Catanzariti v The Queen
[2019] HCATrans 99
[2019] HCATrans 099
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Adelaide No A2 of 2019
B e t w e e n -
SAVERIO FRANK CATANZARITI
Applicant
and
THE QUEEN
Respondent
Application for special leave to appeal
KIEFEL CJ
NETTLE J
TRANSCRIPT OF PROCEEDINGS
FROM MELBOURNE BY VIDEO LINK TO ADELAIDE
ON FRIDAY, 17 MAY 2019, AT 9.31 AM
Copyright in the High Court of Australia
MR M.L. ABBOTT, QC: If the Court pleases, I appear with my learned friend, MR T.J. MORAN, for the applicant. (instructed by Iles Selley Lawyers)
MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia: I appear with MR R.I. WALKER for the respondent. (instructed by Director of Public Prosecutions (SA))
KIEFEL CJ: Yes, Mr Abbott.
MR ABBOTT: If the Court pleases. Simply put, the first question warranting a grant of special leave, in our submission, is does the rule of evidence known as the co‑conspirators rule apply when the basis of liability to which it attaches – that is, joint enterprise – does not exist as a matter of law?
Under the Controlled Substances Act (SA), by a combination of sections 4, 32 and 33S, which the Court can find in the application book at pages 244 to 255, Parliament has abolished, in our submission, all criminal liability for offences under section 32, with which we were charged, based on any form of derivative liability so that every participant who is charged with taking a step in the process of the sale of drugs is convicted and punished as a principal regardless of whether he or she is what is commonly termed a principal or an agent.
Accordingly, it is our submission that the co‑conspirators rule of evidence cannot apply because there is no basis of liability as a matter of law to attach it to. We say that because the co‑conspirators rule, being founded on agency principles, is an exception to the hearsay rule and applies where joint enterprise, as a matter of law, is a pathway to conviction.
We say also that it must follow that if the rule applies to cases where joint enterprise, as a matter of law, is neither an element of the charge nor the particulars of the charge, the hearsay evidence which would be admissible otherwise via the rule would then go in as pure hearsay. That, we submit with respect, is the effect of the decision of the Chief Justice forming the majority in this case.
In our respectful submission, this application raises for this Court’s consideration the two diametrically opposed interpretations of this Court’s decision in Handlen v The Queen (2011) 245 CLR 282. The Chief Justice in the majority, relying on Handlen, holding that the co‑conspirators rule of evidence does not depend on liability being based upon participation in a joint enterprise as a matter of law, and Justice Vanstone in dissent holding that the absence of joint enterprise as a matter of law, in that case the co‑conspirators rule had no application.
I might add that, in our submission, we accept that in Handlen’s Case this Court did not directly say that the co‑conspirators rule had no application, but we say inferentially that can be the only conclusion to be, with respect, properly drawn from the decision of the High Court in Handlen’s Case.
May I turn to the judgment of the Chief Justice in the majority where the Chief Justice – this is at application book page 204 – starts referring to the decision of this Court of Handlen v The Queen. He said at paragraph 28 on page 204, in the last sentence on that page:
The majority held that the jury’s satisfaction that the appellants were involved in a joint enterprise was not sufficient to establish that each had aided, abetted, counselled or procured Mr Reed’s importation of the drugs.
He then went on in the third sentence in paragraph 29 on page 205, saying:
Accordingly, paragraph [45] of the majority judgment simply observes that on a trial in which the only basis for liability of the appellants was aiding and abetting, a real question about the admissibility and use of the statements and acts of the other participants would have arisen.
In fact, in our respectful submission, this Court in Handlen’s Case said something different. I refer the Court to Handlen’s Case at page 297 of the Commonwealth Law Report decision, paragraph 45, where this Court said at paragraph 45, after commenting that there was no objection to the admission of the evidence, further down in that paragraph we find this sentence:
It is not correct to say that the Crown Prosecutor was “entitled” to lead evidence to prove the existence of the group exercise. However, given the lack of objection, the appellants’ complaint is not with the admission of the evidence but with the directions that are set out above as to the use that the jury might make of it.
