Beqiri v The Queen

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2016 0077

BESIM BEQIRI	Applicant
v
THE QUEEN	Respondent

S APCR 2016 0092

BRUNO HAJKO	Applicant
v
THE QUEEN	Respondent

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JUDGES:	WEINBERG, OSBORN and WHELAN JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	3 April 2017
DATE OF JUDGMENT:	15 May 2017
MEDIUM NEUTRAL CITATION:	[2017] VSCA 112	First revision: 17 June 2019, footnote 18.
JUDGMENT APPEALED FROM:	[2016] VCC 401 (Judge Hampel)

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CRIMINAL LAW – Practice and procedure – Jury empanelment – Whether jury empanelment miscarried – Whether reasonable opportunity to view the faces of prospective jurors – Theodoropoulos v The Queen [2015] VSCA 354 distinguished – Whether procedure otherwise unacceptable – Leave granted – Appeal dismissed.

EVIDENCE – Admissibility – Evidence Act 2008 (Vic) s 87 – Whether assertions admissible as having been made in furtherance of joint criminal enterprise – Whether probative value outweighed by prejudicial effect – Whether admissions resulted in an unfair trial – Leave granted – Appeal dismissed.

CRIMINAL LAW – Application for leave to appeal – Conviction – Directions to counsel by trial judge – Rule in Shepherd v The Queen (1999) 170 CLR 573 – Jury Directions Act 2015 (Vic) ss 61, 62 – No error by trial judge – Leave refused.

CRIMINAL LAW – Application for leave to appeal – Conviction – Refusal by trial judge to give further direction with respect to prosecutor’s final address – No error by trial judge – Leave refused.

CRIMINAL LAW – Application for leave to appeal – Sentences – Attempt to possess a commercial quantity of an unlawfully imported border controlled drug – Relevance of role in joint criminal enterprise to sentencing – Whether sentences manifestly excessive – Leave refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant Besim Beqiri	Mr M A Tovey QC	Melasecca Kelly & Zayler
For the Applicant Bruno Hajko	Mr O P Holdenson QC	Melasecca Kelly & Zayler
For the Respondent to each application	Mr D G Gurvich QC with Ms K Breckweg	Ms A Pavleka, Solicitor for Public Prosecutions (Cth)

WEINBERG JA:
OSBORN JA:
WHELAN JA:

The applicants, Besim Beqiri and Bruno Hajko, seek leave to appeal against convictions and sentences arising out of a joint trial involving both applicants and a third man, Jacinto Rodriguez-Conejo (‘Rodriguez’). The trial concerned the importation of 29,252.2 grams of methamphetamine (23,040.4 grams of pure methamphetamine) into Australia. The drugs were imported from the USA within the body of a Chevrolet motor car.

All three men were charged with attempting to possess a commercial quantity of a border controlled drug, namely methamphetamine.

Rodriguez was also charged with possession of a marketable quantity of a border controlled drug, comprising 374 grams of pure cocaine.

All three accused pleaded not guilty to the charges.

A jury was empanelled on 10 February 2016 and verdicts of guilty on all charges were returned on 8 March 2016.

The applicants were sentenced in relation to all charges on 8 April 2016 by Judge Hampel, as follows:

Besim Beqiri

Charge Offence Maximum Sentence Cumulation

1 Attempt to possess a commercial quantity of an unlawfully imported border controlled drug
[Criminal Code (Cth) ss 11.1(1) and 11.2(A)] Life
imprisonment 15 years’
imprisonment Nil

Total effective sentence 15 years’ imprisonment

Non-parole period 11 years

Pre-sentence detention 260 days

Other orders Forfeiture of Chevrolet Impala in which the drugs had been imported

Bruno Hajko

Charge Offence Maximum Sentence Cumulation

1 Attempt to possess a commercial quantity of an unlawfully imported border controlled drug
[Criminal Code (Cth) ss 11.1(1) and 11.2(A)] Life
imprisonment 11 years’
imprisonment Nil

Total effective sentence 11 years’ imprisonment

Non-parole period 7 years

Pre-sentence detention 560 days

Rodriguez was sentenced to a term of 15 years’ imprisonment for the attempt to possess a commercial quantity of an unlawfully imported border controlled drug. That sentence was to commence four years before the expiration of the sentence on charge 2 (possess a marketable quantity of cocaine). On the second charge, Rodriguez was sentenced to five years’ imprisonment, commencing from the date of sentence. That resulted in a total effective sentence of 16 years’ imprisonment. Her Honour set a non-parole period of 11 years and six months’ imprisonment. Rodriguez has not sought to appeal his conviction or sentence.

Common proposed grounds of appeal against conviction

Both applicants challenge the jury empanelment procedure adopted at the outset of their trial. Hajko’s proposed ground 3 is as follows:

The trial miscarried on account of an improper/unlawful empanelment process being employed in the selection of the jury in that the applicant was not allowed nor afforded a proper or adequate opportunity to make an assessment of the potential jurors and thus was not afforded a proper opportunity to exercise his rights and make a peremptory challenge. Consequently the jury:
(a) was not empanelled in accordance with the law; and
(b) was not constituted according to law.

Beqiri’s proposed ground 4 puts the point this way:

4.The jury was not empanelled or constituted according to law as the process of empanelment employed by the learned trial judge compromised the ability of the applicant to exercise his right to make peremptory challenges so as to select an impartial jury. The process was defective in that:
(a)The applicant was required to exercise peremptory challenges following a procedure which involved an unacceptable risk that jurors, the applicant and the solicitor assisting him would feel intimidated;
(b)It unduly compromised the ability of the applicant properly to assess the suitability of potential jurors.

Both applicants also challenge the admissibility of telephone intercept evidence of a conversation between Rodriguez and an unknown male on 25 September 2014 concerning Rodriguez’s accommodation, and the drugs recovered by him from the Chevrolet.[1]
[1]Beqiri proposed ground 1; Hajko proposed ground 2.

Further proposed grounds of appeal against conviction by Beqiri

Beqiri also seeks leave to appeal against conviction:

(a) with respect to a direction given by the trial judge to counsel for Beqiri during the course of his final address;[2] and

(b) with respect to a subsequent refusal by the trial judge to give a specific direction to the jury relating to a submission made by the prosecutor during his final address.[3]

[2]Proposed ground 2.

[3]Proposed ground 3.

Further proposed grounds of appeal against conviction by Hajko

Hajko further seeks leave to appeal against conviction on the grounds that the trial judge:

(c) erred in admitting evidence of telephone conversations between Hajko and Rodriguez concerning cocaine; and

(d) erred in refusing to grant Hajko a separate trial.[4]

[4]Proposed grounds 1(a) and (b).

Appeals against sentence

Both Beqiri and Hajko seek leave to appeal against sentence on the ground of manifest excess.

For the reasons which follow, we would grant leave to appeal with respect to the two common proposed grounds of appeal in respect of the process of jury empanelment and Rodriguez’s phone calls, but dismiss the appeals with respect to them. We would refuse leave to appeal with respect to the other proposed grounds of appeal, against both conviction and sentence.

Common ground of appeal 1 — the threshold challenge: did the empanelment of the jury miscarry?

Both applicants raise the threshold question of whether the empanelment of the jury miscarried. The onus of establishing a substantial miscarriage of justice falls on them, pursuant to s 276(1)(b) of the Criminal Procedure Act 2009.

Section 36 of the Juries Act 2000 provides that the jury is selected by calling out the name (or number) and occupation of prospective jurors in the jury panel until the required number is selected, after allowing for all challenges. Section 39 then relevantly provides:

(1) Each person arraigned is allowed to challenge peremptorily—

…

(c) 4 potential jurors, if 3 or more persons are arraigned in the trial.

(2) In a criminal trial, each peremptory challenge must be made as the potential juror comes to take his or her seat and before he or she takes it.

(3) On the application of a person arraigned, the court must permit a legal practitioner who represents the person, or the clerk of the legal practitioner, to assist the person in making a peremptory challenge.

The longstanding practice in this State has been for prospective jurors to walk directly in front of and past the dock, or ‘parade’, before taking their seats in the jury box. This practice provides the opportunity for an accused to observe the juror and exercise the right of challenge in response, in part, to that observation. The procedure is depicted in the video called ‘We the Jury’ which is routinely shown to members of jury pools before the empanelment and trial process.

In Theodoropoulos v The Queen,[5] the Court of Appeal considered whether the appellant was denied his statutory right of peremptory challenge to inspect jurors by reason of the empanelment procedure there adopted. In that case, the judge did not require the jurors to parade past the dock after they were individually called, in accordance with the usual practice, but simply directed them to stand within the court and make their way to the jury box, unless challenged or directed to stand aside. After considering the common law antecedents to the relevant statutory provision, the practice adopted in other jurisdictions, and the purpose of the statutory provision, the majority (Redlich and McLeish JJA) held that the right of peremptory challenge required that the accused be afforded a reasonable opportunity to physically view each prospective juror’s face in order to exercise his or her right of peremptory challenge.[6] Acting Justice of Appeal Beale (who dissented in the result) accepted the same requirement.[7]
[5][2015] VSCA 364 (‘Theodoropoulos’).
[6]Ibid [81].
[7]Ibid [156].

The decision in Theodoropolous rested largely upon the unchallenged evidence of the applicant’s solicitor, who had assisted the accused in his challenges, that neither she nor the applicant had had an adequate opportunity to view the faces of prospective jurors before they entered the jury box. Moreover, the solicitor gave evidence that she did not think that she could have objected to the procedure that the trial judge had prescribed.

The majority set out the historical origins of the right of peremptory challenge, and the rationale for the continued existence of that right. They concluded that in a jurisdiction where the right to challenge is lost at the moment that a juror takes his or her seat in the jury box, the opportunity to observe a prospective juror in the few seconds available after entering the jury box was not sufficient.[8]
[8]The Crown was refused special leave to appeal the decision of this Court by the High Court.

