Dunn (a pseudonym) v The Queen
[2017] VSCA 371
•13 December 2017 (MELBOURNE)
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2017 0017
| HOWARD DUNN (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]This judgment has been anonymised by the adoption of pseudonyms in place of the names of the applicants and of certain other persons to protect the fair trial of another proceeding.
S APCR 2017 0023
| ALLAN WATTS (a pseudonym) | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | MAXWELL P, BEACH and McLEISH JJA |
| WHERE HELD: | GEELONG |
| DATE OF HEARING: | 1 August 2017 |
| DATE OF JUDGMENT: | 13 December 2017 (MELBOURNE) |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 371 |
| JUDGMENT APPEALED FROM: | DPP v [Dunn] (Unreported, County Court of Victoria, Judge Hampel, 16 December 2016) |
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CRIMINAL LAW – Appeal – Conviction – Evidence – Admissibility – Other misconduct evidence – Possessing substances, materials and equipment for trafficking – Trafficking in commercial quantity of drug of dependence – Evidence of earlier discovery of similar equipment and materials – Evidence used to rebut defence of innocent association – Whether probative value outweighed danger of unfair prejudice – Jury warned against misusing evidence – Evidence correctly admitted – Appeal dismissed – Harriman v The Queen (1989) 167 CLR 590 applied – Drugs, Poisons and Controlled Substances Act 1981 ss 71AA, 71A, 73; Evidence Act 2008 s 137.
CRIMINAL LAW – Appeal – Conviction – Possessing precursor chemical – Joint criminal enterprise – Integrated directions – Discussion between trial judge and defence counsel – Text of jury questions agreed with counsel – No exception to judge’s charge – Whether judge obliged to give further directions – Whether ‘substantial and compelling reasons’ – No further direction necessary – Appeal dismissed – Jury Directions Act 2015 ss 1, 5, 11, 12, 14, 15, 16, 65, 67.
CRIMINAL LAW – Appeal – Sentence – Possessing precursor chemical – Trafficking in drug of dependence – Total effective sentence 4 years and 3 months’ imprisonment, non-parole period 2 years and 3 months – Parity – Same criminal enterprise – Co-accused received lower sentences for more serious offences – Whether disparity of sentences justified – Crown concession of sentencing error – Appeal allowed – Resentenced – Total effective sentence 2 years and 9 months’ imprisonment, non-parole period 18 months – Drugs, Poisons and Controlled Substances Act 1981 ss 71AC, 71D.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant (Dunn) | Mr D A Dann QC | Haines & Polites |
| For the Applicant (Watts) | Mr C T Carr with Ms K Farrell | Valos Black & Associates |
| For the Respondent | Ms S Flynn | Mr J Cain, Solicitor for Public Prosecutions |
MAXWELL P
BEACH JA
McLEISH JA:
Summary
These appeals arise out of convictions for drug offences — trafficking; possessing substances, materials and equipment for trafficking; possessing a precursor chemical; and possession. The two applicants were tried together before a County Court jury, and their applications for leave to appeal were heard together.
The first application concerns the admissibility of what is now referred to in the Jury Directions Act 2015 (‘JDA 2015’) as ‘other misconduct evidence’.[2] In the prosecution of Mr Dunn, which concerned events occurring in 2013 and 2014, evidence was led of substances, materials and equipment found at his property in 2001, as a result of which he pleaded guilty in 2004 to one charge of trafficking.
[2]JDA 2015 s 26.
The evidence was admitted not as tendency or coincidence evidence but as going to rebut Dunn’s defence of ‘innocent association’ with similar substances, materials and equipment found at his property in 2014. For reasons which follow, we consider that the evidence was properly admitted on that basis and that its probative value clearly outweighed any danger of unfair prejudice.
The second application highlights once again the responsibilities imposed on trial counsel, first by the Jury Directions Act 2013 and now by the JDA 2015, to inform the judge of the matters in issue in the trial and to identify the directions which the jury should be given.[3] The ground of appeal concerns a charge of which Mr Watts was convicted on the basis of joint criminal enterprise. It is said that the judge failed to give directions to the jury with respect to elements of joint criminal enterprise which were in issue. For reasons which follow, we would reject that complaint.
[3]See Xypolitos v The Queen (2014) 44 VR 423, 428–33 [22]–[44] (‘Xypolitos’); see also JDA 2015 pt 3.
The transcript of the trial reveals that counsel for Mr Watts was fully aware of — and conscientiously discharged — his obligations to identify the matters in issue and to inform the judge of the directions which he wanted her Honour to give. The judge had informed counsel that she would proceed by way of integrated directions — more commonly known as a ‘question trail’ — as authorised by s 67 of the JDA 2015. All counsel were fully engaged in the process of settling the questions, which identified the matters in issue for the jury in a comprehensible form.
In our respectful opinion, the trial judge engaged with counsel in exactly the way contemplated by the JDA 2015, giving them full opportunity to consider their respective positions and to specify what was, and what was not, in issue. As Parliament clearly intended, adherence to those procedures makes it a task of particular difficulty to persuade this Court on appeal that, notwithstanding the position taken by trial counsel, there were nevertheless ‘substantial and compelling reasons’ for the judge to have given a direction which she was not requested to give.[4]
[4]JDA 2015 s 16.
The proceedings
On 1 December 2016, Howard Dunn, now aged 70, was convicted by a County Court jury of one charge of trafficking a commercial quantity of a drug of dependence, one charge of possessing substances, material and equipment for trafficking a drug of dependence, and one charge of possessing a drug of dependence. He was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
6
Traffick commercial quantity of a drug of dependence (pseudoephedrine)[5]
25y
2y
Nil
8
Possessing substances, material and equipment for trafficking a drug of dependence[6]
10y
3y 6m
Base
9
Possessing a drug of dependence (amphetamine)[7]
1y and/or 30 penalty units
Convicted and discharged
N/A
Total Effective Sentence:
3y 6m
Non-Parole Period:
2y
[5]Drugs, Poisons and Controlled Substances Act 1981 s 71AA (‘DPCS Act’).
[6]Ibid s 71A(1).
[7]Ibid s 73.
Allan Watts, now aged 70, was tried with Dunn. He was convicted of one charge of possessing a precursor chemical and one charge of trafficking a drug of dependence. He was sentenced as follows:
Charge on Indictment
Offence
Maximum
Sentence
Cumulation
4
Possessing a precursor chemical[8]
5y
4y
Base
5
Trafficking a drug of dependence (amphetamine)[9]
15y
12m
3m
Total Effective Sentence:
4y 3m
Non-Parole Period:
2y 3m
[8]Ibid s 71D.
[9]Ibid s 71AC.
As mentioned earlier, both Dunn and Watts seek leave to appeal against their convictions. Watts’s application is confined to his conviction on charge 4. He also seeks leave to appeal against his sentence.
For reasons which follow, we would grant each application for leave to appeal against conviction but would dismiss each of those appeals. We would, however, allow Watts’s appeal against sentence, the Crown having conceded sentencing error. We would resentence him to two years and nine months’ imprisonment, and fix a non-parole period of 18 months.