The case at bar on this leave application is concerned with the admission of evidence, and we say it provides the appropriate vehicle. Moreover, the High Court went on in paragraph 46 to say:
The question of whether the appellants were parties to the group exercise obscured the requirement to prove that each appellant engaged in conduct that in fact facilitated the commission of the importation offences by Reed.
We say that one can only read those paragraphs of the High Court’s decision in Handlen on the basis that the High Court is saying that the co‑conspirators rule does not apply, and to be convicted in a situation of those appellants in Handlen’s Case it was necessary that there be evidence that was available to prove that they were aiders and abettors without the use of the co‑conspirators rule.
In our submission, what the High Court said in Handlen’s Case was not an endorsement of the application of the co‑conspirators rule when there is no liability for joint enterprise. But notwithstanding what we say the proper interpretation of Handlen’s Case is, the Chief Justice said at paragraph 30, application book 205:
Clearly, then, both the majority and Heydon J proceeded on the basis that the admissibility of the evidence of the conduct of each of the participants in the criminal enterprise did not depend on a charge alleging conspiracy, joint enterprise or common purpose.
But in my submission the majority in the High Court in Handlen’s Case did proceed on the basis that what was admissible was only non‑hearsay evidence relating to each of the accused. If what the Chief Justice in our case is saying, that the co‑conspirators rule could apply, in our submission this is an error. We say this must be what the Chief Justice meant, because he went on to say in the last sentence of paragraph 30 of his judgment:
The co‑conspirator’s rule may apply on the trial of a charge of aiding and abetting a crime if there is sufficient independent evidence of preconcert and the acts and statements are both made in the course of the arrangement and are relevant to the offence charged.
But he did not add the words “and when joint enterprise as a matter of law applies to the charge”.
NETTLE J: But, Mr Abbott, it is clear, is it not, that joint enterprise or concert does not have to be an element of the offence charged in order to make the co‑conspirators rule apply? That has long been the law, has it not?
MR ABBOTT: Yes. We say it has to be at least a pathway to guilt. Where the application of joint enterprise has been ousted by the words of the statute, the co‑conspirators rule has no part to play.
NETTLE J: But it depends, does it not, on the application of the statute and its construction ultimately?
MR ABBOTT: Exactly. It depends on the application.
NETTLE J: If the statute does not have that effect then plainly the co‑conspirators rule applies.
MR ABBOTT: We accept that. It must be so. But we say that what the learned Chief Justice was saying was if as a matter of fact, not of law, there is evidence of preconcert then regardless of whether the aider and abettor can be charged with joint enterprise the co‑conspirators rule of evidence applies. He then at paragraph 31, on pages 205 and 206, said:
The occasions which have given rise to the application of the co‑conspirator rule in the past should not be mistaken as a necessary condition for its application in all cases. The legislature may change the semantic description of the criminal liability of a principal who acts through an agent without abrogating the co‑conspirator’s rule.
In our submission, what his Honour then goes on to do in paragraph 32 is in fact create this new category of a principal who acts through an agent. In our submission, that could have no application to section 32 of the Controlled Substances Act because the principal who acts through an agent must a fortiori be acting in a derivative capacity, because it is the agent who is doing the actus reus, not the principal.
We say that the category that he has created, of a principal who acts through an agent, allowing the application of the co‑conspirators rule, is in error. We say that there is more to the same effect, with respect, in what he says in paragraph 32 because he goes on to say:
Section 4 of the Controlled Substances Act 1984 (SA) (the CSA) defines taking part in trafficking of a drug to include taking part in the process of sale of the drug. This is, in turn, widely defined to include directing or causing any step to be taken in the process of sale. Both of those elements necessarily entail one person, the principal, trafficking in a drug, through the conduct of another.
