Franze v R

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2013 0158

ADRIAN FRANZE

Applicant

THE QUEEN

Respondent

---

JUDGES:	MAXWELL P, NEAVE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	7 November 2014
DATE OF JUDGMENT:	22 December 2014
MEDIUM NEUTRAL CITATION:	[2014] VSCA 352
JUDGMENT APPEALED FROM:	R v Franze (Unreported, Supreme Court of Victoria, Kaye J, 3 May 2013 (Conviction)) R v Franze (Ruling No 1) (2013) 37 VR 101; [2013] VSC 229

---

CRIMINAL LAW – Appeal – Conviction – Attempt – Joint criminal liability – Applicant convicted of attempted possession of unlawfully imported drugs – Alleged agreement to possess – Attempt to possess failed because of police interception of drugs – Whether applicant could be liable for joint attempt – Position at common law considered – Whether liability excluded by statute – No intention to depart from common law position – Application refused – Criminal Code Act 1995 ss 11.1, 11.2A, 307.5.

---

APPEARANCES:	Counsel	Solicitors
For the Applicant:	Ms C A Boston	Melasecca Kelly & Zayler
For the Crown:	Mr O P Holdenson QC with Mr D D Gurvich	Director of Public Prosecutions (Cth)

MAXWELL P
NEAVE JA
WEINBERG JA:

Summary

This appeal raises an important question of law concerning the relationship, in the Criminal Code Act 1995 (Cth) ('the Code’), between the doctrines of attempt and joint criminal liability. The applicant was convicted of attempted possession of unlawfully imported drugs. The Crown case was that he was a party to an agreement to commit the possession offence and that there was an unsuccessful attempt to commit the agreed offence.

The applicant’s contention is that, by contrast with the position at common law, the Code expressly precludes the attribution of criminal liability for such an attempt. When the Code is properly construed, it is said, the joint liability provisions apply only to a completed offence.

For reasons which follow, we have concluded that this contention is unsound and that the legislature did not intend to narrow the scope of joint criminal liability in this way. Leave to appeal must therefore be refused.

The convictions

The applicant, Adrian Franze, stood trial in the Supreme Court on two charges of having attempted, contrary to s 11.1(1) of the Code, to possess a commercial quantity of (in the case of charge 1) methylamphetamine and (in the case of charge 2) cocaine. He was convicted on both charges and sentenced to a total effective term of 17 years’ imprisonment. A non-parole period of 13 years was fixed.

A co-offender, Erol Ramazanoglu, pleaded guilty to two identical charges, as well as several other drug related matters. Another co-offender, and a central figure in the entire criminal enterprise, Anthony Sitar, fled. He has not been able to be located.

The Crown case was that the applicant, together with Sitar and Ramazanoglu, and as part of a joint criminal enterprise, attempted to possess 133.3 kilograms of methylamphetamine and 14.1 kilograms of cocaine. The drugs had been imported into this country from Mexico, concealed in bottles of beer. In relation to methylamphetamine, a commercial quantity is 0.75 kilograms, and in relation to cocaine, 2 kilograms.

The reason why the applicant and Ramazanoglu were each charged with attempted possession of these drugs, rather than the completed offences, was that the Australian Federal Police (‘AFP’) had detected the drugs upon arrival. The drugs, which had been in solution, were removed, and replaced with plain water.

The applicant seeks leave to appeal against conviction upon the following grounds:

1.The verdicts are unreasonable (or, alternatively, a substantial miscarriage of justice has occurred) because it was not open to a jury, properly instructed, to be satisfied beyond reasonable doubt that the applicant committed the offences charged on the basis alleged, that of joint criminal enterprise pursuant to s 11.2A of the Criminal Code Act 1995 (Cth) (the ‘Code’), as that section cannot establish criminal responsibility for an offence of attempt contrary to s 11.1(1) of the Code.
2.The trial judge erred in failing to direct the jury that, in order to convict the applicant, they had to be satisfied beyond reasonable doubt that he knew or believed that the methamphetamine (Charge 1) and cocaine (Charge 2) exceeded the applicable commercial quantity threshold.

