Director of Public Prosecutions (Cth) v Kola

[2023] HCATrans 165

[2023] HCATrans 165

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Adelaide  No A11 of 2023

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

Applicant

and

ALFRED KOLA

Respondent

Application for special leave to appeal

GAGELER CJ
BEECH‑JONES J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA AND BY VIDEO CONNECTION

ON FRIDAY, 17 NOVEMBER 2023, AT 12.26 PM

Copyright in the High Court of Australia

GAGELER CJ:   I will announce the appearances of the parties.

MR J.T. GLEESON, SC appears with MR C.J. TRAN for the applicant.   (instructed by Office of the Director of Public Prosecutions (Cth))

MR A.J. CULSHAW appears for the respondent.   (instructed by Dadds Jandy Lawyers)

GAGELER CJ:   Mr Culshaw, we would be assisted by hearing from you first.

MR CULSHAW:   May it please the Court, can I go straight to what I submit is the point of principle in this case.  Can I invite the Court to take up page 85 of the application book.

GAGELER CJ:   Yes.

MR CULSHAW:   Paragraph 10 of the special leave application refers to the real point of principle that arose on the case as it was argued below, namely, in my submission, what subsection 11.5(7A) and subsection (2A) of the Criminal Code has to do on the proof of the offence of conspiracy to import a specified quantity of border controlled drug – in particular, whether the presence of those two subsections meant that or mean that the Crown need not prove that an accused person actually agrees to import a commercial quantity or whether it is sufficient for the Crown to prove (a), that the accused person agreed to import a border controlled drug in combination with (b), the co-conspirators of that accused person separately agreeing that the importation was to be of a . . . . . quantity.  That was, in my submission . . . . . question of principle, and it was answered in favour of Mr Kola below, and that is at paragraph 45 of the Court of Appeal’s reasons.

BEECH-JONES J:   Mr Culshaw, can I just ask you a question about that.  Was there any point raised at the trial to suggest that the co-conspirators or the alleged co-conspirators to your client had somehow embarked upon an importation that was beyond the scope of what your client was alleged to have contemplated?

MR CULSHAW:   That specific point was not raised at the trial, your Honour.  However, the evidence at trial was that Mr Kola was, at all times, in Adelaide throughout the course of the alleged conspiracy, whereas his co-conspirators, Mr Yavuz, the man who was given the pseudonym “James”, and others were in Panama engaging in the acts in furtherance of the conspiracy.  And so, the evidence at trial as against Kola that directly related to him – and I will put to one side the co-conspirators for a moment – the original trial that directly related to Mr Kola went really no further than snippets that might be taken from the telephone interceptions.

so, in those circumstances, the submission below was, as my submission writing in this Court has been, that there must have been things happening in Panama that Mr Kola did not necessarily know every detail of.

BEECH-JONES J:   Can I ask this – was there evidence?  There was evidence, though, capable of supporting a suggestion that he had agreed to a conspiracy which would involve the sailing of a boat from Panama to Australia, is that right?

MR CULSHAW:   Yes, the evidence – I am sorry to interrupt, your Honour.

BEECH-JONES J:   That is all right.  But is that not enough to say the contemplated scope of the conspiracy must have been importing more than two kilograms?

MR CULSHAW:   There was evidence to support the inference, I accept that, but there was no point taken below or, as I apprehend it now, in respect of the proviso, and the complaint below that was accepted by the Court of Appeal was effectively that the jury were directed as to the elements of the offence, which went to the heart of the trial.  The question of principle that underpinned that ground was whether it had to be established that Mr Kola, in fact, agreed to import more than the commercial quantity, or whether it was sufficient that he had agreed to import at all with his co‑conspirators . . . . . after doing other things on the ground, as it was described by the Chief Justice in the Court of Appeal judgment.

I invited the Court at the outset to page 85 of the application.  My submission is that the Director on this appeal, or on this application, at paragraph 10 of the special leave application, now agrees that the question of principle was answered correctly below, that notwithstanding the existence of section 11.5(7A), the prosecution is not relieved:

from having to prove that the agreement made between the conspirators was an agreement to commit the relevant offence.

That is, that:

to import a “commercial quantity” of a border controlled drug –

From there, the factual question was – and this is, in my submission, where the remaining dispute lies – did the trial judge give appropriate directions on that topic?  In short, my submission is that factual question is not suitable for the grant of special leave, and it was in any case below answered in favour of Mr Kola at paragraph 36 of the Court of Appeal’s reasons.