That is using “principal”, one might say as a matter of language, in fact talking about someone who was acting in a derivative capacity. It must be so in what he said because it is acting through the conduct of the other who would be the principal in law. His Honour then says:
There is no qualitative difference between offending in that way and procuring another, or agreeing with another, to traffic drugs. There is no reason, therefore, to imply . . . the abrogation of the co‑conspirators rule of evidence.
In our submission, having regard to the elements of the offence under section 32 of the Controlled Substances Act and the ouster of accessorial liability, it is beside the point, we say with respect, that one person may have committed the same or a similar section 32 offence or as a matter of fact they were involved in a joint enterprise because under section 32 the offender cannot in law be charged with joint enterprise as the basis for liability.
With great respect to his Honour the Chief Justice, we say that what his Honour is doing is in essence what her Honour President McLure of the Western Australian Court of Appeal stated in Campbell v State of Western Australia [2016] WASCA 156 at paragraph 23, when President McLure said about the application of the co‑conspirators rule of evidence that:
the evidentiary rule is not, and cannot be, separate and independent from the liability rule that underpins it.
In our submission, section 32 does not allow a liability rule on which the co‑conspirators rule of evidence depends. So we say that in relation to Handlen’s Case, in our case the co‑conspirators rule just cannot apply because both joint enterprise and aiding and abetting have been abolished by the combination of sections 4, 32 and 33S.
Returning to the reasoning of the Chief Justice at paragraph 31, where his Honour spoke of “a principal who acts through an agent”, we say that on the application of this reasoning this would be a new category where the co‑conspirators rule applies if there is evidence in fact of joint enterprise but in law no liability pursuant to joint enterprise. In our submission, this picks up what, in our respectful submission, the High Court said could not be done when this Court said at paragraph 45 of Handlen’s Case:
It is not correct to say that the Crown Prosecutor was “entitled” to lead evidence to prove the existence of the group exercise.
KIEFEL CJ: Mr Abbott, I think it is put against you that there is in any event an alternative way in which to prove the facts which were sought to be established by the application of the co‑conspirators rule.
MR ABBOTT: We respond to that by saying that, whilst there is evidence that is directly, in a non‑hearsay way, available ‑ ‑ ‑
KIEFEL CJ: Yes. This is the telephone call in particular, I think.
MR ABBOTT: There is no evidence of quantity or identity that is available other than by the co‑conspirators rule applying hearsay.
KIEFEL CJ: But the statements made in the course of the telephone conversation, if taken to be adopted by the accused, would overcome that largely, would they not?
MR ABBOTT: It depends what your Honour means by “largely”. We say it would not supply evidence of quantity and it would not supply evidence of identity of who was on the other end of the phone call.
KIEFEL CJ: I suppose what this contention on the part of the respondent points up, though, is their principal argument against a grant of special leave, which is that to allow this as a vehicle to raise this question would be a fragmentation of the criminal trial process. There are a number of other applications alive at the moment, I understand.
MR ABBOTT: Yes, there are, but when one talks about fragmentation one has to look at what has happened in this case where we have waited for almost four years for particulars of any significance to be produced. Of course, when one talks about fragmentation, this trial, if it be fragmentation, has been fragmented by the Crown exercising their right of appeal under section 352 to appeal in respect of an issue antecedent to trial. I make no criticism of them for having exercised that right, but in turn we have exercised our right to apply to this Court for special leave in relation to the question that was agitated by the Crown before the Full Court.
We say in relation to fragmentation there is no prejudice to any party if leave is granted and the appeal heard. All the evidence in this case is preserved. It is all telephone records. No trial date is set. As I have said, this case, so far as the Crown is concerned, has not been attended with any degree of urgency. They have meandered on over four years without supplying proper particulars. We say that it is hardly fair to say in those circumstances that merely exercising the right which we have to apply to this Court for special leave constitutes a fragmentation when they have appealed on an issue antecedent to trial pursuant to their right to appeal.