Circumstances surrounding the offending

The applicant, together with Sitar, and a man named Vincent Tassoni, were joint proprietors of licensed premises known as the ‘Destino Latin Bar’, in Chapel Street, Windsor. It appears that this was a wine bar specialising in Mexican beverages of various kinds. The applicant and Sitar also operated a warehouse located in Westside Drive, Laverton North.

Sitar was the sole director of a company known as AAMA Pacific Pty Ltd (‘AAMA Pacific’). The applicant was a half owner of that business. AAMA Pacific had been set up to enable Sitar to obtain a wholesale licence to import beer from overseas. It began importing alcohol into Australia in 2009.

Between 9 August and 26 September 2011, there was a regular exchange of emails between Sitar and a Phillip Wardle of Hellmann Worldwide Logistics (‘HWL’). That company, through its Australian offshoot, handled air and sea freight, and customs clearance. The emails concerned the importation of a particular brand of beer from Mexico known as ‘Cucapa’.

On 29 September 2011, customs officers received an importation report for a shipping container on board the vessel ‘Manet’. The consignor was Eujo Company Importation in Mexico, and the consignee was AAMA Pacific.

On 11 October 2011, the Manet arrived at the Port of Melbourne, having travelled to this country from Mexico.

On 14 October 2011, Wardle sent an email to Sitar regarding the shipment. He also had a telephone conversation with the applicant concerning that same matter. Wardle noted that the applicant and Sitar did not appear to be communicating with each other.

That same day, customs officers searched the shipping container. They found within it eight pallets of Cucapa beer, in four different varieties. Each pallet contained 84 boxes, making a total of 672 boxes. Each box contained 24 bottles, save one, which contained only 20. This made a total of 16,124 bottles. Preliminary testing indicated that methylamphetamine and cocaine were present in 1,061 of the 1,100 bottles, contained within 46 of the 84 boxes. The AFP officers filled 1,100 similar ‘substitute’ bottles with water, attached fresh Cucapa labels to them, and put them in the original boxes. The boxes were then placed back onto the pallets and into the shipping container.

On 18 October 2011, the container was transported back to the Port of Melbourne. On that same day, Sitar twice telephoned HWL, at 11.14am and 12.39pm. On the following day, he transferred $1,500, through Western Union, to a bank account in Mexico.

On 21 October 2011, at about 9.48am, the shipping container was unloaded at HWL, in Tullamarine. At 10.08am, an employee of HWL telephoned the applicant, and discussed having the consignment delivered on 24 October 2011. A few moments later, the applicant called Wardle at HWL. Shortly afterwards, Sitar emailed Wardle, and requested that the consignment be delivered to the Laverton North warehouse on 24 October 2011.

Wardle and Sitar then exchanged various emails regarding the delivery of the shipment. Wardle also sent a further two emails to the same email address, but directed them specifically to ‘Adrian’ (the applicant’s first name). During the course of the trial, Wardle said that he might have typed in the wrong name, given that he had dealt, for the most part, with Sitar, and had never met the applicant. At 3.49pm that day, Sitar responded to one of the emails that had been addressed to the applicant.

Over the following few days, HWL repacked the eight pallets of beer onto 15 pallets.

On 22 October 2011 at 12.20pm, the applicant discussed with his wife the need for her to have surgery performed on her knee as soon as possible. At trial, the defence contended that this conduct was not consistent with that of a man expecting an imminent, large drug shipment.

At 9.29am on Monday 24 October 2011, the applicant arrived at the Laverton North warehouse. About 20 minutes later, the applicant and Sitar left the warehouse, and drove to HWL in Tullamarine, arriving there at about 10.20am. Sitar went inside and gave Wardle a cheque for $11,411.36, as payment for the import duty on the beer. While that was happening, the applicant remained in the car parked outside.

