REGINA v Karim John ELFAR

LEGISLATION CITED : Drug Misuse and Trafficking Act 1985 (NSW) Criminal Appeal Rules Gilbert v The Queen (2000) 170 ALR 88 Ben Rehavi (1998) 101 A Crim R 569 CASES CITED: Maxwell (1988) 1 WLR 1265 Naylor (1910) 5 CrAppR 19 Elliott and Hitchins (1983) 9 A Crim R 238 DECISION : Appeal against conviction dismissed - Leave to appeal against sentence granted - Appeal against sentence dismissed

MASON P SULLY J SPERLING J

1 MASON P: I have had the benefit of reading in draft the judgments of Sully J and Sperling J. I agree with the orders proposed by Sully J and with the reasons of my colleagues. 2 In this case the trial did not miscarry because the verdict, stemming from proper directions and supported by the evidence, excluded the lesser offence under s24(3) of the Drug Misuse and Trafficking Act 1985. 3 In my view, the matter is concluded by Ross v The Queen (1922) 30 CLR 246 at 254, as explained in R v Evans and Lewis [1969] VR 858, Elliot and Hitchins (1983) 9 A Crim R 238 and Gilbert v The Queen (2000) 170 ALR 88. 4 The Court was invited to apply Rehavi (1998) 101 A Crim R 569, a decision of the Court of Appeal of Queensland. The appellant invoked that case as authority for the proposition that the presence of equivocal evidence means that a lesser offence available on one view of that evidence must be left to the jury despite the tactical decision of trial counsel. Rehavi is distinguishable because this was on the evidence an "all or nothing" case as regards the quantity of amphetamine the subject of the intended manufacture. 5 I have reservations about the correctness of the principle for which Rehavi appears to be authority. I have no difficulty in accepting that Pemble v The Queen (1971) 124 CLR 107 extends beyond the field of murder/manslaughter. However, I wish to reserve my position as to whether a trial would miscarry merely because an alternative (lesser) offence available on the evidence is not left to the jury. The judgment in Rehavi refers to passages in the reasoning of Benbolt (1993) 60 SASR 7, 67 A Crim R 11, a judgment of the Full Court of South Australia and Regina v Maxwell [1988] 1 WLR 1265 a judgment of the English Court of Appeal. The three decisions contain passages suggesting that there are "some cases" in which the jury should be given the opportunity to return a lesser verdict even though the lesser offence is not charged, indeed even though the point is not taken by the defence. 6 I have three difficulties with this line of authority about which I would require further assistance before being comfortable in applying Rehavi: 1. It appears to elide the separation of executive and judicial functions in the administration of criminal justice. The function of determining what charges should be laid and prosecuted is essentially that of the Executive ( Ridgeway v The Queen (1995) 184 CLR 19 at 32-33, Maxwell v The Queen (1996) 184 CLR 501).

2. The cases discussed in Rehavi (especially Maxwell ) seem to accept that there is an element of judicial discretion involved, and that not every theoretical possibility need be put to the jury in what Sperling J describes as "a veritable cascade of lesser offences" . For example, it would be absurd that a conviction on a charge of sexual assault without consent would miscarry because the jury were not given the opportunity of returning a verdict of common assault. If there a judicial discretion, then I have real difficulty in seeing what principles underlie it. If there are no principles, then my first problem is rawly exposed.

