Director of Public Prosecutions (Cth) v Kola

[2024] HCATrans 10

[2024] HCATrans 010

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A21 of 2023

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Appellant

and

ALFRED KOLA

Respondent

GAGELER CJ
STEWARD J
GLEESON J
JAGOT J
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON THURSDAY, 15 FEBRUARY 2024, AT 10.00 AM

Copyright in the High Court of Australia

MR J.T. GLEESON, SC:   May it please the Court, I appear with MR C.J. TRAN and MS R.D. THAMPAPILLAI for the appellant.  (instructed by Commonwealth Director of Public Prosecutions)

MR T.A. GAME, SC:   If the Court pleases, I appear with MR A.J. CULSHAW for the respondent.  (instructed by Dadds Jandy Lawyers)

GAGELER CJ:   Thank you, Mr Game.  Yes, Mr Gleeson.

MR GLEESON:   As your Honours know, the appeal concerns the offence of conspiracy under the Criminal Code (Cth), where the underlying offence has one physical element to which absolute liability attaches. The Crown and the respondent to the appeal are superficially in agreement on how the law is intended substantively to operate.

The disagreement is in two areas.  One is whether the form of direction in Standen (No 1) in New South Wales in 2011, which is the standard in that State, it is a permissible way of enunciating the substantive law, because it has been employed with minor variation in the present case.  Or, is the only permissible way the Victorian approach in Le – that is one alternative.  The second alternative is that if Standen is used, does it have to be modified as per paragraph 67 of the Court of Appeal, which is page 77.

That is, does one have to build into the absolute liability element a restriction that one can only look at the circumstances known or believed to the conspirators to exist?  And if that further restriction is necessary to make Standen lawful, then, at paragraph 71 of the Court of Appeal, the judge wrongly left evidence to the jury and wrongly explained the matter to the jury, and thereby created a risk of legal error.

Now, we have two grounds of appeal.  They are, in fact, interrelated, because it is Chief Justice Kourakis’ view on this last matter I have identified, reflected in 67 and 71 that, in fact, has explained part of his approach to the primary question.

GAGELER CJ:   Is the last sentence of 66 accurate?  I ask because it seems to capture the essence of his Honour’s judgment.

BEECH‑JONES J:   Or is that the area of the superficial agreement?

MR GLEESON:   That is the area of superficial agreement.  What is accepted by the Crown is that – perhaps, your Honours, if we just go straight to the underlying provision, which is at page 12 of the authorities.  In the underlying offence, there are three elements:  importation, border controlled drug and commercial quantity.  In the underlying offence, the fault element for importation is the default element of intention under section 5.6(1).  The fault element for border controlled is recklessness, and absolute liability applies to commercial quantity.

Then, once one goes to “Conspiracy” on page 10, according to this Court in LK, we look to 11.5(1) as the creation of the offence and, in particular, the physical element – conspiracy:

with another to commit an offence punishable by imprisonment for more than 12 months or by a fine of 200 penalty units or more –

Then, ordinarily, one applies 5.6(1) to say that the default element is intention, and LK says that has to be intention to enter the agreement, being the agreement that has the three prongs in 307.1.  That much is easy.  In LK, the prosecution sought to argue that where the fault element of the underlying offence is recklessness, you can import that into the conspiracy offence and soften the Crown’s burden.  The Court, unsurprisingly, said no to that.  That was the issue in LK.

The obiter in LK was, what do we do with 11.5(7A), and (7A) directs us that the special liability provision attaching to the underlying offence also applies to the conspiracy.  An aspect which this Court of Appeal may have overlooked is that (7A) is, in fact, applying the special liability provision in respect to commercial quantity to the whole of the offence of conspiracy.  It is doing that directly.

So, the offence established in 11.5(1) has to be understood wholly subject to the command in (7A).  Then, when one goes to 11.5(2), this Court said in LK that that is – it is hard to pronounce – “epexegetical”, or explanatory of, 11.5(1).  But what it is doing is telling the judge, the jury and the accused, what are the steps which you must go through in order to find guilt under (1).  And the first step is, you must:

have entered an agreement with one or more other persons –

The second step is that the accused:

and at least one other party . . . must have intended that an offence would be committed pursuant to the agreement –

and, but for (7A), that would tell you that the intention would have to apply to each of the three elements of the offence.  But the effect of (7A), both directly and because we are told under (2A) that it governs (2), is that you are being told that you do not have to have an intention that, pursuant to the agreement, the quantity would be a commercial quantity.  Now, that is what creates – and then you have got (c):  you must have:

an overt act –

The superficial agreement is also that, as a mental act, although you have to have intended to enter the agreement you do not have to have any intention with respect to the quantity being commercial.  That is because of (7A).  The challenge, then, is how do you direct a jury in a way that requires the prosecution to prove enough but not more than the law requires.

The answer to that question in New South Wales – if your Honours could go to Standen (No 1), which is found at – commencing at page 262, in Justice Hodgson’s judgment, at paragraph 21 on page 271.  What his Honour did, with the concurrence of the other members of the court – as you can see – is, with great precision, map the proposed directions onto the Code, having regard to the effect of (7A).  What his Honour then did was – direction 1 will be:

the accused entered into an agreement with one or more other persons . . . s 11.5(2)(a).

So, his Honour is framing the direction in the context of (2) and (7), bearing in mind that they flesh out 11.5(1).  His Honour, direction 2:

the accused or at least one other party . . . intended that an offence would be committed . . . namely, in this case, an offence . . . involving –

And under 2, his Honour has there identified each element of the underlying offence save for the absolute liability element.  So, what that has allowed you to do – and these directions are obvious meant to work sequentially.  If the Crown fails on 1, do not ask 2.  If the Crown fails on 2, do not ask 3.

But at the stage of 2 you are looking at the mental state and did you intend that, pursuant to the agreement, every element would occur save for the absolute liability element.  Then, separately under 3, the direction is the substance would be a commercial quantity, and his Honour there references the substantive provision of the underlying offence, and 11.5(7)(a).  Then finally, on 4 his Honour has mapped the last element of 11.5(2), which is the overt act.  Now, what that has done ‑ ‑ ‑

BEECH-JONES J:   Mr Gleeson – I was going to ask a question, but I will let you finish your point, sorry.

MR GLEESON:   No.

BEECH-JONES J:   My question would be, do you say that with 3 it is to be read, because it is sequential, that the reference to the substance is the substance or thing to be imported, pursuant to the agreement, would be a commercial quantity?

MR GLEESON:   The substance or thing to be imported pursuant to the agreement, which is a border controlled drug.  If you have not got to the stage that the agreement has those two elements, and that the accused’s mind has gone to the agreement having those two elements, you never ask 3.

BEECH-JONES J:   Is that the way that 3 is to be understood?

MR GLEESON:   Yes.  In fact, in our case, where you use the language “to be imported pursuant to the agreement” would be a commercial quantity, it is even tighter in terms of achieving that effect; it is better.  But that is the concept of 3.

Now, we have submitted in the reply, if it is a helpful concept, that there is an element of bifurcation going on here, which is the agreement has to have the three elements.  The first two elements are dealt with in the initial direction; the “mind” element, relating to those elements, is dealt with in direction 2, and then the non‑fault element of the agreement is dealt with in 3, if you get that far.  Now, your Honours know that there was then a large trial in Standen, and the appeal is tab 23, page 275; catchwords include “Trial”, “Juries”, “Jury concerns”, “Very long trial”. 

So, the Court then had – the Chief Justice of New South Wales, the Chief Justice at common law, and Justice McCallum looked at every ground of appeal which the eminent counsel argued on one side and rebutted on the other side.  And you will see at paragraph 394, on page 361, that is how Justice Hodgson’s direction, or proposed direction, was then given to the jury, first in the aide-mémoire, and then 395 is the summing‑up.  Now, 394 is effectively what the Court saw at page 271, subject to these changes that I will mention.  The first change is that you will see direction 5: 

The agreement related to a commercial quantity.

Taking up your Honour Justice Beech-Jones’s question, that expressed the same content as the proposed direction 3 but did it, if anything, in a better way.  It tied the commercial quantity to the agreement, and you do not get to 5 unless you have passed the earlier ones.  The second change your Honours will see is direction 4.  It was perhaps implicit in what Justice Hodgson had proposed but strictly more correct to impose as a separate element that the accused and one other intended, that is, meant, to enter the agreement as alleged in 1 and 2, which is the agreement shorn of its absolute liability element. 

Now, that is the direction, and you then see the summing‑up, in 395.  Your Honours will see that what has been extracted in 395 finishes at element 4.  We have given your Honours’ associates and Mr Game just two pages from the actual direction from Justice James to show, on page 35 of the direction, what happened.  Your Honours will see, from page 35, that the direction was being propounded in the sequential sense I indicated, namely if you are not satisfied beyond reasonable doubt at stage 4 do not go any further.  But then his Honour read element 5: 

The agreement related to a commercial quantity.

So, that is exactly as per the aide-mémoire.  He gave a direction on what a commercial quantity was, and then said under this element the Crown has to prove the object of the agreement was to import a commercial quantity of pseudoephedrine, and so on. 

So, what has happened in, first, the aide‑mémoire and then the summing‑up is that – we would submit, correctly, as in an available way of complying with the law – the jury were told, first, deal with the agreement shorn of its absolute liability component, find whether there was intention in respect to that; if you get that far, then ask the objective question, did the agreement relate to – as in, require – a commercial quantity without looking at any mental elements at that stage.