In the course of their reasons, Redlich and McLeish JJA referred to the 2014 Victorian Law Reform Commission report relating to Jury Empanelment:[9]

The right of peremptory challenge requires that the accused be afforded an adequate opportunity to physically view each prospective juror’s face. Speaking of the practice of requiring the juror to parade past the dock, the Victorian Law Reform Commission in its 2014 report states, ‘[i]t appears that the purpose of this practice is to allow the accused to see the prospective juror so he or she can decide whether to challenge the prospective juror’.[10] The Commission noted that there was at least one Victorian judge who did not require prospective jurors to parade in front of the accused in that way. That judge instead required the prospective juror to simply turn and face the accused if balloted.[11] The Commission concluded that while it is reasonably necessary for the accused to have the opportunity to see the prospective jurors, the parade was an unnecessary way to achieve that.[12] The Commission referred to the alternative approach of having the balloted juror stand and face the accused before walking towards the jury box.[13] The Commission concluded that prospective jurors should not be required to parade in front of the accused, but judges should ensure that the accused and their legal representatives ‘have the opportunity to see prospective jurors as their names are balloted, and have a reasonable period of time in which to exercise their challenges.’[14]

[9]Theodoropoulos [2015] VSCA 364 [81] (citations in original).

[10]Victorian Law Reform Commission, Jury Empanelment, Report No 27 (2014) xii.

[11]Ibid [3.43].

[12]Ibid [3.291].

[13]Ibid [3.292].

[14]Ibid 61 (Recommendation 9).

Ultimately, their Honours observed:

We should not leave unstated what should be apparent from these reasons. Trial judges in Victoria should follow a practice that provides the accused with a reasonable opportunity to see the prospective juror’s face, before they enter the jury box. There is no prescribed practice. The opportunity may be provided by employing the traditional practice of a ‘parade’ by the prospective jurors past the dock or by directing prospective jurors, whose name or number is called, to stand up and turn to face the accused in the dock before proceeding to enter the jury box, or by some other procedure which satisfies the objective of enabling a visual inspection of the potential jurors.[15]

[15]Theodoropoulos [2015] VSCA 364 [93].

In Cook v The Queen,[16] the trial judge (who was not the trial judge in Theodoropolous) had nonetheless adopted a similar empanelment process. As in Theodoropolous, the applicant’s solicitor gave evidence, which though strongly challenged before the Court of Appeal, was ultimately accepted, that the applicant had not been given an adequate opportunity to view the faces of prospective jurors before they entered the jury box.
[16][2016] VSCA 233 (Redlich, Weinberg and Kaye JJA).

The Court of Appeal further concluded, as had the majority in Theodoropoulos,[17] that because in this State the challenge to a juror must be made before the juror takes his or her seat in the jury box, the opportunity to challenge in the time before the juror enters the witness box must be adequate.[18]
[17][2015] VSCA 364.
[18]Cook v The Queen [2016] VSCA 231 [16].

In V’s case,[19] the same principles were applied to the same process of empanelment which the Crown, in that case, conceded could not be regarded as adequate in the face of the decisions in Theodoropoulos and Cook.[20] Senior counsel for the Crown informed the Court that he had given careful consideration to the video recording of the empanelments in the two trials that were under challenge, and had concluded that there had been even less of an opportunity to view the faces of prospective jurors before they reached the jury box in these two empanelments than there had been in Cook, a matter in which he had also appeared. The Court accepted the Crown’s concession, and set aside the convictions in that case.
[19][2016] VSCA 268R. We have anonymised this reference because the matter has yet to be re-tried.
[20]Ibid [4]–[5] (Whelan JA and Beale AJA), [25] (Priest JA).

In the present case, the trial judge elected to adopt a further variant to the traditional Victorian practice of parading prospective jurors past the dock. This course was followed after notice had been given prior to the trial of the judge’s preference for a procedure which did not require potential jurors to parade in front of the dock. The judge also heard submissions from counsel as to the appropriate procedure. In the course of this discussion, counsel for the applicants objected to a procedure which required prospective jurors to stand facing the dock, though primarily on the basis that it involved unnecessary confrontation between the potential jurors and the accused.

The judge adopted what she called a ‘sensible compromise’ which enabled the accused to observe a prospective juror walk to a stipulated point within the courtroom and stop there facing the dock.

The point to which the jurors were required to walk was fixed after demonstrations by counsel as to the relative suitability of different locations. The trial judge requested the prosecution solicitor to stand at the point fixed on and she then confirmed with the accused that they could see persons face-to-face in this position.

Her Honour then stated:

It seems to me from what I can see that that would work. I want to say these two things. It is incumbent on the solicitors who are assisting the accused and their challenges to notify me in the course of the empanelment if they have not had adequate opportunity to see, so that that can be remedied there and then.
Second, I want to make it clear that as a result of the decision in Theodoropoulos it has been reinforced the time to exercise the challenge it does to expire until the juror has taken their seat in the jury box. No matter what practice any solicitors have had about not challenging once a juror actually gets up the step, and starts to walk towards the seat in the jury box they have the opportunity to challenge up until the time that they take a seat, and I take the view that if they choose not to exercise their right of challenge once a juror gets to the jury box that’s their issue not mine.
If they need more time to view the face of the juror before the juror takes a seat then the instructors must be told that they have to ask for that time, and it will be given to them. If not, I will take it that each of the accused has waived their right to have any further viewing of any potential juror.

At the outset of the empanelment process, the trial judge’s associate instructed the jurors as to the procedure which was to be adopted in the following terms:

Members of the jury panel, as your panel numbers are called, please stand, walk to the passage way closest to the jury box, walk down the passage way towards the exit, pause at the second last row, turn to face the dock for five seconds and then make your way to the jury box. If challenged or directed to stand aside, please take the nearest seat.

As the matter was elaborated in argument, it was submitted on behalf of the applicants, that the adopted procedure unduly compromised the ability of the accused to assess the suitability of prospective jurors. It was further submitted that the procedure carried with it an unacceptable risk that prospective jurors would be intimidated and adversely prejudiced against the accused.

Insofar as the ability of the applicants and the solicitors assisting them to adequately view the prospective jurors and respond to them as they presented themselves for potential challenge, it was submitted that the procedure failed because the time for which prospective jurors in fact stood facing the dock was less than five seconds. It was further submitted that the process was one which confronted the applicants in a way which materially impaired their capacity to exercise their rights.

The jury empanelment process was video recorded, and that recording is supplemented by affidavits sworn both by the applicants and the solicitors who assisted them in making their challenges.

We accept that the video recording shows that, after walking to a position in the central aisle of the courtroom, the prospective jurors stood for periods of between only two and four seconds facing the three accused, and the other persons in the dock.

Senior counsel who appeared for Hajko submitted that one of the jurors had, in fact, paused for a little less than two seconds. We do not regard the substance of this ground as depending upon a stopwatch. But we have paid particular regard to this ‘worst case’ in reaching our conclusions.

Senior counsel for Hajko further submitted that we should infer that the jurors paused for periods of less than five seconds each because of unease, awkwardness and humiliation. We do not accept that submission. It is notoriously difficult to accurately estimate relatively short periods of time. It is probable that the jurors each stopped for a period of time generally in the range of that observed by the preceding jurors involved in the process, but the basis of each juror’s estimate of the appropriate time to pause is, in the end, speculative.

When the video recording is viewed in real time, we are not persuaded that the applicants were denied a reasonable opportunity to view the prospective jurors face-on, and to challenge them. Our conclusion in this regard is fundamentally based upon the video itself. However, it is reached in the context of the following additional matters.

·The opportunity to view the individual jurors included not merely the time during which they were stationary, but also the time during which the juror moved from his or her seat towards the dock before standing still. In each case the time during which there was an opportunity to view the juror varied somewhat, as did the angles of view available to the individual accused. Nevertheless, the initial approach towards the dock amplified the opportunity for the juror to be inspected. Even in the worst case of a relatively short approach towards the dock (which counsel identified as juror number 1), the movement to a stationary position added to the opportunity for inspection of the juror.
·Unlike the position in Theodoropolous, Cook, and V’s case, neither of the solicitors who assisted the applicants in their challenges in the present case depose in their affidavits to having had any difficulty in viewing the faces of the prospective jurors. Nor do they depose to any perceived lack of time to make a judgment regarding whether to challenge during the empanelment process.
·Hajko in fact challenged two prospective jurors, Rodriguez one, and Beqiri two. In each case, the time taken for challenge was within the order of time offered for challenge with respect to the jurors who were in fact empanelled.
·Neither the solicitors assisting the applicants, nor the applicants themselves, sought more time to consider a challenge (as they had been instructed they might). In making that observation we of course accept that the interruption of the empanelment process would not be something lightly done.

It is true that each applicant in the present matter deposes by affidavit to a perception on his part that the process was rushed.

·Hajko deposes that the jurors stood standing facing the dock ‘for about two seconds’ and that he did not get ‘a good chance to assess each juror because … of so short a time period.’
·Beqiri deposes that he felt anxiety and panic because the jurors did not stand facing the dock for a full five seconds as directed.

Nevertheless, the question of reasonable opportunity to view the prospective jurors must be assessed objectively. Having regard to the matters we have set out above, the applicants’ evidence does not persuade us that the procedure which was adopted denied them a reasonable opportunity to exercise their rights to peremptory challenges. This is in stark contrast to the evidence before this Court in Theodoropolous, Cook and V’s case.

Hajko makes the further complaint that he was disadvantaged because, within the dock, he was the accused standing furthermost from the jurors when they stood to be inspected. The video shows the dock contained the three accused, their legal representatives and two interpreters. Hajko is to the left of the frame captured by the video camera. Only his arm is visible. Nevertheless, we are satisfied by the video that he was not unreasonably remote from the jurors when they stood facing the dock.

We are reinforced in this conclusion by the fact that Hajko’s solicitor, who stood still further from the prospective jurors when they paused in front of the dock, makes no complaint as to angle of view. Nor was such a complaint made to the trial judge after the empanelment had concluded.

We turn then to the submission that the procedure (conversely to that adopted in Theodoropoulos) confronted the accused directly, and face-on, with the individual jurors.

