Pantorno v R [1989] HCA 18; (1989) 166 CLR 466 (7 March 1989)

HIGH COURT OF AUSTRALIA

PANTORNO v. THE QUEEN [1989] HCA 18; (1989) 166 CLR 466
F.C. 89/

Criminal Law - High Court

High Court of Australia
Mason C.J.(1), Brennan(1), Deane(2), Toohey(2) and Gaudron(2) JJ.

CATCHWORDS

Criminal Law - Sentencing - Possession of drugs - Penalty higher where possession for purpose of trafficking - Plea of guilty - Proceedings conducted at trial on basis of possession not for trafficking - Sentence on basis of possession for trafficking - No opportunity for accused to negate that purpose - Drugs, Poisons and Controlled Substances Act 1981 (Vict.), s. 73(1)(b), (c).

High Court - Appeal - Ground raised for first time before High Court.

HEARING

1989, February 9; March 7. 7:3:1989
APPLICATION for special leave to appeal from the Supreme Court of Victoria.

DECISION

MASON C.J. AND BRENNAN J. The applicant for special leave to appeal was convicted before the County Court of Victoria on his plea of guilty to a charge that, on 28 June 1984, "without being authorised by or licensed under the Drugs Poisons and Controlled Substances Act 1981 or the regulations to do so had in his possession a drug of dependence namely diacetylmorphine (heroin)." The applicant then admitted a number of previous convictions for offences which were not drug offences. The prosecutor did not recite the facts of the drug offence in open court but, we were informed, the facts were contained in the depositions taken on committal and the judge had a copy of the depositions. The propriety of this procedure does not arise for consideration but it is curious that it was followed in this case. The applicant had been committed for trial or sentence on other charges but he had been discharged on the drug offence to which he ultimately pleaded guilty. Counsel for the applicant informed the judge that the police had found a small amount of heroin in the applicant's car when they were searching it for evidence in connection with other offences. He said:
" The amount of heroin that was found was a very
small amount. It was 1.3 grams of white powder,
and Your Honour will no doubt know that at the
committal proceedings, when the gentleman who
analysed the powder was cross-examined, he
indicated it was about 10 to 15 per cent pure,
which would make it a 10.123 gram (sic) of pure
heroin, so it is on the bottom scale, and I think
he indicated it was a very small amount of
heroin. I am instructed further, Your Honour,
that at that stage he was an intravenous drug
user, particularly with heroin, and it was for
his own personal use, and it would be further my
submission that the amount that was discovered by
the police would confirm that view."
2. Counsel sought a custodial sentence to be served concurrently with a sentence imposed some months earlier in respect of other offences. Counsel referred to the penalty prescribed by s.73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic.) as the relevant penalty "where it is not a traffickable amount, and the Crown doesn't suggest for one moment that this is a traffickable amount". The prosecutor did not challenge this submission. Indeed, the prosecutor made no submissions on sentence. Section 73(1)(b) prescribes a penalty for unlawful possession of a drug of dependence "where the court is satisfied on the balance of probabilities that the offence was not committed by the person for any purpose relating to trafficking in that drug of dependence", that penalty being less than the penalty prescribed by par.(c) for unlawful possession of a drug of dependence "in any other case". Sub-section (2) makes unlawful possession of a traffickable quantity prima facie evidence of trafficking.

3. In imposing a sentence of 12 months imprisonment to be served cumulatively upon the sentences which the applicant was then undergoing, the learned sentencing judge said:

"I have been urged to deal with you on the basis
that you did not have the drug in your possession
for any purpose relating to trafficking, but that
you had it for your own use. Consequently, it
was submitted that any sentence imposed upon you
should be one to be served concurrently with the
sentences you are now undergoing.
Before I can deal with you on that basis, I
need to be positively satisfied on the balance of
probabilities that you were not in possession for
any purpose relating to trafficking in the drug.
The only material before me to that effect is
your counsel's statement from the Bar table; that
is simply not sufficient to so satisfy me. That
means that I must deal with you on the basis that
I am unable to make any finding as to the purpose
for which you had this drug in your possession."

4. The applicant applied for leave to appeal against sentence to the Full Court of the Supreme Court of Victoria sitting as a Court of Criminal Appeal. Two grounds were formulated:

1. "The sentence was manifestly excessive";
and (by an addition made by leave of a judge)
2. "it was not open to (the learned sentencing judge)
to sentence the Applicant on the basis that the
Applicant had possession of the said drug for a
purpose relating to trafficking".

