DPP v Johnson & Ors (Ruling no 7)

[2007] VSC 579

IN THE SUPREME COURT OF VICTORIA Not restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1553 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
LANCE CRAIG JOHNSON, BRIAN DAVID ZERNA, SHANE FRANCIS BUGEJA AND KHODI ALI	Accused

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JUDGE:	Bell J
WHERE HELD:	Melbourne
DATES OF HEARING:	7 December 2007
DATE OF RULING:	10 December 2007
CASE MAY BE CITED AS:	DPP v Johnson & Ors (Ruling no 7)
MEDIUM NEUTRAL CITATION:	[2007] VSC 579

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CRIMINAL LAW – conspiracy to traffick in large commercial quantity of methylamphetamine – mental element – whether prosecution must prove agreement related to methylamphetamine – whether drug in nature of amphetamine sufficient – ruling that prosecution must prove agreement to traffick drug specified in presentment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M Tovey QC with Mr S Milesi	Office of Public Prosecutions
For the accused Mr Johnson	Mr S Robertson	Chester Metcalfe & Co
For the accused Mr Zerna	Mr L Barker	Patrick W Dwyer & Associates
For the accused Mr Bugeja	Mr I Polak	Leanne Warren & Associates
For the accused Mr Ali	Mr G Georgiou	Victoria Legal Aid

HIS HONOUR:

1. This is Ruling no 7.

1. The conspiracy charges brought against the accused are expressed (in the presentment) in terms of “trafficking in a drug of dependence, namely, methylamphetamine”. This offence is specified in s 79(1) of the Drugs, Poisons and Controlled Substances Act1981.  The prosecution seeks a ruling that the jury could be satisfied that the conspiracy was established if the drug, the subject of the conspiracy, was a drug “in the nature of amphetamine”.  The ruling has been sought, as I understand it, because of the evidence intended to be tendered against Mr Ali, but it would apply to all four accused.

1. After some four weeks the prosecution case is nearly, but not quite, closed.  Depending on this ruling, there is likely to be, on the prosecution side, an application to amend the presentment and to call further prosecution expert evidence from the forensic chemist, and on Mr Ali’s side, a no-case submission.

1. I accept that, with substantive offences like importing and possessing illegal substances, and trafficking drugs, the offence can be proved where the necessary intention is able to be inferred, beyond reasonable doubt, from circumstances showing “the accused believed or was aware that there was a significant or real chance that his conduct involved trafficking…”: Director of Public Prosecutions Reference (No 1 of 2004) R v Nguyen (2005) 12 VR 299, 308.

1. However, with conspiracy, the offence is constituted by a meeting of minds to achieve an unlawful object.  Particulars must be given of the conspiracy alleged, which involves specifying the unlawful object of the agreement.

1. In this case, that has been done, but in terms of trafficking in a drug of dependence, namely, methylamphetamine.  The conspiracy alleged is, therefore, that the accused agreed to traffick in that drug.

1. Because conspiracy involves agreement, the prosecution must prove beyond reasonable doubt that, when agreeing, the accused had an intention that related to the specified unlawful object.  In this case, the alleged object was trafficking in methylamphetamine.

1. It is to be inferred from the separate specification in Part 3 of Schedule 11 of the Drugs, Poisons and Controlled Substances Act that amphetamine and methylamphetamine are different drugs, however chemically related they may be.  That is not in dispute.

1. From my reading of the authorities on the general principles applicable to the law of conspiracy, the prosecution must establish the accused agreed to pursue the specified unlawful object.  That conspiracy must be particularised in the presentment and proved by the evidence.  It is not sufficient for another conspiracy to be proved (see eg R v McCaul and Palmer [1983] 2 VR 419, 423‑424).

1. It must follow, I think, in a case like the present, that the prosecution must establish that the accused had an intention to agree to traffick in the drug specified in the presentment.  It cannot be sufficient to prove that the accused had a generalised intention to traffick in drugs of that nature, for that is not the conspiracy alleged.

1. Where the prosecution is based on a conspiracy to traffick in a specified drug, but evidence establishes a different drug was intended, I think the prosecution has not established the existence of the alleged conspiracy.  In this regard, I would follow R v Saunders and Gray (1987) 35 Canadian Criminal Cases 3S 385, which accords with the general principles enunciated in the Australian authorities.  I do not think those principles apply differently in this case, where the charge is of a statutory conspiracy.

1. To rule now, at the eleventh hour of the prosecution case, that the charges against Mr Ali and the other accused may be established by proof of intention to traffick in a drug of dependence in the nature of amphetamine would, in my view, explode the principles governing proof of the crime of conspiracy.  Mr Ali and the other accused are charged with conspiracy to traffick in a drug of dependence, namely methylamphetamine.  The prosecution must establish the intention relating to an agreement of that scope, not an agreement of more general scope, for reaching a criminal agreement of that more general scope is not the one on which those accused have been presented for trial.  This conclusion is not inconsistent with the analysis Director of Public Prosecutions (Reference No 1 of 2004) (at 309-310), because that analysis deals with what intention may be inferred in the case of a person charged with trafficking, and thus who has allegedly engaged in the act of trafficking, not the intention that must be proved as an element in the crime of conspiracy to traffick, which is constituted by an agreement between two or more persons to pursue a specified unlawful object, not the performance of the object itself.

1. Therefore, I decline to make the ruling requested.  I would instruct the jury that they have to be satisfied beyond reasonable doubt that the accused were a party to a conspiracy to traffick in a drug of dependence, namely methylamphetamine.[1]

   [1]In consequence of this ruling, and the accused Mr Ali’s subsequent successful no-case to answer submission, Mr Ali was acquitted by direction, the prosecution not having established a case for him to answer that he was a party to the alleged conspiracy to traffick in methylamphetamine.

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