At about 11.53am, the applicant and Sitar arrived at the Destino Latin Bar. The applicant telephoned the manager, and Ramazanoglu’s father, Michael Ramaz. Ramaz told the applicant that he would not be at the Bar for another hour. At 12.12pm, an email, which purported to be from Ramaz, but which spelt his name incorrectly, was sent from the Bar’s email account to AAMA Pacific. At trial, both the applicant and an employee of AAMA Pacific gave evidence that he was not good with computers. The applicant said that he had not sent the email, and had not known that Sitar was sending it.

The applicant and Sitar then returned to the Laverton North warehouse, arriving there at about 12.37pm. Later that afternoon, at about 3.30pm, an HWL employee called Sitar’s mobile phone, and the applicant answered. The employee told him the delivery would arrive at about 5pm that afternoon.

The applicant had several conversations with his wife over the next hour or two indicating that he was waiting for a delivery. At 5.45pm, the reconstituted consignment was delivered to the warehouse. The applicant gave evidence that he was annoyed at the fact that what were supposed to be 8 pallets were now 15, and that he had to borrow some pallets from a neighbour in order to give them to the driver of the truck, as replacements for those left behind. None of the pallets were opened that evening. The applicant and Sitar both left the warehouse at 6.06pm.

At about 7am on the following morning, 25 October 2011, the applicant and Sitar returned to the warehouse. The applicant said that he spent the first 20 minutes or so sorting out the Cucapas because the various varieties had been mixed up. He then moved about 420 boxes of Coronas onto different pallets so that he could replace those that he had borrowed from his neighbour the previous evening. During this time, the applicant said, he believed that Sitar was loading boxes of Cucapa beer into the van for a particular customer of theirs, a man named ‘John’, who was associated with a business known as ‘Mexican Liquor Imports’.

Parts of the conversation between the applicant and Sitar were recorded by a listening device that had been planted in the vicinity of the consignment. There was background noise suggesting that bottles were being moved. However, the recording was of poor quality, and did not pick up everything that was being said. It recorded no reference to drugs.

Nonetheless, according to the Crown, the applicant could be heard saying ‘I don’t know, I think I fucked this one’, and later ‘I reckon we fucking blame Erol’. His evidence at trial was that the first remark related to him not having properly interlocked the boxes on the pallet, and the second was a reference to a scuff mark on the van. The Crown also relied upon the applicant later saying ‘Get your bum bag, I’m not driving this around’, as well as ‘what if they ask what’s in the thing’, and ‘the whole thing I don’t want to drive over there’. The applicant’s explanation for these statements was that he had not wanted to drive the van to Altona Gate Shopping Centre because it was not safe to do so, as the bottles might be damaged in the underground car park. He did not recall having said ‘what if they ask what’s in the thing’, and claimed that he could not hear those words on the recording.

At 9.26am, the applicant and Sitar drove to Altona Gate Shopping Centre in the applicant’s car. The applicant said that while at the Altona Gate Shopping Centre, Sitar had told him that he could not get hold of ‘John’, in order to deliver the beer, and that he had, accordingly, decided to take the bottles elsewhere. He said that Sitar told him that he would take care of the delivery, and that the applicant could go to the Destino Latin Bar, to work.

The applicant and Sitar returned to Laverton North at about 10.10am. At 10.19am, they left in a Hyundai van which was loaded with the 46 boxes containing the substitute bottles. They drove to a unit in Fairbairn Road, Sunshine West, with which Sitar was connected. The boxes containing the substitute bottles were left at that address.

The applicant then dropped Sitar off in Sanderson Street, Yarraville. He drove around the local streets, ostensibly, according to him, looking for his wife, who he believed to be walking their dog. He returned briefly to the Sanderson Street address, leaving again at 11.26am. His evidence was that, while he was looking for his wife, he realised that he had left his phone at Laverton North.

The applicant then drove to the Destino Latin Bar, arriving there at about midday. Meanwhile, Ramazanoglu was at Fairbairn Road. Numerous telephone calls ensued between Ramazanoglu and Sitar. The applicant did not speak with either man during that period.