Overview of facts and proceedings
On 19 March 2014, police executed a search warrant at Dunn’s property (the ‘property’). Neither Dunn nor Watts was present. There police found all the equipment necessary to manufacture methylamphetamine save for an operational condenser. A condenser was found on the property, but it was broken. The police also found sufficient precursor chemicals, bases and solvents to enable methylamphetamine to be manufactured from pseudoephedrine and, but for phenyl-2-propanone (‘P2P’), all of the precursor chemicals, bases and solvents needed to manufacture methylamphetamine using P2P.[10]
[10]DPP v [Dunn] (Unreported, County Court of Victoria, Judge Hampel, 22 December 2016) [3] (‘Reasons’).
Rubbish found at the site was indicative of methylamphetamine production using P2P having taken place. Documents alleged to be recipes for making methylamphetamine, including some in Dunn’s handwriting, were also found. Concealed throughout the house were quantities of cold and flu tablets containing pseudoephedrine. Police also found other drugs and precursor chemicals in smaller amounts. Police also located three bags of methylamphetamine inside a gas bottle, totalling approximately 138 grams.
For some time, police had been intercepting telephone conversations between Dunn and Watts. The prosecution alleged that these showed Watts receiving orders from his associates for 211 grams of methylamphetamine, and placing orders with Dunn for 406 grams of the same, over the period between 1 December 2013 and 19 March 2014.[11] The prosecution alleged that the two applicants were engaged in an ongoing business of supplying illicit substances, with codes being used to conceal the true nature of the substances.[12]
[11]Ibid [6].
[12]Ibid [13].
The combined weight of the methylamphetamine found in the gas bottle, and that alleged to have been ordered by Watts and supplied to him by Dunn, was 544 grams.[13] That weight exceeds the quantity prescribed as a commercial quantity of methylamphetamine in the Drugs, Poisons and Controlled Substances Act 1981.[14] That was the foundation of the trafficking charge against Dunn.
[13]Ibid [7].
[14]DPCS Act s 70(1), sch 11 pt 3.
Evidence was also led of a police raid at the property in November 2001. (The admissibility of this evidence is the subject of Dunn’s conviction application.) At that time, Dunn was arrested in connection with what police believed to be a clandestine laboratory on the property. They found significant quantities of methylamphetamine and pseudoephedrine, empty pseudoephedrine-based tablet packets, and a number of firearms.
In 2004, Dunn pleaded guilty to a rolled-up trafficking charge, based on a combination of the methylamphetamine found on the property and a single large quantity supplied to a person who was, unbeknownst to Dunn, an undercover police officer. There was no charge of possession of substances, materials and equipment connected with the operation of a clandestine laboratory.
On the basis of the 2013–14 telephone intercepts, Watts was charged with Giretti trafficking in methylamphetamine. He was also charged with trafficking in amphetamine, and with possession of phosphorous acid (‘PA’).
A. DUNN CONVICTION APPEAL
Dunn’s appeal against conviction concerns the judge’s decision to admit the evidence of his presence at the property at the time of the execution of the 2001 warrant, and of the presence at that time of:
·equipment and precursor chemicals capable of use in the manufacture of methylamphetamine;
·pseudoephedrine-based tablets and empty blister packs capable of being used in the manufacture of methylamphetamine; and
·540 grams of finished methylamphetamine.
As filed, the application for leave to appeal relied on two proposed grounds. The first was that the judge had been in error in finding that the evidence had any relevance at all. On the hearing of the application, senior counsel for Dunn (who did not draft the written case) informed the Court that this ground was abandoned. It was conceded — properly, in our view — that the evidence was relevant.
Argument then proceeded by reference to ground 2, which contended that the danger of unfair prejudice resulting from the evidence far outweighed such limited probative value as it had. That being so, it was contended, the judge was bound to exclude the evidence under s 137 of the Evidence Act 2008.
This ground must be rejected, in our view. For reasons which follow, the evidence of what had occurred in 2001 and 2004 (when Dunn pleaded guilty to trafficking) had very considerable probative value in this trial, given Dunn’s defence to charges 6 (traffick commercial quantity) and 8 (possess substances, materials and equipment for trafficking). As noted earlier, his defence was that he knew nothing of the substances, materials or equipment found on the property in 2014. His belief was that it all belonged to, and had been placed there by, the Bandidos motor cycle gang.
In her ruling admitting the evidence, the judge said:
Although the accused [Dunn] is not charged with manufacture, and had not by his pleas in 2004 admitted manufacture of methamphetamine, it is the underlying premise of the prosecution case that on both occasions his occupancy of [the property] with a clandestine laboratory set up in the way it was, and with the presence of the methamphetamine and the pseudoephedrine, that he was the manufacturer who then trafficked in the methamphetamine produced, in 2001 to [Gus Murray],[15] and in 2014 to [Watts].
…
The prosecution seeks to rely on the evidence of the findings in 2001 and the pleas, including what can be fairly said to be expressly admitted by [Dunn] or to be necessarily implied as a result in 2004 to establish that the accused [Dunn] had some expertise in running or having a clandestine laboratory operating on his premises and knowledge that methamphetamine had been produced from it.
…
I am satisfied the circumstances which gave rise to the charges to which the accused ultimately pleaded guilty in 2004, are capable of supporting the inference the accused had previously manufactured methamphetamine at the same premises using the same type of equipment and method as that revealed by the clandestine laboratory found upon the execution of the warrant on this occasion. That is, it bears on the issue of whether the accused was knowingly in possession of the substances, equipment and material which the prosecution says constitutes the clandestine laboratory and was in possession with the intention of using those substances, equipment and material for the purposes of trafficking in methamphetamine. (Charge 8).
I am satisfied the evidence of finding of pseudoephedrine based tablets and empty blister packs for pseudoephedrine based tablets on the previous raid together with evidence capable of supporting an inference of previous manufacture of methamphetamine, is relevant to the issue of knowing possession and state of mind in respect of trafficking by reason of that knowing possession for the purpose of trafficking. (Charge 6 in respect of the pseudoephedrine).[16]
[15]A pseudonym.
[16]DPP v [Dunn] [Ruling] (Unreported County Court of Victoria, Judge Hampel, 11 April 2016) [72], [76], [114]–[115].
Notwithstanding the concession properly made on this application that the evidence was relevant, some examination of the basis of relevance is necessary, in order to explain the probative value of the evidence. This is best done by reference to the decision of the High Court in Harriman v The Queen.[17]
[17](1989) 167 CLR 590 (‘Harriman’).
Harriman had been convicted of being knowingly concerned in an importation of heroin. It was common ground at his trial that he and another person, Martin, had met in Bangkok by arrangement, had travelled together to Chiang Mai and had then returned to Bangkok. Martin had then gone to London from where he posted heroin to various addresses in Australia. He gave evidence at the trial that Harriman had arranged for the heroin to be available for collection by him in Chiang Mai, that he and Harriman had broken it into smaller parcels, and that Harriman had instructed him to take it to London and post it to the Australian addresses.[18]
[18]Ibid 591.
Harriman’s defence, as revealed by his cross-examination of Martin, was that Martin had acted alone. After the cross-examination, the prosecution sought to tender evidence of earlier heroin selling by Harriman and Martin.[19] The evidence was admitted. The High Court unanimously dismissed the appeal, holding that the evidence of Harriman’s prior involvement with Martin in the sale of heroin was admissible on the ground that it was highly probative of the criminal character of their association in Thailand.