If I can say this, in relation to the Chief Justice’s category, we come back to what Justice Vanstone in dissent said at paragraph 73, which is at application book 218, where her Honour said of Handlen’s Case:
In my view this case stands as clear authority for the proposition that, in the absence of availability of the common law
notions of pre‑concert or common purpose or joint enterprise (as it is called in this state) –
She is saying that as a matter of law:
the co‑conspirators rule of evidence will not apply. The prosecution will not be able to prove a defendant’s guilt of trafficking by first proving he was part of a joint enterprise to commit the crime and then proving that the enterprise was accomplished by the acts of the others who joined with him.
If the decision of the majority is allowed to stand, it will mean that the co‑conspirators rule of evidence potentially applies to every case where there is a mere allegation of joint enterprise or preconcert in fact but not as an element or a particular of the charge and, more importantly, where there is no proof to the requisite degree of preconcert or joint enterprise. In other words, it gets back to the Chief Justice’s category: if you can show that there is a principal acting through an agent then somehow in some way the co‑conspirators rule operates to allow, as a matter of evidence, hearsay evidence to become in effect admissible.
May I very briefly refer to the second question, which is at what stage of a trial should an application for a stay be brought and heard? Again, the court divided over this. The Chief Justice, at application book page 207, paragraph 38, of the second ground for allowing the appeal, said that the trial judge should not have determined the stay application prior to trial. His Honour would have allowed the prosecution on this alternative basis; Justice Vanstone would not. Her Honour’s decision on this point is at application book 219, paragraph 77, where she disagrees. If the Court pleases, those are my submissions.
KIEFEL CJ: Yes, Mr Solicitor.
MR BLEBY: If the Court pleases. On the question of fragmentation, it is always the case that this Court would be slow to fragment a trial, and it is not simply a matter of the question of prejudice to the accused. Can I simply record that any imputation that it took four years for the prosecution to provide particulars is not accepted but that is not really something to be pursued today. There are some particular reasons why fragmentation bites in this case but particularly only counts 1, 2 and 3 were stayed by the primary judge. Counts 4 and 5 are proceeding in any event.
KIEFEL CJ: Would they proceed on lesser charges even if ‑ ‑ ‑
MR BLEBY: Counts 4 and 5 will proceed as charged.
KIEFEL CJ: As charged?
MR BLEBY: Yes. Your Honour’s question then really raises a second aspect, that counts 1, 2 and 3 can proceed on automatic alternatives in any event ‑ ‑ ‑
KIEFEL CJ: Yes.
MR BLEBY: ‑ ‑ ‑ that is, because the automatic alternative is a downgrading from the quantity, and all that is brought to challenge here is the statements in the telephone conversations that go to quantity as even Justice Vanstone recognised, counts 1, 2 and 3 can still proceed on those automatic alternatives. So we have a trial on all five counts regardless of the outcome of this application and, indeed, an appeal were to proceed.
On the other hand, of course, if the trial were not further fragmented it would be a trial by judge alone. Now, I say that on the basis that that is the application by the accused. The prosecution does not respond. There has not been a ruling to that effect yet but my submission is that that is the prospect. That will require, of course, reasons by the trial judge that demonstrate how the evidence was used, including if and how it was used to prove the weight of the cannabis, if it is so deployed. That might be through the co‑conspirators rule or through our alternative basis, which is they were admissions which were adopted and capable of being adopted by the accused.
The prosecution may then succeed on all the primary charges on count 3, it may succeed on the automatic alternatives, it may succeed on none of those counts, or it may succeed on some combination. But in any event reasons will be given. If, for example, the applicant is found guilty on the primary charges, on counts 1 to 3, the reasons will identify why and, necessarily, whether the alternative lesser charges would have been satisfied on the evidence.
So on any appeal that followed the trial, the conclusion of the trial in any appeal court, whether it be a Full Court or indeed this Court, could consider substituting verdicts for the lesser offences if the error was then shown to have been made out. The prospect for fragmentation particularly bites in that sense because nothing is lost by not proceeding to appeal at this point in time.