That is an overview of my submissions as to the first special leave question and the first ground of appeal, but if I can go from there into some more detailed submissions on that question and if I can deal at the outset of that with the divergence, such as it is, between the New South Wales case of Standen and the Victorian case of Le, and the way that was dealt with by the Court of Appeal in this case.

Firstly, I accept that there is a divergence between those two lines of authority, and my submission is that the divergence is a subtle one that in a lot of cases will not matter, but the facts of this case really expose the fault line between the two.  But in my submission, this case is not the vehicle for this Court to address that divergence, and I make that submission on three bases, upon which I propose to expand.  First, that the Court of Appeal adopted the approach in Le without qualification.  Second, that that is the correct approach.  Third, that there is at least no serious contention to the contrary by the applicant in this case.

If those three propositions are accepted, it becomes apparent, in my submission, that the proposed appeal does not turn on any point of principle but on the correct interpretation of the specific directions given in this case.

The first proposition is that the Court of Appeal adopted the approach in Le.  It was put at the outset of the application for special leave – this is at paragraph 4 on page 84 of the application book – that the South Australian approach taken in Kola differs from both Standen and Le.  In answer to that, if I can take the Court, please, to page 75 of the application book.

GAGELER CJ:   Mr Culshaw, do you say that Standen and Le differ between each other?

MR CULSHAW:   Yes, your Honour.  The difference between the two of them, in my submission, is what was described by the Court of Appeal in this case as the problem that arises from the use of the passive voice in relation to the quantity being a . . . . . drug as opposed to anchoring that quantity to the agreement that is the subject of the charge.  What . . . . . in this case a risk of was that Mr Kola agreed to one thing and then those in Panama doing another, or at least planning another – there was no evidence that any cocaine ever made its way onto any boat.  But the risk on the directions given by the trial judge in this case was that a jury could find Mr Kola guilty without having found that he actually agreed to import a commercial quantity of the border controlled drug.

BEECH-JONES J:   Mr Culshaw, could you just look at the last three sentences of paragraph 44 of the judgment below at page 70.

MR CULSHAW:   Yes, your Honour.

BEECH-JONES J:   Those statements do not appear to be consistent with accepted understandings of how conspiracies are proved, do they?

MR CULSHAW:   In isolation, I would accept that, your Honour.  My submission is that when paragraph 44 is read as a whole, that that paragraph is consistent with accepted principle.  I accept that those last three sentences might contain some infelicity of wording but – I will step away from the first special leave question, because this really speaks to the second special leave question put by the applicant.  Your Honour has raised with me that really the sentence of:

Proof of what in fact occurred is irrelevant.

The next two sentences from there flow on.  That has to be read, in my submission, in the context of the whole paragraph, where two sentences earlier the Chief Justice has said:

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

So, in my submission, this paragraph, when read as a whole, cannot be taken to be saying, that, in the most literal sense, proof of what in fact occurred is irrelevant, therefore inadmissible, therefore should be . . . . . before a jury.  In my respectful submission, a correct reading of the whole of that paragraph is that proof of what in fact occurred does not prove or disprove, necessarily, the conspiracy, and that care must be exercise – as the Chief Justice said:

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.

In other words, where – and particularly in a case like this, where alleged co‑conspirators are on opposite sides of the world to one another, one must be careful about necessarily finding that acts that happen in Panama prove an agreement by a person in Adelaide.  So, in my submission, in answer to your Honour’s question – those last three sentences, if one read them in isolation, I accept, appear to be just wrong.  But when the paragraph is read as a whole, in my respectful submission, they give a context which shows what is truly meant by them, which is a correct application of the law.

I can come back to the adoption in this case by the Court of Appeal of the approach in Le at page 75 of the application book.  Having considered the decision of this Court in LK in some detail at paragraph 60 and following, the Chief Justice considered Standen and Le in turn.  At paragraph 60, his Honour . . . . . in the two Standen cases, and at 61 to 63, set out what the Court of Appeal considered to be a difficulty.  At 64, set out the elements as they were given in Le, and although I do not propose to take the Court now through . . . . . the conclusion is found on page 77 of the application book, at paragraph 67:

The preferable course is to specify the offence by reference to the quantity in the first element as was done in Le.