[19]Ibid 608.
Relevantly for present purposes, Brennan J said:
Evidence of Harriman’s participation in the heroin trade not only strengthened the Crown allegation of motive; it tended to make it more likely that Harriman’s relevant contacts with Martin — providing Martin with his (Harriman’s) address in Bangkok and arranging to meet there, the visit to Chiang Mai, the furnishing of addresses in Western Australia — were for a guilty rather than an innocent purpose: see Plomp v The Queen. That evidence was highly probative of the offences charged. It was admissible, whether or not Harriman had raised in cross-examination the ‘defence’ that Martin was acting alone. There was no ground for excluding it in the exercise of a discretion.[20]
Dawson J said:
In this case it was clear that the applicant’s defence was, or was likely to be, that he had travelled by himself to Bangkok, and thence to Chiang Mai with Martin, simply as a tourist and that he was not involved in the acquisition of the heroin which Martin said was acquired at Chiang Mai or in any subsequent dealings with it. As I have said, the evidence given by the prosecution witnesses that the applicant’s previous relationship with Martin involved dealing in drugs is such cogent evidence of his reason for being in Chiang Mai that the only reasonable inference is that he was there with Martin in order to obtain heroin.[21]
[20]Ibid 596 (citations omitted).
[21]Ibid 602–3; see also ibid 634 (McHugh J).
Similar reasoning was adopted by the New South Wales Court of Criminal Appeal in R v Quach.[22] The relevant question in that appeal was whether the judge had erred in admitting evidence of earlier intercepted conversations between the appellant and a co-accused, Le. Spigelman CJ said:
In this case, the idea that the relevant association between the appellant and Le, being the occasion on which Le drove a car to the immediate vicinity of the appellant’s residence, could be regarded as innocent, was decisively rebutted by the evidence of prior drug dealings.[23]
[22](2002) 137 A Crim R 345.
[23]Ibid 355 [43]; see also R v Sukkar [2005] NSWCCA 54 [58]–[63].
A similar question arose in this Court in Ivanoff v The Queen.[24]The applicant had been convicted of one charge of cultivation of a commercial quantity of cannabis. He had admitted to growing cannabis for personal use but denied having known or believed that it would amount to a commercial quantity. The only issue at his trial was whether he had intended to grow cannabis in at least a commercial quantity.
[24][2015] VSCA 116 (‘Ivanoff’).
The relevant issue on the Ivanoff appeal was whether the trial judge had properly admitted evidence of the applicant’s having previously pleaded guilty to attempting to traffick in a commercial quantity of cannabis. The judge ruled that the jury could use the evidence of the prior admission in determining whether, in relation to the charge before the court, the applicant was aware that there was a ‘real and significant chance’ that the plants he grew weighed more than the commercial quantity.
Weinberg JA concluded that there was no error, saying:
His Honour took the view that the applicant’s previous experience in the cultivation of cannabis bore directly upon his state of mind, as regards the size of the crop he was growing.
In my view, his Honour’s analysis of the basis upon which the evidence of the applicant’s previous conviction was admissible was correct. The evidence was relevant, neither as tendency nor coincidence, because it went directly to the central issue in the trial, namely, the applicant’s state of mind.[25]
[25]Ibid [20]–[21].
In the present case, the evidence of what was found in 2001 (and of Dunn’s 2004 conviction) was led from a series of police witnesses. There was very little cross-examination by counsel for Dunn. At the conclusion of the evidence, the judge helpfully explained to the jury the ‘limited purpose’ for which the evidence had been led, as follows:
That is, it’s relevant to your assessment of Mr [Dunn’s] connection with the property … . To his knowledge of the presence of methylamphetamine found at [the property] on 19 March 2014.
That’s the date of the execution of the warrant in respect of the charges before you. And his intention in relation to that methylamphetamine found at [the property] on 19 March 2014. And his knowledge of the presence of equipment, glassware, documents and substances including cold and flu tablets containing pseudoephedrine found at [the property] on 19 March 2014. The use to which such substances, equipment and material could be put and Mr [Dunn’s] intention in relation to those items. And that evidence can be used for those purposes only, that is in relation to knowledge and intent as I have described it.
You must not reason that because he’s previously been convicted of trafficking in methylamphetamine that he’s automatically guilty of all or any of the charges that you must determine. This evidence in relation to … 2001 and 2004 is only part of the evidence that you must consider and the weight you give it is a matter for you, indeed whether you give it any weight at all. You must consider the whole of the evidence in deciding whether Mr [Dunn] is guilty or not guilty of any of the charges before you.
On this application, senior counsel for Dunn drew attention to what was said to have been very limited cross-examination of Dunn by the prosecutor about what had been found in 2001. It was common ground, moreover, that the prosecutor had barely referred to the 2001 evidence in final address. But, as counsel properly conceded, the use which the prosecutor chose to make of that evidence could not assist this Court in assessing its probative value. Counsel accepted that, if the Court were to conclude that the evidence was of high probative value — as rebutting Dunn’s claim that he was the innocent recipient or repository of a methylamphetamine laboratory set up by someone else — that conclusion would be unaffected by the extent of the prosecutor’s reliance on the evidence.
As earlier stated, Dunn’s defence was that his association with the manufacturing equipment found in 2014 was innocent. He was not responsible for it, he claimed, and had nothing to do with its presence at the property. In those circumstances, the evidence of what had been found in 2001 was highly probative, in precisely the way described by the High Court in Harriman. That is, the evidence very substantially undermined his claim that he knew nothing about the equipment. The fact that there had been a substantial lapse of time since 2001 did not, in our view, detract in any material way from the probative value of the evidence.
As to the danger of unfair prejudice, it is accepted that the evidence of prior misconduct, including of a prior conviction, is capable of operating unfairly. But the judge was careful to give the necessary directions to the jury that the evidence should not be misused. Proceeding as this Court must, on the assumption that the jury understood and followed the directions they were given, the probative value clearly outweighed the danger of unfair prejudice. The evidence was correctly admitted, and this ground must fail.
B. WATTS CONVICTION APPEAL
Watts was convicted of the charge of possessing PA, a precursor chemical (charge 4). The prosecution case on that charge was put on the basis of a joint criminal enterprise between Watts and two others, Ralph Thompson[26] and Kurt Thompson,[27] to possess PA.
[26]A pseudonym.
[27]A pseudonym.
The ground of appeal set out in Watts’s application and written case was abandoned shortly before the appeal hearing. By leave, he now relies on the following ground:
A substantial miscarriage of justice occurred by reason of the way that the jury were charged in respect of the joint criminal enterprise said to found charge 4, and in particular:
1.The learned trial judge failed to direct the jury that it was necessary for the Crown to prove that the applicant participated in the joint criminal enterprise;
2.The learned trial judge instead directed the jury in a way that positively suggested that participation was not required;
3.The learned trial judge failed to direct the jury that it was necessary for the agreement to still be on foot at the time of the charged act(s) of possession, and in particular, the jury were not directed that proof that applicant was a party to an initial agreement in December 2013 was not sufficient if that agreement was no longer on foot at the time that the substance was possessed in Victoria.