The solicitor for Hajko describes the procedures adopted as ‘awkward’. The solicitor for Beqiri states that he felt ‘a heightened level of confrontation in the altered selection process’. Both these statements may be accepted as truthful and accurate but they do not demonstrate that the exercise of the applicants’ rights was unreasonably impaired.

Likewise, Hajko’s affidavit evidence that he felt the process was intimidating for himself and for the jury members, and that accordingly he felt he could only look at each jury member for a short period of time, does not demonstrate that he was not in fact given a reasonable opportunity to view the jurors and make his challenges. Nor does his professed concern that he felt that each juror must have thought, by reason of his inability to maintain lengthy eye contact with them, that he and his co-accused were guilty.

Hajko further submits that the fact that the procedure did not follow the course which he had anticipated, combined with the above matters, caused him to panic, and leave the challenging of jurors entirely to his solicitor.

Beqiri also describes feelings of discomfort and frustration:

6.THAT when the jurors walked towards the dock and stood and faced me I felt extremely uncomfortable. It was like I had been found guilty already as all these jurors, who had never been in trouble with the law, came to stand and look at me. I felt like a criminal standing in the dock, solicitor by my side, as each juror was called and stand to face me. It was humiliating, I felt like I was on display for onlookers. I felt the jurors could not be impartial.
7.THAT my feelings of embarrassment and frustration were compounded by the fact that I was the closest accused to the jurors as they stood and faced the dock. I felt like the jurors stared solely at me during their time facing dock, and paid little attention to my co-accused who were further away.
8.THAT this empanelment process was not what I expected. I was told by one of my lawyers that the prospective jurors would walk past the dock and I would have enough time to assess them and decide whether to challenge or not.
9.THAT I also felt feelings of anxiety and panic because none of the jurors when called stood and faced for [sic] the dock for five seconds as directed by the learned trial judge, they stood and waited for only one or two seconds before turning and walking towards the jury box.
10.THAT as a result of this empanelment process my heart was beating so fast and my mind was all over the place.

The process of arraignment on serious charges before a jury panel, and the jury empanelment itself, are inherently stressful for an accused. Despite the emotions which the applicants recount, we are not persuaded that their subjective feelings demonstrate an objective inadequacy in the opportunity each was given to view the jurors, and respond to them by way of challenge. The fact that no application was made for discharge of the jury following its empanelment, on the basis of perceived inadequacies in the procedure, further supports the inference that the procedure adopted was not unfair.

Both Beqiri and Hajko also submit that the procedure adopted was unfairly prejudicial to them because it required jurors to confront them directly. They submit that the process was likely to have been stressful and unpleasant for the jurors.

Beqiri’s solicitor deposes that the procedure adopted appeared to him to highlight the fact that the accused were in the dock. Whilst this perception is probable, the fact that the accused are in the dock is plain throughout every trial, at least from the moment of arraignment before the jury. The procedure did not emphasise the dock more than the traditional parade. If anything, it encouraged a face-to-face viewing of the accused, rather than a perception of the accused as within the dock. Any procedure which allows an accused to view prospective jurors face-on will necessarily carry with it the reciprocal probability that the prospective jurors will look at the accused, and see that they are within the dock.

However genuine each applicant’s perception may have been, it provides no proper basis for inferring that the adopted procedure unfairly prejudiced the selected jurors against him. The overwhelming likelihood is that the actual process of empanelment was immediately overtaken by the process of swearing in the jurors, and the introduction to their role which the judge then embarked on at the start of the trial process.

As we have said, any procedure which provides for the accused to view the jurors face-on necessarily involves an element of confrontation. This may render a juror momentarily uncomfortable. Moreover, the adoption of a procedure which may vary from that which is foreshadowed to the jury pool (whether by way of an introductory video or otherwise) or which varies from that observed by individual jurors in sequential empanelments prior to one in which they are selected, carries with it an incidental risk of added stress.

Nevertheless, any awkwardness or discomfort on the juror’s part is to be balanced against the necessity to give accused a reasonable opportunity to exercise their right of peremptory challenge. Its consequences are to be addressed within the framework of the trial as a whole, during which the jury are instructed to undertake their task impartially, objectively and solely on the basis of the evidence which is adduced before them. There is no satisfactory basis for concluding that the jury acted other than impartially in the present case. We do not accept the submission that the adopted procedure gave rise to a real risk of individual jurors forming a view adverse to the accused with respect to their guilt.

In summary, we would grant leave with respect to the first common ground of appeal. We do so because of the novelty of the procedure adopted in the present case. However, we would dismiss the appeal.

Before considering the second common ground of appeal, it is convenient to outline the background facts and key issues at trial

Background facts

In May 2014, Beqiri contacted Worldwide Customs and Forwarding Agents Pty Ltd (‘Worldwide Customs’), in Tullamarine, to arrange for the importation of a Chevrolet Impala. That vehicle was being consigned by a dealer, ‘Back in the Day’, in Carson, California to his home address at 56 Royal Crescent, Hillside.

The shipping container containing the vehicle arrived at the Port of Melbourne on 1 September 2014. On 4 September 2014, Customs officers found that concealed in the rear quarter panels of the vehicle were a number of packages containing, in total, 29,252.2 grams of a substance which, on subsequent analysis, was determined to contain 23,040.4 grams of pure methamphetamine. An investigation was launched, and the drugs were replaced with an inert substance and listening devices were concealed in the vicinity of the drugs.

Beqiri had arranged an import permit for the car. He had provided documentation to Worldwide Customs, including an invoice dated 11 April 2014 recording a unit price of US$39,000, the prior receipt of a cash deposit of US$1,000, a Foreign Exchange Transfer Contract recording the payment of US$38,120 to ‘Back in the Day’ on 14 May 2014 and other documentation relating to the ownership and importation of the vehicle. These documents were in his name and recorded the Hillside address.

Following the discovery of the drugs on 4 September 2014, investigators intercepted calls on Beqiri’s mobile telephone. They also set up an optical surveillance device covering the front entry to his home.

Between 5 and 11 September 2014, calls were intercepted and surveillance recorded that Beqiri had attended at Worldwide Customs and had spoken to an employee, Mr Lloyd, about issues relating to the importation and delivery of the vehicle. There were queries from Customs relating to the provenance and purchase of the vehicle. Beqiri provided further documentation and arranged for Mr Lloyd to contact ‘Back in the Day’ directly, if necessary.

On 11 September 2014, the co-accused, Rodriguez, who had previously come from Spain, flew from Sydney to Melbourne. From that point on, calls on mobile telephones used by him were intercepted. He had with him a suitcase containing clothing that had been infused with cocaine. From this date onwards, he had numerous conversations with persons overseas, usually a man referred to as ‘unknown male 1’ (‘UM1’). These conversations related to the recovery of drugs from the clothing, and the car. Often, in the course of these conversations, the recovery of drugs from the car was referred to as Rodriguez having to ‘open the window’. That subject was first discussed between Rodriguez and UM1 on 12 September 2014.

On 13 September 2014, Rodriguez reported to UM1 that he had made contact with ‘the Italian’, allegedly Hajko. Hajko was first observed in the company of Rodriguez at the Guilfoyle complex in Coventry Street, South Melbourne, where Rodriguez was staying, on 14 September 2014.

On 15 September 2014, Beqiri telephoned the K-mart and Tyre Auto Store in St Albans seeking to have a roadworthy certificate for the Chevrolet Impala before 18 September 2014, so that he could attend an appointment at VicRoads on that day to arrange for the car to be registered.

Mr Ferraro of St Albans Kmart confirmed his previous advice to Beqiri that he had run out of roadworthy certificates. He arranged for Beqiri to contact a Mr Parnis at Tullamarine Kmart. Beqiri booked a roadworthy inspection with Mr Parnis for 17 September 2014. On that day, he drove the vehicle to Tullamarine Kmart. The inspection revealed that repairs were required. They had to be completed within seven days if a roadworthy certificate were to be provided. Thereafter Beqiri obtained parts, (most of which were found in the car on 25 September 2014), so that the repairs could be completed.

Following the inspection on 17 September 2014, Beqiri contacted Mr Ferraro arranging to drop the vehicle off in order for the repairs to be completed on 22 September 2014. He declined an invitation to drop it off earlier, on Friday 19 September 2014, and leave the vehicle there over the weekend.

Ultimately, the car was not taken to Mr Ferraro on 22 September 2014. This did not surprise him as it was unlikely that the parts could have been obtained in time.

On 23 September 2014, Rodriguez reported to UM1, that ‘the cousin’ (allegedly Beqiri) had told him (incorrectly) that the car had been delivered on Sunday (21 September), and that it was planned to ‘open the window’ on Wednesday, 24 September 2014.

On that day, Hajko and Rodriguez discussed going to a Bunnings Hardware Store to buy the tools necessary to extract the drugs in anticipation of recovering them ‘maybe’ on Saturday. Later that afternoon, they attended at Bunnings and purchased the tools that were ultimately used.

On 25 September 2014, at 2:30 pm, Beqiri told Rodriguez that ‘the cousin’ wanted the extraction to be done that afternoon. At 5:30 pm, Beqiri and his wife left their address, leaving it unoccupied. At 5:46 pm, Rodriguez flagged down a taxi at the corner of Coventry Street and St Kilda Road and travelled to 56 Royal Crescent, Hillside, having produced a piece of paper on which Hajko had written that address.

Rodriguez arrived at the Hillside address at 6:23 pm. At 6:43 pm, he rang UM1 complaining that he thought he was at the wrong place. He said that the door was supposed to be open, but it was closed. UM1 told him to wait there, and that somebody would open it. Initially, UM1 told Rodriguez that it was the plan that Rodriguez would be given an address other than the correct address and be taken elsewhere. Later, at 7:16 pm, Rodriguez was observed receiving a key from an unknown male (not Hajko) and going to the front door and unlocking it.

Having completed his task, Rodriguez exited the front door with the packages that had been concealed in the car at 8:18 pm. Shortly thereafter he called UM1 complaining that there had been no one there to collect him as arranged, and that the two or three people who were supposed to be nearby to assist him were not there. UM1 sought to calm him down, telling him that the owners of the house were aware of what was going on, and that there would not be a problem with him staying at the house for one or two days, if necessary, with the drugs.