That is my first proposition – the court adopted Le as correct, and did so without any qualification.  In my respectful submission, it is not correct to say that the court below had a third formulation.  This judgment approves the formulation in Le – in other words, that a jury must be directed that the agreements must be to import the relevant quantity – in this case, a commercial quantity – of a border controlled drug.

My second proposition is that that is the correct approach.  In my submission, it is correct in principle, but perhaps . . . . . accords with both the text of the Code and the decision of this Court in LK.  Section 11.5 of the Code is extracted at page 95 of the application book.  What escaped the tension in the decisions on this provision to date – and perhaps because it did not really arise in any particular case previously – is that section 11.5(2A) qualifies it by its terms subsection (2), but not subsection (1), and LK makes it clear, in my submission, that the physical element of the offence of conspiracy is found in 11.5(1).

If I can bring that back to the directions from Le, which were referred to by the Court of Appeal at page 76 of the application book ‑ ‑ ‑

GAGELER CJ:   Why are we going in this detail to Le?  Is your point that Le was correct, Standen was wrong?

MR CULSHAW:   Yes, your Honour.

GAGELER CJ:   I see.

MR CULSHAW:   That is the point, and it is really a – that submission or that proposition is a plank between my first proposition that the Court of Appeal below followed Le, and the third proposition that nobody is saying, as I have apprehended in this case, that that was wrong.

BEECH‑JONES J:   Except this, then, Mr Culshaw.  If that is right, you have Victoria and South Australia, on your argument, saying one thing about a federal criminal statute, and New South Wales saying another.

MR CULSHAW:   I accept that.

BEECH‑JONES J:   Is that not the sort of reason that this Court might intervene?

MR CULSHAW:   I accept that that is a factor that speaks in favour of this Court intervening, but my submission is that on the point of principle, the parties are in furious agreement as to what directions need to be given to a jury charged with determining a guilt or otherwise on this offence.

In my respectful submission, where this case lands is effectively – it turns on its own facts as to correctness or otherwise of the directions given by the judge in this particular case, rather than turning on any point of principle.  That comes back to where I took the Court to begin with, page 85 of the application book in paragraph 10 of the special leave application.  In my submission, once that is understood, there is actually no dispute between the parties on any point of principle.  This application turns on its facts and does not give rise, in my submission, to a point suitable for special leave.

If I may come to the second special leave question . . . . . 44 earlier, and, in my submission, the impugned, at paragraph 69 – which is found at page 78 of the book – when read in its context, that paragraph, in my submission, does not suggest that acts engaged in, in further of an alleged conspiracy, will be inadmissible.  My submission is that when the last three sentences of that paragraph are read together, what it makes clear, again, is that the jury just has to be carefully directed to ensure that the evidential material to be taken into account in finding guilt or otherwise had to be the conduct in which the accused agreed to engage.  That paragraph is also informed, in my submission, by paragraph 71, which refers to Mr Kola’s understanding of the circumstances in Panama City.

So, it is not saying that what happened in Panama City is irrelevant, it is saying that the jury has to be careful only to take into account in forming the satisfaction beyond reasonable doubt about what Mr Kola had agreed to, only to take into account those things that he knew about.  There is no proposition, in my submission, as broad as, what actually happened is irrelevant and should be excluded from a jury’s consideration, that can be distilled from this judgment.  And so, in all of the circumstances, in my submission, special leave ought to be refused.

GAGELER CJ:   Thank you, Mr Culshaw.  Mr Gleeson, we do not need to hear from you.  There will be a grant of special leave in this matter.  One day, or half a day?

MR GLEESON:   It may only be half a day, your Honour.

GAGELER CJ:   Mr Culshaw, what do you think?

MR CULSHAW:   I would not depart from that, your Honour.

GAGELER CJ:   Half a day.

MR GLEESON:    And I think we had also suggested that if leave were granted, the Crown is prepared to consent to any shortening in the timetable for submissions, although noting Christmas, in order that the matter can come on, because it does effect many conspiracy prosecutions around the country.

GAGELER CJ:   Mr Culshaw, do you have a view about that?

MR CULSHAW:   I do not seek to be heard.

GAGELER CJ:   Yes.  What are you proposing, Mr Gleeson?  Do you have a proposed timetable?

MR GLEESON:    Just that we speak with the Registry today and provide an agreed shorter timetable.

GAGELER CJ:   Yes.  Well, that can occur.  Thank you.

The Court will now adjourn until 1.30 pm.

AT 12.47 PM THE MATTER WAS CONCLUDED