BEECH‑JONES J:   Is the premise of all of those directions the starting point or what did you agree?

MR GLEESON:   What did you agree, and the New South Wales approach is to say – given we have this peculiarity that one part of the agreement you are not going to have to have a mental element for – start with the parts of the agreement that do require a mental element, find out if you did agree on them, find out if there was a state of mind referable to it, only if you get that far, ask the question whether the agreement had the additional element.

STEWARD J:   I am just a little bit confused, I am sorry, Mr Gleeson.  You say the first element, the entering to the agreement, you exclude here the commercial quantity?

MR GLEESON:   That is the New South Wales approach.

STEWARD J:   And that is what you urge us to accept?

MR GLEESON:   To accept that it is an available approach, because the Crown says the Victorian approach – which I am just about to come to – is also available.  Provided you have faithfully taken the jury through each of the elements, you will get to the same answer as to whether the person is proved guilty beyond reasonable doubt.

STEWARD J:   So, does that mean for the first and second elements, you effectively could be looking at an offence that is 307.3, where there is no requirement for quantity, and then you bring in quantity – as you would say – later on?

MR GLEESON:   Later on.

STEWARD J:   Right.  Okay.

MR GLEESON:   That is the essence of the approach.

STEWARD J:   Thank you.

MR GLEESON:   Now, you will see in Standen (No 2), at 396, that, in fact, at trial, when the directions were being formulated, the accused’s counsel had suggested a different form of direction.  I draw attention to the proposed 3(iii).  That would have been in error because that would have required an intention referable to the absolute liability element.  But that was what was attempted in trial.  Then, 397 says:

It did not appear to be in dispute that –

that direction:

was effectively dealt with by para 5 of the written directions.

We think “effectively” there must be understood in the sense as “correctly”, because it is clear paragraph 5 of the written direction was, quite correctly, not applying any mental element to the commercial quantity standard.  It seems by the time of this appeal, from 403, that the appellant was now accepting Justice Hodgson’s formulation, and therefore, relevantly accepting the directions that were given at trial at least in the sense that we are dealing with.

What the court did at 414 was to say that although the parties – and the Crown as well – were commending Justice Hodgson, they were not in disagreement as to the elements of the offence, we will actually restate them having regard to the issues.  Paragraph 415 cites LK at the critical paragraph 117 – where the critical passage is the end of 117 – where the Court having said, in general, you need intention to enter the agreement.  The qualification by virtue of 11.5(7A) produces the result.  I will just read out the last sentence:

Proof of the intention to commit an offence does not require proof of knowledge of, or belief in, a matter that is the subject of a special liability provision.

That is the critical statement of this Court – which we submit is obviously correct and unchallenged – which Justice Hodgson’s directions were one way of giving effect to.  You will then see at 419, Justice Hodgson’s formulation is restated, appellant and Crown agreed it was correct, and 420; this Court of Appeal agreed with it that it was correct, save for a minor immaterial variation.

The result is, at least in a practical world, in New South Wales, two eminent benches of the Court of Criminal Appeal have separately considered the matter, accepted that this is an appropriate way of reflecting the law, one of the largest trials in New South Wales was conducted on the basis of it – it evidently caused no difficulty to any of the eminent counsel in the case – and since then, New South Wales has – as an empirical observation – in general followed the Standen approach, including in some of the largest trials that have been conducted in that state, some of which may be on appeal.  It has not caused the slightest problem.  Can I come to the Victorian approach, if I might call it that ‑ ‑ ‑

BEECH‑JONES J:   Can I just ask this, Mr Gleeson.  Was there any real suggestion in the Standen trial that co‑conspirators had, as it were, unenlarged the scope of the conspiracy without reference to Mr Standen, or anything like that?  From what I know of the facts, I do not think so, but I cannot remember.

MR GLEESON:   I think the answer to that is correct, your Honour, however, what I would add to it is – because Standen was a very complex matter – in fact, the co‑conspirators rule was employed in Standen.  There was – as per our case – some evidence of things happening, albeit at the margin, which were properly taken into account under a direction to the jury – have you gone through the Ahern standard?

I will just give your Honours the references to show that.  So, paragraph 71 – I will not read out the detail of it – but 71 of Standen, that is an event in Dubai to which the accused was not a party.  Paragraph 214 is an event about flammable acetone to which the accused was not a party.  At paragraphs 345 to 350 there was an argument raised as to whether those matters, which were said to be “remote in time and circumstance”, could properly be considered.  The argument for the accused was that this was a frolic of Jalalaty’s own.

So, it is, in fact, perilously close to what your Honour put to me of an argument being raised, these are mere unilateral acts which should not be taken into account in proof of the conspiracy.  The response by the Crown at 350 to 353 explained why it was perfectly proper for this evidence to be taken into account, notwithstanding it was not in the presence of the accused, and the Court at 354 to 356 found no error in the reception of that evidence.

So, the sort of concern that Chief Justice Kourakis had in this case, that things happening in Panama might – because of an imperfect direction – leave a jury thinking, I do not have to ultimately find an agreement to import a border controlled commercial quantity, it is enough to have an agreement to import a border controlled drug of any quantity and then the people in Panama have decided to make it more than two kilograms.  That sort of issue is addressed by the proper application of the principles governing direct evidence, co‑conspirators rule.  What it is not addressed by is either finding Standen wrong or modifying Standen as per the Court of Appeal’s paragraph 67.

GAGELER CJ:   Mr Gleeson, can I just ask a question that is directed to understanding the scope of the dispute?  If you look at the extract in paragraph 60 of Chief Justice Kourakis’ judgment of the Standen direction, element 3 is:

The substance would be a commercial quantity.

I think you have said that that could be clearer if it said:  the substance of the subject of the agreement would be a commercial quantity.

MR GLEESON:   Various ways to do it.

GAGELER CJ:   Yes.  Where I am going to is:  is one way of doing that very element to say the agreement if executed would result in the importation of a commercial quantity – which is Chief Justice Kourakis’ way of putting it.  Are these just various ways of saying exactly the same thing, or is there some subtle difference that I am missing?

MR GLEESON:   No.  The Crown is putting that there are various ways of saying the same thing, being the right thing – being the thing that gets the right questions in the jury’s mind.  Justice Hodgson’s is okay, particularly when it is understood as Justice Beech‑Jones put to me.  What was said in our case, if your Honours have the aide‑mémoire, which is in the respondent’s book of further materials at page 4.  I will come to the oral summing‑up as well, but – the aide‑mémoire.  Step 1 is:

party to an agreement . . . to commit an offence –

with the two non‑absolute liability elements identified:  “import” and “border controlled”.  Step 2 is:

meant to be a party to the agreement –

That is the element that correctly came in, in Standen (No 2).  Step 3 is intention, the state of mind referrable to “the agreement”; referrable to those two elements.  Step 4:

The substance to be imported pursuant to the agreement was a commercial quantity of that border‑controlled drug.

Now that, we would submit, very easily falls into the bag of permissible ways of doing it, because it is the substance to be imported pursuant to the agreement.  It is hard to think of clearer language which ties the commercial quantity to the agreement.  If anything, it is an improvement on Justice Hodgson’s language.

So, the only thing that would be offensive is if the direction, fairly read, invited the jury to think that as long as the agreement relates to “border controlled” and “import” into Australia, I can then convict the accused if the quantity of that drug happens to be more than two kilograms by reason of actions taken outside the agreement.  If that is what the directions did then they are in error.  So, if the direction allowed the jury to unmoor or unhinge the commercial quantity from the agreement, there is a problem.

GAGELER CJ:   I think you must be in furious agreement with Chief Justice Kourakis at paragraph 36.

MR GLEESON:   We are in furious agreements with those parts of Chief Justice Kourakis.  That is the superficial but important area of agreement.

GAGELER CJ:   And he thinks it is ambiguous, and you say, no, it is not.

MR GLEESON:   Yes, but when we understand why he thinks it is ambiguous – which is what I am going to come to ‑ ‑ ‑ 

GAGELER CJ:   I see.

MR GLEESON:   ‑ ‑ ‑ we see there is a deeper disagreement about how you can go about proving conspiracy.  Your Honours, can I just deal with the Victorian decision, then I will come to the summing‑up here and then to the Court of Appeal’s judgment.  In Le v The Queen [2016] VSCA 100, which is tab 19, page 190, Acting President Weinberg and Justice Redlich, you will see at paragraph 2 that what the accused’s complaint was, and the court said in summary terms, with which we agree:

For the reasons that follow, the fault element which the prosecution must establish does not include an intention as to the quantity of the drug to be imported.

Now, you will see the ‑ ‑ ‑

BEECH-JONES J:   I am sorry, Mr Gleeson, what paragraph was that?

MR GLEESON:   Paragraph 2, last sentence.

BEECH-JONES J:   Thank you.

MR GLEESON:   At paragraph 8 you have the ruling of the trial judge on this question and the trial judge correctly said the Crown does not need to prove intention as to quantity and therefore you do not need a direction as to it.  But it is important to observe in the reasons in paragraph 8, at the foot of page 489 of the report, the trial judge reached that conclusion consistently with LK, consistently with Standen – that is the 2011 Standen – and also consistent with the written directions to the jury provided by Justice James in Standen.  So, the primary judge in Le considered there was no difference of approach between LK and Standen.  Each of them was reflecting the same basic point which I put to your Honour the Chief Justice.