In the course of this conversation, Rodriguez was arrested. He was in possession of a mobile telephone, a handheld two-way radio and the handwritten note with the address written on it. He participated in a record of interview, consisting largely of denials.

At about 7:47 pm, on 25 September 2014, Beqiri and his wife were seen to have stopped momentarily at the IGA Shopping Centre close to 56 Royal Crescent, Hillside. They were then observed driving past their house and travelling on to Watergardens Shopping Centre. From there, they drove to Watervale Shopping Centre in Sydenham where Beqiri was later arrested at 9:10 pm.

Beqiri participated in a record of interview on 25 September 2014, commencing at 11:41 pm.

In that interview, Beqiri said that earlier that evening, he went out with his wife to buy coffee at Watergardens Shopping Centre. They were there with their children. They planned to go bowling, but did not want to wait for a booking to become available at 7:30 pm, so they decided to go home. Then they remembered that they had to buy coffee, so they went to purchase it.

Beqiri said that he had bought the Chevrolet Impala overseas. When he tried to get a roadworthy certificate, he found that it needed a lot of parts. He had now obtained those parts. He said that he had purchased the car off the internet through eBay from a dealer in the United States, and had subsequently obtained the necessary import approvals.

Once the car arrived, there was a ‘big mess’ with the paperwork. He had planned to hire the car out for weddings and similar events. A brochure offering the car for weddings was found on his computer.

Beqiri was adamant that he had left the house locked, and had always done so. His stepdaughter had lost her key some time previously. When he was accompanied to his home by police immediately after his arrest, he discovered that his son was already there.

Beqiri said that he had never heard of Rodriguez, and had no knowledge of any drugs in the car. He knew Hajko who was a member of his Albanian community, and a chef. He had last seen him about three months earlier. No one else had been involved in obtaining the car. The mobile telephones of the three co-accused had been intercepted and seized. There was also physical and electronic surveillance. There was no evidence of any contact, direct or indirect, between Beqiri and either of the co-accused or, for that matter, UM1.

Hajko was arrested the following day at Melbourne International Airport having bought a plane ticket for Italy four hours earlier. He made a no-comment record of interview.

Defence case

Beqiri’s defence was that he was an innocent dupe, who had imported the car in good faith for his own use. He claimed that he was unaware that drugs were concealed within it. Rodriguez and Hajko denied the charges, and put the prosecution to its proof. The central issue at trial was said, on behalf of Hajko, to be knowledge, that is whether there was any agreement to which he was a party, whether Hajko knew that there were drugs in the car and whether he knew that the drugs were border controlled drugs.

None of the three accused gave evidence at trial.

The issues at trial

The issues for the jury were ultimately stated in terms of a question trail, pursuant to s 67 of the Jury Directions Act 2015. The questions in respect of Beqiri were:

(1) Has the prosecution satisfied you beyond reasonable doubt that Beqiri was a party to an agreement with one or more people to possess a border controlled drug?

(2) Has the prosecution satisfied you beyond reasonable doubt that pursuant to that agreement, Beqiri imported the car into which the border controlled drug was concealed and provided safe storage in his garage for the car and its contents until the contents were extracted?

(3) Has the prosecution satisfied you beyond reasonable doubt that at the time he provided storage for the car in his garage, Beqiri believed that it contained a border controlled drug?

The questions with respect to Hajko were:

(1) Has the prosecution satisfied you beyond reasonable doubt that Hajko was a party to an agreement with one or more people to possess a border controlled drug?

(2) Has the prosecution satisfied you beyond reasonable doubt that pursuant to that agreement, Hajko acted as a go-between, conveying instructions to Rodriguez from others involved, and assisted him as required?

(3) Has the prosecution satisfied you beyond reasonable doubt that Hajko acted as he did in conveying instructions to Rodriguez, and assisting him in the belief that Rodriguez was tasked with removing the border controlled drug from the place where it had been concealed?

Common ground of appeal 2 — did the trial judge err in admitting evidence of a telephone call between Rodriguez and UM1 on 25 September 2014?

Beqiri’s proposed ground one is in the following terms:

The learned trial judge was in error in admitting assertions by an unknown male to Rodriguez in a telephone call on 25 September 2014 to the effect that the occupier of the house where the Chevrolet Impala was garaged was part of the criminal enterprise and would accommodate Rodriguez and the drugs after their recovery from the car:
(a)the assertions were not admissible as having been made in furtherance of a joint criminal enterprise;
(b)the probative value of the assertions was outweighed by the danger of unfair prejudice;
(c)the admission of the evidence was calculated to result in an unfair trial.

Hakjo’s proposed ground two expresses the matter in almost identical terms.

Despite objection to its admissibility, the trial judge permitted evidence to be given of the telephone conversation between Rodriguez and UM1 on 25 September 2014 after the substance substituted for the drugs had been extracted from the car and Rodriguez left Beqiri’s house at 8:18 pm.

In so doing, her Honour stated that she would deliver reasons for her ruling subsequently. Regrettably, she did not do so, and this Court does not have the benefit of her reasoning.

The conversation in issue implicated Beqiri in the joint criminal enterprise involving the importation of the illicit drug, its recovery from the car, and its removal from his house for the purpose of further dealing with it. In the conversation, amongst other things, Rodriguez was told by UM1 that:

·he could stay in the house overnight;
·the people in the house knew (what was going on); and
·the family in the house would look after him.

The conversation also implicated Hajko by reason of the fact that, on the Crown case, Hajko had supplied the note to Rodriguez setting out Beqiri’s address. Moreover, there was evidence that, on 5 September 2014, after visiting Worldwide Customs, Beqiri had parked a motor vehicle outside an address in Tarneit with which Hajko had an association.

The evidence of the phone call was potentially admissible for two purposes. In the first place, it was one of a series of circumstances from which the existence of a joint criminal enterprise might be inferred. In Ahern v The Queen, the High Court described evidence of this kind as follows:[21]

In conspiracy cases a clear distinction is to be made between the existence of a conspiracy and the participation of each of the alleged conspirators in it. Conspiracy is the agreement of two or more persons to do an unlawful act or to do a lawful act by unlawful means and it is the fact of the agreement, or combination, to engage in a common enterprise which is the nub of the offence. This fact can seldom be proved by direct evidence of the making of an agreement and must in almost all cases be proved as a matter of inference from other facts, that is to say, by circumstantial evidence. For this purpose, evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement. It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred. Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.
Thus it was said in Tripodi[22] that proof of the crime of conspiracy ‘may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment’. For example, it may be possible in a case of conspiracy to commit armed robbery to conclude from the fact that one accused wearing a disguise was present in a bank at the same time as another accused, similarly disguised, was waiting outside the bank in a motor vehicle with the motor running, that both were engaged in a common enterprise to rob the bank. For the purpose of reaching that conclusion it is permissible to use the acts and declarations of each, even in the absence of the other, not as proof of the truth of any assertion or implied assertion of the participation of the other, but as facts from which the combination might be inferred. Utterances for this purpose may be regarded as facts no less than acts and, indeed, in the United States are sometimes called verbal acts. In the example given it would be possible to reach the conclusion, admitting the evidence for the purpose described and considering it against each accused separately, not only that there was a conspiracy but also that each of the two accused was a participant. It was such a situation that Isaacs J had in mind in R and Attorney-General (Cth) v Associated Northern Collieries (‘the Coal-Vend Case’)[23] when he pointed out that both the fact of combination and the participation of the participants may be proved by the same evidence. He said:
... though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge.[24]

[21](1988) 165 CLR 87, 93–4 (citations in original) (‘Ahern’).

[22]Tripodi v The Queen (1961) 104 CLR 1, 6.

[23](1911) 14 CLR 387.

[24]Ibid 400.

In the second place, the evidence was potentially admissible to demonstrate Beqiri’s participation in the joint criminal enterprise, and by inference, to support the case as to Hajko’s participation.

Such evidence was admissible at common law on the basis further elaborated in Ahern.[25] However, it also carried with it the potential difficulty identified by the High Court in that case:[26]

However, it is not in all cases that evidence of the separate acts of the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would be excluded as hearsay or its equivalent were it not admissible upon some other basis.
That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others.[27] Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.
The implied authority on the part of one conspirator to act or speak on behalf of another will only arise if the latter is part of the combination. Evidence of the acts or declarations of the former may, however, be led to prove that very fact. That is where the dilemma lies in cases of conspiracy because, to assume the participation of the latter in order to admit the evidence on the basis of implied authority is to assume the very fact which is sought to be proved by that evidence. If there were no prerequisite to the admission of such evidence ‘hearsay would lift itself by its own bootstraps to the level of competent evidence’.[28] In [Glasser v United States], Glasser, who was charged with conspiracy to defraud the United States, had red hair. Evidence was led of a declaration by an alleged co-conspirator in the absence of Glasser that ‘he would have to see ‘Red’, or send the money over to the ‘redhead’, etc, in connexion with ‘fixing’ cases’.[29] In accordance with accepted principle, such evidence was held to be admissible ‘only if there is proof aliunde that he is connected with the conspiracy’.[30]

[25](1988) 165 CLR 87.

[26]Ibid 94–5 (citations in original).

[27]Tripodi v The Queen (1961) 104 CLR 1, 7.

[28]Glasser v United States (1942) 315 US 60, 75.

[29]Ibid 73.

[30]Ibid 74.

These principles are now relevantly addressed in ss 57 and 87(1) of the Evidence Act 2008:

57 Provisional relevance
(1)If the determination of the question whether evidence adduced by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant—
(a)if it is reasonably open to make that finding; or
(b)subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably open to make that finding.

(2)Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or as part of involvement in the commission of an offence or otherwise), the court may use the evidence itself in determining whether the common purpose existed.