The second ground was supported by reference to an earlier decision of the Full Court which had held that possession of a drug of dependence for a purpose relating to trafficking had to be established by a finding of a jury or admitted by a plea of guilty before a person in unlawful possession of the drug became liable to the penalty prescribed by par.(c) rather than to the lesser penalty prescribed by par.(b): Bridges (1986) 20 ACrimR 271. Bridges was the current authority at the time when the applicant was sentenced, but the learned sentencing judge was not referred to it. If Bridges had been rightly decided, the second ground of appeal was established. On that hypothesis, the applicant was sentenced under a misappreciation of the onus of proving the purpose of possessing the drug of dependence and under a mistake as to the maximum penalty to which the applicant was liable. In Bridges, the Full Court had answered questions of law reserved by the sentencing judge. Special leave to appeal from those answers was refused by this Court because the answers did not themselves determine the sentence to be imposed but, in its reasons for refusing special leave, this Court mentioned the possibility that the Full Court might reconsider the construction placed on s.73(1): [1986] HCA 78; (1986) 61 ALJR 62; 68 ALR 545, at p 546.

5. When the application for leave to appeal against sentence was first listed before the Full Court, the correctness of Bridges was raised and it was decided that Bridges should be reconsidered. The Full Court was subsequently reconstituted by five judges. Bridges was overruled. The Court concluded:

" The ground of the application which relies in
substance upon the learned trial judge's failure
to follow R. v. Bridges must therefore fail and
it is necessary to consider whether the sentence
imposed was manifestly excessive. We do not
think that it was. The maximum available
sentence was 400 penalty units or five years'
imprisonment or both, which indicates how
seriously Parliament treats the offence. The
applicant had a number of prior convictions and
little was said on the plea to justify leniency.
This ground should therefore also fail and the
application should be dismissed."

6. In seeking special leave to appeal to this Court, the applicant relies on arguments which were not advanced before the Full Court:

"IN the circumstances of the Applicant's case he
was denied natural justice by the Learned Trial
Judge because he was not forewarned as to the
requirement of establishing mitigating factors
and was denied the opportunity of discharging any
such onus which may have been placed on him by
reason of Section 73 of the Drugs, Poisons and
Controlled Substances Act 1981.
THE Court of Criminal Appeal ought to have held
that the Learned Trial Judge was bound to follow
R. v. Bridges (1986) 20 ACrimR 271 and in
failing to quash the sentence imposed, had denied
the Applicant natural justice in that the
Applicant was not afforded the opportunity of
adducing evidence or argument that he did not
have possession for the purpose of trafficking."

When the application was opened by Mr Richter, Q.C., who appeared for the applicant in this Court, the decision of the Full Court to overrule Bridges was accepted as correct but, it was submitted -

"the applicant was at all stages of the process
against him, in effect, denied the right to
discharge a burden of proof which section
73(1)(b) ... had cast on him to establish a
mitigating factor in relation to sentence."

And, it was added, the Full Court -

"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,
namely, that the drugs were for his own use."

7. These submissions do not find support in the actual course of the proceedings. In the County Court, Bridges seems to have been entirely overlooked. If Bridges had had counsel's attention, his submission that the discovered heroin was for his client's personal use could have been strengthened, if not established, by the absence of a jury finding or of an admission that the applicant's possession was for a purpose relating to trafficking. It is said that prosecutors at that time were accustomed to including in the presentment an averment of possession for the purpose of trafficking in cases where the case was alleged to fall outside par.(b) and within par.(c), and that counsel for the applicant would have perceived that the presentment contained no such averment. Even so, the overwhelming inference to be drawn from the transcript of proceedings in the County Court is that Bridges was simply overlooked, not that counsel was misled into acting on the assumption that Bridges was rightly decided. It does not appear that Bridges was thought to relieve the applicant of the onus of proving that he did not have possession for the purpose of trafficking. Obviously, if Bridges had been drawn to the judge's attention, he would have sentenced under par.(b) not par.(c) of s.73(1). In our view, there is no material which establishes that reliance on the flawed authority of Bridges led counsel for the applicant to refrain from attempting to discharge the onus which is imposed (as is now accepted) by s.73(1)(b) on a convicted person who denies that his possession of a drug of dependence is for the purpose of trafficking.

