before the Court of Criminal Appeal he obtained

leave from the practice court to add an additional

ground which raised the very question of the

jurisdiction of the judges in the BRIDGES' judgment.

(Continued on page 17)

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MR FLANAGAN (continuing):  So that he came t 11ere represented by

counsel at that stage fully well apprised of the fact

that the whole matter was in issue and was to be

raised, indeed raised by both sides, and there

was this extensive argument, and then the matter
was adjGurned so as to obtain five judges and then

the argument proceeded on another date before the

five and there was a considerable delay between

those two points in time.

So again, even if it could even be remotely suggested that they were not apprised of the problems

confronting them, if there were to be a problem,

it can in no way be said that they were not fully apprised of them by the second occasion when the five judges heard argument from both sides. Again,

even though it was five judges, it was still the

applicant's appeal against his sentence.

DEANE J: Mr Flanagan, if we go back a little bit to before

the county court, in view of the decision in

BRIDGES and the absence of an averment, would it

be correct to say that the matter was dealt with
by both sides before the county court judge on the

basis that section 73(l)(b) was the applicable

provision? Is that not obvious?

MR FLANAGAN:  It is very difficult for me to answer that

honestly, Your Honour. It is clear that -

DEANE J:  But you have a practice where the Crown avers,

if it wishes to take it into the other clause, and

you have a decision of the Full Court which would

mean that it should have been dealt with on

section 73(l)(b).

MR FLANAGAN:  Well, the situation, Your Honour, was that

DEANE J:  But can you not simply answer that? I mean, you

are appearing for the Crown in a clear case.

MR FLANAGAN: 

Yes, I can, Your Honour, in this sense, that I

do not know what the Crown attitude was at the time.
I do know what the defence attitude was because it

appears clear on, I think, page 7 of the appeal book

that counsel there were certainly well aware of the

sections and what the situation was. The Crown

was heard to say nothing.

DEANE J: 

Would it not be fair to say that in the context

of the practice, BRIDGES case, and the silence

of the Crown, it is inconceivable that the Crown

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was contesting the view that section 73(l)(b)

was the appropriate clause?

MR FLANAGAN: 1 think Your Honours have got to take that

view because nothing was said by them.

DEANE J:  Then that answers my question, thank you.

MR FLANAGAN:  Thank you, Your Honour. The problem that

1 think 1 am directing the Court's attention to

is this, that my learned friend said it had become

the practice to put this averment.	Now, that is
not so, with respect.	Some of the prosecutors

were putting that in as a matter of caution, as it
were, pending the original appeal to this Court in

the BRIDGES matter and that no practice really

had Jeveloped, except that some prosecutors were

doing it and the Court of Criminal Appeal, of course,
had never come to consider that practice, as it

says so in its own judgment in this particular

case. What was happening in the county court

was simply this, that the accused was represented and

he was represented by experienced counsel in the

criminal jurisdiction.

(Continued on page 19)

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MR FLANAGAN (continuing):  And counsel makes it perfectly clear

from his submissions upon the plea that he is fully

aware of what the section says and what the penalties

are. I think it is also fair to say that he, on the face of what he is saying, proceeding on the basis

that Bis the appropriate penalty section for the

case.

However, there is this, that they came there asking,in the submissions of counsel, for a

concurrent sentence with the matters to which the

accused had already been sentenced or, at least

partial concurrency, and what was confronting them -

they were endeavouring to indicate that it was not

a proper case for a further custodial penalty having

regard to the periods of imprisonment already being served and the fact, as they were asserting, of the

accused, by way of the submission made from the

bar table, was not connected with trafficking but was
in fact - they gave an explanation of the possession

asserting that he was using it for his own purposes,

being an addict at the relevant time.

So that they were seeking mitigation - putting

matters by way of mitigation at that stage, fully
well aware that the court would look less kindly
upon an offender who had possession that was

unexplained than looking upon one who had explained the possession, but they did not call the accused - even though he was experienced criminal counsel -

he did not call the accused to make or give any

evidence other than the mere assertion from the table.

And whilst we do not say that is conclusive of the

arguments advanced by the applicant's counsel here

today, we do say it is a relevant factor to bear in

mind that the opportunity was available at that time

to substantiate before the court that it was not

for - that the possession was not to be looked at

by the court as unexplained or in any way connected

with trafficking but was explicable on the basis of

called evidence from any source whatsoever that	the accused's own usage of it. And they could have
might have satisfied the court as to that matter, be it the accused himself, his wife or some other person.

(Continued on page 20)

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MR FLANAGAN (continuing):  So that was one opportunity which

was open to them to call some evidence and it was ~ot

denied to them at that stage. Now that, of course,

does not, from the point of view of our argument

link the question raised by my learned friends that

could they proceed thinking that they did not, in fact,
as a matter of law at that time have to lead any
evidence to discharge the onus. That does not

cover that, but it does show the context in which

the accused later comes to the Court of Criminal

Appeal. We would submit that he simply failed to

do so there. Now, when all these matters were -

counsel was fully apprised on the two occasions

of argument in the Full Court of what the whole

matter was about; full well knew that what was i.rl issue

was which subsection should be the one that was

the applicable one to have him sentenced under and

full well knew that there was an onus to be discharged

if the judgment went against him; took no such

opportunity, never mentioned it at any stage nor,

indeed, even at the time of the judgment being

delivered did not seek even then to raise the matter.