…
87Admissions made with authority
(1)For the purpose of determining whether a previous representation made by a person is also taken to be an admission by a party, the court is to admit the representation if it is reasonably open to find that—
(a)when the representation was made, the person had authority to make statements on behalf of the party in relation to the matter with respect to which the representation was made; or
(b)when the representation was made, the person was an employee of the party, or had authority otherwise to act for the party, and the representation related to a matter within the scope of the person's employment or authority; or
(c)the representation was made by the person in furtherance of a common purpose (whether lawful or not) that the person had with the party or one or more persons including the party.

These provisions make clear that the critical question in the present case is whether it was reasonably open to conclude that the telephone conversation in issue was made in furtherance of a common purpose pursued by both Rodriguez and the applicants.

Both before the trial judge and on appeal, it was submitted that, on the Crown case, Beqiri’s role was to provide safe storage for the car imported from the USA, but to remain separate from, and have nothing to do with, Rodriguez at the house where it was stored. In turn, it was submitted that the assertion to Rodriguez by UM1 that Beqiri would offer Rodriguez hospitality was fundamentally inconsistent with the arrangement otherwise put forward as a component of the Crown case.

It followed, so it was said, that the relevant statements were not made in furtherance of an agreement to which Beqiri had subscribed.

In our view, this submission must fail. First, as the Crown submits, the relevant agreement was one which contemplated the intended recovery of the drugs from the car while it was at Beqiri’s house. The safe and undetected removal of the drugs from the car, and in turn from the house, was integral to the attempted possession.

The evidence as a whole supported the reasonable conclusion that both Beqiri and Hajko contemplated that a third person would undertake the role ultimately undertaken by Rodriguez, and the conversation now in issue took place just as Rodriguez performed that role.

The fact that Rodriguez confronted difficulties which he had not anticipated does not change the fact that the conversation occurred as the proposed attempt to take possession of the drugs progressed. A mishap in the course of the performance of the transaction did not change its fundamental character.

In R v Su, the Court of Appeal said:

It is well established that evidence of the acts and declarations of one conspirator is admissible against another even where that occurred after the principal object of the conspiracy has taken place if those acts and declarations were in furtherance of the common design.[31] An example is R v Merritt[32] where a statement made to police by a conspirator, after the conspiracy had come to an end was ruled admissible against other conspirators if it was made for the purpose of protecting the booty of the crime.
In our opinion it can be no different where the act or declaration is one intended to warn another that the plan has gone awry. Such a warning will bear upon the likely future conduct of the conspirators, be it of the speaker or the recipient. It is axiomatic in the present case that the availability of the drug for distribution, or its seizure by police, would dictate the future actions of the conspirators.[33]

[31]Peter Gillies, The Law of Criminal Conspiracy (Federation Press, 2^nd ed, 1990), 193.

[32](1881) 7 VLR (L) 39.

[33][1997] 1 VR 1, 43 (emphasis added) (citations in original).

In the alternative, it is submitted on behalf of the applicants that the evidence should have been excluded, either pursuant to s 137 of the Evidence Act 2008, or pursuant to a general unfairness discretion.

Section 137 required the trial judge to balance the probative value of the evidence against the danger of unfair prejudice to each of the applicants. The probative value of the evidence fell to be assessed as part of the circumstantial case as a whole. Taken at its highest,[34] it was capable of being regarded as materially complementing that case.
[34]IMM v The Queen (2016) 257 CLR 300, 313 [44], 314 [47] (French CJ, Kiefel, Bell, and Keane JJ), 323–4 [90]–[91] (Gageler J).

In turn, the potential prejudice to the applicants fell to be assessed in the light of the directions available to the trial judge to confine and alleviate the risk of unfairness.

In the course of her charge to the jury, the trial judge summarised the evidence as a whole. She then turned to the evidence of conversations to which Rodriguez was a party.

Although this evidence is common to all accused, the significance of particular pieces of evidence may vary between the accused, and the weight that you may give to some of that evidence may vary between the accused as well.
In particular, there are some conversations between Mr Rodriguez and Mr Hajko which the prosecution relies on, among other things, in proof of the agreement between them and the acts they are doing pursuant to the agreement to commit the offence. Also, the prosecution relies on those conversations as proof of the agreement not only between Mr Rodriguez and Mr Hajko, but between others who were in the agreement as well. So those conversations between Mr Rodriguez and Mr Hajko can be relied on also when considering the case concerning Mr Beqiri’s participation in the agreement even though he was not party to those conversations.
Similarly, there are some conversations between Mr Rodriguez and the unknown males on which the prosecution relies, not only as evidence of the agreement between Mr Rodriguez and the person he is actually speaking to, but also as evidence of the nature and the extent of the agreement more generally and of the participation in it by Mr Hajko and Mr Beqiri.
It is not surprising, you may think, that when people are parties to an agreement to commit an offence and they each have different roles to perform, their words as well as their actions in carrying out the agreement can be used as evidence in respect of the participation of everyone or others involved in the plot.
Because it makes sense that a person, when saying or doing something in accordance with the agreement, is performing their role in that planned and agreed criminal enterprise on behalf of themselves and the others involved in pursuant to the agreement.
But of course, things do not always go to plan. Sometimes parties to the agreement can go beyond what is agreed, sometimes a party to the agreement may be acting under a misapprehension as to what the role or task or involvement of others involved in the plot are. They may even be under a misapprehension as to what their role is.
So whilst you can take into account what, for example, Mr Rodriguez told Mr Hajko that Rodriguez had been told by Daddy[35] to assist in determining what the agreement was and who was a party to it, you must bear in mind that Mr Rodriguez may have been wrong or mistaken in what he was recounting to Mr Hajko what he said Daddy had told him. Or, Daddy may have been wrong or mistaken in what he said to Mr Rodriguez as to what the others in the plot were doing or supposed to be doing.

When Rodriguez and Hajko are discussing matters together, there is the opportunity for one to say to the other, ‘No, you’ve got that wrong’ or ‘That’s not what I understood’ or ‘Not what I was told’ or ‘That’s not what I’m supposed be doing.’
But if someone tells Mr Rodriguez what Mr Hajko is supposed to be doing, or what Mr Beqiri knows, but if Mr Beqiri or Mr Hajko are not a party to that conversation, we do not hear them agreeing with what is being said or we do not hear if they say, ‘That is not right. That is not my understanding, that is it [sic] not a correct reflection of what I had signed up to or what I understood my role to be.’
So you have to be careful when you are listening to or considering the conversations of one party to the agreement about the role of somebody else who was not a party to that conversation. You have got to be careful about assuming that everything they say is correct. They may be right, they may be wrong.

[35]An unknown male in the United States.

Her Honour then turned to the evidence of the conversation between Rodriguez and UM1 on the evening of 25 September 2014 before Rodriguez entered Beqiri’s house. Her Honour noted, in particular, that some of the things that UM1 said in the course of that conversation were contradicted by the evidence as a whole.

The trial judge then turned specifically to the evidence now in issue:

In that final conversation — the one that is brought to an end by the arrest of Mr Rodriguez — again, that unknown male on the Spanish phone number is trying to placate Mr Rodriguez, who is saying things are not going to plan, that there was no one nearby when he was told that there would be, no car or taxi to take him back to the Guilfoyle as he had been told there would be. And the unknown male tells Mr Rodriguez that he can and should stay in the house, and he says because the occupier is part of the plan and in the know.
Now, Mr Beqiri was not a party to that conversation, so he was not there to confirm on the spot whether that is correct or not — if everything that was said by the unknown male about the knowledge or participation or consent to stay on behalf of the householder — whether all of that was correct or if some of it was correct while other parts of it were incorrect.
So, Mr Beqiri not being a party to the conversation is not in a position to say, ‘All of this is wrong,’ or ‘The only part of it is wrong is permission to stay,’ but not disavowing the assertions about his Mr Beqiri’s — involvement in the plan to take possession of the drugs once imported.
It is not known if the unknown male is taking it on himself to introduce a variant to the agreement by putting Mr Rodriguez and Mr Beqiri in proximity to each other, although that had not been part of the original plan. They are all possibilities, but Mr Beqiri is not a party to the conversation and we do not know what he would have said had he been a party to it.
So those assertions by the unknown male on the Spanish number after Mr Rodriguez had left the house about the knowledge and involvement of the occupier of the premises, and about having permission to stay are good examples of pieces of evidence you should be careful about taking at face value.
The unknown male is not necessarily accurate as the pre-entry conversation reveals. And you might think it prudent, members of the jury, if you are to rely on what is said by the unknown male in that last conversation about the knowledge and involvement of the occupier of the house, if you are going to rely on that as an accurate statement about Mr Beqiri’s state of knowledge and participation, only to do so if you think it is supported by other evidence independent of that and which you think is reliable.

No exception was taken to these directions.

Ultimately, we are of the view that her Honour properly and adequately identified the risk of unfair prejudice inherent in the evidence which is in issue. Indeed, the applicants pointed to her Honour’s charge as identifying the potential risks of prejudice upon which they now rely. In our view, the obvious limitations of the evidence were properly explained to the jury and the judge’s charge adequately identified the need to assess the evidence carefully, and in the context of the evidence as a whole.

Once this conclusion is reached, then it follows that s 137 did not require exclusion of the evidence.

In the further alternative, the applicants submit that the evidence of the telephone conversation should have been excluded on the basis that it was unfair.[36]
[36]Haddara v The Queen (2014) 43 VR 53.

However, in our view, the receipt of the evidence in issue could not be regarded as unfair in circumstances where the requirements of s 137 were satisfied.

Beqiri’s proposed ground 2

This ground is in the following terms:

The learned trial judge was in error directing counsel for the accused not to argue in his closing address that if a juror was of the view that a fact or conclusion was critical to a conclusion of guilt, it must be established ‘beyond reasonable doubt’.