Your Honour the Chief Justice raised the alternative basis of admission of the evidence. We have addressed the essential content of the argument from paragraphs 30 through to 46 of our written response. It is a relatively lengthy account and I am not going to take the Court line by line through the use to be - how the evidence can be so deployed, but suffice to say, for example, in respect of count 1 we have set out at paragraph 34 of our response:
This count alleges that the applicant trafficked 35 pounds of cannabis to Western Australia between 1 November and 20 November 2012.
The deployment of the evidence we then cover at paragraphs 35 and 36 but we say at 37:
The applicant’s admission that he saw the cannabis and his acceptance of responsibility for compensating . . . purchasers are statements from which it can be inferred his adoption of the statements of –
the purchaser’s agent, that is, as to weight:
were implied admissions.
That is a matter and a question that should properly go to trial in any event. Even if the court notionally were incorrect on the co‑conspirators rule, we maintain a different basis for admission of this evidence so it is a core vehicle.
We have engaged in a similar analysis in respect of counts 2 and 3. I will not take your Honours through each of those; they are set out in some detail in writing. That really is the basis for proving the alternative counts. That probably would have to be the subject of a notice of contention in this Court, I think, given that the majority did not address the question.
If the matter were to proceed to appeal now then, that question would either have to be pursued in substance – that is, the alternative basis – on an appeal before this Court now – that is, when it is not a special leave question – or, potentially, if the appeal were to be allowed then by remitting it to the Full Court to determine that question. I am in two minds as to how that would properly proceed. But the point is that it is throwing up another question of the treatment of this particular evidence that on no sense could be said to be a special leave question.
Now, whether it was, of course - again if the matter were to simply now proceed to verdict on a trial by judge alone with reasons, how that evidence is treated in the final analysis will be known and any appeal can proceed accordingly with the potential, if an appeal is to be allowed, for substitution of verdicts.
Your Honour the Chief Justice has mentioned the outstanding applications. There are a number those. We have addressed those at paragraph 13. Can I just say something about the prospects and the substantive argument made by my learned friend. The special leave questions commence with whether section 33S of the Controlled Substances Act eliminates all derivative responsibility.
I note my friend has expanded in his oral submissions that all derivative responsibility is to be taken by section 4 as well, in the definitions. By that my friend means eliminated all derivative responsibility, whether by joint enterprise or aiding and abetting, counselling, procuring, in respect of offences to which it applies.
The primary challenge to the co‑conspirators rule being available here is dependent on a positive answer to that question, that is to say that all derivative responsibility has been ousted by the Act. I accept that the question is raised on the third special leave question in any event, but the premise of the first two special leave questions – that is, all derivative responsibility is ousted is misconceived. That is because it is well established that when two people act in concert or as part of a joint enterprise, liability is primary not derivative – IL v The Queen, Osland. That is, the acts of one are attributed to the other because they reached an understanding or arrangement that together they commit a crime and the actual performance of that arrangement.
The co‑conspirators rule applies in cases of joint enterprise, assuming of course that there is sufficient evidence of preconcert, because each party has, by that foundational agreement, appointed the other as his or her agent. There is evidence that will be relied on of preconcert in this case. The Chief Justice addresses that at paragraph 37 of his reasons. As the Chief Justice has observed, the statements of an agent made within the scope of their authority are admissible, ordinarily, against the principal in proceedings to which the principal is a party.
Section 33S of the Controlled Substances Act does not on any view purport to exclude joint enterprise as a basis of liability, it only excludes section 267 of the Criminal Law Consolidation Act, which is aiding, abetting, counsel and procuring derivative liability. But the next step of the offence under section 32, of trafficking a large commercial quantity, the definition of “traffic” includes in section 4:
to take part in the process of sale of the drug –
That is in turn defined in section 4(4) in extremely broad terms which would otherwise be capable of giving rise to a joint enterprise liability if preconcert was established. To that end I rely particularly on subsection (4), the definition of taking part:
in the process of sale, manufacture or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
What the section is doing is putting into statute that which would otherwise be contemplated by the joint enterprise doctrine of liability.