You then see the actual direction in 9, and that direction also is mapped onto 11.5(2), but in a different way.  The way it is mapped is that under the first direction, when you are looking at the agreement, you include all three elements of the agreement, including commercial quantity.  You then ask about intention to enter the agreement.  Then, under the third element – sorry, pausing there, the second element, that is giving effect to 5.6(1), the default fault element of intention to enter the agreement.

The third element is attempting to give effect to 11.5(2)(b) and to 11.5(7A) in a composite direction, because what you are trying to tell the jury is that if you have got this far, you must also determine whether the accused intended that the relevant offence would be committed in respect to two elements – importation and border controlled – but not in respect to the third element, which is intention as to quantity.

Now, the Crown does not say here that the Le direction is inconsistent with the statute.  As with every direction in this area, it may have its benefits and its burdens, and each has to be done incredibly carefully.  One might say the Le direction, on the one hand – direction 1 has started with you closer to the thing that is the physical element, but in direction 3 you are giving the jury an instruction about intention, they have to find intention in respect to some things that will happen under the agreement, but not in respect to others.  So, provided each of them is done properly, they should get you to the same result.

At paragraph 18, LK is cited – in particular, the critical paragraph, 117.  Then, interestingly, at 19 to 20, the Court of Appeal reviews two other authorities:  Papadimitriou, from the Western Australian Court of Appeal, and then Franze, an earlier decision of the Victorian Court of Appeal.  Your Honours might observe, at least in relation to Papadimitriou, when Justice of Appeal Buss identifies the elements of the offence, he has done that in the Justice Hodgson manner, because he says:

It was necessary for the Crown to prove that Mr Pamadimitriou and one or more of the other . . . conspirators meant to enter into the agreement to commit the offence of trafficking in MDMA.

At that point, you have left out the commercial quantity.  You then give a direction about intention.  Then, the final paragraph:

The qualification . . . is that it was not necessary . . . to prove that Mr Papadimitriou knew or believed that the quantity . . . would be a commercial quantity –

So, there are variations by which one achieves the result.  The Court in Le clearly found there was no difficulty with either Papadimitriou or with Franze, but their conclusion is paragraph 21:

The Crown is not required to prove the fault element as to the quantity of the drug to be imported.

We would say, pursuant to the agreement:

The trial judge was correct to rule as he did.

So, the effect of Le is, having disposed of the substantive point, there was no error in the particular direction in paragraph 9, but equally, there was no statement that paragraph 9 is the only way to comply with the law.

Your Honours, in our outline, we have referred the Court to the historical material which we think might be of slight assistance, because it does explain where we depart from Chief Justice Kourakis.  That material is in volume 5.  At page 371, paragraph 26, you have the relevant extract from the Gibbs Committee Report, which Chief Justice Kourakis placed reliance upon at paragraph 51.

The first half of page 371 is a statement of bedrock principle at common law, that is not disputed.  Namely, at common law, the offence of conspiracy would require intention to do an unlawful act, and an intention to carry out the unlawful purpose.  As the report says:

Such an intention . . . is required notwithstanding that the agreement is to commit a crime which may be committed recklessly or a crime of strict liability.

That is the common law position that was carried through to the Criminal Code as first enacted.  You will see at page 374, the original explanatory memorandum in 1974, and at the foot of page 40 to the top of page 41 of the explanatory memorandum there is an explanation of why section 11.5(2)(a) and (2)(b) take the form they do.  The reason that was done was to carry out the Gibbs Committee proposals and the common law and clearly separate out the physical element of entering the agreement, and the fault element, which was intention.

If your Honours compare that part of the explanatory memorandum with page 10, which is the 11.5(2)(a), the Gibbs Committee Report provides the explanation for why (2)(a) and (2)(b) have been separated out, and had been the end of the matter, you would need intention in respect to the whole of the agreement.  There was a proposal to amend the Criminal Code in 1999, which is at page 380, by proposed section 600.1, which was unclear as to its scope.

It was overtaken by the final section in the form that the Court has in 2000, for the reasons that are explained in particular at page 388.  What was there said was that the purpose of proposed 600.1 was to ensure:

that where there is a special liability provision (such as one applying absolute liability –

applying to the underlying offence:

then that rule must should through to ancillary offences, such as an attempt –

conspiracy, and so on, but it was not done very clearly, and so the new provisions are there to achieve that effect for all of the ancillary offences.  What we know from the materials is a deliberate decision was made to modify the common law, the modification was only in respect to absolute liability elements of the underlying offence, they were to be carried through into the ancillary offence, no such modification was made for other default elements such as recklessness.

Your Honours, just before I come to the summing‑up, in LK 241 CLR 177 itself, which is at page 92, tab 13, the argument that was put by the Crown and rejected is set out at 179 of the report, point 8. This was the attempt to import recklessness up from the underlying offence into the conspiracy. The particular offence in that case was dealing with money or other property that had a default element of intention; which was the proceeds of crime, default element of recklessness; value of $1 million or more, absolute liability. That was the underlying offence.

So, what the Crown was trying to do was to say, as to the proceeds of crime element, we can bring up recklessness rather than intention into the conspiracy offence.  The Court said no.  There was no direct discussion or decision on the effect of the absolute liability provision, but, obiter, it was discussed firstly by the Chief Justice at paragraph 75 – last two sentences – and in the joint judgment.  Firstly, at paragraph 107, there was an approval of Chief Justice Spigelman’s conclusion that the common law applies into the statute of conspiracy “subject to express statutory modification”.

Then, at the critical paragraph, 117, the common law of intent is applied, save, as we have seen in the concluding paragraphs, for the effect of 11.5(7A).  In 119, having set out the elements, the Court says:

It was not necessary for the prosecution to prove that LK and RK knew or believed that the money . . . had a value of $1,000,000 or more.

The footnote references that as the absolute liability provision.  But:

Relevantly, the offence the object of the conspiracy is one that criminalises the reckless dealing with money that is proceeds of crime.

Now, with respect, there is almost, in that paragraph 119 – although it is compressed – a recognition of Justice Hodgson insight in that one can identify the part of the agreement which has the relevant mental element attached to it, and then one can make sure the agreement also leads to the absolute liability element.

GAGELER CJ:   Mr Gleeson, was there some inquiry or report that led to the amendment in 2000 which inserted subsection (7A), or was it just a departmental exercise?

MR GLEESON:   At the moment, we have searched and we think only the latter.  I should have taken you to page 386, which is the second reading speech, where we do, at least, know from the first column that these were government‑developed amendments over a period of months in order to improve the Bill. 

GAGELER CJ:   This is only part of the second reading speech, I think.  It seems to be referring to recommendations made by something – the standing committee?

MR GLEESON:   We do need to assist the Court.  We have exhausted our searches, but we will try again, if we might, before the end of tomorrow, in case there is anything else that we have missed.  Now, could your Honours go to the core book – and I am now at paragraph 4 of our outline.  The structure of the summing‑up is of importance in understanding whether the risk that Justice Kourakis identified was a real one.

BEECH-JONES J:   Just so I am clear, the risk that his Honour was concerned about was a risk that the jury might not address what the scope of the agreement was, in terms of what was to be imported, but simply look at whether the other co‑conspirators would in fact have imported.  Is that the essence of it?

MR GLEESON:   That is the risk.

BEECH-JONES J:   Yes.

MR GLEESON:   His Honour’s solution to that risk was, either do Le, or, if you are going to Standen, you have to put 67 into it.

BEECH-JONES J:   I understand that.

MR GLEESON:   And then confine the only evidence you could look at – in determining whether the commercial quantity was under the agreement you could only look at things known, or believed in, by the accused.  That is where the substantive law problem comes in.

GLEESON J:   Is that a risk in the context of the facts in this case?

MR GLEESON:   Was it a risk in the context of the facts?

GLEESON J:   Yes.

MR GLEESON:   Not in the light of the overall direction I want to take you to because, in the light of the facts, the prosecution’s primary case had two sources of evidence.  The first was telephone transcripts.  Most of those, the accused was a direct party to.  The ones he was not a party to, the judge directed on, not taking it into account save for the co‑conspirators rule.  The second main source of direct evidence was the rollover witness, Mr James, under the pseudonym.  Most of that was of things in the presence of the accused.  To the extent it was not in the accused’s presence, the judge directed on the co‑conspirators rule.  So, the risk his Honour feared – that the jury would be distracted by things happening in Panama, unmoored from the agreement – was not a real risk when one looked at the facts of the case and the structure of the summing‑up. 

So, if your Honours have the core appeal book, at page 7, over to page 8, point 4, there is a direction on the burden of proof and the standard of proof.  At 8, point 5, the trial judge moves to the ingredients or the elements and hands up the aide‑mémoire that you have seen and then says the offence has five elements.  So, at this point, her Honour is explicating what is at page 4 of the respondent’s book.  So, the first element:

party to an agreement . . . to commit an offence, namely to import a border controlled drug –

So, at that point, the first two of the three elements of the underlying offence are being addressed.  So, there is then some further discussion of that first element.  The second element commences at page 9, at about point 7:

prosecution must prove is that the accused intended to agree, that is, he meant to be a party to the agreement with at least one other person.