8. In argument in this Court, Mr Richter submitted that the reason why counsel in the County Court had not attempted to discharge the onus imposed by s.73(1)(b) was his assumption that the judge knew the decision in Bridges and knew the Crown's practice of averring aggravating circumstances when the offence was alleged to fall within s.73(1)(c). It emerged, however, that the foundation for the submission that counsel himself knew of Bridges and assumed that the judge knew also was no more than counsel's reference to s.73(1)(b) during the plea in mitigation, the "totality of the plea" and the practice of averring aggravating circumstances. Reading the plea which counsel made, we would not be inclined to accept the submission. In any event, it would not be right to allow an appeal upon the basis that a state of affairs existed when that state of affairs has not been found to exist by the Full Court but is merely the subject of a submission from the bar table in this Court founded on material which is at best ambiguous.

9. In the Full Court, when Bridges was being reconsidered and the applicant was relying upon it, no submission was made on behalf of the applicant that his counsel in the County Court had abstained in reliance on Bridges from calling evidence to discharge the s.73(1)(b) onus and was then relying on Bridges and expecting the judge to apply it. In the Full Court, no denial of natural justice was argued. Nor did the applicant's counsel seek to discharge the s.73(1)(b) onus in the Full Court, either in the course of arguing the matter or when the Court delivered its judgment. Assuming that the applicant was in a position to discharge that onus, nothing was done by the County Court or by the Full Court to impede him or his counsel from doing so.

10. The notion that either Court was under some general duty to "forewarn" the applicant or his counsel of the requirement to discharge the onus imposed by s.73(1)(b) is erroneous in practice as well as in principle. In practice, the very terms of s.73(1)(b) plainly alert a convicted person or his counsel to the need to satisfy the court as to the purpose of his possessing a drug of dependence. And, in the Full Court, the very object of reconsidering Bridges was to determine whether the onus of satisfying a court as to purpose rested on the prosecution or defence. In principle, the notion is erroneous that a court must tell the parties what the law is. A court is under no duty to a party to advise him how to present his case; the court's duty is to give him a reasonable opportunity to present his case: per Deane PJ. in Sullivan v. Department of Transport (1978) 20 ALR 323, at p 343. Special considerations apply to a judge's duty to put to a jury a defence available on the evidence which counsel for the accused does not rely upon at the trial (Pemble v. The Queen (1971) 124 CLR 107, at pp 117-118,133,137), to keep out inadmissible evidence and to ensure that rules made for the protection of an accused person do not constitute a trap for those who are unrepresented and ignorant of them (MacPherson v. The Queen [1981] HCA 46; (1981) 147 CLR 512, at p 546) but those considerations have no application to this case. The responsibilities of counsel cannot be assumed by the court, for its evenhandedness would be compromised by assuming a responsibility for the conduct of the case of one of the parties. We would not hold that there is some general duty, resting on either the County Court or the Full Court, to warn a convicted person or his counsel of the onus imposed by s.73(1)(b) merely because no attempt is made to discharge it.

11. However, a concession was made by counsel for the Crown in the course of argument in this Court which, if made in the Full Court, would have sufficed to establish the second of the grounds of appeal to that Court. On being pressed to respond to the proposition that the Crown did not contest the view stated in the County Court by counsel for the applicant that s.73(1)(b) was the relevant provision, counsel for the Crown replied: "I think your Honours have got to take that view because nothing was said by them." When the parties to an adversarial proceeding agree on a proposition of law and conduct their cases on that basis, their agreement does not bind the trial judge. If the judge determines the law to be different, he may apply the law as he determines it to be, but he must inform the parties of the view he has formed when that is necessary to give them an opportunity to address new issues arising from the judge's departure from the proposition of law on which the case was conducted. Otherwise both parties are taken by surprise: see Fairmount Ltd. v. Environment Secretary (1976) 1 WLR 1255, at pp 1265-1266; (1976) 2 All ER 865, at p 874. Especially in the criminal court, there is a need to ensure that the accused or convicted person is not taken by surprise: he must be given a fair opportunity of meeting the case against him so far as that case has not already been put to him for answer. The concession, if accepted, places a different complexion on the proceedings in the County Court. There is no reason why the concession should not be accepted; it is consistent with the record of proceedings in that Court. Once it is accepted that the proceedings before the learned sentencing judge were conducted by the Crown and counsel for the applicant on the footing that s.73(1)(b) was the relevant provision of the statute, it follows that the judge was not entitled to sentence on the footing that s.73(1)(c) was the relevant provision without giving the applicant's counsel an opportunity to show why the applicant was not liable to the larger penalty prescribed by s.73(1)(c). Bridges is irrelevant to this view except that it may explain how counsel for the Crown came to agree that s.73(1)(b) was the appropriate provision. This approach does not depend upon proof that counsel for the applicant was misled by reliance on Bridges.