3. Rehavi appears to attribute a wider and different scope for the Pemble principle than that stated by McHugh J in Gilbert at [26]-[27]. McHugh J states the qualification to the Ross principle as being that: … where the evidence, in substance but not necessarily in form, gave rise to a "defence" by way of confession and avoidance which the trial judge failed to put to the jury, the verdict can be set aside. 7 SULLY J: On 29 June 1999 Mr. Karim Elfar, ("the appellant"), was presented for trial in the District Court upon an indictment charging him with having knowingly taken part in the manufacture of not less than the commercial quantity of amphetamine. Such an offence contravenes section 24(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and attracts upon conviction a statutory maximum penalty of, so far as is now relevant, imprisonment for 20 years. 8 The appellant was tried jointly with a man named Tier. Certain of the grounds to be considered presently derive from that circumstance. 9 The appellant pleaded not guilty, as did the man Tier. They were both put, thereupon, upon trial by jury. On 31 August 1999 each was found guilty as charged. On 3 December 1999 the presiding Judge formally convicted the appellant and sentenced him to imprisonment for 4 years and 10 months divided between a minimum term of 2 years and 4 months and an additional term of 2 years and 6 months. 10 The appellant appeals against his conviction and seeks leave to appeal against the alleged severity of his sentence. 11 The first ground of appeal against conviction derives from the terms of section 24 of the Drug Misuse and Trafficking Act. The section provides relevantly as follows: "24(1) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, a prohibited drug is guilty of an offence. (2) A person who manufactures or produces, or who knowingly takes part in the manufacture or production of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence. (3) Where, on the trial of a person for an offence under sub-section (2), the jury are not satisfied that the amount of prohibited drug involved is equal to or more than the commercial quantity applicable to the prohibited drug, they may acquit the person of the offence charged and find the person guilty of an offence under sub-section (1), and the person shall be liable to punishment accordingly."