Now, a defendant can be charged under that definition, of course, whether or not preconcert exists. If evidence of preconcert is adduced, and therefore joint enterprise reasoning is available as a fact, not as a basis of liability but as a fact, then the facts that establish taking part in the process are the facts that have the character of the acts of an agent, just as the acts of a person in respect of whom preconcert is established and who is charged on the basis of joint enterprise.
There is no logical difference when we realise that the basis for both forms of liability are agency, and then there can be no basis for saying that the statements made by an agent within the scope of his authority are not admissible against the principal in this statutory context any more than it could be said where liability depends on joint enterprise.
So the evidentiary rule is located in establishing an agency relationship, not in whether that relationship is alleged to be in support of liability under the common law principle of joint enterprise or liability on an expanded actus reus under a particular statutory definition.
While liability under section 32(1) need not necessarily depend on the existence as a matter of fact of joint enterprise that may well in a different case be part of the prosecution’s case, again as a matter of fact. If reasonable evidence of preconcert is adduced, there can be no principled basis on which the evidentiary rule would not operate in accordance with ordinary principles.
Now, that, I submit respectfully, is the point of the statement of the Court in Ahern v The Queen, which the Chief Justice quoted at page 203 of the application book. I am just drawing your Honours’ attention to the extract on page 203 commencing with the underlined passage:
That basis is provided –
That is a conclusion of, I submit, straight logic, so the prospects of success in this case are low, in my respectful submission.
Handlen’s Case has raised the proposition that, in the absence of the common law concepts of common purpose or joint enterprise, the co‑conspirators rule will not apply. This is addressed by the Chief Justice at page 204 of the application book, paragraphs 27 to 30. His Honour’s characterisation of the basis on which this Court allowed the appeal in Handlen is, respectfully, correct. Justice Vanstone, at paragraph 73, application book 218, says that Handlen:
stands as clear authority for the proposition that, in the absence of availability of the common law notions of pre‑concert or common purpose or joint enterprise . . . the co‑conspirators rule of evidence will not apply.
There is a sense in which that statement could be said to be correct when those common law notions are not reduced to being the actual basis of the liability. Common law notions of preconcert and joint enterprise, as factual foundations for the law of agency, may well be relevant to an appropriately worded statutory basis of liability such as that which informs section 32(1).
In Handlen the Court cited the decision in Tripodi for the actual statement of the co‑conspirators rule, and that is paragraph 4 in Handlen’s Case. What the Court said is that
The rule is not confined to the prosecution of conspiracy offences. It applies in the prosecution of substantive offences in which it is alleged that two or more persons acted in preconcert to commit an offence.
That is a statement of the principle. It does not matter, in my respectful submission, and the authorities in Tripodi and Handlen do not purport to suggest that it matters, whether the basis of that liability was common or joint enterprise or an expanded statutory actus reus. As long as those criteria are founded in agency it was met.
Now, it will most commonly of course arise when liability is based on common law principles of joint enterprise, but it is not confined to that. There is no basis for concluding that it was confined to that. It does not exclude where preconcert is relevant to establishing a statutory liability in this case directing or causing any step to be taken in the process of sale.
Of course in Handlen, there was a joint trial of several accused on drug importation charges. That had proceeded to a verdict on the mistaken premise that the offence could be committed by participation in a joint enterprise that had been excluded by the legislation. Absent joint enterprise then, the critical question is whether the appellant had aided, abetted, counselled or procured the principal’s importation.
The evidence against one of the appellants, Paddison, was that he had helped to pack the drugs in Canada and that he had then visited the receiving warehouse in Australia. Either of those acts could establish joint enterprise but only the conduct in Canada could establish aiding, abetting, counselling or procuring, which was the only basis of liability.