The prosecution case relied on a set of intercepted phone calls and the finding of five bags of PA at three separate locations. Two bags were found at Dunn’s property on 19 March 2014; two at Kurt Thompson’s address on 27 March 2014; and one at another residence on 27 March 2014. Dunn’s evidence was relied on to show that Ralph Thompson was in continuing possession of the two sacks which, according to Dunn, Thompson had left in his custody about three weeks before the police raid.
In his closing address, the prosecutor outlined the case of joint criminal enterprise in these terms:
[The intercepted conversations] clearly evidence a scheme between the [Thompsons] and [Watts] that a sample as well as five 25-kg bags of [PA] come down from Queensland. The fact that 5 by 25-kg sacks of [PA] were recovered by police simply confirms that the scheme was carried out.
The easiest pathway to a finding of guilt is the fact that [Kurt Thompson] had actual possession of two of the sacks. That fact alone makes out the charge.
…
[The prosecutor then outlined certain of the calls relied upon, citing dates in December 2013 and January 2014.]
…
[Ralph Thompson] was still exercising dominion and control over the two sacks at [the property] because he left them with … [Dunn] …
…
[Ralph Thomson] was then still a member of the joint criminal enterprise with his son, [Kurt], and [Watts], then you could arrive at a conclusion that four of the five sacks were still within the dominion in control of members of the three-way joint criminal enterprise, if you accepted that evidence … Two sacks in the esky are [Kurt Thompson’s premises]. That makes the charge out, in my submission.
Thus it was the prosecution case that the joint criminal enterprise commenced with the making of the agreement in December 2013, and was still on foot at the time of the police raids in March 2014, when Kurt Thompson was found in possession of the PA. As will appear, it was also part of the prosecution case that Watts exercised ‘dominion and control’ over — and was therefore in possession of — at least some of the PA.
It was common ground on this application that the common law requirements for proof of a joint criminal enterprise were applicable.[28] Accordingly, the prosecution had to prove the following four elements, namely, that:
[28]The form of statutory complicity now found in s 323ff of the Crimes Act 1958 applies only to offences committed after 1 November 2014: see Crimes Amendment (Abolition of Defensive Homicide) Act 2014 ss 6, 8.
(a) there was an agreement to commit the offence, and the agreement remained in existence at the time the offence was committed;
(b) each of the accused participated;
(c) the parties to the agreement, between them, performed all the acts necessary to commit the offence; and
(d) each of the accused had the requisite state of mind at the time of entering the agreement.[29]
[29]See Arafan v The Queen (2010) 31 VR 82, 88 [24]; Henderson v The Queen [2016] VSCA 61 [56].
Both at trial and on this application, counsel for Watts accepted that the intercepted telephone conversations were capable of suggesting both the existence of the requisite agreement and the possession of PA by the other parties to the alleged joint criminal enterprise. Defence counsel’s final address to the jury effectively conceded the existence of the agreement in December 2013, and the later possession of the five bags of PA by one or other of the Thompsons.
Defence counsel made two specific submissions as to why Watts must be acquitted which are relevant for the purposes of the present application. The first was that, although Watts had been a party to two discussions in early December 2013 about transporting PA to Victoria, Kurt Thompson’s intended trip to Melbourne with the PA on 23 December 2013 had not taken place and Watts, so it was contended, was not a party to any further discussions about PA. The defence contention was that, even if Watts had been a party to an agreement in December 2013, the agreement was no longer on foot by the time the PA was brought down to Victoria. Defence counsel submitted to the jury that there was positive evidence that Watts had subsequently indicated that he ‘didn’t want anything to do with it’.
Secondly, defence counsel pointed out that the police had not found any evidence of Watts having ‘handled, transported or sold’ the bags. There was no evidence that Watts had delivered the bags which were found at Dunn’s premises, or that he had ever been in possession of any of the bags, or handled them at any time, or directed anyone else how to deal with them.
According to the appeal submission, the key issues for the jury to decide in respect of this charge were:
(e) whether Watts was ever a party to the joint criminal enterprise;
(f) if so, whether the agreement to which he had been a party remained on foot when the offence was committed; and
(g) if so, whether Watts had been proved to have participated in the joint criminal enterprise.
The essential complaint on the appeal was that the judge’s directions did not address either of the second and third of the above issues, that is, the requirement that the agreement still be on foot when the offence was committed and the requirement that Watts be proved to have participated in the joint criminal enterprise. Attention was drawn to the following part of the judge’s charge:
[W]hat your task is, members of the jury, is to consider whether the prosecution has proved that Mr [Watts] was a party to a joint criminal enterprise with these other two people to possess the phosphorous acid that the prosecution says was brought into Victoria from Queensland by [Kurt Thompson] as a result of the agreement between Mr [Watts], [Ralph] and [Kurt Thompson].
Now, if a person agrees with one or more other people to commit an offence and then pursuant to the agreement, that offence is committed, every party to the agreement is guilty of the offence. Even if each individual does not carry out each of the steps necessary to commit the offence.
For example, if you have got a group of people who decide to rob a bank and they decide one will be the person with the gun who will go in and demand the money of the teller. One will be the person who is the bag man, who will go in with the bag to take possession of the money that the teller hands over and the third will be the driver of the getaway car and will wait outside and then drive off once they have come out with the loot and the gun. Then if they carry out that plan, all three of them are equally guilty of the offence of armed robbery even though they have played different roles and even though no one of them did everything that was necessary.
If you have got a fourth person who is sitting off at home, party to the agreement and who is going to share in the proceeds, they are also guilty of the offence of armed robbery even though they were not necessarily physically present at the scene or in the getaway car. People can agree, can take different roles and all be guilty of the commission of the offence if it is committed in accordance with the agreement. It is, though, necessary to distinguish between a person knowing that other people are going to commit an offence and being a party to an agreement to commit it with them.[30]
[30]Emphasis added.
Counsel submitted that the effect of this direction, and in particular the example which her Honour gave regarding the ‘fourth person’, was to direct the jury that it was sufficient for conviction if Watts was shown to have been a party to the agreement, even if he had not participated in any way. According to the written submission:
That was fundamentally erroneous in a case founded on a joint criminal enterprise. Participation is a critical element of proof of complicity by way of joint criminal enterprise. Indeed, when complicity is put on this basis, the ‘gist’ of the offence is participation. The accused must play an active part. The accused must take a step or steps to further that enterprise.[31]
[31]Reliance was placed on R v Clarke & Johnstone [1986] VR 643, 653; R v Likiardopoulos (2010) 30 VR 654, 668 [59].
Consideration
This ground must be rejected, in our view. As will appear, the directions which the judge gave were entirely consistent with the way the trial of charge 4 had been conducted and, in particular, with what counsel for Watts had identified as being the matters in issue on this charge.
At common law, the obligation of the trial judge to give directions extended to — and only to — the ‘real issues’ in the trial. The position was summarised by this Court in R v AJS, as follows:
Axiomatically, it is the responsibility of the trial judge in every jury trial:
(a) to decide what are the real issues in the case;
(b)to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c) to tell the jury, in the light of the law, what those issues are;
(d) to explain to the jury how the law applies to the facts of the case; and
(e) to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.