12 The gravamen of the Crown case at trial was that the appellant and the man Tier had been parties to a joint venture, the objective of which was the manufacture of amphetamine. Amphetamine is a prohibited drug for the purposes of the Drug Misuse and Trafficking Act. Schedule 1 to the Act provides for certain prescribed levels of culpability related to the amount of the drug involved in the particular case. In the case of amphetamine the traffickable quantity is 3 grams; the indictable quantity is 5 grams; and the commercial quantity is 250 grams. The indictment presented against the appellant and the man Tier charged an intended manufacture of an amount not less than the commercial quantity of 250 grams. 13 The point now taken for the appellant is that the learned trial Judge fell into error by not directing the jury specifically as to the alternative verdict open to them pursuant to section 24(3). The appellant's contention is, put simply, that the evidence at trial was so imprecise as to relevant quantities, that it remained open to the jury to be satisfied beyond reasonable doubt that the appellant had knowingly taken part in the manufacture of amphetamine, but not to be satisfied beyond reasonable doubt that the amount in question had been not less than the prescribed commercial quantity of 250 grams. 14 There was ample evidence at trial to associate the appellant with certain factory premises which had been fitted out, in effect, as a laboratory capable of manufacturing amphetamine. There was a deal of evidence similarly available to the jury to establish that the appellant had, at material times, busied himself in the ordering of equipment apt for use in the manufacture of amphetamine. There was evidence that the man Tier had purchased, at a relevant time, 14 drums containing ethylphenylacetate, a substance capable of use in connection with the manufacture of amphetamine. There was ample evidence before the jury that the appellant and the man Tier had, very shortly thereafter, driven to the relevant factory premises taking with them one of the drums in which the ethylphenylacetate had been delivered to the man Tier. There was no evidence whether the particular drum had been full or empty at the time of its transportation to the factory, but it was in my opinion well open to the jury to infer beyond reasonable doubt from the entirety of the evidence in the Crown case that the drum had been full rather than empty, and that it had been transported to the factory for the purpose of its contents being used in connection with the manufacture of amphetamine. 15 There was, in the Crown case at trial, evidence capable of being accepted by the jury and which, if so accepted, clearly established as between the appellant and Tier an association of substance in connection with the activities being carried on at the relevant factory premises. There was, as well, evidence of intercepted telephone conversations, which evidence, if accepted by the jury, was capable of giving rise to an inference reached beyond reasonable doubt that the appellant was to be heard in certain of the conversations speaking in terms appropriate to a discussion of drug manufacture. 16 The evidence at trial established that the 14 drums of ethylphenylacetate had been delivered on 23 March 1992 to a guest house at Moss Vale, being premises with which Tier had an association of substance. The transfer of the one drum to the relevant factory premises took place on 25 March 1992. On 16 August 1992 a search was made of the guest house premises. Various materials were found, the nature of which was such as to be capable of giving rise to an inference reached beyond reasonable doubt that Tier was involved in the illicit manufacture of drugs. On this occasion 13 of the 24 drums in which the ethylphenylacetate had been delivered in March 1992 were located. The drums were empty. Fingerprints found on four of them were identified, beyond reasonable doubt, as being those of the present appellant. 17 The Crown called at trial an analytical chemist called Murtagh. He gave evidence of a chemical process, known as the Leuckardt process, in use for the manufacture of amphetamine. He gave evidence that ethylphenylacetate was a necessary ingredient in this particular process. He estimated that the quantity of ethylphenylacetate contained in the 14 drums when full would have been sufficient to produce by means of the Leuckardt process 41 kilos of amphetamine oil or 56 kilos of amphetamine salt. 18 The appellant did not give evidence at his trial. He had made a dock statement at an earlier trial. The Crown tendered a transcript of that earlier dock statement. In the dock statement the appellant put forward a version consistent with the absence of any intent on his part to take any part whatsoever in any manufacture of any quantity of prohibited drug. It was undoubtedly open to the jury to reject this version; and in my opinion the verdict of the jury cannot be understood sensibly as having done other than to reject it in fact. 19 The contention upon which the appellant now relies concedes that it was not necessary that the Crown prove at trial that a quantity of not less than the commercial quantity of amphetamine had been manufactured in fact; but that there was a necessary mental element in the offence charged in the indictment, and that such mental element entailed proof by the Crown beyond reasonable doubt that the appellant had taken part in the illicit manufacture of amphetamine knowing that the enterprise in which he was thereby participating was an enterprise having as its objective the intended manufacture of not less than the relevant commercial quantity of 250 grams. The submission draws attention to the fact that the Crown case at trial did not establish in terms the production in fact of any particular quantity of amphetamine. This entailed, so the submission runs, that the learned trial Judge ought to have left to the jury in precise and carefully formulated terms the possibility of their returning an alternative verdict pursuant to section 24(3). Since it is clear that the learned trial Judge did not in fact give such directions, it is contended that his Honour fell into demonstrated error. 20 In considering the submissions now put for the appellant, it is appropriate to commence by considering the relevant course of events at trial. 21 After the whole of the evidence had been taken, the learned trial Judge sent the jury away for a time, and embarked upon a lengthy discussion with all counsel then appearing, the discussion having to do with the attempted resolution of various questions of law. The Judge handed down to all counsel a document, which his Honour had prepared, setting out various matters with which his Honour was proposing to deal in his summing up. The contents of that document became the basis of the very lengthy discussions which then ensued. 22 In that context, and after the discussions had proceeded for some time, counsel then appearing for the appellant said this: "While we're looking at this, one matter, my understanding is that the alternative to the count is also to be placed before the jury."

23 The following then ensued: "HIS HONOUR: What's the alternative count? [COUNSEL]: Not less than the commercial quantity. But if they're not satisfied of the commercial quantity, they can return a verdict of not less, that being a quarter of a kilo. HIS HONOUR: Is that right Mr. Crown? CROWN PROSECUTOR: Yes. [COUNSEL]: If they're not satisfied of the evidence of the quantity, that they can return an alternative count. HIS HONOUR: Is the Crown case all or nothing? CROWN PROSECUTOR: It's all or nothing. HIS HONOUR: I must say I took it that way. I didn't know there was an alternative. I didn't address it. CROWN PROSECUTOR: I'm prepared to go with the all or nothing."