12. The difficulty about this approach is that it was not argued in the Full Court, though it falls precisely within the second ground of appeal to that Court. Failure to argue a point before a court of criminal appeal presents a considerable obstacle to an applicant who seeks special leave to argue it in this Court. Even if the point emerges clearly only when a court pronounces its judgment, it should be appreciated by counsel who receive judgment that they are under a duty to draw the court's attention to issues which, in the light of the judgment, require further consideration by that court and to move the court to consider any such issues before the formal order of the court is perfected. On occasions, a court of criminal appeal may have to give further consideration to issues which were relegated to the margin of attention during the argument, though it is not required to consider new grounds which counsel abstained from raising on the appeal. In the present case, the failure of counsel to seek further consideration of the natural justice issue once Bridges was overruled by the Full Court is a factor which counts against the grant of special leave. However, as there seems to have been an erroneous view in some sections of the legal profession (now hopefully corrected) that no application can be made to a court of criminal appeal once its judgment is pronounced, it is not a fatal objection to the grant of special leave in this case. In this case, as a denial of natural justice appears from the concession made in this Court, as the point was covered by the grounds of appeal in the Court of Criminal Appeal and as argument in this Court proceeded upon the tacit assumption that the formal order of the Court of Criminal Appeal had been perfected so that there are now no means of remedying the position save an appeal to this Court, special leave should be granted.

13. There remains a question of some importance. If the issue of natural justice was not argued before the Full Court, can it be said that there was some error in the judgment of that Court? If there were no error affecting the judgment of the Full Court, there is no jurisdiction in this Court to set aside the Full Court's judgment. (By "judgment" we mean the order made, not the reasons assigned for making it.) The jurisdiction of this Court, once special leave to appeal is given, is to pronounce the judgment or order which the Full Court sitting as a Court of Criminal Appeal should itself have pronounced: Craig v. The King [1933] HCA 41; (1933) 49 CLR 429, at p 444. Although that jurisdiction is as extensive as the jurisdiction of the Court of Criminal Appeal itself, it may be that this Court does not have jurisdiction to set aside a judgment correctly and regularly pronounced when the only ground which might warrant the allowing of an appeal is raised for the first time in this Court. Whether the Court's reluctance to entertain such a ground has its foundation in an absence of jurisdiction or in a discretionary rule or rule of practice is a question which this Court left unresolved in Hicks v. The King (1920) 28 CLR 36; see also Banbury v. Bank of Montreal (1918) AC 626; Victorian Stevedoring and General Contracting Co. Pty. Ltd. and Meakes v. Dignan [1931] HCA 34; (1931) 46 CLR 73, at pp 107-111, esp. at p 109 (where Dixon PJ. considered that the speech by Lord Atkinson in Banbury was more appropriate to the exercise of original rather than appellate jurisdiction). As this question was not argued, it would be undesirable now to attempt to resolve it. And, in the circumstances of this case, it is unnecessary to do so. However the question be resolved, it can be said that there is a general rule - of practice or discretion, if not of jurisdiction - that this Court will not ordinarily set aside a judgment correctly and regularly pronounced when the only valid ground of appeal is raised for the first time in this Court. Grounds of appeal are not narrowly construed but they nevertheless confine the issues which, in any curial proceeding of an adversarial kind, define what the court is to decide. And even when a point which counsel seeks to argue in this Court for the first time can be seen to fall within the grounds of appeal to an intermediate appellate court, this Court will not give effect to the point if evidence could have been given in the court below which by any possibility could have prevented the point from succeeding: Coulton v. Holcombe [1986] HCA 33; (1986) 162 CLR 1, at pp 7, 8. But, absent such a possibility, there are some cases in which it is expedient in the interests of justice to allow a point to be raised on appeal which was not argued in the court below: see O'Brien v. Komesaroff [1982] HCA 33; (1982) 150 CLR 310, at p 319.

14. Applying these principles to the present case, it seems to us that the issue of natural justice was formally raised before the Full Court by the second ground of appeal. Although counsel for the applicant did not argue the point that the learned sentencing judge failed to give the parties an opportunity to deal with his proposal to sentence on the basis of s.73(1)(c) when the Crown and counsel for the applicant had agreed that s.73(1)(b) was the correct basis, it is expedient to allow the point to be raised on this appeal because of the concession made by counsel for the Crown in this Court. And on that point the applicant is entitled to succeed. We do not think that the applicant can rely on an argument that his counsel was misled by reliance on the flawed authority of Bridges, for the fact of reliance is negated by the course of proceedings, or is at least open to the gravest doubt and is a fact which might possibly have been disproved had the fact been investigated.