These propositions are of long-standing and of high authority. They have often been repeated in this court. If adhered to, they should serve to simplify, rather than complicate, the task of the trial judge. Adherence to them is, of course, essential if the jury is to be adequately equipped for its task.
In the present case, there were two real issues — penetration and intention. It was the obligation of the trial judge to explain the law, and summarise the evidence, so far as relevant to those issues. It was both necessary and sufficient for her to have done so. [32]
[32](2005) 12 VR 563, 577 [55]–[57] (citations omitted).
Since 2013, however, the position has been governed by the provisions of, first, the Jury Directions Act 2013 and, now, the JDA 2015. Under s 65 of the JDA 2015, the judge’s obligation is defined, consistently with the position at common law, as follows:
65 Trial judge’s obligations when summing up
In his or her summing up to the jury, the trial judge—
(a)must explain only so much of the law as is necessary for the jury to determine the issues in the trial; and
(b)must refer the jury to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial but need not summarise the closing addresses of the prosecution and the accused; and
(c)need not give a summary of the evidence but, in accordance with section 66, must identify so much of the evidence as is necessary to assist the jury to determine the issues in the trial; and
(d) may use a combination of oral and written components.[33]
[33]Emphasis added.
Since 2013, trial counsel have been under a statutory obligation to inform the trial judge, at the close of evidence, as to which matters are in issue This obligation extends specifically to the elements of the offence(s) charged. Section 11 of the JDA 2015 provides as follows:
11 Counsel to assist in identification of matters in issue
After the close of all evidence and before the closing address of the prosecution—
(a)the prosecution must inform the trial judge whether it considers that the following matters are open on the evidence and, if so, whether it relies on them—
(i)any alternative offence, including an element of any alternative offence;
(ii)any alternative basis of complicity in the commission of the offence charged and any alternative offence; and
(b)defence counsel must then inform the trial judge whether he or she considers that the following matters are or are not in issue—
(i)each element of the offence charged;
(ii)any defence;
(iii)any alternative offence, including an element of any alternative offence;
(iv)any alternative basis of complicity in the commission of the offence charged and any alternative offence.
The concomitant obligation imposed on counsel is to inform the judge of the directions which counsel wishes the judge to give or (where necessary) not to give.[34] Sections 12 and 14 provide as follows:
12Legal practitioners must request that particular directions be given or not given
After the matters in issue have been identified in accordance with section 11, the prosecution and defence counsel must each request that the trial judge give, or not give, to the jury particular directions in respect of—
(a)the matters in issue; and
(b)the evidence in the trial relevant to the matters in issue.
[34]With the exception of ‘general directions’ (defined under JDA 2015 s 3) and directions that the trial judge is required to give, or not to give, to the jury under any provision of the JDA 2015 or another Act: JDA 2015 s 10.
14Trial judge must give requested directions
(1)The trial judge must give the jury a requested direction unless there are good reasons for not doing so.
(2)In determining whether there are good reasons for not giving a requested direction to the jury, the trial judge must have regard to—
(a) the evidence in the trial; and
(b)the manner in which the prosecution and the accused have conducted their cases, including—
(i)whether the direction concerns a matter not raised or relied on by the accused; and
(ii)whether the direction would involve the jury considering the issues in the trial in a manner that is different from the way in which the accused has presented his or her case.
These provisions are underpinned by the following statements of purpose in s 1 of the JDA 2015:
1Purposes
The purposes of this Act are—
(a)to reduce the complexity of jury directions in criminal trials; and
(b)to simplify and clarify the issues that juries must determine in criminal trials; and
(c)to simplify and clarify the duties of the trial judge in giving jury directions in criminal trials; and
(d)to clarify that it is one of the duties of legal practitioners appearing in criminal trials to assist the trial judge in deciding which jury directions should be given; and
(e)to assist the trial judge to give jury directions in a manner that is as clear, brief, simple and comprehensible as possible;
…
Section 5 of the JDA 2015 is also relevant:
5Guiding principles
…
(2)The Parliament further recognises that it is the responsibility of the trial judge to determine—
(a)the matters in issue in the trial; and
(b)the directions that the trial judge should give to the jury; and
(c)the content of those directions.
(3)The Parliament further recognises that it is one of the duties of legal practitioners appearing in a criminal trial to assist the trial judge in his or her determination of the matters referred to in subsection (2).
(4)It is the intention of the Parliament that a trial judge, in giving directions to a jury in a criminal trial, should—
(a)give directions on only so much of the law as the jury needs to know to determine the issues in the trial; and
(b)avoid using technical legal language wherever possible; and
(c)be as clear, brief, simple and comprehensible as possible.
These provisions recognise the reality that it is trial counsel who, by their conduct of the trial in accordance with their respective instructions, define what is, and what is not, in issue in the trial. For that reason, trial counsel are quite properly expected to take responsibility for identifying the directions which the judge should give, so that the jury are properly equipped to ‘determine the issues in the trial’.[35]
[35]Xypolitos (2014) 44 VR 423, 432 [40].
The present trial proceeded in exactly the way the JDA 2015 requires. Following the conclusion of the evidence, the judge said to the prosecutor and to counsel for Dunn and Watts respectively:
Well the Jury Directions Act requires you to identify, apart from the standard directions, those directions that you wish. … and if there are, apart from that, other directions you want to address me about in terms of their content, then this is your opportunity and you can do it in whatever order suits you.
When counsel for Dunn asked for a direction in relation to expert opinion evidence, the judge pointed out — and counsel confirmed — that the relevant evidence had been unchallenged. Her Honour said:
My understanding is that if there is no challenge to the evidence then it is not necessary to give a direction about it. … one of the beauties of the Jury Directions Act is you don’t have to give directions any more about things that are uncontroversial.
Her Honour’s statement was entirely correct, as can be seen from ss 12 and 14 above. There was no demur from either defence counsel.
First, counsel for Dunn identified a number of specific directions which he wanted the judge to give. Then counsel for Watts identified a series of directions which he wanted the judge to give. They included: directions under ss 21–23 of the JDA 2015, in relation to ‘incriminating conduct’; under s 29, in relation to ‘other misconduct evidence’; and under s 41, in relation to Watts not having given evidence.
Counsel for Watts then said that ‘the joint criminal enterprise direction will have to be given, given the way the Crown put the case with respect to charge 4’. Her Honour had earlier informed the parties that she was proposing to give the jury integrated directions — more commonly referred to as a ‘question trail’ — in reliance on s 67 of the JDA 2015, which provides as follows:
67 Trial judge may give integrated directions
(1)In this section—
integrated directions means directions referred to in subsection (3).
(2)The trial judge may give to the jury directions that contain, or are in the form of, factual questions that address matters that the jury must consider or be satisfied of in order to reach a verdict, including the elements of the offence and any relevant defences.
(3)The trial judge may give integrated directions that combine the factual questions referred to in subsection (2) with—
(a)directions on the evidence and how the evidence is to be assessed; or
(b)references to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial; or
(c)any evidence identified under section 66.
(4)A trial judge who addresses a matter—
(a)by a factual question need not also address the matter in any other direction; or
(b)in integrated directions need not also address the matter in directions that are not integrated directions.