24 It is now submitted that this exiguous exchange ought to have put the trial Judge on notice that his Honour was being requested by the appellant's then counsel to put the alternative verdict to the jury. At the hearing of the present appeal the Court received an affidavit sworn in connection with the appeal by counsel who appeared at trial for the appellant. Counsel says, of the incident to which I have been referring: "When ………… I indicated my understanding that an alternative would be left to the jury if they were not satisfied beyond reasonable doubt of a commercial quantity, I intended to make it clear that I wanted such an alternative to be left to the jury. When the Crown Prosecutor stated that he was 'prepared to go with the all or nothing' and the trial Judge did not respond to that statement, I understood that the trial Judge had ruled against my implicit application that the alternative be left to the jury. I believed that it was not necessary for me to say anything else to ensure that the appellant was protected on appeal."

25 There are several things to be said about what has just been quoted. 26 First, it can be accepted that what was in counsel's mind at the time of the trial is relevant to the question whether the point now taken for the appellant ought to be treated as having been sufficiently raised at trial so as to permit of its now being taken on appeal. It seems to me, but based of course upon nothing more than a reading of the transcript and in the absence of any first-hand sense of the atmosphere in the Court at the time, that the trial Judge did not understand himself to have been pressed in any way, in the wake of the Crown statement that the Crown case was an all or nothing case, to leave nevertheless to the jury the availability of an alternative verdict pursuant to section 24(3). It was not contended, however, that this Court should not accept what is said by trial counsel in his affidavit. In that case, I would myself accept that there is now no practical point to an arid technical argument about Rule 4 of the Criminal Appeal Rules. I would myself permit the point now taken by the appellant to be argued. 27 Secondly, I do not see why the Crown was not entitled to go to the jury, precisely, on an all or nothing basis. In my opinion it is to be borne in mind in that connection that the Crown, by so casting its approach to the jury, undertook no light onus of proof. Mr. Murtagh's evidence had been heavily attacked during the course of the trial. The stance adopted by the Crown entailed that, were the jury left, in the ultimate event, holding the view that it was a reasonable possibility that the substantial criticisms which had been made of Mr. Murtagh's evidence were sound, then the appellant would be acquitted outright, and without having been exposed to the hazard of a further enquiry by the jury into the propriety of finding the appellant guilty beyond reasonable doubt of the alternative offence for which provision is made in section 24(3). I do not see this state of affairs as having disadvantaged the appellant at trial. Given the overall state of the evidence at trial, I would myself have thought that the very starkness of the choice offered by the Crown to the jury gave the appellant an advantage at trial. 28 The submissions put for the present appellant drew the attention of this Court to a recent decision of the High Court of Australia: Gilbert v The Queen (2000) 170 ALR 88; and to a decision of the Queensland Court of Appeal in the matter of Ben Rehavi (1998) 101 A Crim R 569. It was submitted for the appellant that the effect of the decision in Gilbert is to impose upon the trial Judge in all criminal cases, and not only in a case where the Crown seeks a verdict of guilty of murder, an obligation to leave any available alternative and lesser offences. It seems to me that it would have to be conceded that the decision in Rehavi certainly appears to support that expanded view. 29 I prefer, however, to approach the present particular case in what I conceive to be a more practical way, but a way which is supported by authority of standing. 30 In Rehavi, the joint judgment of the Queensland Court of Appeal quotes, with approval, the following statement of Mustill LJ in Maxwell (1988) 1 WLR 1265: "The right course will vary from one case to another, but the judge should always use his powers to ensure, so far as practicable, that the issues left to the jury fairly reflect the issues which arise on the evidence."

31 A good practical example of how this principle might be applied in practice will be found in the case of Naylor (1910) 5 Cr App R 19 at 21, 22. 32 In Elliott and Hitchins: (1983) 9 A Crim R 238, Lee J, (Street CJ and Enderby J concurring), examined in depth the course of relevant authority to that time. His Honour's overall conclusion is best expressed in the following passage at 263: "The question in every case will be whether the failure to put manslaughter means that the murder verdict is suspect or not, and it is difficult to see how it can be said to be suspect when it amounts to a rejection of the basis upon which manslaughter could be found."