15. In the result, special leave to appeal must be granted and the appeal allowed to correct an injustice which, concealed within the second ground of appeal to the Full Court, now stands revealed. The sentence should be quashed and the applicant remanded in custody to be sentenced afresh by the County Court. It is for that Court to determine whether the applicant, who has commenced to serve the sentence which is now quashed, should be admitted to bail pending resentencing.

DEANE, TOOHEY AND GAUDRON JJ. The applicant applies, out of time, for special leave to appeal from an order of the Full Court of the Supreme Court of Victoria sitting as a Court of Criminal Appeal dismissing an application to that court for leave to appeal against a sentence of one year's imprisonment imposed upon the applicant in the Melbourne County Court. The material before the Court adequately explains the delay in applying for special leave to appeal to this Court and the Crown has not opposed the application for an extension of time. In these circumstances, it is appropriate to turn at once to a consideration of the application for special leave to appeal.

2. The grounds upon which the applicant seeks to have the judgment of the Court of Criminal Appeal set aside are related. Their combined effect is to allege that, by an unusual combination of circumstances and events, the applicant has been denied procedural fairness in that he has been denied any effective opportunity to lead evidence of facts critical to the determination of what represents the maximum penalty for his offence. At the time he was sentenced in the County Court, the position under the then state of authority was, so the applicant submits, that the maximum penalty to which he was liable in the circumstances of his case was 30 penalty units ($100 each) and imprisonment for twelve months. The learned County Court judge failed to follow authority and sentenced the applicant on the basis that the maximum penalty was 400 penalty units and imprisonment for five years. In dismissing the application for leave to appeal, the Court of Criminal Appeal changed the state of authority. It effectively confirmed the sentence imposed by the learned County Court judge on the basis that, under that changed state of authority, the appropriate maximum penalty in the circumstances of the applicant's case was 400 penalty units and imprisonment for five years. The applicant submits that the Court of Criminal Appeal failed to extend to him an adequate opportunity to call the evidence necessary to establish that, even under the changed state of authority, the maximum penalty in the true circumstances of his case remained 30 penalty units and imprisonment for one year. The consideration of those submissions requires an examination of the course of the proceedings in both the County Court and the Court of Criminal Appeal.

3. The charge against the applicant was that, without relevant authority or licence, he had "in his possession a drug of dependence namely diacetylmorphine (heroin)". The applicant pleaded guilty. The offence involved was an offence under s.73(1) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic.) ("the Act"). For present purposes that sub-section provides:

"73. (1) A person who without being authorized
by or licensed under this Act or the regulations to
do so has or attempts to have in his possession a
drug of dependence is guilty of an indictable
offence and liable --
...
(b) ... where the court is satisfied on
the balance of probabilities that
the offence was not committed by the
person for any purpose relating to
trafficking in that drug of
dependence -- to a penalty of not
more than 30 penalty units or to
imprisonment for a term of not more
than one year or to both that
penalty and imprisonment; or
(c) in any other case -- to a penalty of
not more than 400 penalty units or
to imprisonment for a term of not
more than five years or to both that
penalty and imprisonment."

Section 73(2) provides:

"Where a person has in his possession, without
being authorized by or licensed under this Act or
the regulations to do so, a drug of dependence in a
quantity that is not less than the traffickable
quantity applicable to that drug of dependence, the
possession of that drug of dependence in that
quantity is prima facie evidence of trafficking by
that person in that drug of dependence."

In the discussion which follows, it will be convenient to refer only to the maximum terms of imprisonment fixed by pars.(b) and (c) of s.73(1) without making continued reference to the associated penalty units.

4. The quantity of the drug which had been found in the applicant's possession was less than the traffickable quantity for the purposes of s.73(2). That being so, the applicable maximum sentence fell to be determined by reference to s.73(1)(b) and (c) without the intervention of the provisions of s.73(2). The drug, which had been found by the police in the applicant's car, was in four small foil packets contained in a larger packet. The small quantity of the drug in each packet was consistent with the applicant's claim that the packets, presumably containing individual "doses", were in his possession for his personal use.