It was agreed that counsel for Watts would make submissions concerning directions on joint criminal enterprise once her Honour had provided the draft questions relating to charge 4. Counsel for Watts had earlier asked for clarification of the Crown case on charge 4, which the prosecutor proceeded to summarise as follows:
[J]oint criminal enterprise, three persons involved, five sacks of phosphorus acid coming down from Queensland, plus the sample. No requirement that Mr [Watts] actually be caught with it, because the joint criminal enterprise was still on foot at the time when [Kurt Thompson] was discovered in possession of it, or two sacks of it.
The prosecutor added, by reference to one intercepted telephone conversation, that there ‘seems to be a willingness’ on Watts’s part to receive actual physical possession of the PA, at least for some time in that period.
The judge then provided counsel with a draft of the jury questions. The part of the draft dealing with charge 4 comprised three questions. As will appear, the third question (concerning the quantity of PA) was deleted with the concurrence of counsel for Watts. The remaining questions were in these terms:
Charge 4
Has the prosecution satisfied you beyond reasonable doubt that
4.1Mr [Watts] was a party to an agreement with [Ralph Thompson] and [Kurt Thompson] to exercise dominion and control over a quantity of phosphorus acid.
If no, Mr [Watts] is not guilty of charge 4
If yes, go to 4.2
4.2pursuant to the agreement one or more of Mr [Watts], [Ralph Thompson] and [Kurt Thompson] exercised dominion and control over a quantity of phosphorus acid, whether by having all or any part of the phosphorus acid in their physical possession, or otherwise by exercising dominion or control over it by arranging or directing where or with whom it was to be stored.
If no, Mr [Watts] is not guilty of charge 4
If yes, Mr [Watts] is guilty of charge 4
In the course of going through the draft questions with counsel, her Honour said that charge 4
was the one that troubled me the most because, a joint criminal enterprise to possess when you’re not actually physically in possession can be easy enough for lawyers to understand, can be conceptually difficult for non-lawyers.
It may not be that easy for lawyers, so and a lot of the technical elements of joint criminal enterprise didn’t seem to be particularly relevant here. So it seemed to me that first of all there had to be an agreement and rather than an agreement to possess — because the, factually — the agreement was to buy it in Queensland and to bring it here and then to use it for whatever purpose they want.
…
So, trying to sort of be true to the legal elements of joint criminal enterprise and possession, the formulation I had come up with was — as in 4.1 Mr [Watts] was a party to an agreement with [Ralph] and [Kurt Thompson] to exercise dominion and control over a quantity of phosphorous acid. That seems to me to be the agreement. … Question 2 is the conduct pursuant to the agreement.[36]
[36]Emphasis added.
It is important to note here her Honour’s concern that jurors might have difficulty in understanding that a person in Watts’s position could be convicted of the possession offence on the basis of joint criminal enterprise even though he was not actually found in possession of the PA. (Counsel for Watts had emphasised in opening, as he did again in closing, that there was no evidence that Watts had ever had physical possession of the PA.) In our view, it was the importance of making that point to the jury which explains her Honour’s example in the charge of the ‘fourth person’ not being ‘physically present at the scene’. In short, the direction was responsive to the way the case had been conducted.
Her Honour then drew attention to a third question which she had included in the draft, concerning the quantity of PA which had been possessed. Her Honour said that she would raise with counsel for Watts whether
if the answer to questions 4.1 and 4.2 is yes, that’s sufficient to prove the charge or whether there is a necessity for the jury to consider as a separate live element, the prescribed quantity bit.
With respect, this process of active engagement between trial judge and counsel is exactly what the JDA 2015 contemplates. Her Honour was here quite specifically asking counsel for Watts to address her on whether a particular aspect of charge 4 was or was not in issue, as s 11(b)(i) requires. Her Honour continued:
I’ll leave that to [counsel for Watts] to make his forensic decision in respect of that. But if he says it’s not an issue, that if they find he was party to the agreement and the agreement was carried out, and the quantity is not in issue, then we can take that question out.
Her Honour then heard submissions from counsel about the draft questions. Counsel for Watts informed her Honour that the third question (about the quantity) could be removed ‘in its entirety’. Counsel then raised a question about the use of the phrase ‘exercised dominion and control’ in proposed question 4.2. Counsel pointed out that, whereas Kurt Thompson was said to have possessed the PA physically, he understood the case against Watts to be that ‘he was exercising dominion or control’ over the PA. Counsel was clearly aware, therefore, that Watts was alleged to have been in possession (ie, had participated in the carrying out of the agreement).
Crucially, counsel for Watts confirmed that he was content with the formulation of questions 4.1 and 4.2. As will now be clear, he had been given every opportunity to specify which matters were in issue, and which directions were required, with respect to the joint criminal enterprise charge and, in particular, to raise any objection to the form of the jury questions. And the transcript confirms that he discharged that responsibility with care and diligence.
If counsel for Watts had had any concern that the questions as drafted by her Honour for charge 4 did not adequately expose for the jury’s consideration the matters he had put in issue on that charge, he could — and undoubtedly would — have raised it. On the contrary, he accepted that the putting of the two questions to the jury, and the giving of an affirmative answer to both questions, would be a proper basis on which the jury could convict his client on that charge.
The position was made even clearer when, before final addresses commenced, the judge provided to the jury the settled version of the question trail. Her Honour said she was giving them
a list of jury questions that will help frame your deliberations and which have been discussed with counsel and will also help them, I think, frame their addresses to you around the questions that ultimately you’re going to have to consider.
…
So what you have here is a five-page document that sets out a series of questions that relate to the elements or essential ingredients of each of the offences, just those elements or essential ingredients that are in issue. So each of these questions will be required to be considered by you, and it’s only if you are satisfied beyond reasonable doubt that the answer is yes to each of the questions in respect of a particular charge, that you would be able to find the particular accused to whom that charge relates guilty of that charge.[37]
[37]Emphasis added.
Her Honour then went through the questions with respect to each of the charges. When she came to charge 4 against Watts, she said to the jury:
So that so far as this phosphorous acid agreement is concerned, it is put by the prosecution on the basis that there was an agreement between the three men for them to in effect bring it in and be jointly the owners of it, in possession of it, although not necessarily any one of them being in physical possession of all five bags at any time after, on the prosecution case, [Kurt Thompson] had brought it into the State from Queensland.
So the first issue is whether there was an agreement to exercise dominion and control over the phosphorous acid with [Ralph] and [Kurt Thompson], and the second question is, has the prosecution satisfied you beyond reasonable doubt that pursuant to the agreement, so that is in accordance with the agreement between the three men, one or more of Mr [Watts], [Ralph] and [Kurt Thompson], exercised dominion or control over a quantity of phosphorous acid, and that is whether by having all or any part of it in their physical possession or otherwise by exercising dominion or control over it by arranging or directing where or with whom it was to be stored.[38]
[38]Emphasis added.
The judge was here using the questions as a means of identifying for the jury ‘those elements or essential ingredients that are in issue’ on charge 4. Unsurprisingly, since he had already accepted the formulation of the questions, counsel for Watts raised no objection.
There followed the final address for the prosecution. In relation to charge 4, the prosecutor said:
[A]s I said in my opening address, two and a half weeks ago, it is not necessary for the police to [have caught] [Allan Watts] in actual possession of the phosphorous acid. What is important for this charge is that [Watts] was a party to an ongoing agreement that the phosphorous acid be possessed in Victoria.