Then, the third element – and this is matching the aide‑mémoire fairly closely:

intended to commit the offence, that is, they intended to import a border controlled drug pursuant to the agreement –

As, as her Honour says there, “states of mind”, and she will explain later how that process is done.  So, at that point, this is following Justice Hodgson’s model.  Then, we get to the one that is said to be in error, page 10:

The fourth element that the prosecution must prove is that the substance to be imported pursuant to the agreement was to be a commercial quantity of that border controlled drug.

Now, it is hard to see how that could have created the risk that the Chief Justice was concerned with; the words “pursuant to the agreement” tied it to the very creature which the jury had been instructed they were considering under the earlier elements.  And then quite correctly, reflecting (7A): 

The prosecution does not need to prove the accused or any party to the agreement intended to import a commercial quantity, it is sufficient for the prosecution to prove that the quantity of border controlled drug to be imported pursuant to the agreement –

emphasised yet again: 

was to be a commercial quantity.

The fifth element: 

the accused, or at least one other party to the agreement, committed an overt act pursuant to the agreement.

So, this summing‑up is replete with the concept “pursuant to the agreement” being used in its ordinary English sense, incapable of creating the difficulties the Chief Justice was concerned about.  At that point – that is page 10, point 3 – there is directions on what may be overt acts which the jury might find.  I do not need to go into the detail of them, but you will notice that there are five possible overt acts that the jury is asked to consider.

So, this was very much a case where the overt acts were important, both as their separate element in the offence of conspiracy and where the overt acts, under appropriate direction, might be proof of the agreement itself and the accused’s participation in it, and, where relevant, the accused’s state of mind.

BEECH-JONES J:   The person named there, their identity – I think they are referred to as “James” in the Court of Appeal – is there any, perhaps ‑ ‑ ‑

MR GLEESON:   James is the person that is referred to under the first overt act, the second overt act, the third overt act, the fourth overt act, but not the fifth.  So, it is a case where, if you are looking at it quite practically, the telephone intercepts plus the direct evidence of James were central to the prosecution’s case.  They were relied upon both as proof of overt acts but also to the extent the overt acts were part of the evidence from which the conspiracy might be inferred. 

Now, at the foot of page 11, her Honour correctly moved to the methods of proof.  Her Honour has distinguished, perhaps conventionally, the elements to be proved and the methods of proof; the very thing that, with respect, Chief Justice Kourakis, in paragraph 67, is confusing where he is requiring the methods of proof to be built into the elements.  So, there is a discussion about direct evidence, and then, on page 12, there is a discussion about circumstantial evidence.

In the second full paragraph, her Honour turns to proof of states of mind involving a process of drawing inferences from surrounding circumstances.  Elements 2 and 3 require the prosecution to prove states of mind.  Just pausing there, in the next sentence her Honour moves to the critical element 4 – the element that had been described back on the top of page 10 – and says:

The prosecution, for example, seeks to prove the fourth element by way of circumstantial evidence.  That is that the substance to be imported pursuant to the agreement was a commercial quantity of the border controlled drug.

Coming back to your Honour Justice Beech‑Jones’ question, this is arising if you have got an agreement, if it’s import, if it’s border controlled; we are now asking whether the substance to be imported pursuant to that agreement was to have the additional quality of commercial quantity.  If your Honours can then look at those next two paragraphs and consider them in the context of the Court of Appeal at paragraph 71, page 78.  This is where the real issue arises, because the Court of Appeal found that these paragraphs were inviting the jury to consider evidence that could create the risk of them finding commercial quantity unmoored from the agreement.

If I, perhaps, just make this submission by reference to page 78, where you have got the paragraphs set out.  We would say there is absolutely nothing wrong with a single word in these three paragraphs, and in particular the bits that are underlined do not create the risk that the Chief Justice understood.  Although I am descending a little into the weeds, your Honour, this in fact why the Crown lost the appeal.  If you look at it, the prosecution asks you to consider the evidence and put them together:

That evidence includes evidence that the plan was to bring cocaine in via a boat to Australia.

That is not underlined, meaning that is not regarded as offensive.  We agree.  What was the evidence to that effect?  The evidence was the direct evidence of James and the telephone transcript.  That is fine, that is okay.  Next sentence is underlined as apparently offensive:

Added onto that is that the boat was big enough to make that trip.

If there is direct evidence that you are party to a plan to import drugs from South America to Australia, one might think you need a boat big enough to make the trip.  That is simply an inference to be drawn from the direct evidence.  However, what Chief Justice Kourakis seems to have thought is that this was somehow distracting the jury into asking:  was Mr James and his colleagues in Panama having discussion about how big a boat they would have?  If they were discussions which the accused was not a direct party to, perhaps this is somehow unmooring the commercial quantity from the agreement.

That, with respect, is a completely fanciful speculation, because the side of the boat follows directly enough from the matters proved by direct evidence.  The next sentence:

In addition, that the boat needed repair and needed a captain.

Now, a boat travelling from South America to Australia would normally, one would think, have a captain.  It was clear from the direct evidence of the telephone transcripts and the evidence of James that he was not expected to be the captain of the boat.  So again, that does not require proof of anything happening in Panama.

GLEESON J:   But is the point not just that it was boat?

MR GLEESON:   It was a boat.

GLEESON J:   I mean, unless it was a ‑ ‑ ‑

MR GLEESON:   That is it.  So the captain ‑ ‑ ‑

BEECH-JONES J:   And James was not coming back via passenger aircraft.

MR GLEESON:   He was not coming back by passenger aircraft, and he was not carrying the drugs on his person on a passenger aircraft.  He was coming on a boat with a captain.

BEECH-JONES J:   So, the case where the risk you are talking about – I suppose a clear case would be if James was paid to go back and forth via aircraft and then when he got there decided he would hire a big trawler and bring in a large quantity.

MR GLEESON:   Yes.  Now, the only bit, so far in the first paragraph, that might not have been proved by direct evidence of matters to which the accused was a party is the boat needed repair.  One might think that is tolerably at the margins of this case, but I can show your Honours in the summing‑up that it turned out in Panama there was some discussion about spending $3,000 on a repair for the boat.  It is at the foot of page 24 of the book.  So, this is page 24.  This is part of a summary of the direct evidence of James, which is commenced at page 23.

You will see the core evidence with James is at the top of 23, which are the conversations to which the accused was a party.  That was the critical conversation where he was retained to bring it on a boat.  He was asked whether he was “any good on boats”.  He was not, “because he got seasick”.  Well, he does not look like he was the captain.  They “had a job for him”.  He was to sail back.  They offered him – that number should be $200,000 – but James bargained them up to $250,000, they were going to bring back cocaine, they were going to bring it on a boat.

So, that is the direct evidence to which the accused was a party, and the detail, one might think, is at the foot of page 24.  Not only were they promising $250,000 to James, plus his airfare to get there, plus some pocket money, they also had to spend $3,000 on repairs in South America.  Was the accused directly party to, or did he have knowledge of, the repairs in South America?  It is suggested not.

But – go page 25, please, point 5 – having summarised all of James’ evidence, a direction was given about these very conversations, and it is “the same direction” as about the small number of telephone calls to which he was not a party.  They are the calls and the direction at page 20.  There is no challenge that the direction then given was, if he is not present, in general you cannot use it; exception, co‑conspirators rule.

Returning to the Court of Appeal at page 78, paragraph 71, to the extent that there was reference to the boat needing repair, the relevant evidence was explained to the jury consistent with the law as to what they could and could not take into account.  I am almost at the end of this part of it:

In addition, you have the evidence from James about what he was to be paid.

Now, that has been underlined; it is hard to know why, because that is direct evidence of the conversation which James had with the accused.  That is the conversation on page 23, but maybe it is just underlined to point to the next sentence which, apparently, is the vice that you can take into account the evidence of Detective Murray that a kilo was $180,000 to $200,000.  Perhaps that is what his Honour is concerned about, because he has underlined it.  That is the very type of evidence that 11.5(7A) allows you to take into account without having to prove the accused knew the street value of cocaine.

Stepping back from it, the Crown’s case, fairly summarised to the jury, was as simple as this:  you, directly, were party to conversations to commission James to bring it back on a boat; you were going to be paid $250,000; there were clearly a series of other expenses; if we are going to engage in crime of this nature and risk, we obviously want to make money out of it; we are the conspirators; knowing, objectively, the street value of cocaine is what it is – so, two kilos is going to be about $400,000 – is there any reasonable possibility, any reasonable doubt, that the cocaine you were to import to make this agreement work was going to be less than two kilograms?

That is what his Honour was saying was the Crown’s case, and, in the last paragraph here, apparently – it is underlined – that you cannot apply your common sense to draw the necessary inferences.  Now, that is why I have said to your Honour the Chief Justice, we have the superficial agreement, we have the question of whether different directions are lawful, but, beneath that, what we really appear to have in Chief Justice Kourakis’ judgment is an idea that the only material that can be looked at to prove whether the commercial quantity was linked to the agreement were things the accused actually knew or believed in.

The things you cannot look at are twofold.  You cannot look at things happening by the other conspirators as overt acts even if you have satisfied the co‑conspirators rule – that is the logic of it – number one.  And number two:  you cannot look at evidence of objective matters such at the street value of cocaine, because that was not in the accused’s head.  So, at that point, we have gone beyond a fight about directions.  There are some more fundamental issues about how conspiracy is proved.

Your Honours, just to complete the structure of the summing‑up, I was at page 12 where we had the two passages that are said to be a problem.  There is then some directions on how you use circumstantial evidence.  Page 13, point 4, the jury is told the core case is the telephone intercepts, the expert evidence from Feeney and Murray.