5. At the time when the applicant was sentenced in the County Court, the decision of the Victorian Court of Criminal Appeal in Reg. v. Bridges (1986) 20 ACrimR 271 stood as authority for the proposition that a sentencing judge "is without jurisdiction to sentence a person convicted of possession on the basis that" the maximum penalty is the higher term of imprisonment set out in s.73(1)(c) (i.e. five years as distinct from the one year set out in s.73(1)(b)) unless there is a positive "finding, whether by verdict or otherwise", that "possession of the drug was for a purpose relating to trafficking" (ibid., at p 278; emphasis added). In Bridges, the Court of Criminal Appeal was dealing with certain questions reserved for its consideration pursuant to s.446 of the Crimes Act 1958 (Vic.). An application for special leave to appeal to this Court was refused on the ground that "an appeal does not lie from a mere answer to a question of law when the answer is not by itself decisive of the rights and obligations of the parties" (Reg. v. Bridges [1986] HCA 78; (1986) 61 ALJR 62; 68 ALR 545, at p 545). However, in refusing special leave, the Court drew attention (at p 62; p 546 of ALR) to the fact that the provisions of s.73(1)(b) applied to provide for the lower maximum penalty of one year's imprisonment only in a case where the court was "satisfied on the balance of probabilities that the offence was not committed ... for any purpose relating to trafficking" (emphasis added) and suggested that the Court of Criminal Appeal might, in an appropriate case, "reconsider the construction of the section". As the Full Court pointed out in the present case, the decision in Bridges was based upon a categorization of s.73(1)(b) and (c) as provisions turning upon the absence or presence of circumstances of aggravation whereas a careful examination of the language of s.73(1) discloses that the circumstances specified in s.73(1)(b) are circumstances of mitigation which the accused must establish on the balance of probabilities. Nonetheless, the judgment in Bridges was plainly binding on the learned judges of the County Court and had led to a common practice among Crown Prosecutors in Victoria of including, in a presentment alleging an offence under s.73(1), an averment that the offence was committed for a purpose related to trafficking if the case was one in which the Crown might wish to suggest that the appropriate maximum sentence was other than the lesser sentence specified in s.73(1)(b).

6. The presentment in the present case contained no averment of a purpose relating to trafficking. The Crown at no stage suggested, and the accused expressly denied, the existence of any such purpose. In these circumstances, the judgment in Bridges required that the applicant be sentenced on the basis that his plea of guilty was to an offence not committed for any purpose relating to trafficking. The maximum sentence for such an offence was that specified in s.73(1)(b), namely, imprisonment for one year and/or a fine of $3000. Counsel who appeared for the applicant made his submissions on sentence on that basis. In the course of those submissions, he identified the applicable provision as s.73(1)(b), saying:

"The Act under Section 73(1)(b) ... gives the
sentence as being I think 30 penalty units which is
$3000 or twelve months imprisonment, or both."

At an earlier stage of those submissions, counsel had said:

"The amount of heroin that was found was a
very small amount. ... I am instructed further,
Your Honour, that at that stage he was an
intravenous drug user, particularly with heroin,
and it was for his own personal use, and it would
be further my submission that the amount that was
discovered by the police would confirm that
view."

Counsel for the Crown said nothing in opposition to the above statements. It is conceded by the Crown that this Court must act on the basis that the Crown's silence indicated that it did not contest the view that s.73(1)(b) applied to fix the maximum penalty as imprisonment for one year and/or a fine of $3000. For his part, the learned primary judge said nothing to indicate that he entertained a different view about the applicable maximum penalty. At the conclusion of submissions, his Honour remanded the applicant in custody to be sentenced on the following Monday and informed counsel for the applicant that he was excused from attending on that day. With the benefit of hindsight, it is unfortunate that neither counsel for the applicant nor counsel for the Crown referred his Honour to the decision of the Court of Criminal Appeal in Bridges. In argument in this Court, Mr. Richter Q.C., who appeared for the applicant, stated, apparently on the basis of the transcript of the proceedings on sentence, that the reason why counsel (for the applicant) had not referred to Bridges in his submissions on sentence was that counsel "took him to know that decision and, indeed, took him to know the practice of averring the aggravating circumstances which had developed ...". Mr. Flanagan Q.C., who appeared for the Crown, did not dispute that that was so, conceding that the transcript made clear that counsel for the applicant had been "certainly well aware of the sections and what the situation was".