The easiest pathway to a finding of guilt is the fact that [Kurt Thompson]had actual possession of two of the sacks. That fact alone makes out the charge. It has always been the prosecution case that [Watts] and the [Thompsons] wanted to on-sell the phosphorous acid as a commodity to other downstream customers.
Obviously the exact circumstances under which [Arthur Cartledge] got his one sack and [Howard Dunn] got the two remaining sacks is not known to the police. But it is very clear from the intercepted calls that they involved the [Watts–Thompson] agreement.
The prosecutor referred to Dunn’s evidence about Ralph Thompson having turned up at the property with two sacks of PA and asking if they could be stored. Although the prosecution contended that Dunn’s evidence should be rejected, the prosecutor submitted in the alternative that
because [Ralph Thomson] was then still a member of the joint criminal enterprise with his son, [Kurt], and [Watts], then you could arrive at a conclusion that four of the five sacks were still within the dominion and control of members of the three-way joint criminal enterprise, if you accepted that evidence. But in any event, you have seen police evidence. Two sacks in the esky are [Kurt Thompson’s premises]. That makes the charge out, in my submission.
In his final address, counsel for Watts accepted that in the intercepted telephone calls ‘Mr Watts certainly does [discuss] phosphorous acid with [Kurt Thompson]’, but then asked rhetorically:
Where is the evidence that he is part of any agreement to possess it?
Counsel submitted that, in the telephone conversations, Mr Watts appeared not to have any idea what phosphorous acid was. He urged the jury that they
should conclude from that that he isn’t part of any overriding or overarching agreement to bring it into Victoria, to possess it …
What I suggest is clear from the [intercepted] phone calls is that [Kurt Thompson], [Ralph Thompson] and one or more of [Kurt’s] mates are the ones that are bringing it down and that while Mr [Watts] may well know that it’s coming down, there is nothing at all that you can look at and say there is evidence he knows it’s coming down and he is a part of the agreement to bring it into Victoria.
Counsel further submitted that, even if the jury concluded that Watts was a party to an agreement in early December 2013, the post-Christmas telephone calls
show that Mr [Watts’s] involvement has ended and it ends at the time that [Kurt Thompson] breaks down and the trip to Melbourne is cancelled. If, in fact, there is an agreement to bring phosphorous acid down after that date, then Mr [Watts] is certainly not a party to it.
Counsel for Watts then addressed that part of the prosecution case which contended that, because of the relationship between Watts and Dunn, Watts was in control of the phosphorous acid when it was delivered to Dunn. Counsel said:
[Y]ou might expect that if Mr [Watts] was involved in the agreement, the enterprise, you would have heard some phone calls between Mr [Watts] and Mr [Dunn] to do with the phosphorous acid. The prosecution want you to conclude that Mr [Watts] was one of the people exercising dominion or control over the phosphorous acid and it ends up in the shed of a property owned by a person that’s quite clearly close to him. You might expect Mr [Watts] to have mentioned it once or twice on the phone.
Finally, counsel reiterated that there was no evidence of Watts ever having had physical possession of any of the bags of PA. He concluded by submitting that
on the evidence that has been put before you, with respect to the bags of phosphorous acid, you simply cannot be satisfied as to Mr [Watts’s] involvement or he being a party to any agreement to possess the bags. There is simply nothing that suggests he was a party to the agreement at the time it was possessed.
After completing her directions on the law, the judge asked counsel whether there were any exceptions. Counsel for Dunn and Watts both indicated that there were no exceptions. The appeal submission by counsel for Watts (who did not appear at the trial) was that the failure to take exception should not stand in the way of this ground succeeding. According to the written submission:
The failure to take exception cannot have been a forensic choice by counsel, because counsel had made arguments in his closing that must inevitably have fallen on fallow ground, by reason of the errors in the directions. Counsel put a defence to charge 4 to the jury, which relied on legal principles that were not put to the jury.
This submission must also be rejected. As is apparent from the sequence of events set out above, counsel’s failure to take exception was entirely consistent with his confirmation that the jury questions appropriately identified the matters in issue.
There remains for consideration the question whether s 16 of the JDA 2015 had any application. Sections 15 and 16 should be read together. They provide as follows:
15 Trial judge must not give direction that has not been requested
Subject to section 16, the trial judge must not give the jury a direction that has not been requested under section 12.
16 When trial judge must give direction regardless of parties’ views
(1)The trial judge must give the jury a direction if the trial judge considers that there are substantial and compelling reasons for doing so even though the direction has not been requested under section 12.
(2)Before giving a direction under this section, the trial judge must—
(a)inform the prosecution and defence counsel (or, if the accused is unrepresented, the accused) that the trial judge is considering giving the direction; and
(b)invite submissions from the prosecution and defence counsel (or the accused, as the case may be) about the direction and whether there are substantial and compelling reasons for giving the direction.
According to the appeal submission, there were ‘substantial and compelling reasons’ to direct the jury as to the other elements of a joint criminal enterprise offence ‘because those concepts were fundamental aspects of criminal liability and were raised by the applicant’s defence to this charge’. We disagree.
Section 16 of the JDA 2015 is the successor to s 15 of the 2013 Act, which relevantly provided as follows:
(1)Despite sections 13 and 14, the trial judge must give the jury any direction that is necessary to avoid a substantial miscarriage of justice even though—
(a)the direction relates to a matter that defence counsel—
(i)has indicated under section 10 is not in issue; or
(ii)has omitted to indicate under section 10 is in issue; and
(b)the prosecution or defence counsel—
(i)has requested under section 11 that the trial judge not give the direction; or
(ii)has omitted to request under section 11 that the trial judge gave the direction.
In Xypolitos, this Court said of s 15:
The statutory regime reveals, in our view, a discernible intention on the part of the legislature that the obligation [of the trial judge] should be narrower in scope than its common law predecessor. The task that s 15 requires of a trial judge and an appellate court, considering its operation, has been altered. Now, before the obligation arises, the judge must be positively satisfied that the direction in question is necessary to avoid a substantial miscarriage of justice. It requires a state of affirmative satisfaction by the trial judge that the direction is of such central importance to one or more issues in the trial that, if the accused is convicted, a failure to give the direction will have occasioned a miscarriage of justice. If the circumstances, considered objectively, did not require such a conclusion, the failure to give the direction would not have amounted to an error in the trial. The trial judge, applying formulations such as that of Barwick CJ in R v Storey, must be satisfied that in the absence of the direction, the appellant will have lost a ‘real chance of acquittal’, or that had the direction been given ‘a reasonable jury might well have acquitted’.[39]
[39](2014) 44 VR 423, 433 [43] (emphasis in original) (citations omitted).
The language of s 16 of the JDA 2015 is a good deal more stringent than that of its predecessor. This was, plainly enough, a deliberate choice by the legislature. As Tate JA said in Dunn (a pseudonym) v The Queen:
The ‘substantial and compelling reasons’ test was introduced in order to simplify and clarify the circumstances in which a trial judge might give a jury direction, notwithstanding that neither party sought one. The new provision requires that the parties have an opportunity to provide submissions on why a direction should or should not be given thereby ensuring that ‘appropriate weight is given to the forensic decision making of the parties’, and as a safeguard to protect the rights of the accused. It was anticipated that a judge would exercise the power under the new test ‘in very limited circumstances, for example, if counsel is incompetent.’ There is no suggestion of that type here.[40]
[40][2017] VSCA 95 [22] (citations omitted).