According to the applicant, Sitar arrived at the Bar at about 2pm, and asked the applicant to accompany him. In the van, he told the applicant that he was in trouble, and that he had ‘organised some coke’ to cover a debt of $100,000. He added that Ramazanoglu was assisting him. Sitar then drove to the Quest apartments in Brighton, telling the applicant that he, Sitar, could not go home because of police activity. At the Quest apartments, Sitar explained the situation in more detail. He said that he owed the money to a bookmaker who had arranged for some debt collectors to pressure him for repayment. These men had said that they would ‘pick up the tab’ if he organised a drug shipment for them.

During the afternoon and evening of 25 October 2011, a number of messages were sent from, and received by, a mobile phone that had been registered under a false name, and was first activated and used that afternoon (the ‘x523 phone’). The messages were between that phone, Sitar, Ramazanoglu and another man called Eric Ferdusi. There was an issue at trial as to whether the applicant was in possession of the x523 phone at the time these messages were sent.

The applicant’s evidence was that, at about 6pm, Ramazanoglu arrived at the Quest apartments, and gave the applicant the x523 phone. Ramazanoglu told the applicant that he and Sitar had arranged for Ramazanoglu and Ferdusi to go to Fairbairn Road to empty the bottles down the drain. Before Ramazanoglu left, the applicant asked him to go past the applicant’s house, and check on the applicant’s wife. He asked if she could sleep at Ramazanoglu’s house that night. He said that he felt sorry for Sitar and Ramazanoglu, and did not want them to get caught.

In the early hours of 26 October 2011, a number of SMS messages were exchanged between the applicant, Ramazanoglu, and Ferdusi. In one of those messages, the applicant told Ramazanoglu not to go to Fairbairn Road with ‘hardware’.

Ramazanoglu and Ferdusi then took 43 of the boxes from Fairbairn Road to Ramazanoglu’s home in Roberts Road, Yarraville, leaving only three boxes behind. The applicant’s evidence was that he would never have suggested that drugs be taken to Ramazanoglu’s home, where he knew his wife was sleeping.

A listening device recorded the conversations and movements at Ramazanoglu’s Yarraville home. The sounds that were recorded included Ramazanoglu opening boxes, apparently pouring out liquids, and discussing how to dispose of the bottles.

Later that morning, from about 8.40am the applicant tried repeatedly to call Ramazanoglu. This culminated with an SMS which he sent whereby he wrote ‘Everything ok bro?’. At about 9.30am, there was a telephone conversation between the applicant and Ramazanoglu. The listening device picked up Ramazanoglu’s side of the conversation.

The Crown case was that during the course of these communications, the applicant exhibited concern about what was happening to the bottles thought to contain drugs. The defence case was that the applicant had merely been checking on the welfare of his wife, who was still at Ramazanoglu’s home, and also discussing the danger of Ramazanoglu being caught.

The applicant later sent a message to Ramazanoglu saying ‘thanks heaps bro’. In his evidence, he explained that this was to thank Ramazanoglu for having taken his wife to the hospital. He said that he left the Quest apartments in a taxi at about 12.30pm, and went directly to the Box Hill hospital. He said that, at the hospital, he had a discussion with Ramazanoglu. He prepared a list of things for Ramazanoglu to do, which they came up with together.

Throughout the day, the applicant and Sitar exchanged a number of text messages. The content of those messages concerned passports. The applicant’s evidence was that he was thinking of ways to help Sitar obtain a passport so that he could evade capture.

That evening at about 6.10pm, AFP officers entered Ramazanoglu’s Yarraville home, and arrested him. They located 39 whole boxes and one cut-up box of Cucapa beer, and 38 empty Cucapa beer bottles. Subsequent forensic analysis revealed that these boxes, and bottles, were all from the batch that had been substituted. During the course of their search, the police seized a note, written by the applicant, a typed version of which was tendered as an exhibit at the trial. A mobile telephone was also seized. Stored under the letter ‘F’, in that phone, was the telephone number for the x523 phone, as well as a number for Sitar’s mobile phone.