33 In Gilbert, two members of the majority, Gleeson CJ and Gummow J, referred in their joint judgment to Lee J's discussion of relevant authority in Elliott and Hitchins. As I read the judgment of Gleeson CJ and Gummow J, their Honours do not say anything apt to cast doubt upon the principle thus expressed by Lee J. 34 On the given facts of the present case, and having regard in particular to the stance adopted at trial by the present appellant, I am wholly unable to conclude that, to paraphrase Lee J, the verdict of the jury on the section 24(2) charge is suspect by reason of the failure to put to the jury the section 24(3) alternative. The case seems to me to be, precisely, one in which it can be said that the verdict of the jury embodied, among other findings, a finding reached beyond reasonable doubt that the relevant knowing participation of the appellant had been in an enterprise, the end objective of which was the manufacture of more than 250 grams of amphetamine. That necessarily entails that the jury was affirmatively satisfied beyond reasonable doubt of something which negatives the essence of the section 24(3) alternative. When the technical refinements of the decisions in Gilbert and Rehavi have been mined to exhaustion, I am wholly unpersuaded that there was a miscarriage of justice to this appellant. Once his simple denial of any intended illicit manufacture of amphetamine was rejected, then every relevant incident of the remaining evidence pointed to the appellant's knowing participation in an enterprise of which it is fanciful to suggest that it was never contemplated as yielding more than 250 grams of the proscribed drug. 35 In my opinion, this ground of appeal fails. 36 The next ground of appeal now taken has to do with some evidence given at the trial by a Dr. Simpson, who was called on behalf of the appellant's co-accused, Tier. 37 Dr. Simpson was called on the thirty-eighth day of the trial. He was called to give expert opinion evidence, as the psychiatric resident at Royal Prince Alfred Hospital, into the psychiatric condition of Mr. Tier. Dr. Simpson gave evidence that Mr. Tier had presented with symptoms which Dr. Simpson diagnosed as those of "a major depression". Dr. Simpson gave evidence, further, that in his diagnosis of the case, Mr. Tier's memory, in particular his short-term memory, and his concentration, were impaired. Dr. Simpson gave evidence, in terms, that Mr. Tier's "cognitive abilities were impaired". 38 At the conclusion of Dr. Simpson's evidence, counsel then appearing for the present appellant made two applications. The precise terms in which the applications were made have not been recorded in the trial transcript. Neither does the trial transcript record any detail of the discussion between the learned trial Judge and counsel. It is appropriate, in those circumstances, to note in full what the trial transcript does record: "[Counsel] made two applications, one to strike out the evidence in chief of Dr. Simpson from the record as being irrelevant and requested that his Honour give a direction to the jury that the matters that they have heard should be also removed from their memory and that they should not enable themselves to be evoked (sic) of feelings of compassion, mercy or otherwise, or sympathy. The second issue he raised was that there was s concern that there had been a procedural irregularity in that a fitness to plea (sic) issue had been raised in the presence of the jury by the evidence of Dr. Simpson. Discussion between his Honour and counsel ensued."

39 It needs to be understood, for a proper consideration of this aspect of the present appeal, that Mr. Tier had made a number of attempts during the course of the joint trial to have himself discharged from the trial upon the basis that he was unfit to continue as a co-accused in the trial. The learned trial Judge had consistently rejected all such attempts by Mr. Tier to have himself discharged from the joint trial. On the particular occasion which this Court has now to consider, and after having refused yet again to discharge Mr. Tier from the joint trial, the learned trial Judge said to the present appellant's then counsel: "………………………I am not prepared to strike out the evidence as being irrelevant. I certainly will deal with this evidence in the summing up when we get to the summing up and remind the jury of what are relevant considerations and what are not."