The starting point in applying s 16 in the present case is the consideration that, as the JDA 2015 requires, defence counsel identified for the judge which of the elements of the joint criminal enterprise offence were in issue, and requested that directions be given as to those matters. Trial counsel’s agreement as to the identification of the relevant issues is a powerful indicator that those were, in truth, the relevant issues for the jury’s determination. Quite properly, it was no part of the appeal submission that counsel for Watts had been incompetent.
Section 16 is, of course, a qualification to the statutory prohibition imposed by s 15 against the giving of a direction which has not been requested by counsel. The judge’s obligation to give a direction under s 16(1) arises if — and only if — he or she considers that
there are substantial and compelling reasons for doing so even though the direction has not been requested under s 12.[41]
[41]Emphasis added.
In our view, this language reinforces in emphatic terms the policy which underpins ss 11, 12, 14 and 15 of the JDA 2015, namely, that it is for trial counsel to determine how the case is presented to the jury and to identify which directions are required. Where, as here, counsel have discharged their obligations under ss 11 and 12 with obvious care, it is not ordinarily for the judge to override the forensic judgments which underpin the identification of the matters in issue and the requests for directions.
No occasion arises on this appeal to seek to define the circumstances in which a judge would (or should) consider it necessary to give a direction which has not been requested. The existence of ‘substantial and compelling’ circumstances is a question for the trial judge to consider and determine having regard to the manner in which the trial has been conducted. Suffice it to say that there was nothing about the way this case was conducted which should have suggested to the judge that she needed to go behind, or beyond, what counsel for Watts had requested.
The point is well illustrated by considering the two aspects of defence counsel’s final address which were said on the appeal to have necessitated the giving of additional directions.[42] The first argument was that the alleged agreement was no longer on foot by the time the PA was brought to Victoria, and that Watts had by that time indicated that he ‘didn’t want anything to do with it’. This submission could have justified a direction to the jury about the need for the agreement to remain on foot at the time of delivery. On the other hand, as the respondent pointed out in its written submissions, question 4.2 of the question trail made plain the requirement that the agreement be on foot. That question asked whether dominion and control had been exercised ‘pursuant to the agreement’. This requirement was also emphasised in the judge’s charge, when she stated that dominion or control had to be exercised ‘pursuant to the agreement, so that is in accordance with the agreement between the three men’. In our opinion, there was no reason why the judge ought to have considered that ‘substantial and compelling reasons’ existed requiring any different treatment of the issue.
[42]See [42]–[43] above.
The second argument was that Watts had not been shown to have handled, transported or sold the bags, or ever had possession of them. It was suggested that this meant that Watts had not participated in the joint criminal enterprise. The argument before us was that a direction as to that element of the offence was required. Again, a direction about that matter could have been given. But the real evidence of participation by Watts was his involvement in the phone calls. The area of controversy was whether it could be inferred from the transcripts of those calls that Watts was party to the alleged agreement and, by taking part in the phone calls, had participated in it.[43] The calls went beyond the mere formation of an agreement and extended to plans for its execution. In those circumstances, participation was not in truth a discrete issue. Moreover, the fact that Watts had not been found in possession at any time was not critical, as the framing of question 4.2 made explicit. Again, there were no ‘substantial and compelling reasons’ why the judge ought to have given further directions on the matter.
[43]Counsel for the applicant conceded that some of the phone calls were capable of being relied on as evidence of participation; he did not concede that they were such evidence.
Leave to appeal should be granted but the appeal must be dismissed.
C. WATTS SENTENCE APPEAL
As noted earlier, Watts was sentenced to four years’ imprisonment on charge 4 (possession of PA) and 12 months’ imprisonment on charge 5 (trafficking). He seeks leave to appeal against the sentence on charge 4 on two grounds, namely, that the sentence offended the principle of parity with his co-accused, and that the sentence was manifestly excessive.
The other participants in the joint criminal enterprise to possess the PA, Ralph Thompson and Kurt Thompson, were each sentenced (by a different judge) to a two-year community correction order (‘CCO’), with a condition requiring 300 hours of community work in respect of Ralph Thompson and 100 hours of community work in respect of Kurt Thompson. Unlike Watts, both of the co-offenders had pleaded guilty to possessing a precursor chemical. They also pleaded guilty to one charge of trafficking in methylamphetamine.
The submission on the parity ground was that it was not reasonably open to the judge to sentence Watts so much more heavily than his co-offenders, notwithstanding that there were material differences between their respective positions. The Crown submitted in response that there were several ‘stark’ differences which adequately explained the sentencing differential, as follows:
·Watts had run a contested trial, whereas each of the Thompsons had entered an early plea of guilty;
·Watts had an extensive criminal history, including prior convictions for conspiracy to traffick, possession of substances with intent to manufacture methylamphetamine; and other offences involving violence, dishonesty, driving and drugs. The Thompsons, on the other hand, had ‘far less extensive’ criminal histories; and
·Watts’s prospects of rehabilitation were rated as poor.
Furthermore, as the Crown pointed out, the judge had expressed her own reservations as to whether a CCO was in fact an adequate sentence for the Thompsons on the possession charge. Parity is, of course, a powerful consideration but it does not oblige a judge to impose a sentence which she considers inadequate in all the circumstances.[44]
[44]Taleb v The Queen (2014) 42 VR 666, 677 [48].
The Crown accepted, however, that the complaint of disparity in sentencing between Watts and Dunn was made good. The Crown conceded that, although there was no commonality of charge between them, Watts should be treated ‘as a relevant participant in the same criminal enterprise (but playing a different role)’. Whereas Dunn was sentenced to two years’ imprisonment on the charge of trafficking in a commercial quantity, and three years and six months’ imprisonment on the charge of possessing substances, materials and equipment for trafficking, Watts was sentenced to four years’ imprisonment on charge 4, which carried a much lower maximum penalty (five years) than either of the charges for which Dunn was sentenced (25 years and 10 years respectively).
According to the Crown’s written case:
[T]here appears to be no logical explanation for [Watts] receiving a lengthier sentence than [Dunn] in light of the large volume of drug-related materials found at [Dunn’s] premises (including two of the bags of the precursor chemical the subject of charge 4) and the discovery of a commercial quantity of pseudoephedrine. Such offences carried a significantly higher maximum penalty than that fixed for charge 4 and [Dunn] fell to be sentenced for repetitious conduct at the same property.
In our view, the concession was properly made and should be accepted. At the same time, we respectfully share the sentencing judge’s reservation about the adequacy of a CCO as the sentence for the possession offence in the case of the Thompsons.
Having regard to the sentences respectively imposed on Dunn and on the Thompsons, we would resentence Watts on charge 4 to two years and six months’ imprisonment. We would re-impose the sentence of 12 months’ imprisonment on the trafficking charge. We would direct that three months of the latter sentence be served cumulatively on the sentence on the possession charge, giving a total effective sentence of two years and nine months’ imprisonment. We would fix a non-parole period of 18 months’ imprisonment.
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