BEECH‑JONES J:   Sorry, Mr Gleeson, is that the page of the appeal book?

MR GLEESON:   Page of the appeal book; page 13.  The defence case is then summarised in the second-last paragraph of that page.  Then her Honour turns to the sources of evidence of the prosecution case.  Directions on how to look at the evidence generally, that is page 14 of the appeal book.  Directions about the experts, page 15.  Murray is dealt with near the bottom of 15:

His evidence was not challenged –

The telephone intercepts commence at 16.  Your Honours do not need to bother about the detail of them, other than there were an exceptional large number of them.  Over through to page 18, the jury is directed on some of the aspects of them.  Very carefully on page 19, in the middle paragraph, the jury is told not to take into account matters where the accused cannot be linked to them.  Page 20, I have taken you to the correct direction on the co‑conspirators rule.  James’ evidence starts on the bottom of 21.  Correct direction on the co‑conspirators rule, page 25.  Evidence, for instance, page 26, fourth‑last paragraph, on the conversation about the boat.

Against that, what you have in the Court of Appeal is this:  firstly, paragraph 36 on page 67, we would submit his Honour is concerned that “pursuant to the agreement” might be understood to mean wholly independently from the agreement was fanciful.  At 42, his Honour starts to regard 11.5(7A) as “problematic” ‑ ‑ ‑

BEECH‑JONES J:   But the last sentence of that, you are okay with?  You agree?

MR GLEESON:   That is okay.  The last sentence is fine.  Paragraph 43 has a slight problem.  His Honour distinguishes a “past existing fact” – being the scope of the agreement – from “a future hypothetical fact”.  In one sense, that is correct – the agreement either happened or did not happen in the past.  But everything that was to happen under the agreement was, in a sense, forward‑looking in the past, and that is not just true of the commercial quantity, that is true of import and of border controlled drug.

What then goes wrong at 44 is that his Honour takes some examples – which are okay, as far as they go.  If the agreement is to import the drugs in a container, and you intend to do that, and it turns out to be more than two kilograms, that is the offence.  But his Honour seems to be continually narrowing the types of ways you can prove the conspiracy in the face of (7A).  You start to see, at the foot of 44:

If the shipment is not located, proof of the weight of the drug which would have been imported may depend on inferences which can be drawn from the conduct on which the conspirators agreed, and what they are shown to have believed would be achieved by that conduct, given the circumstances known to them in which the conduct was to occur.

Again, that would be one way of doing it.  But what his Honour appears to be saying is that that is the only way of doing it, and you are immediately confining the evidentiary material that can properly be taken into account.  There is then the very difficult part in 44:

There may be cases in which the agreement is to be inferred from the overt acts.

Correct:

Careful directions on the extent to which that conduct allows inferences to be drawn as to what was agreed or is to be treated as no more than unilateral conduct will be required.

Correct, that is what this trial judge did with the co‑conspirators rule directions:

Proof of what in fact occurred is irrelevant.

That is incorrect.  Proof of what in fact occurred – the overt act – might be an important proof of whether the agreement was made in the first place.  To say if what did occur fell within the scope of what is agreed is unnecessary, that is an unhelpful statement, because proof of what did occur may be – in the jury’s mind, properly directed – one of the things that allows you to determine whether the agreement, the participation and the mental state so far as necessary were proven.  The last sentence, logically, is correct; that if after you have applied all the proper rules of proof, the alleged overt act falls outside the agreement, it cannot, by definition, be evidence of the agreement.  No difficulty with that.

But what his Honour seems to be, with respect, misunderstanding is the way in which overt acts might be proof of the agreement itself.  In 45 – most of 45 is okay, the last sentence, to the extent it is narrowing the methods of proof, we would submit is in error.  Then, there is the discussion of LK, and 51 – that I mentioned this morning – the Gibbs Report, which is cited in LK, seems to be very important to his Honour, and at 52 he says he wishes:

to emphasise the focus of the Gibbs Committee Report on what the accused had agreed, and intended, to do and their knowledge (or on the other hand, their ignorance) of the surrounding circumstances in which the conduct was to be engaged.

That is true, but that overlooks that the Gibbs Committee Report was never recommending a (7A)‑type provision.  Then, he sets out the critical paragraph from LK.  Then, at 55, seems to regard it as important that the substantive offence is in 11.5(1), not (2).

Then, at 56, emphasises paragraph 141 from LK, which is correct as far as it goes, but has, at this point, not had to repeat the obiter warning about the work of 11.5(7A).  Paragraphs 57 and 58 seems to have taken, from a combination of the Gibbs Report, plus LK, plus his Honour’s observations, the idea that you can only take into account things known to or believed in by the accused when you are drawing these inferences.  Paragraph 62 – I am sorry, your Honour, I notice the time; I probably have about 10 minutes to go.

GAGELER CJ:   We will take the morning adjournment now, thank you.

AT 11.14 AM SHORT ADJOURNMENT

UPON RESUMING AT 11.31 AM:

MR GLEESON:   Your Honour, our researches had revealed that after the Bill was introduced into Parliament – that is the 1999 Bill – it was referred to the House of Representatives Standing Committee on Legal and Constitutional Affairs, which did hold a hearing and produced a transcript and a report.  On our review of them, they add nothing to this question.  It otherwise appears to be an internal departmental project.  If there is anything further we find, we will give it go Mr Game and then offer it to the Court.

GAGELER CJ:   Thank you.

MR GLEESON:   Your Honours, I was at the core appeal book at page 76, and I just wanted to pause on paragraph 61, which may explain the Chief Justice’s concern.  He is reading the third element in Standen (No 1), as standing “independently” of the first two elements.  And because it is independent, he says that:

begs the question of how the element is to be proved –

which then leads him into the enquiry of, how do we need to tighten this direction to restrict it to permissible methods of proof?  If, however, we are correct that Justice Hodgson’s formulation, particularly as tightened in the actual trial in Standen and as used in our case, has in fact tied the commercial quantity integer to the agreement which has been identified in the earlier elements, then his Honour’s concern disappears.

So, we see in 62 that is one way it could be proven.  We agree that is one way it could be proven.  Paragraph 63, his Honour’s doubts – how else could it be proven:

other than by reference to the conduct on which the conspirators agreed.

Which leads into Le, and his Honour is preferring Le because Le has expressly linked the element of quantity to the agreement.  That, we submit, has been done by Justice Hodgson and our judge by different language.  Paragraph 65, his Honour exposes the difficulty in Le, supposedly, and says:

The directions in Le conform more closely with the holding in R v LK that it is s 11.5(1) –

which creates the offence, and s 11.5(2) is mere “epexegesis”.  Now, what appears to be happening here is his Honour thinks that once you treat section 11.5(1) as the offence – in particular, the physical element – and once you apply the default fault element of intention to 11.5(1), that somehow marginalises the work of 11.5(7A) down into some form of qualification of 11.5(2), and somehow Le has more closely complied with the High Court.  We would submit all that collapses once one understands that our direction has tied the commercial quantity to the agreement.

Your Honour then asked me about paragraph 66.  Yes, we agree.  The last sentence is correct at the higher level of superficial agreement.  But once one descends into 67, we significantly disagree that you need to modify the standing direction in the manner here proposed.  What your Honours will see in 67, the words we are objecting to are:

in the circumstances known, or believed, by the conspirators to exist –

There is no problem with the rest of that alternative formulation, because it is simply objectively saying, was it an agreement which would result in importation of a commercial quantity?  That is what our direction has already said.  But what it is then narrowing it down to is only circumstances “known or believed by the conspirators to exist”.

Then, we see in 68 – again, his Honour’s favoured example about the receptacle – no problem with that – but it is near the end of 68, his Honour gives another example – and probably no problem with that.  But in 69 we do have a problem when his Honour says:

that material must be confined to the conduct in which the accused agreed to engage and the circumstances in which the accused believed and intended that conduct to be carried out.

That is an impermissible confining because it disregards the work of section 11.5(7A) and disregards the co‑conspirators rule.  The last sentence we disagree with as not a fair reflection of the direction.  It did not permit:

the jury to have regard to evidence as to what occurred on the ground in Panama City –

in an unlimited way.  It did permit the jury to have regard to it to the extent that, consistent with the permissible methods of proof, it bore upon the critical questions, including:  did the agreement exist; did it relate to the three integers; and did it have the mental state in relation to the first two integers?  Your Honours, 70 is a difficult paragraph, with respect.  We read it as a criticism of the aide‑mémoire and the direction:

it will be observed that no part of the aide memoir or the summing up directed the jury that the prosecution had to prove that the accused intended to import a commercial quantity of the border controlled drug.

That is a fair summary of the aide‑mémoire and the summing‑up.  It did not direct that, and it did not direct it quite correctly, because if it had it would have contravened in R v LK.  So, the observation is made but it appears to be made by way of criticism that it needed to do something which put the accused’s mental state in respect to the commercial quantity in issue. 

Paragraph 71, that I have addressed, commences with “Indeed”.  So, that appears to be explicating the problem in 70.  Then, in 72:

Much of the evidence to which the Judge referred was known to Mr Kola when he entered into, or affirmed, his commitment to the agreement.