In the course of final address concerning the telephone conversation between Rodriguez and UM1 forming the subject of the previous ground of appeal, counsel for Beqiri submitted to the jury:

Although beyond reasonable doubt only means that you have to be satisfied of the elements of the offence, if there is some fact, and I’m not saying there is or there isn’t, but if you were to decide that, ‘That is the critical fact, and without that fact, without that conclusion I wouldn’t convict’, well, then, you would have to be satisfied, would you not, you would have to be very strongly satisfied that the conclusion in respect of that is the wrong conclusion.
Now, in this case I’m not suggesting to you that there is any particular fact that you need to be satisfied on in respect of any particular or that requires any particular standard of proof because the problem is that facts inter-relate and you come to a conclusion in respect of one fact to some extent relying on conclusions you have reached about another fact.
So it’s perhaps unrealistic to look at any fact which you would look at in isolation as being, you know, needed to be beyond reasonable doubt in circumstances where it’s just not a one fact case, but the fact is this, is it not, that when you’re looking at this allegation that Mr Beqiri was somebody who they believed was prepared to put him up for a few days, is that not just contrary to everything you know about the Crown case? Is it not the case that the Crown case is that Beqiri was at pains to isolate himself from Hajko, from Rodriguez and from everybody else, and that’s why we have got no evidence of any communication.

Shortly afterwards, before adjourning overnight, the trial judge expressed concern that this submission was inconsistent with the provisions of ss 61 and 62 of the Jury Directions Act 2015. Those provisions are as follows:

61 What must be proved beyond reasonable doubt
Unless an enactment otherwise provides, the only matters that the trial judge may direct the jury must be proved beyond reasonable doubt are—
(a)the elements of the offence charged or an alternative offence; and
(b)the absence of any relevant defence.
Notes
1If the trial judge directs the jury about a matter referred to in paragraph (a) or (b) in the form of a factual question under section 67(2) or (3), the trial judge must direct the jury that it must be satisfied of that matter beyond reasonable doubt.
2Section 46(4)(b) of this Act and section 45 of the Crimes Act 1958 refer to specific matters that must be proved beyond reasonable doubt.
Examples

The trial judge may relate the evidence in the trial to directions under section 61 in many different ways, for example—
•when directing the jury that an element must be proved beyond reasonable doubt, the trial judge may refer to the evidence relied on by the prosecution to prove that element and direct the jury that it must be satisfied that that evidence proves that element beyond reasonable doubt; or
•where the only evidence relied on by the prosecution to prove an element is an alleged admission made by the accused, the trial judge may refer to the alleged admission and direct the jury that it must be satisfied that that evidence proves that element beyond reasonable doubt.

62 Abolition of common law obligation to give certain directions
Any rule of common law under which a trial judge in a criminal trial is required to direct the jury that a matter, other than a matter referred to in section 61, must be proved beyond reasonable doubt is abolished.
Notes
1This provision abolishes—
•the rule attributed to Shepherd v R [1990] HCA 56; (1990) 170 CLR 573 that in appropriate cases a jury must be directed that it must be satisfied beyond reasonable doubt of an indispensable intermediate fact; and
•the rule attributed to R v Sadler [2008] VSCA 198 that a jury must be directed that it must be satisfied beyond reasonable doubt of uncharged acts that the jury would use as a step in their process of reasoning towards guilt; and
•any other rule that requires a jury to be directed that it must be satisfied beyond reasonable doubt of any matter other than a matter referred to in section 61.

2Section 4 applies generally to override any rule of law or practice to the contrary of this Act.

Counsel for Beqiri initially responded by submitting that what he had said was ‘only what’s been said in Shepherd.’[37] Her Honour then invited counsel to consider the matter further overnight. A further discussion ensued the following morning. In the course of that discussion, the trial judge accepted that counsel could put argument as to the evidentiary significance of particular facts, but expressed the view that counsel could not assert to the jury that, as a matter of law, they could not be satisfied of the elements of the offence unless they were satisfied beyond reasonable doubt of a particular fact or facts. Counsel for Beqiri then submitted that ss 61 and 62 did not abolish what he called ‘the rule in Shepherd’s case’ but simply removed the obligation upon a trial judge to direct a jury in accordance with that rule. He submitted:

You see Shepherd’s case stands for the proposition that an intermediate, essential intermediate fact must be proved beyond reasonable doubt. Now, this addresses only whether Your Honour should direct to that effect. So it does not abolish the rule itself; all it does is require that a judge not direct a jury to that effect but it does not, in my submission, remove the rule in Shepherd’s case.

[37]Shepherd v The Queen (1990) 170 CLR 573 (‘Shepherd’).

Counsel for Beqiri further submitted that, if the trial judge rejected this submission, the matter was best addressed by simply telling the jury that the only matters that needed to be proved beyond reasonable doubt were the elements of the offence, and that individual facts did not need to be proved beyond reasonable doubt.

Her Honour then held that the rule attributed to Shepherd’s case had been abolished by ss 61 and 62 of the Jury Directions Act 2015, but that, in the circumstances, she would deal further with the matter by following the course suggested by Beqiri’s counsel.

It is apparent from the discussion between the bench and counsel that the trial judge was concerned to prevent Beqiri from suffering prejudice as a result of the need for specific correction, in her charge, of statements by counsel concerning the law in his final address.

Complaint is now made that counsel for Beqiri was unfairly confined in that final address. We reject that submission.

First, we do not accept that the proposed ground of appeal accurately characterises the trial judge’s ruling. She did not foreclose evidentiary argument by counsel that the jury should take the view that a particular factual finding was critical to a conclusion of guilt. Her Honour’s concern was with what the jury might understand from counsel for Beqiri’s statements to the jury as to what must be proved beyond reasonable doubt, as a matter of law.

Secondly, her Honour was correct to hold that ss 61 and 62 abolish the rule attributed to Shepherd’s case. That rule is relevantly concerned with the directions that a trial judge should give with respect to findings of intermediate fact supporting a conclusion, beyond reasonable doubt, of guilt.

In Chamberlain v The Queen [No 2], Gibbs CJ and Mason J said, in respect of proof by circumstantial evidence:[38]

in a case depending on circumstantial evidence, the jury should not reject one circumstance because, considered alone, no inference of guilt can be drawn from it. It is well established that the jury must consider ‘the weight which is to be given to the united force of all the circumstances put together’.[39]
…
It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence.[40]

[38](1984) 153 CLR 521, 535–6 (citations in original).

[39]Re Belhaven and Stenton Peerage (1875) 1 App Cas 278, 279 (Lord Cairns), cited in R v Van Beelen (1973) 4 SASR 353, 273, and see Thomas v The Queen [1972] NZLR 34, 37–8, 40 and cases there cited.

[40]See Luxton v Vines (1952) 85 CLR 352, 358; and Barca v The Queen (1975) 133 CLR 82, 104.

Subsequently in Shepherd,[41] Mason CJ said that, with the benefit of hindsight, the latter part of the passage quoted above would have been more accurately expressed as follows:

Nevertheless the jury cannot view ‘an intermediate fact as an indispensable basis for an inference of guilt’ unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence.[42]

[41](1990) 170 CLR 573.

[42]Ibid 576.

Justice Dawson analysed the relevant concepts as follows:

Circumstantial evidence is evidence of a basic fact or facts from which the jury is asked to infer a further fact or facts. It is traditionally contrasted with direct or testimonial evidence, which is the evidence of a person who witnessed the event sought to be proved. The inference which the jury may actually be asked to make in a case turning upon circumstantial evidence may simply be that of the guilt of the accused. However, in most, if not all, cases, that ultimate inference must be drawn from some intermediate factual conclusion, whether identified expressly or not. Proof of an intermediate fact will depend upon the evidence, usually a body of individual items of evidence, and it may itself be a matter of inference. More than one intermediate fact may be identifiable; indeed the number will depend to some extent upon how minutely the elements of the crime in question are dissected, bearing in mind that the ultimate burden which lies upon the prosecution is the proof of those elements. For example, with most crimes it is a necessary fact that the accused was present when the crime was committed. But it may be possible for a jury to conclude that the accused was guilty as a matter of inference beyond reasonable doubt from evidence of opportunity, capacity and motive without expressly identifying the intermediate fact that the accused was present when the crime was committed.
On the other hand, it may sometimes be necessary or desirable to identify those intermediate facts which constitute indispensable links in a chain of reasoning towards an inference of guilt. Not every possible intermediate conclusion of fact will be of that character. If it is appropriate to identify an intermediate fact as indispensable it may well be appropriate to tell the jury that that fact must be found beyond reasonable doubt before the ultimate inference can be drawn. But where — to use the metaphor referred to by Wigmore on Evidence[43] — the evidence consists of strands in a cable rather than links in a chain, it will not be appropriate to give such a warning. It should not be given in any event where it would be unnecessary or confusing to do so. It will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence.[44]

[43]Vol 9 (Chadbourn rev 1981), 412–414 [2497].

[44]Shepherd (1990) 170 CLR 573, 579 (citation in original).

After further analysing the judgments in Chamberlain,[45] Dawson J went on to say:

The judgments in Chamberlain do not support the proposition that, in a case resting upon circumstantial evidence, the jury may only properly draw an inference of guilt upon facts — individual items of evidence — proved beyond reasonable doubt. Still less does the case establish that a direction in those terms should be given to a jury. Of course, it is recognized in Chamberlain that, if it is necessary for the jury to reach a conclusion of fact as an indispensable, intermediate step in the reasoning process towards an inference of guilt, then that conclusion must be established beyond reasonable doubt. But to say as much is to do little more than state a truism. It does not mean that each item of evidence taken into account in reaching that conclusion must, considered separately, be established beyond reasonable doubt.
Whether it is desirable for a trial judge to identify an intermediate conclusion of fact in his charge to the jury in order to instruct them that it must be proved beyond reasonable doubt will depend upon the particular case. Such an instruction will only be possible where the conclusion is a necessary link in a chain of reasoning. Even then, particularly when that is obvious, the instruction may not be helpful.[46]

[45]Chamberlain v The Queen [No 2] (1984) 153 CLR 521.

[46]Shepherd (1990) 170 CLR 573, 585 (Dawson J).