40 It is now contended that the learned trial Judge did not do what he said that he would do; and that the consequence was a miscarriage of justice in the trial of the present appellant. 41 In my opinion there is no substance in this ground of appeal. The learned trial Judge did not return in any specific way in the summing up to the evidence which I have previously described. What his Honour did was to emphasise more than once during the course of the long and careful summing up that the jury must be scrupulous to deal with each of the two co-accused upon, and strictly upon, the basis only of evidence admissible against the particular accused. So far as concerns Mr. Tier, the learned trial Judge gave him the benefit of a very favourable direction on character. The Judge directed the jury simply and clearly that the jury must not be influenced in any way at all by mere considerations of emotion of any kind. Counsel appearing at trial for the appellant sought no re-directions at the conclusion of the summing up. 42 In all of those circumstances, I am wholly unpersuaded that it is now open to this Court to infer that the brief appearance of Dr. Simpson on the thirty-eighth day of the trial so distracted the jury that the jury made a positive finding adverse to Mr. Tier, to the effect that he was either malingering or being deceitful in some other way by his attempts to portray himself as impaired in his cognitive abilities by reason of the effects of a serious and continuing depressive condition; and that the jury then, in the plainest breach of the repeated directions to the contrary of the learned trial Judge, simply transposed that prejudice against Mr. Tier onto the present appellant. 43 In my opinion this ground of appeal, also, fails. 44 No other grounds of appeal against conviction are pressed. In my opinion the appeal against conviction should be dismissed. 45 The appellant challenges, also, the fairness of the sentence imposed upon him. The essence of the argument put for the appellant is that the evidence concerning the relevant quantity of amphetamine is so imprecise that the learned sentencing Judge was obliged to deal with the appellant upon the basis that nothing more could be said about the appellant's culpability than that it called for a sentence appropriate to the knowing participation in an enterprise to manufacture 250 grams or thereabouts of amphetamine. The Judge, it is submitted, was so distracted by the talk about a potential production in the order of 40-50 kilograms that his Honour imposed a sentence unduly and wrongfully influenced by that suggested magnitude of the relevant enterprise. 46 In my opinion, those submissions can be disposed of shortly. I am not persuaded that the learned sentencing Judge made any such error as is now suggested; but, even were I of the contrary view, I would not consider that a more lenient sentence was warranted on the given facts of the present case. Given that the conviction of the appellant ought to be upheld, it is in my opinion fanciful to suppose that the enterprise in which the appellant is thus inculpated could be assessed sensibly on any view of its culpability as lying at the extreme lower end of the relevant scale of punishment. On a scale which ranges to a maximum of imprisonment for 20 years, the sentence in fact imposed was in my opinion well within the range of a sound sentencing discretion. 47 I would favour the following orders:

1] That the appeal against conviction be dismissed.

2] That the appellant have leave to appeal against sentence.

3] That the appeal against sentence be dismissed. 48 SPERLING J: I have read in draft the judgment of Sully J. I agree with the orders proposed by his Honour and with his reasons. 49 I would add the following comment in relation to the first ground of appeal dealt with by his Honour. For myself, I baulk at the proposition, urged in argument on behalf of the appellant, that all alternative lesser offences prescribed by law must be left to the jury in every case. That would mean, in relation to some serious offences, that a veritable cascade of lesser offences would have to be left to the jury, irrespective of the crown's position. The lengthening of trials and the distraction of juries from the real issues in the case arising from such an exercise are obvious. The futility of the exercise, in many cases at least, is also obvious. 50 Apart from those implications, the approach smacks of an invitation to convict of a lesser offence, notwithstanding that the jury is satisfied of guilt in relation to a more serious offence for which the crown seeks a conviction. That possible course should be discouraged rather than facilitated. 51 Different considerations apply in relation to murder and manslaughter because of historical concepts to do with a single crime of unlawful homicide. 52 It is unnecessary to resolve these fundamental matters in the present case for the reasons given by Sully J. **********

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