Correct:

However, there is a fundamental difference between the question whether Mr Kola had made an agreement, with knowledge that if it were executed, it would result in the importation of a shipment of cocaine which would be a commercial quantity –

His Honour appears to be saying that is what the direction had to convey, that I have entered the agreement and I have knowledge that, if carried out, it will be a commercial quantity.  Now, if that is what his Honour is

requiring the direction to do and the Prosecution to prove, he has, with respect, contravened 11.5(7A).  Then his Honour sets up the binary, and: 

the question whether the conduct engaged in by his co-conspirators in Central America would produce that result.

Now, we fully accept this is the superficial agreement, that if all the Crown proved in relation to this element was that things done by the co‑conspirators in Panama would produce commercial quantity, if that was all that was proved, then the Crown has not proved its case and a direction to that effect would have been erroneous.

But it is a false binary, because what his Honour has erected is, on the one hand, a knowledge requirement in respect to commercial quantity that contradicts 11.5(7A); on the other hand, has erected a risk which simply did not arise on the direction which was given, because it was made perfectly clear, you can only look at things happening in Central America consistent with the co-conspirators rule.  The second‑last sentence is:

The process of reasoning required to answer the first question must focus on Mr Kola’s state of mind.

So, it seems to be saying, as to the commercial quantity element, did he mean this agreement would lead to a commercial quantity?  If that is what his Honour is saying, it contradicts 11.5(7A): 

The process of reasoning called for by the second question must focus on objective probabilities.

The second question is, in terms, an irrelevant question.  The real question is the one which the primary judge actually identified:  has the Crown proved its circumstantial case consistent with the permissible use of the methods of proof, consistent with (7A) and allowing for the co-conspirators rule?  For those reasons, your Honour, we would respectfully submit both grounds of appeal should be allowed.

May it please the Court.

GAGELER CJ:   Thank you, Mr Gleeson.  Yes, Mr Game.

MR GAME:   If your Honours could look at the appellant’s oral outline.  If you look at the second dot point, that is new, and it is important that it is new because from their reply and in their submissions they said the difference between the parties was minor, and indeed it was minor, but it has changed completely because of what was put today and in that dot point, and it is not reflected in the grounds.

Because what has been put – so, what was understood between the parties was that the whole of the physical element sat in 11.5(1), which was decided in R v LK.  And incidentally, R v LK, the point argued was not quite as Mr Gleeson put it, that you could agree to be reckless; and the Court came very close to agreeing with that in the very next case, which was Ansari, where you could agree to take a risk, so it was not quite the argument that was put.

GLEESON J:   It is just a question of statutory interpretation.

MR GAME:   Yes, it is a question of statutory interpretation – of the statute, about intending to take a risk.  Yes, your Honour.  And, importantly, what this Court was doing in LK was trying to hew very closely to the common law.  Cases like Churchill v Walton, where if you wanted to conspire to breach tariff laws, you needed to know about the tariff.  You kind of needed to get into the weeds and understand it.  That is the line of authorities that they were following, and they were also following Giorgianni, which is about aiding and abetting.

So, what was understood between the parties until this morning was that the whole of the physical element sits inside 11.5(1), and subsection (7A) is not biting on that.  But the thing about it is there is an awkwardness about this which needs to be understood, which is the physical element sits in 11.5(1), but the physical element is an agreement.  So, the agreement – has it got a state of mind?

GAGELER CJ:   Well, I am not sure about that.

MR GAME:   It is, your Honour.  So, if you think about it this way:  say you have a late joiner in a conspiracy.  There is the agreement, and people have agreed to X.  So, when the person comes along, the existence of the agreement is that there is an agreement in place to do a particular thing, so it has to be the agreement.  There is an awkwardness about it, but it can be made to work.

If you then look at subsection (2) – and this is dealt with in LK and RK.  It is not correct, what Mr Gleeson has said about paragraph 117.  Subsection (2)(a) is the means by which you get to section (7A).  That is to say, it is all about intention.  When you get to section (7A) – this is quite an important part of all of the material you would take in with respect to Justice Kourakis’ judgment – it is that (7A) is working in quite a different way than such a provision is working in relation to a substantive offence or an attempt, because you might not have the thing.  So, if you talk ‑ ‑ ‑ 

BEECH‑JONES J:   I mean, you might not have an offence completed.

MR GAME:   You might not have a – yes, that is right.

BEECH‑JONES J:   So, you do not have the actual drugs.  Yes.

MR GAME:   So, that is what all this material that was being taken about linking it back and why his Honour was saying, look, there is a problem with it, because it is different – where he says in paragraph 36, it is different, and it is different.  That difference has to be recognised, because if what you do – and, incidentally, the grounds of appeal are just about whether or not the judge directed in a particular way.

This argument that is being put now and for the first time, it is not mentioned in anybody’s submissions, might have much more substantial effects than the argument that is being put admits, because if a person agreed to do X explicitly – say, import 1 kilogram – if they were, in fact, joining a conspiracy that was for something much more, then on Mr Gleeson’s reading of the statute, you would be caught, because you ignore what he thought about the 1 kilogram.

So, although he is accepting about it would be pursuant to the agreement, there is a problem if you go down this path, and it should be resisted.  And you can ‑ ‑ ‑

BEECH-JONES J:   Mr Game, there is a nuance in this, but as I understood it, you both agree that if you – if your conspiracy is, you both agree that one of you will import cocaine by putting it in your pocket, you cannot be criminally liable if the actual co‑conspirator then loads five kilograms in their suitcase.

MR GAME:   Yes, Mr Gleeson agrees with that proposition, but a consequence of his argument would be that he would be guilty.  That is the problem.  And all this material about what is happening on the ground, all that is happening is Chief Justice Kourakis is trying to work out how you can – so, if you talk about a boat, or if you get a phone call that such‑and‑such is coming back on a flight – he is not restricting it, he is actually trying to work out how you might go about it.

We would not agree with every single thing that he says about that, but the nub of it is fine, and the only way it feeds in as a ground of appeal is having some significance in relation to the directions that were given.  So, if you look, then, at 11.5(1) – and in LK and RK the Court did say that the – so if you look at paragraph 117, we see:

The reservation concerns the application of s 11.5(2)(b).

That is in the middle of the page.  Now, bearing in mind that a special liability provision is only about the fault elements, it is not about physical elements – that is what section 6(2) says, in effect, or that is what Division 6, section 6 says.  So, the reservation concerns 11.5(2)(b), and then:

The reservation arises because s 11.5(2)(b) is subject to s 11.5(7A) –

Now, that is how you get to 11.5(7A).  They are saying it folds into the whole of the section, but it does not and, if it did, 11.5(2)(b) would be completely otiose.  It is just trying to bring it in.  It is just trying to bring it into the – sorry, 11.5(2)(a) would be otiose.

Then if you look at 119, that is true, subject to the awkwardness about whether or not the thing yet exists.  But that is because it is a comment about intention, not about the agreement.  So, again, we do not have a problem with that.  The various passages – so, we say, and the difference that emerges from what has been put now and has not been drawn out in the written submissions, the difference is whether or not you elevate subsection (7A) into section 11.5(1) or if you treat it merely – and we say it has to be treated merely – as a qualification about what needs to be established in respect of the fault element of the offence, and it can be made to work.

GLEESON J:   But Mr Gleeson was very clear that the physical element included the three prongs.

MR GAME:   That is correct.  But he is qualifying it, because what he is saying – the three prongs.  Yes, for the physical element to fold into it, it has to take away the physical element of commercial quantity.  That is what it means if it folds into it.  If it does not mean that, then it does not mean anything ‑ ‑ ‑

STEWARD J:   Mr Game, there was an ambiguity about the way in which Mr Gleeson perhaps put it, which was that you started with 11.5(2)(a) – an agreement to import the drugs simpliciter.  But then, when you get to the third element of the charge, namely, that a commercial quantity is imported pursuant to the agreement, it would follow at that point that the agreement that he has mind must have included the importation of a commercial amount of drugs.  That was the ambiguity.

MR GAME:   There is that ambiguity.  That is part of ‑ ‑ ‑ 

STEWARD J:   The way I read it was that he said that ambiguity has to exist because of the operation of (7A), and how you instruct the jury in this strange world.

MR GAME:   It is a strange world, and there is a real ambiguity about the words “pursuant to” and what they actually mean, and what they would convey.  Maybe I am not answering your Honour’s question, but if you talk about mapping 11.5(7A), mapping it into 11.5(1), what you are saying is that it is mapping into the existence of the agreement, which is the physical element of the offence.  That was held unambiguously by the Court in LK and RK.  You can see that at paragraph 132 and 141.

The Court rejected the proposition, even, that the elements are to come out from subsection (2), and I got very used to a word – epexegetical – which was Justice Gummow’s way of describing it.  But the physical element and the fault element – the only way it could map into section 11.5(1) is in respect of the mental element of intention.  The mental element of intention is a default element, because this is conduct.  So, the existence of the agreement is conduct.

But yes, there is a real awkwardness about this, but if you go down the road – there is an awkwardness, and the awkwardness does not go away, but you can deal with it, and really what Justice Kourakis is doing is trying to work through how you do deal with it, and some of the things we think possibly go too far, but that is sort of beside the point as to how you actually direct on that, which is at the heart of this ‑ ‑ ‑

STEWARD J:   Is your best point that the Standen direction exposes a risk that the jury might convict based upon an agreement, which is less than that which is required?