Police also searched the Fairbairn Road address and the Laverton North warehouse. At Fairbairn Road, they located the three boxes that had been left behind. At Laverton North, they located the 626 boxes from the consignment which had never contained drugs, as well as 328 additional boxes of Cucapa beer which were not from that consignment.

A day later, the applicant turned himself in to police.

The defence case

The defence case was that, although Sitar and Ramazanoglu had plainly arranged to import the drugs, and obviously intended to take possession of them, the applicant was never, at any stage, a party to that specific arrangement. His case was that he knew nothing about any of these matters until 26 October 2011, when Sitar first told him what he had been up to. Thereafter, according to the applicant, whatever he did demonstrated that he had not been part of the agreement between Sitar and Ramazanoglu. His aim had merely been to assist them to avoid capture. In that sense, he was an accessory after the fact, but not a party to the importation or attempted possession of the drugs.

In accordance with the way in which the trial was conducted, the judge identified, as the critical question for the jury, whether they were satisfied that the applicant had, at some stage prior to 25 October 2011, entered into an arrangement of the kind alleged by the Crown. That is, the jury had to be satisfied that the applicant was party to an agreement with Sitar and Ramazanoglu to take possession of the drugs (no doubt with a view to their being sold).

Ground 1

The applicant submits that it was not open to a jury, properly instructed, to be satisfied beyond reasonable doubt that he committed either of the offences charged on the basis of joint criminal enterprise.The foundation for that submission is that s 11.2A, which creates that form of complicity under the Code, cannot be combined with another form of inchoate liability, namely attempt, contrary to s 11.1(1) of the Code.

It is first necessary to set out the relevant provisions of the Code. Part 2.4 is headed ‘Extensions of criminal responsibility’. Division 11 of that part includes s 11.1 (‘Attempt’), s 11.2 (‘Complicity and common purpose’), and s 11.2A (‘Joint commission’).

Relevantly, these sections provide as follows:

11.1 Attempt
(1)A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
…
(3)For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

…
(6A)Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.
(7)It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud).
11.2Complicity and common purpose
(1)A person who aids, abets, counsels or procures the commission of an offence by another person is taken to have committed that offence and is punishable accordingly.
…
11.2AJoint commission
(1)If:
(a)a person and at least one other party enter into an agreement to commit an offence; and
(b)either:
(i)an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or
(ii)an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));

the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.

Offence committed in accordance with the agreement

(2) An offence is committed in accordance with the agreement if:
(a)the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b)to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and
(c)to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.
Offence committed in the course of carrying out the agreement

(3)An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4)For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
…
Person may be found guilty even if another party not prosecuted etc.
(7)A person may be found guilty of an offence because of the operation of this section even if:
(a)another party to the agreement has not been prosecuted or has not been found guilty; or
(b)the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.
Special liability provisions apply

(8)Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.[1]

[1]Emphasis original.

Part 9.1 of the Code is headed ‘Serious drug offences’. That part includes s 307.5, which provides:

307.5Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants
(1)A person commits an offence if:
(a)the person possesses a substance; and

(b) the substance was unlawfully imported; and
(c)the substance is a border controlled drug or border controlled plant; and
(d)the quantity possessed is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both

(2) Absolute liability applies to paragraphs (1)(b) and (d).
(3) The fault element for paragraph (1)(c) is recklessness.
(4)Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.
Note:A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).[2]

[2]Emphasis original.

The point raised by this ground was not addressed at trial. That, in itself, is not without significance. The applicant was represented by senior and junior counsel at trial. Had the defence taken this point, and persuaded the trial judge that it might conceivably have had some merit, any potential difficulty could have been overcome by the simple expedient of amending the charge from one of attempted possession to one of conspiracy to possess. An amendment of that kind might have necessitated an adjournment of the trial. But that would have been preferable to simply allowing the case to proceed, and then raising this point on appeal for the first time.