So chat we would say that he simply failed to do

so and it is clearly distinguishable from the

HUNTER-type situation where there was never any

opportunity given at all and we would put it that

this submission, of course, which is now made to

this Court today was never directed to the attention

of the Court of Criminal Appeal; they have never

had an opportunity of considering it in that sense.

MASON CJ: Well, that is not in issue, is it? I mean, that is

conceded by counsel for the applicant.

MR FLANAGAN:  No, I agree, Your Honour, it is not really. We

say that in the circumstances it was incumbent upon

the accused's counsel. He was not an unrepresented

accused and it was incumbent upon him to raise the

matter at that time and that he had two opportunities

to do that. Indeed, one can only speculate why he

did not and again it was very experienced counsel

and different counsel. very experienced in the

criminal field that dealt with the matter in the

Court of Criminal Appeal. There was, obviously,

a positive election in the court below whether the

interpretation of this subsection was in question

or not. There was a positive election on the part

of the accused to call no evidence whatsoever to

explain the possession in any way which would divorce it from the purpose connected with trafficking in any

respect.

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MASON CJ:  But you are talking about a positive election at

what stage?

MR FLANAGAN:  Well, that was clearly so in the county court,

Your Honour, but then when he gets to the Full Court -

it must have been perfectly obvious to counsel,

having regard to the fact that the whole of these

issues were raised ~gain and were contentious and

argued extensively that he had to get to a situation

where if there was to be any onus discharged at

all the onus rested upon him and his own client.

We say there was ample opportunity in the Full

Court for him to do that and one can only speculate

why he did not.

It is, in our submission, not in point for my

learned friend to say that the matter,as it were,

realistically developed in a way where he never had any such opportunity or perhaps did not put his mind to it. If one wants to speculate the

other way the same position may have beer. adopted,

counsel may have positively decided either that he

had no evidence to so lead or did not want to and

made the same judgment and election as they had

done in the county court. We would direct that

to this Court's attention. But we put it that this

is to be distinquished from the HUNTER-type situation.

We say that there was no opportunity denied

at all, it was merely an omission on their part to

take advantage of an opportunity which we say must have clearly been known to them at the time in the way that the matter developed, contrary to what my learned friend would say was the way in which the

matter developed. Now, to say anything more than

make those submissions, our respectful submission

would be only repetitious and they are the matters

we direct to the Court's attention.

MASON CJ:  Yes, Mr Richter.

MR RICHTER:  If the Court pleases. My learned friend says

that at some stage during the appellate process
the notion of an election to give evidence arose.

In our respectful submission that election would

not arise, in fact, in the way the case was perceived
until the quashing of the sentence below and a

consideration as to whether or not to reimpose it.

The judgment of the court, in fact, in the way in

which it proceeds in dismissing the application

ought to be looked at at page 31 where the court

points out that:

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~R RICHTER (continuing):

No evidence was put before His Honour tc

enable him to be satisfied as required.

Namely under paragraph (b). The fact is, at

that point in time, before the trial judge, there

was no election, there was no need to elect and everyone proceeded on a basis cf a practice had had developed and to the extent that it might

assist the Court that practice is, in fact,

referred to at the bottom of page 22 of the appeal

book where, in the judgment of the Full Bench,

the following appears:

Since the decision in RV BRIDGES and

in conformity with it, a practice seems

to have developed of the Crown's alleging in an appropriate case by way of averment after a charge laid under section 73(1)

what are generally described as "circumstances

of aggravation", viz. that the offence was committed for a purpose trafficking in the

drug of dependence -

Now the reason the plea is so short is because counsel took the view before the sentencing judge,

as he was clearly entitled to do, that this was

not much more than a very brief matter for
consideration dealing with an offence which carried
a maximum of one year in circumstances where
the prisoner was already serving a term of four
year with a minimum of three and in circumstances
where the quantity of heroin itself was no more

than about .13 of a gram and he approached it

with the brevity and likeness that the matter

appeared to warrant at the time he made the plea.

In terms of the electio~ or what might be

termed an election, before the Full Bench of

the Court of Criminal Appeal, we would simply

reiterate the proposition that either it was

overlooked by inadvertence of counsel or, alternatively,

it was thought through to a decision that no

election would arise until and unless the sentence

was quashed and that was based on the understanding

that the sentence really had to be quashed because,

in the circumstances of the time at which the

sentence was delivered, it was delivered per

incuriam and on what, at that time, if the court

had been asked to determine the sentence, would
have been seen as acting outside the jurisdiction

unless that court was also prepared to overrule

BRIDGES, in which case the court would find that

the judge acted beyond his jurisdiction at the time but that t~at might now be cured by saying that BRIDGES was wrong 1n any way.