MR GAME:   Yes, your Honour.  We also say the direction that the jury were given was quite different to the direction that was posited in the pre‑trial argument.  The direction ‑ ‑ ‑

BEECH-JONES J:   Did you mean in Standen?

MR GAME:   In Standen.

BEECH‑JONES J:   Yes.

MR GAME:   In the direction that was – and there was absolutely no attention to this issue.  The material in relation to Jalalaty was because there was an element of the offence about precursors, that you had to prove that the other person had knowledge that it might be used to turn it into something else.  So, it had this peculiar extra element.  And they were talking, intently, day after day, about 300 or 600 kilograms of pseudoephedrine, and nobody even thought about or even mentioned this problem, but the directions that were ultimately given were actually directions that we say are acceptable.

But if Mr Gleeson’s argument is right, you would not need to give the Le directions.  You would not need to give the first direction in Le because what he thinks about the quantity is completely beside the point if he is correct, if it feeds in, in the way in which he says.  And that just cannot be correct.  But, as I say, the other thing about these special liability provisions is, as I said, it works quite differently for an attempt, which is the other thing that it was brought in in respect of.  It works quite differently in respect of the substantive offence, because you have got a thing that you are talking about.

So, this exercise of hypothesising is fine, it is realistic to do it.  That the hypothesising went too far, I would accept.  I am just trying to find my document.  So, I would accept that the hypothesising went too far.  I could say something – this is also kind of a comment about the second part of the argument, and in these passages in Justice Kourakis’ judgment – so, if you look at his judgment, at some of the – 44 and 45 is one that was – now, he is accepting that agreements:

may take many forms –

He is agreeing that they can be established later on by overt acts.  He seems to be concerned about unilateral conduct, and that seems to be the focus.  But what he says in paragraph 45 is correct, that:

If it were not a necessary element. . . that at least two conspirators agreed to engage in conduct which would . . . result in the importation of a commercial –

then you could prove it just by proving an agreement to import a marketable quantity, or a small quantity.  So, that is correct.  And so is the analysis that kind of leads forwards into these other examples.  So, when you get to the latter part of the judgment at – just one second.  So, if you go back one line to 42, you will see at 42 – again, it was criticised by Mr Gleeson – but that is the very point which is the launching point of the argument.

BEECH-JONES J:   Well, paragraph 42, at the last sentence, Mr Gleeson accepts.

MR GAME:   Yes.  But 42 – it is correct; you have to think about it in a different way.  But then, I went ‑ ‑ ‑ 

GAGELER CJ:   When you get to paragraph 67, Mr Game – I do not want to take you out of your course – Mr Gleeson says, really, the nub of his complaint is the inclusion of the words:

in the circumstances known, or believed, by the conspirators to exist –

What do you say about those words?

MR GAME:   We think that that is correct.  We think it is correct, but can I just explain why.  There may need to be a qualification on how it is actually expressed.  I will say something about the co‑conspirators rule in a minute.  But you are trying to work out – looking at whether or not it would be a commercial quantity pursuant to the agreement.  This is just a passage about inferential reasoning.  It is not about anything else.  It is not about admissibility.  It is not about Ahern – and I will come back to Ahern in a moment.

So, it is about inferential reasoning.  I say “known, or believed” – again, whether or not you use those words might not be crucial, but the inferential reasoning process is the thing that sort of lies at the heart of it, which is – so, he is in Adelaide.  He is making these phone calls.  He is talking about a boat.  They are doing this – somebody is saying they are having a disagreement with the captain.  That is all fine.  But the inferential reasoning is, according to the understanding of him and the other conspirators that they are talking with, is the thing that is going to be imported of a commercial quantity, regardless of what he thinks, regardless of – and that is where the special liability provision works.

BEECH‑JONES J:   So, what is the scope of the thing they agreed to do.

MR GAME:   That is exactly right.  That is all it is.

BEECH‑JONES J:   Just looking – you may be coming to it – the last sentence of 69.  Is what occurred in Panama not evidence of what they agreed to do?

MR GAME:   It could be.  It could be.  So, we do not agree with every bit of this, but it could be.  And so, when you go to 71, the linking back is fine, but, again, it is an inferential process.  Incidentally, there is a little bit of evidence about James flying back and bringing some back with him.  Now, say that was all of the evidence.  That would provide you with quite a nice point, or a difficult point, about what the agreement was for.  But then, if you had him with two kilograms in his suitcase, or two and a half, you would be a goner, because of (7A).  But, again, it is a question of – you sort of have to work it out.

What is being said here, these underlinings are not damning.  They are underlinings where you say, okay, they are talking – James is talking about being paid $200,000 or $250,000, fine, you can draw an inference from that.  The value of the cocaine may or may not be, because there was some evidence that it had cost $6,000 to buy the cocaine, so it may or may not be important.  All that is being said is, you have to be careful about how you deal with this evidence.  That is all that is happening here, in my submission.

GLEESON J:   You would accept, would you not, that if the agreement was an agreement to import cocaine by boat, there would be an available inference ‑ ‑ ‑

MR GAME:   Yes, that is right, absolutely, no question.

GLEESON J:   ‑ ‑ ‑ as to the commercial quantity.

GAGELER CJ:   I think the difference ‑ ‑ ‑

MR GAME:   No question, but it was put in – and in many, many, cases, you would not even need to refer to subsection (7A).  In fact, in most cases you would not need to.  It is really only when you have got an ambiguous situation.  But he put it in contest in trial – the respondent.  He did put it in contest and said, you cannot infer these things from my various conversations.  Sorry, your Honour, I think you were about to ask me a question.

GAGELER CJ:   I think I was, Mr Game.  As I understood Mr Gleeson’s submission, he would say that the offence would be committed in circumstances where the agreement was to take, say, $10,000 and buy some cocaine and bring it back.  If, in fact, $10,000 would buy more than two kilograms – irrespective of the understanding of the parties – the offence would be committed.  I think that is what he is saying.  What do you say about that?

MR GAME:   So, it depends on what facts you have but, if you had a fact that $10,000 would buy you a kilo, but, in fact, it bought two or three – you would not be guilty of the more substantial offence.  You would not be guilty, your Honour ‑ ‑ ‑

GAGELER CJ:   Would not be guilty.

MR GAME:   ‑ ‑ ‑ of the more substantial offence.  But there is another oddity about this whole case, which is that he could have been charged in the alternative with a lesser offence, and there could have been a verdict for the lesser offence, and that was then something that was addressed in the Court of Appeal.  So, if he was successful, on the way it was left, he would have got an acquittal.  But, if the alternative was left, on this argument he would have got convicted with the lesser offence.  So, again, it can matter in a trial context whether or not an alternative is left.

BEECH-JONES J:   You may have covered this, but I must say, I did not discern anything in the materials that suggested that it was a real – there was something in this trial that suggested that co‑conspirators had gone beyond and become much more expansive on what he agreed upon.  I thought your client’s case was:  I just did not have an agreement.

MR GAME:   That is right, that is right.

BEECH-JONES J:   But not to say, went on a frolic.

MR GAME:   No, but also said, you cannot make inferences against me as to how much was agreed based on what was said in conversation.  So, the absence of any mention of quantity, the challenge to James’ credibility, the cost – those sorts of things were relied upon.  How far they went, I am not sure.  But this second argument of Mr Gleeson’s is actually a proviso argument which has not been articulated.  It would be a proviso argument about the first ground, because there is no ground that addresses the second aspect of the argument.

But could I just say something about the co-conspirators rule and my understanding of it, which is that there are four steps in the – and none of them are breached, or even – first is existence of the conspiracy; and you can refer to all facts – hearsay, non-hearsay – for the existence of it.  Second is participation of the defendant to establish prima facie; we would say that kind of sets up the agency.  The third step is income, the overt acts of the other people; and fourth step is once you have got to that point you can have regard to all of the evidence with hearsay.  Those are the steps that Tripodi and Ahern contemplate, and I do not see anything in this judgment that qualifies those propositions. 

BEECH-JONES J:   But when we say you can use the acts of the co‑conspirators to prove the existence of the agreement, that includes what the agreement was about.  It was to rob a bank, or what, five banks.

MR GAME:   Exactly.

BEECH-JONES J:   Or to hijack a plane or a bus, and the suggestion here is that if you looked at the co‑conspirators they confirm that the scope of the agreement was to import cocaine by boat.

MR GAME:   But we are not – I am not saying that you cannot have regard to that material.  Again, I think it would be very odd if Justice Kourakis was really saying that material was not admissible.  What it really ties back to is this question about what inferences can you draw from, shall I say, the various things that the respondent has said, done, agreed to, spoken to about; it is just about that inferential reasoning process, and just about the fact that subsection (7A) – it works in a kind of hypothesised way, and it does work in a hypothesised way.

If you then go to the grounds of appeal, the grounds of appeal are only directed towards – except for the last one – to whether or not something was said by the judge or whether something was not said by the judge.  That is the ground of appeal, but on Mr Gleeson’s argument, you may not need to say any of those things, or at least believe things.  That is why I say his qualification about “would be pursuant to the agreement” brings the parties closer together in terms of what the actual point in dispute is.