In R v Kotzmann,[47] Callaway JA (with whom Phillips CJ and Batt JA agreed) said, after referring to the above passages in the judgment of Dawson J in Shepherd:

Before proceeding further it is appropriate to emphasise the last two sentences of the passage that I have just quoted.[48] It is usually sufficient to instruct a jury that they must be satisfied beyond reasonable doubt of the guilt of the accused, i.e. of every element of the offence charged and the exclusion, in an appropriate case, of a common law defence such as self-defence, provocation or duress. It is a corollary of proof beyond reasonable doubt that the jury must acquit the accused if there is a reasonable hypothesis consistent with innocence.[49] That is commonly pointed out where the Crown relies on circumstantial evidence. It is a corollary of the requirement that the prosecution exclude such a defence beyond reasonable doubt that the jury must acquit the accused if there is a reasonable possibility that the defence is not excluded.[50] It is only in an exceptional case that it is necessary to direct the jury specifically that they must be satisfied beyond reasonable doubt of any other fact. In this judgment, to avoid pre-judging the issue, I shall refer to a fact that is not an element of the offence or of a defence that has to be excluded as ‘an additional fact’. There are difficulties in referring to it as ‘an intermediate fact’, which may suggest an indispensable link in a chain of sequential reasoning, or a ‘subsidiary fact’, which may suggest that it might never have to be proved or excluded beyond reasonable doubt.

Although Wigmore deprecated the utility of the metaphor to which Dawson J referred, it does helpfully describe two distinct kinds of reasoning. Sometimes a jury is satisfied beyond reasonable doubt because of an accumulation of detail, especially an accumulation of detail bearing on a critical issue in the case. The intention of the accused may, for example, be a critical issue and there may be six or seven facts which, taken together, establish beyond reasonable doubt what the accused’s intention was, even if none of those facts is itself established to the criminal standard. We all reason like that in the common affairs of life; such reasoning is not confined to the jury room; the six or seven facts are aptly described as ‘strands in a cable’ of proof. There are other cases where sequential reasoning is necessary or appropriate. Fact A may be probative of guilt only if fact B is true and fact B may be true only if fact C in turn is true. If there is no other evidence bearing on a critical issue, each of those facts must be proved beyond reasonable doubt. The jury cannot treat facts B and C as strands in a cable of proof. Each of them is an ‘indispensable link in a chain’.
It does not follow that, wherever sequential reasoning is necessary or appropriate, each link in the chain must be established beyond reasonable doubt. The qualification, ‘[i]f there is no other evidence bearing on a critical issue’ is important. A jury may be invited to conclude that the accused is guilty by reference to seven facts. One or more of the individual facts may be established only by sequential reasoning but that chain itself be simply one of the strands in the ultimate cable. If the judge said that one of the links in the chain establishing one of the seven facts did not need to be established beyond reasonable doubt, that would betray no error of logic. The jury would consider that link in that chain only for the purpose of deciding whether one of the strands of the cable was present. If it was, it would be part of the accumulation of detail. If it was not, the other six facts might be sufficient on their own to satisfy the criminal standard of proof.
The advantage of the distinction between an accumulation of detail (‘strands in a cable’) and reasoning where each step depends on a previous step (‘indispensable links in a chain’) is the advantage of determinacy. It is always possible, as a matter of logic, to say whether an inference is of one character or another. Two disadvantages are that it is relatively easy to make a mistake in deciding the character of the inference and that human beings come to perfectly sensible conclusions every day without analysing their processes of reasoning. A soldier will tell you that, in the heat of battle, he does not do a written appreciation in conformity with a manual of tactics; but that does not mean that his reasoning is fallacious or that his conclusions are wrong. Those disadvantages are largely overcome by the fact that it is usually unnecessary to direct a jury as to the standard of proof of an additional fact.[51]

[47][1999] 2 VR 123.

[48]The passage quoted in [124] above.

[49]See, for example, Plomp v The Queen (1963) 110 CLR 234 and Cutter v The Queen (1997) 143 ALR 498; 71 ALJR 638.

[50]See, for example, R v Abusafiah (1991) 24 NSWLR 531 and R v Lanciana (1996) 84 A Crim R 268.

[51]R v Kotzmann [1999] 2 VR 123, 128–30 [15]–[18] (emphasis in original) (citations in original, except n 48).

In R v Merritt, Wood CJ, James and Adams JJ summarised the implication of these principles for trial judges as follows:[52]

Ultimately, of course, it is for the trial judge to determine whether to give directions that relate the standard of proof to what are, or might be, intermediate facts ‘which constitute indispensable links in a chain of reasoning towards an inference of guilty’.[53] It is important in this regard, we think, to appreciate that the trial judge should, in considering this question, ask whether the jury might reasonably regard certain facts as intermediate facts even if, as it happened, his Honour did not regard any of the facts in that light. This is implicit in Chamberlain v The Queen [No 2].[54] It is important to note, as McHugh J said in Shepherd,[55] that Chamberlain was concerned with whether the verdict was unsafe or unsatisfactory, not with the directions which a jury should receive on the standard of proof to be applied to the circumstances of the case. In our opinion, where one or more facts might reasonably be regarded as intermediate facts, it will usually be essential for the trial judge to identify those facts and instruct the jury that if the jury considered that such facts were indispensable links in their chain of reasoning towards an inference of guilt, they would need to be satisfied of them beyond reasonable doubt before convicting. If the case is one where, in the judge’s opinion, there were no such crucial intermediate facts, it ‘will generally be sufficient to tell the jury that the guilt of the accused must be established beyond reasonable doubt and, where it is helpful to do so, to tell them that they must entertain such a doubt where any other inference consistent with innocence is reasonably open on the evidence’,[56] directions which were given by his Honour in this case. It is clear that there were in this case many individual items of evidence themselves going to establish an important fact. Thus, the finding of the beanie in the getaway car which was indistinguishable from that found in the carpark, enabled the conclusion to be inevitably drawn, when added to the evidence of Mrs Hawker, that the latter had been used by the unidentified robber and the fact that gloves were found in the getaway car together with the similar beanie was a significant indicator that the gloves found with the other beanie had also been used by an offender. McHugh J pointed out, in Shepherd[57] that ‘there are many cases where the probability of the correctness of an inference of guilt drawn from the circumstances is greater than the probability of the truth of any of the individual circumstances’. Although ‘in a particular case, an inference of guilt beyond reasonable doubt may not be able to be drawn unless each fact relied on to found the inference is established beyond reasonable doubt’ which is ‘likely to be the case where the incriminating facts relied on to establish the inference are few in number’.[58]

[52][1999] NSWCCA 29 [70] (emphasis added) (citations in original).

[53]Shepherdv The Queen (1990) 170 CLR 573, 579 (Dawson J).

[54](1984) 153 CLR 521, 535, 537–8 (Gibbs CJ and Mason J), 626–7 (Deane J) and see Shepherdv The Queen (1990) 170 CLR 573, 583, 585 (Dawson J), 592, 594 (McHugh J).

[55]Shepherdv The Queen (1990) 170 CLR 573, 593 (McHugh J).

[56]Ibid 579 (Dawson J).

[57]Ibid 592.

[58]See, also, ibid 579 (Dawson J).

It can be seen that, whilst the relevant principles are capable of clear theoretical articulation, they potentially confronted trial judges with difficult judgments as to whether it was essential to instruct the jury concerning indispensable links in a chain of reasoning towards an inference of guilt.

Moreover, as Spigelman CJ said in R v Davidson, speaking of the passage in R v Merritt quoted above:

There is an element of redundancy in this analysis. If it be the case that a jury believes that particular facts are ‘indispensable links in their chain of reasoning towards an inference of guilt’ then it is unlikely that a jury could come to a conclusion that the offence was established beyond reasonable doubt unless that fact were so established. Indeed, that is so unlikely as to need no specific direction. The very hypothesis, that is, that the jury itself regarded a particular fact as an ‘indispensable link’ would prevent the jury convicting in view of the clear direction always given about the obligation of the Crown to prove guilt beyond reasonable doubt. There may be circumstances in which a jury needs to be informed of a matter that should be obvious, however, in my opinion the proposition in Merritt[59] that it is ‘usually essential’ to give the direction therein referred to is not consistent with subsequent authority.[60]

[59]R v Merritt [1999] NSWCCA 29 [70].

[60](2009) 75 NSWLR 150, 152–3 [10] (citation in original). See also the views of Simpson J on this point, as set out at 165, aligning with what was said by Gleeson CJ and Hayne J in Velevski v The Queen (2002) 187 ALR 233, 244-5. The background to the enactment of ss 61 and 62 is set out in the Simplification of Jury Directions Project: A Report to the Jury Directions Advisory Group August 2012, 103-77 (the ‘Weinberg Report’).

The plain intent of ss 61 and 62 of the Jury Directions Act 2015 was to relieve the judge of the obligation to give directions with respect to the standard of proof relating to ‘indispensable intermediate facts’. The provisions were intended to abolish the rule attributed to Shepherd’s case, at least, and specifically, in relation to jury directions.

Next, it will be recalled that no intermediate fact was in any event identified by counsel for Beqiri in his final address, or in argument before the trial judge, as indispensable to a conclusion of guilt with respect to Beqiri. On the contrary, counsel for Beqiri acknowledged in his address to the jury that it was unrealistic to suggest that there was a particular fact in this case which might be viewed, in isolation, as having to be proved beyond reasonable doubt.

Further, no attempt was made, either at trial or on appeal, to articulate any error by the trial judge by reference to the question trail adopted relating to Beqiri. In accordance with s 67 of the Jury Directions Act 2015, that question trail required jurors to be satisfied beyond reasonable doubt of a series of sequential conclusions in relation to factual matters demonstrating proof of the elements of the offence.

Lastly, it may be observed that no specific relevant evidentiary submission was articulated, either at trial or on appeal, which counsel for Beqiri was prevented from putting to the jury. The judge did not stop Beqiri’s counsel from seeking to advance a specific logical line of reasoning, and counsel was able to put the matter in exactly the way that he had intended.

There is nothing in this proposed ground.

Beqiri’s proposed ground 3

This proposed ground is in the following terms:

The learned trial judge was in error in refusing to direct the jury that it should disregard an assertion by the prosecutor in the course of his final address that the jury should infer that the entry on an invoice dated 11/04/2014 recording that a cash deposit of US$1,000 had previously been paid established that the purchase had not been initiated by the applicant.