7. On the following Monday, the primary judge, without inviting further submissions, proceeded to sentence the applicant. He indicated that he was not prepared to act on counsel's statement from the bar table to the effect that the applicant had had the drug in his possession for his own use and not for any purpose relating to trafficking. He stated that, in view of the absence of evidence, he was "unable to make any finding" about the purpose for which the applicant had had the drug in his possession. His Honour was presumably unconscious of the fact that the effect of the decision in Bridges was that the absence of any finding or admission of a purpose relating to trafficking meant that he was "without jurisdiction to sentence" the applicant otherwise than on the basis that the applicable maximum penalty was the term of one year's imprisonment provided by s.73(1)(b). He proceeded to sentence the applicant on the basis that the applicable maximum term of imprisonment was the five years provided by s.73(1)(c). It is plain that, if his Honour had applied Bridges as he was bound to do, he would have imposed a less onerous sentence since the circumstances of the case (a very small quantity of the drug, no previous drug-related offences and the applicant's plea of guilty) were not such as could properly have attracted the maximum term of imprisonment of one year under s.73(1)(b). At the time he was sentenced, the applicant was undergoing sentences of imprisonment imposed in relation to other offences. His Honour directed that the sentence be served cumulatively upon those sentences. Upon the hearing of this application, the Court was informed that the applicant was about to commence serving the sentence involved in the present case.

8. Not surprisingly, the applicant applied for leave to appeal to the Court of Criminal Appeal. The applicant's amended notice of application for such leave raised two grounds. The first was that the sentence imposed was "manifestly excessive". The other asserted that it had not been "open" to the sentencing judge to sentence him "on the basis that the Applicant had possession of the ... drug for a purpose relating to trafficking". That latter ground was clearly founded on the Court of Criminal Appeal's decision in Bridges and, in view of the comments which had been made in this Court when refusing special leave to appeal from that decision, the Court of Criminal Appeal adjourned the hearing of the application so that a court of five judges could be constituted to deal with it. In argument before the Court of Criminal Appeal so constituted, counsel for the applicant failed to address the position which would arise if the Bridges construction of s.73(1) were overturned. Having heard argument, the Court of Criminal Appeal reserved its decision. When the application was next listed, written reasons for judgment were published and the application was dismissed without further discussion.

9. In their joint judgment, the five members of the Court of Criminal Appeal overruled the interpretation of s.73(1) which had been accepted in Bridges. Their Honours held that the reference to "the court" in s.73(1)(b) is to the sentencing judge and not, as had been held in Bridges, to the jury on a trial. Their Honours also held that the absence of a finding or admission of a purpose relating to trafficking did not suffice to bring the case within s.73(1)(b) since that paragraph is, according to its plain terms, applicable to reduce the maximum sentence from the five years provided by s.73(1)(c) only in a case where the accused has discharged the onus of satisfying the court on the balance of probabilities that the offence was not committed for any such purpose. In the result, the Court of Criminal Appeal concluded that the sentencing judge had been correct in sentencing the applicant on the basis that the maximum sentence was imprisonment for five years. They said:

"In the present case, although the learned
judge was not referred to R. v. Bridges, he made no
error in his application of the law: paradoxically
had he been referred to R. v. Bridges he might have
done so. His Honour was correct in concluding that
unless he was positively satisfied on the balance
of probabilities that the applicant was not in
possession of the drug for any purpose relating to
trafficking the appropriate penalty was that set
out in section 73(1)(c). No evidence was put
before His Honour to enable him to be satisfied as
required."

Their Honours went on to consider whether the sentence imposed was manifestly excessive. In a context where they had held that the applicable maximum sentence was the five years' imprisonment (and 400 penalty units) provided by s.73(1)(c), they concluded that it was not.

10. On the application for leave to appeal to this Court, the applicant abandoned any attack on the correctness of the decision of the Court of Criminal Appeal in so far as it overruled the Bridges construction of s.73(1). As has been said, the applicant's present claim is that the effect of the combination of events and circumstances is that he has been denied procedural fairness. The applicant submits that the Court of Criminal Appeal should not, when it overruled Bridges, have simply acted on the basis of the applicant's failure to call evidence before the sentencing judge "to enable him to be satisfied as required" when the basis upon which the proceedings at first instance had been conducted and the then state of authority were that such evidence was unnecessary to bring the case within s.73(1)(b). Once Bridges was overruled, procedural fairness required that the applicant be given some subsequent opportunity of calling evidence to make good his claim that the small quantity of heroin found in his possession had been for his own use. For its part, the Crown submits that the applicant has not been denied the opportunity of discharging the onus imposed by s.73(1)(b): he "simply failed to do so and cannot now complain of the consequences of his own omission".