Now, what I wanted to say about the – I wanted to take your Honours – you have been taken through it exhaustively already, but if I could just go to the summing‑up and say a few things about that.  If we are right, then if you look at page 9 of the core appeal book where it says, at the end of the first long paragraph: 

The accused and at least one must have concurred . . .  each having the intention to bring about the object of the agreement –

Now, the object of the agreement is, in fact, importation of a commercial quantity, and that is actually wrong, on our construction.  Then we have the agreement referred to repeatedly on that page, and then, at the top of the next page, says that:

the substance to be imported pursuant to the agreement –

The word “pursuant”, and I will come back shortly to what Justice Kourakis says about that, because what he says about that is possibly the most important part of the judgment.  The next paragraph does not need to prove the accused, or any party, intended to import a commercial quantity sufficient for the prosecution.  It is repeated, on the middle of the page:

was an agreement . . . to import a border controlled drug . . .

. . .

Secondly . . . was an agreement . . . to import a border controlled drug –

The structure of the thing is that the jury are not really going to know the difference between intention and object unless it is pointed out to them.  They are going to think that what they thought about how much was to be done is an irrelevance, and that pursuant to there really means whatever happens.  We say that what Justice Kourakis said in paragraph 36 about that – what the second paragraph is saying – it does not matter what he thought, just look at what was imported, or was actually – actually, nothing was imported, but just look at what was going to be imported.

That is what this passage means, and we thought the argument was about whether or not that is what this does or does not mean.  It may be that is still what it turns on, but that is what this case really turns on:  are those directions doing the one thing, or are they doing the other?  We say that if we succeed on that then we are not going to lose because Justice Kourakis went too far in describing examples about inferential reasoning.

In his judgment – and that passage – what is in the memorandum has to be read subject to what is said in the oral directions, and the oral directions, obviously, are the most important thing.  If you go back to Justice Kourakis’ judgment, at paragraph 36:

was to be a commercial quantity.

He is actually criticising the written direction, but it still has – he says:

I acknowledge that the adverbal phrase ‘pursuant to the agreement’ might be understood to mean something like if the agreement were successfully executed but it might also mean imported by the conduct in which one or more conspirators, did engage, or might have engaged.  It follows that the elements so framed do not explicitly . . . the conduct in which the conspirators agreed to engage would result in the importation of a commercial quantity.

We say that is correct, that paragraph.  The appeal really turns on the correctness of paragraph 36.  If it does what Justice Kourakis said it does, then it is in error, and if it does not, we lose.

BEECH‑JONES J:   Mr Game, I think you say there was a bit of an issue at trial about this?  Is that right?

MR GAME:   Yes.

BEECH‑JONES J:   So then, what do we draw from the fact there was no objection made at the summing‑up?  It is not just what New South Wales would call a rule 4 problem.  Is it not that it was not really seen as a problem?

MR GAME:   Well, what I would say – I mean, what I would say is that – thankfully, there is no rule 4 in South Australia, but put that to one side ‑ ‑ ‑ 

BEECH-JONES J:   Well, I do not know that, but I will take ‑ ‑ ‑ 

MR GAME:   But put that to one side.  The appeal has never been, kind of, conducted on the basis of – so the proviso in the common form in South Australia is the same as throughout Australia.  So, it would be a question about whether or not you would apply the proviso, and the answer would lie in the significance of the direction and the capacity that it had to influence the outcome. 

BEECH-JONES J:   What I am suggesting is, when we look at the analysis in 36, which is on what something might mean and what something supposedly did not explicitly direct, is it not a question?  And then we look at in the context of a trial where no one saw a problem.  It is not a question, really so much, of the proviso, it is a matter of saying what – is that not part of saying what it was taken as meaning?

MR GAME:   Well, your Honour, it is conceivable, but if what is said on page 9 and 10 of the summing‑up is capable of bearing the construction that what happened is all you need to worry about, then ‑ ‑ ‑ 

BEECH-JONES J:   You say it does not matter.

MR GAME:   ‑ ‑ ‑ we should succeed.

BEECH-JONES J:   It just cannot be helped.

GAGELER CJ:   And if it is not capable of bearing that construction, you lose.

MR GAME:   Yes, but what – I suppose, yes, that is exactly right.  I suppose.  The way in which Mr Gleeson put the argument about the various formulations does kind of express the different positions between the parties.  But the introduction by him of this argument about folding into 11.5(1) is a bigger animal, and it is has got other potential consequences that have not been alive in this case until today. 

So, I think I did answer this in the affirmative:  can acts of co‑conspirators be relied upon to prove the content of the agreement?  The answer is yes, but so long as you step through it in the steps that I took you to.  The steps that I took you to is the conventional way it is stepped

through in trials on a regular – that is how – those four steps are the four steps that are taken in directing juries on how the – we say you do not see anything in Justice Kourakis’ judgment that is traversing that.  You do see some propositions about inferences that may be taken too far.

Those are our submissions, if the Court pleases. 

GAGELER CJ:   Thank you, Mr Game.  Mr Gleeson, do you have anything in reply?

MR GLEESON:   Could I just try and deal separately with some discrete points.  Firstly, Mr Game’s concern that we have opened too big a barrow with 11.5(7A).  Can I attempt to satisfy him and your Honours that we are not creating the mischief that he seeks.  The point I sought to make was textually 11.5(7A) applies to the offence of conspiracy to commit the underlying offence.  So, in terms, where is that offence created?  It is created in 11.5(1); textually it has operated on 11.5(1). 

Next step down, 11.5(1) tells us the physical element of the offence, and the fault element is not found there; it is the default element of intention.  We agree with Mr Game that the operation of (7A) on (1) is through the modification of the default element of intention.  It does not remove, from the scope of the agreement that has to be proved, the commercial quantity element.  It remains there but it critically modifies the state of mind in respect to that creature.

The reason it is then separately repeated in (2A) is because you need to make clear that the epexegetical provision of (2) must also be subject to (7A).  So, in a sense, it is belts and braces of (7A) governs the whole offence.  It also governs the further explanatory provision.  I do not think the parties are significantly apart on that point.

The second issue, where we were apart in the written submissions, is:  is it permissible, if not mandatory, to describe the scope of the agreement in two bites rather than one?  Which is the essential insight of Standen; that it is permissible to break up the scope of the agreement into two bites, and then the first bite will have the mental element exercise attached to it, and then the second bite will have the objective inquiry into whether it is part of the scope of the agreement.  The parties are still apart on that question.  We submit the Standen approach is a permissible way of giving effect to this statute.  That is the second matter.

STEWARD J:   In your view, on the first bite, the jury are sort of wearing blinkers.

MR GLEESON:   Yes.  But, understood, your Honour, as I have said, in the sequential step, that if the prosecution has failed on the first step ‑ ‑ ‑

STEWARD J:   Yes, the blinkers come off.  Yes.

MR GLEESON:   ‑ ‑ ‑ never ask the second.  But where we are ad idem with the defence is that if you get to the critical step they have to be sufficiently instructed that the commercial quantity is part of the scope of the agreement, irrespective of the accused’s state of mind about that part of the agreement.  So, that issue remains between the parties, we would submit, for the Court to determine.

The third issue is, in terms of the defence of the finding of error, it was essentially page 10 of the core appeal book that was said to contain the error.  My note of what Mr Game said was that that direction at the top of the page will allow the jury to think that “pursuant to” means whatever happens on the ground.  We would submit that is simply not open, in which event the appeal should succeed.

The next proposition, according to my note, he said after that, is that this direction will lead the jury not to look at what he thought but just to look at what happened on the ground.  That is in error because that is suggesting the jury has to look at the mental state of the accused in respect to commercial quantity, which is directly contrary to the statute.  That error, your Honours, we submit is what the Court of Appeal has done at the three critical paragraphs we criticise, which are 67, 70, 71 and 72, where it is tolerably clear from 72 that apparently the prosecution has to prove the accused made the agreement with knowledge that if executed it would result in commercial quantity.

Your Honours, the fourth matter is, in terms of some of these problematic passages, Mr Game said do not worry, they are mere discussion on process of inferential reasoning, which even if they are wrong, they do not control this appeal.  We would submit that when you look at 67 of the Court of Appeal, 71 and 72, the court is not merely finding error in inferential reasoning directions, it is actually requiring the direction on elements to be modified to limit the methods of proof, thereby introducing a mental element that is contrary to 11.5(7A).

Your Honours, the final point is, in terms of paragraph 71 of the Court of Appeal – which we sought to criticise as indicative of the underlying error – I think Mr Game’s submission was that you should not focus too much on the words that are underlined because the underlining is really merely about matters that are at the periphery.

We submit that, very carefully, his Honour has underlined those matters to say the direction should have prevented the jury taking those matters into account.  Once that step is taken, there is a legal error and the co‑conspirators rule has, for reasons unexplained, been eliminated from the case by the Chief Justice, notwithstanding clear directions on it.  I think Mr Game says what his Honour submission about 71 was that the critical words were:

without linking it back, and limiting it to –

So, the purported error is the judge needed to link everything back and limit it to the agreement, and the understanding of the circumstances.  We then say the underlining is the Chief Justice telling us the parts that were impermissible because they did not link it back in that way.  But what the Chief Justice is requiring is the narrowing of the methods of proof, which is seen in paragraph 67.  Your Honours, in the unlikely event we find anything in the further searches, could we provide them to Mr Game and to the Court as soon as possible?

GAGELER CJ:   Yes.

MR GLEESON:   May it please the Court.

GAGELER CJ:   Thank you, Mr Gleeson.  The Court will reserve its decision in this matter and will adjourn until 10.00 am on Tuesday 5 March 2024.

AT 12.22 PM THE MATTER WAS ADJOURNED