That evidence was dependent on the principal’s evidence about this appellant’s conduct. The Court held that the proviso could not be applied as it was not possible to know which evidence the jury had relied on, having been directed that joint enterprise was available ‑ wrongly. So the majority said at paragraph 45 that on a trial where the basis for liability was restricted to aiding and abetting, a real question would have then arisen about the use and admissibility of the statements to match the other participants.
Your Honours, we have addressed that the Chief Justice would have allowed the appeal on the antecedent ground, which is really the second aspect addressed by my learned friend. That is not actually articulated as a special leave question, although my friend does make submissions as to its importance. However, these questions about when the appropriate occasion for considering the stay application as a stay or as a no‑case submission does not particularly raise a special leave question.
The applicant really needs to be saying that it was not a proper exercise of the discretion to permit the prosecution to lead its evidence and then bring no‑case submissions to be entertained only at the closure of the prosecution case. That is a very difficult proposition to establish when we are looking at the facts of this level of complexity on the evidence.
There is a discretion as to when to consider these matters and to say that there are prospects to say that is manifestly wrong has little prospect and indeed is not a matter that should be troubling this Court in terms of otherwise fragmenting the appeal. May it please the Court.
KIEFEL CJ: Thank you, Mr Solicitor. Yes, Mr Abbott.
MR ABBOTT: Two matters, may it please the Court. Firstly, the judgment in this case stands as a final judgment of the South Australian Court of Appeal. Currently, the trial would go ahead in the criminal jurisdiction of the District Court applying the co‑conspirators rule and the consequences that we have spelt out.
My learned friend seemed to be suggesting that we can appeal at the end this issue but we will come slap bang up against the decision of the Court of Appeal on the one hand in the Court of Criminal Appeal on the other. We say that for practical purposes the decision that is raised on this
special leave application will stand and it is just not a practical matter to be able to say you can appeal at the end of the trial in the Court of Criminal Appeal. There is a load of other ramifications that it would apply to over - effectively the Court of Criminal Appeal overruling the Court of Appeal.
The second point - my learned friend – it is correct that section 33S does not mention joint enterprise. The answer, as your Honour Justice Nettle referred me to, is that it boils down to a proper construction of the Act as a whole and the definition of “take part” in particular. We rely upon the reasoning of Justice Vanstone in this regard, at application book pages 214 through to 216.
I will not read it out, but the definition in section 4, which one can find in the legislation in the application book, includes the acts of directing, participation or taking any step without limitation – they are the words of section 4. We say that subsumes and was intended by Parliament to subsume any notion of common law joint enterprise. We say that the purposive approach, the Project Blue Sky approach supports this, as does section 22 of our Acts Interpretation Act. Of course, this was the approach that Justice Vanstone in dissent adopted.
The purposive construction suggests that the purpose of the Parliament in making such a wide definition of “take part” and the inclusion in the concept of taking part of all forms of joint participation was intended to and did have the effect of impliedly abolishing all forms of criminal liability for section 32 except on the terms of the specific words of section 4, taking part in accordance with the elements of that offence as defined, and the other consequence was eliminating the requirement for, or the role of, attribution, which is the whole point of joint enterprise, in the requirement of proof of guilt for taking part in the process of sale of drugs. It abolished, we say, the concept of agency as between co‑offenders who are charged with section 32 offences.
Finally, we say that any other construction in relation to subsection (4) would lead to absurdity because if you combine the common law concept of joint enterprise with such a wide definition of “taking part” it would become difficult if not impossible to determine who is the principal and who is the secondary participant. May it please the Court.
KIEFEL CJ: Yes, thank you, Mr Abbott.
We do not consider that there should be a grant of special leave. Any appeal would fragment the trial process. Further and, in any event, there are insufficient prospects of success to warrant the grant of special leave. Special leave is refused.
AT 10.15 AM THE MATTER WAS CONCLUDED
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