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MR RICHTER (continuing):  The Full Court adverts to that type

of problem at the bottom of page 30 where the

judgment says this - this is the last paragraph:

In the present case, although the learned

judge was not referred to RV BRIDGES, he

made no error in his application of the

law: paradoxically had he been referred

to RV BRIDGES he might have done so.

And that refers with hindsight to the fact that the

Full Bench having overturned BRIDGES' case is saying

that had he in fact relied on BRIDGES as he was

bound to do at the time he would have come to a

decision which the Full Bench now says is wrong but
which did not represent the law at the time, or the

understanding of the law at the time which gave

rise to the understanding of the parties about where

issue was to be joined on the plea.

BRENNAN J: Mr Richter, you have made the point, I think, that

counsel's understanding of the law at the time is to

be derived from what he said at the bottom of page 7.

Is that correct?

MR RICHTER:  In part. It is to be also understood in the

context of what the Court of Criminal Appeal says
about the practice that had developed in the light
of BRIDGES' case. Page 7 is the only clear reference
to a section pursuant to which counsel for the
applicant appears to understand himself to be pleading.

That is the only reference to a particular section, and it is very interesting where he makes the assertion

from the bar table, by way of explanation of the

possession not in the sense of trying to discharge a
reversed burden of proof but simply of giving an

historical explanation that the learned trial judge

who, in our respectful submission, at that stage was

obviously intending to sentence pursuant to . .

pa.r:agraph (c) - the trial judge does not say, "Well,

are you calling evidence about that?"

Now, the interesting aspect of that is that

post-PANTORNO there is an unreported decision to

which the - - -

BRENNAN J: That is the only basis on which you suggest that the

inference is to be drawn that there was a conscious

animadversion by counsel to the provisions and a

conscious understanding on counsel's part that

BRIDGES' case determined it?

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MR RICHTER:  The totality of the plea, in my respectful

submission, indicates that he is pleading on the

basis of an understanding that the maximum his

client is exposed to is 12 months. That is

what he refers to as the maximum.	Given that
that was the practice -

BRENNAN J: On the footing that the Crown does not suggest

anything more?

MR RICHTER:	That is right and in the light of the fact that that was the practice that had developed,
as the court observes at page 22. I was going to refer very briefly to the unreported decision
in WILLIAMS of which I believe the Court has
been provided with copies. That was a decision
of the Full Court on 4 May 1988, which in a
sense supports some of our propositions. This
was a situation in which an unrepresented appellant,
who was not represented at the county court, pleaded not guilty to a charge of trafficking under
section 71 of the DRUGS POISONS AND CONTROLLED
SUBSTANCES ACT, but guilty to possession. There
was a directed acquittal on the charge of trafficking,
so it remained for the judge to sentence the
accused on the count of possession.  He sentenced
the accused on the count of possession, acting on the basis that the maximum was one of five years
because by then PANTORNO had been decided and was
the law.

What the Court of Criminal Appeal says in

relation to that is that there was really a duty

to draw the applicant's attention to the fact that
he had a reverse burden to meet in relation to

penalty. This is in a situation where the law has

been settled. Now, of course, the accused is

unrepresented and to that extent that requires
particular tender consideration in terms of his

perceptions, but it would have been very easy to

say that people are assumed to know the law as it

applies, not that the Full Court would have assumed

that the man had read PANTORNO.

(Continued on page 25)

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MR RICHTER (continuing):  But the fact is the sentence was

quashed and was remitted to - or rather, in the

circumstances, the sentence was simply quashed

because the appellant had already served two months
and there was no point in sending back for resentencing

by the trial judge in the circumstances, given the

small quantity of drugs involved and the fact that

he would get a very minimal type of sentence or

might get a reasonably minor type of sentence,

certainly not a sentence which would have exceeded

by any great length, the time that he had already

served.

So that, on that occasion, the sentence was,

in fact, quashed as we contend would have to have

been the case before the Full Bench and that the
appropriate decision of the Full Bench ought to have
been to quash the sentence and then seek to resentence

giving notice or pointing out, not that they would have

need to because, in the circumstances of saying that

BRIDGES' case was wrong, it would then have been clear

that the reverse burden needed to be discharged.

As far as seeking to discharge the reverse burden during the hearing of the appeal, it was simply not

conducted on that basis. The first ground of

manifest excess was directed, obviously, to the fact

that a sentence of one year with a minimum of six

months, is manifestly excessive upon a count which

carried a maximum of one year where the person has

no prior convictions and the quantity involved is

very small. The ground that was added at the

eleventh hour, in effect, challenged the jurisdiction
of the county court judge to deal with it on the
basis of paragraph (c) but the opportunity to
discharge the reverse burden of proof is simply

in reality not there and, to that extent, there

has been a miscarriage, if the Court pleases.

MASON CJ: Yes, thank you, Mr Richter. The Court will take

a short adjournment in order to consider the course

it will take in this matter.

AT 11.18 AM SHORT ADJOURNMENT

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UPON RESUMING AT 11.27 AM:

MASON CJ:  The Court will consider its decision in this

matter.

AT 11.28 AM THE MATTER WAS ADJOURNED SINE DIE

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