In the course of his final address, the prosecutor submitted that an invoice relating to the Chevrolet Impala demonstrated that a deposit of $1,000 cash had been paid for the car in the United States by a person other than Beqiri, before Beqiri paid the balance of the purchase price for the car by way of electronic transfers.

Counsel for Beqiri responded to this submission in his final address by referring to telephone intercept evidence in which Beqiri referred to the payment of a deposit, and attacking the notion that an inference could confidently be drawn from the invoice entry that a deposit had been paid other than by way of cash wired to the United States. He also noted that when Beqiri was interviewed by investigating police he was not asked about the payment of the deposit.

Two days after the prosecutor’s submission to the jury, and following the addresses of all defence counsel, it was submitted on behalf of Beqiri that the trial judge should direct the jury that they should not act on the prosecutor’s submission. It was further submitted that, if it were accepted that a third party had paid a cash deposit in the United States, that would be significant because it would bring into question the legitimacy of the purchasing process undertaken by Beqiri.

It was emphasised that the point was not foreshadowed in the Crown’s opening address. Nor had it been raised in Beqiri’s record of interview in a way which would have enabled him directly to rebut the suggestion made by the prosecutor.

The trial judge declined to give a direction which ‘defused’ the issue, holding that counsel for Beqiri had had ample opportunity to deal with it in his final address, and that it was not a matter on which she should intervene.

In our view, there was no error in her Honour’s reasoning or conclusion. Beqiri’s counsel was not denied a fair opportunity to squarely answer the prosecutor’s arguments as to inferences that could be drawn from the documentary evidence before the jury regarding this matter.

Hajko’s proposed ground 1

This ground reads as follows:

The learned trial judge was in error in:
a)allowing the admission into evidence of other uncharged alleged drug related conversations against the applicant and consequently;

b) refusing to grant a separate trial.

Evidence was given of conversations between Rodriguez and Hajko, recorded on a listening device at an apartment in Southbank, and by way of telephone intercept. In both conversations reference was made to two jobs. One of these was reasonably capable of being understood as the extraction of cocaine from Rodriguez’s clothing. The other job was reasonably capable of being understood, having regard to the evidence as a whole, as relating to the removal of drugs from the Chevrolet Impala. The references to the second job were coded, and expressed by reference to ‘the window’. Their meaning could only be understood contextually including in part by differentiation from the other job to which reference was made.

We consider that it was reasonably open to the jury to conclude that the conversations occurred in the course of pursuing the joint criminal enterprise. Moreover, they were both relevant to proving Hajko’s participation in that enterprise, and his understanding that the Chevrolet Impala contained a border controlled drug. In our view, the evidence was plainly relevant and admissible not just against Rodriguez, but also against Hajko.

Insofar as it is submitted that it should have been excluded pursuant to s 137 of the Evidence Act 2008, we are unpersuaded. Viewed at its highest, the evidence had probative value as a material element of the circumstantial case. Prejudice was properly addressed by the following directions that her Honour gave to the jury:

Now, the prosecution also relies on what it argues are coded references in the conversations in the telephone intercepts and in the listening device intercepts. References to ‘windows’, the ‘other job’, ‘the paper’ et cetera. It is part of the case that the accused believed that there were drugs in the car and that so far as the cocaine is concerned, that Mr Rodriguez believed that there was cocaine in the boxes.
There is also at least one, perhaps two of those conversations where there is references to the ‘other job’ or to ‘paper’, to ‘claw’ or ‘wind’ in a context the prosecution says means odour, conversations to which Mr Hajko is a party with Mr Rodriguez.
It is important to remember Mr Hajko is not charged with any offence in relation to the cocaine, and the relevance of his participation in those conversations with Rodriguez about what the prosecution says is cocaine, is simply to show that he knew in relation to the conversation about ‘windows’ that they were using a code, that they were talking about drugs. And that he knew more generally what Mr Rodriguez was there to do. But his role - Hajko’s role is confined to the methamphetamine charge, Charge 1.

No exception was taken to these directions.

The evidence was properly admitted and, in turn, there was no basis for a separate trial from Rodriguez.

Beqiri’s appeal against sentence

It will be recalled that Beqiri was sentenced to 15 years’ imprisonment with a non-parole period of 11 years.

It was submitted on the plea that Beqiri was 43 years old at the time of the offence and that he had no prior convictions. Despite a difficult and disrupted early life, he had been able to set up a successful household in Australia. He had maintained steady employment and was well regarded in the community. Further, his time in custody would be made more difficult by the knowledge that, on his release, he will almost certainly be deported.

Critically, it was submitted that his contribution to the joint criminal enterprise was not one in which he played a principal or executive role. In these circumstances, it is now contended that the sentence imposed was manifestly excessive, and that current sentencing practice demonstrates that a sentence of the level imposed would normally be reserved for those who are principals in the criminal enterprise, or otherwise have a significant executive function.

The sentencing judge’s reasons reveal a careful assessment of the relevant sentencing considerations. In terms of the objective gravity of the offending, her Honour took into account:

(e) the very serious nature of the offence as indicated by the maximum penalty of life imprisonment;

(f) the sophisticated, highly organised and well planned scheme involved;

(g) the quantity of drugs (being over 23 kilograms of pure methamphetamine) representing 30.7 times the commercial quantity applicable to that drug;

(h) the significant value of the drug;

(i) the role played by the applicant, although not a mastermind or financier, was critical in facilitating the enterprise; and

(j) the inference to be drawn that the applicant’s involvement was in expectation of substantial financial gain.

The sentencing judge also took into account general deterrence as the principal purpose of punishment. She identified specific deterrence as a significant sentencing factor, given Beqiri’s continuing denial of any involvement in the offending.

In turn, her Honour took into account each of the mitigating factors raised on behalf of Beqiri. It was conceded on behalf of Beqiri, in the course of the plea, that a significant period of imprisonment was warranted.

Given the objective gravity of the offending, and the essential role which Beqiri played in implementing the enterprise, the sentence imposed cannot be said to be manifestly excessive. It cannot be said that the conclusion to which the sentencing judge came was plainly unjust or not reasonably open, nor that the sentence imposed compels the conclusion that it involved the misapplication of principle.[61]
[61]R v Pham (2015) 256 CLR 550, 559 [28] (French CJ, Keane and Nettle JJ), 568 [56] (Bell and Gageler JJ); R v Kilic (2016) 91 ALJR 131, 140–1 [36].

Insofar as the argument is put by reference to current sentencing practice, we are not persuaded that the cases referred to in argument demonstrate any inconsistency with that practice, when Beqiri’s plea of not guilty and all the circumstances of the offending are considered.

Hajko’s appeal against sentence

It will be recalled that Hajko was sentenced to 11 years’ imprisonment with a non-parole period of seven years.

It was submitted on the plea that Hajko was only 22 years old at the time of the offence, and had no prior convictions. Despite a very difficult early life as a refugee, he had been able to establish a successful career as a chef. He was highly regarded by his employer. Like Beqiri, he faces the high probability that he will be deported upon his release from custody. In addition, he will be isolated in prison due to his lack of family in Australia. It seems that he will also serve his time as a protection prisoner.

Insofar as Hajko’s role was concerned, it was submitted that he acted as no more than a ‘go between’, and did so for a very limited period. It was said that he did little more than act as a conduit between others involved in the enterprise and Rodriguez.

It is now submitted that current sentencing practice demonstrates that a penalty of the order imposed would normally be reserved for those who have a far more significant role in the criminal enterprise.

Once again, the sentencing judge took into account the objective gravity of the offending. This included the very serious nature of the offence; the highly organised character of the scheme involved; the quantity of drugs sought to be possessed; the significant value of those drugs; and the inference to be drawn that Hajko’s involvement was in expectation of substantial financial gain. The sentencing judge also concluded that the role played by Hajko in providing assistance, and transmitting messages, to Rodriguez, although not that of a ‘mastermind’, was critical in facilitating the enterprise.

The judge specifically took into account each of the matters in mitigation raised on behalf of Hajko. These included, in particular, his youth and the fact that his role was less significant than that of the co-offenders, as well as his personal circumstances, good work history and prior good character.

The fact that her Honour imposed a materially lesser penalty than that imposed on Beqiri and Rodriguez may be regarded as confirming that she gave these mitigating factors due weight.

In our view, it cannot be said that the sentence imposed upon Hajko was manifestly excessive. Insofar as reliance is placed upon current sentencing practice, we are not persuaded that the cases referred to demonstrate that, having regard to the objective gravity of the offending, and the applicant’s plea of not guilty, the sentence was inconsistent with such practice.

It cannot be said that the sentence arrived at in Hajko’s case was plainly unjust or not reasonably open to her Honour. Nor can it be said that the sentence imposed compels the conclusion that it involved a misapplication of principle.[62]
[62]Ibid.

Conclusion

For the above reasons, we would grant leave to appeal with respect to the common proposed grounds of appeal (the jury empanelment and Rodriguez’s phone call grounds) but dismiss the appeal with respect to each of them. We would otherwise refuse leave to appeal against both conviction and sentence.

- - -

Besim Beqiri
Charge	Offence	Maximum	Sentence	Cumulation
1	Attempt to possess a commercial quantity of an unlawfully imported border controlled drug [Criminal Code (Cth) ss 11.1(1) and 11.2(A)]	Life imprisonment	15 years’ imprisonment	Nil
Total effective sentence		15 years’ imprisonment
Non-parole period		11 years
Pre-sentence detention		260 days
Other orders		Forfeiture of Chevrolet Impala in which the drugs had been imported
Bruno Hajko
Charge	Offence	Maximum	Sentence	Cumulation
1	Attempt to possess a commercial quantity of an unlawfully imported border controlled drug [Criminal Code (Cth) ss 11.1(1) and 11.2(A)]	Life imprisonment	11 years’ imprisonment	Nil
Total effective sentence		11 years’ imprisonment
Non-parole period		7 years
Pre-sentence detention		560 days

[2017] VSCA 112

15 May 2017