11. Apart from the failure to refer expressly to Bridges, it is difficult to discern any basis for criticism of counsel's assumption at first instance that it was unnecessary to call evidence to bring the applicant's case within s.73(1)(b). While Bridges stood, that assumption accorded with authority binding on the County Court. In all the circumstances, it was incumbent upon the sentencing judge to indicate to counsel his lack of acceptance of the underlying assumption upon which the submissions upon sentence had been made. This was particularly the case when counsel had asserted, without dissent from the Crown or comment by the sentencing judge, that the small quantity of heroin found in his client's possession had, in any event, been for the applicant's personal use. In the result, the conclusion is unavoidable that the applicant was effectively denied any adequate opportunity at first instance to call the evidence which it was necessary to call in a context where the sentencing judge inadvertently failed to follow Bridges. The denial of that opportunity to call evidence constituted a denial of procedural fairness which vitiated the sentencing judge's finding that, by reason of absence of evidence, he was not satisfied of the absence of any purpose relating to trafficking.

12. On the hearing before the Court of Criminal Appeal, counsel for the applicant should have drawn that court's attention to his client's right, as a matter of procedural fairness, to be given the opportunity of calling evidence if the Bridges interpretation of s.73(1) was overturned. However, it would be wrong, in the particular circumstances of this case, to treat that failure as conclusive of the application for special leave to appeal. As has been said, the sentencing judge's finding that he was not satisfied of the absence of a purpose relating to trafficking was vitiated by a denial of procedural fairness. The fact that the Court of Criminal Appeal's conclusion that the sentencing judge's failure to apply Bridges had paradoxically led to a situation where his Honour's view of the effect of s.73(1)(b) and (c) had been correct did not remove the essential vice of that finding or entitle the Court of Criminal Appeal to act on the basis of it. The Court of Criminal Appeal was obliged to address the question whether the possession had not been for any purpose relating to trafficking for itself and to ensure that, before it proceeded to consider whether the applicant's sentence was manifestly excessive, the applicant was accorded an opportunity of discharging the evidentiary onus which, by overriding Bridges, the Court of Criminal Appeal had itself placed upon him. On balance, it appears to us that the Court of Criminal Appeal failed to extend such an opportunity to the applicant. In acting upon the vitiated finding of the sentencing judge and in failing to accord the applicant an opportunity to discharge the evidentiary onus which it had held that he bore, the Court of Criminal Appeal fell into error of law.

13. There remains for consideration the question whether the case is an appropriate one for the grant of special leave to appeal to this Court. Obviously, the case turns essentially on its own facts. Any points of law which it involves are, of themselves, inadequate to attract the grant of special leave. On the other hand, the case is one in which, through a combination of circumstances including the overruling by the Court of Criminal Appeal of its own recent decision in Bridges, the applicant has been denied an opportunity to call evidence to establish that the circumstances of his case bring it within the provisions of s.73(1)(b) of the Act in circumstances where the only available appeal is to this Court. In our view, the interests of the administration of justice, in the particular case, require the intervention of this Court to correct the failure of the Court of Criminal Appeal to ensure that the applicant was accorded procedural fairness.

14. In the result, we would extend the time for special leave to appeal, grant special leave to appeal, uphold the appeal and quash the sentence of one year's imprisonment imposed upon the applicant. We would remit the matter to the County Court of the State of Victoria in Melbourne so that the applicant can be afforded an opportunity to call evidence to establish on the balance of probabilities that his case comes within s.73(1)(b) of the Act and be resentenced. It will be a matter for the County Court to decide whether the applicant should, pending resentencing, be admitted to bail after he has completed serving the earlier sentences. In the meantime, the applicant should be remanded in custody.

15. There is one further matter which should be mentioned. It is that the application for special leave to appeal to this Court was argued on the basis that, once judgment had been delivered by the Court of Criminal Appeal or (at the latest) once the judgment had been perfected, the jurisdiction of that court was exhausted. In a case such as the present where there has been an inadvertent denial of procedural fairness in a criminal matter by a Court of Criminal Appeal, it would ordinarily be preferable that the matter be dealt with by further application to that court. In view of the shortness of the minimum sentence to be served by the applicant, however, it would be inappropriate for this Court now to relist the matter for further argument so that the validity of the assumption (about which we express no view) that the Court of Criminal Appeal now lacks jurisdiction could be examined.

ORDER

Application for extension of time in which to apply for special leave to appeal granted.

Special leave to appeal granted.

Appeal allowed.

Order of the Full Court of the Supreme Court of Victoria dated 8 September 1987 set aside and in lieu thereof grant the application for leave to appeal against sentence and set aside the sentence imposed in the County Court of Victoria.

Remit the matter to the County Court of Victoria to enable the applicant to call evidence to establish that his case comes within s.73(1)(b) of the Drugs, Poisons and Controlled Substances Act 1981 (Vic.) and to be resentenced.

Order that the applicant be remanded in custody pending further order of the County Court.