The question is of considerable importance. The applicant’s written case, which is lengthy and complex, devotes almost all of its attention to ground 1. The oral argument before this Court occupied an entire day. The major part of that argument was devoted to ground 1. It need hardly be said that points such as this, if they are thought to have possible merit, should be identified well before trial.

Of course, if the point is good, the appeal must succeed. Accordingly, it is necessary to consider each of the arguments put forward in support of this new contention. First, however, we must examine the position as it stood at common law, before the enactment of the Code. As will appear, the common law recognised, as a species of liability, joint criminal enterprise when combined with attempt. It will therefore be necessary to consider whether the Code itself has extinguished that form of criminal responsibility.

The position at common law

There were always difficulties at common law with the question of whether one could be held criminally responsible for what might be regarded as a preparatory offence, such as attempt, in combination with another preparatory offence, such as conspiracy. Indeed, in its earliest forms, conspiracy was regarded as closely analogous to attempt, and there was a tendency to regard it as a form of attempt to commit a wrong.[3]
[3]See generally J W Cecil Turner, Russell on Crime (Stevens & Sons Limited, 11^th ed, 1958) 214.

Over time, it became tolerably clear that there was no offence known to the law of attempting to engage in a joint criminal enterprise, still less of attempted conspiracy. However, it does not necessarily follow that persons who engage in a joint criminal enterprise to commit an offence cannot be convicted of jointly attempting to commit that offence.[4]
[4]See below [58] and following.

The question whether one could be complicit in an attempt (at least by way of aiding, abetting, counselling or procuring) has been the subject of academic comment by no less an authority than Professor J C Smith. In an essay entitled ‘Secondary participation and inchoate offences’, published in 1981 as part of a collection in memory of Sir Rupert Cross, Professor Smith wrote:

it is clear that a person may be convicted of aiding, abetting, counselling or procuring an attempt. The general rule is that the liability of the secondary party depends on the commission of the crime, or the type of crime, within his contemplation. Until such a crime is committed he is guilty of no offence. He is held responsible for the acts of the principal which constitute the complete crime. If he is responsible for the whole, he must also be responsible for the parts of which the whole is composed. It is then right in principle that, when the principal has taken such steps towards the commission of the contemplated offence as amount to an attempt, the secondary party should be liable to conviction for the attempt.[5]

[5]J C Smith, ‘Secondary participation and inchoate Offences’ in Crime, Proof & Punishment – Essays in Memory of Sir Rupert Cross (Butterworths, 1981) 26-7.

Professor Smith confined his attention, in that passage, to aiding, abetting, counselling or procuring. He said nothing about other forms of complicity, such as joint criminal enterprise, acting in concert, or common purpose. Nonetheless, there seems no reason in principle why one form of complicity should be able to be combined with attempt, but not others.

The authorities seem to bear this out. In S v Robinson,[6] A, B, C and D agreed amongst themselves that C should kill D in order to obtain the money for which D’s life was insured. D, of course, was party to this arrangement. In the absence of A and B, C produced the loaded gun to shoot D in pursuance of the conspiracy. D, however, had second thoughts and, at that stage, withdrew his consent. C, nonetheless, shot and killed him.
[6]1968 (1) SA 666.

It was held by majority,[7] in the appellate division of the Supreme Court of South Africa, that A and B were not liable for murder. That was because A and B neither intended that, nor were reckless as to whether, C should kill D without his consent. The killing in those circumstances was an unauthorised act, outside the scope of the agreement that had been reached.
[7]Steyn CJ and Potgieter JA; Holmes JA dissenting.

A and B were, however, held to be responsible for everything done by C up to the moment when D withdrew his consent. On that basis, analytically speaking, C had committed the offence of attempt to murder the moment he produced the murder weapon with intent to shoot D.[8] A and B were therefore liable to be convicted, on the basis of common purpose, of attempted murder.
[8]C was in fact convicted of the offence of murder with extenuating circumstances. However, for the reasons outlined above, it was held that A and B could not be convicted of that offence, but only the lesser offence of attempt.

It seems to have been long accepted that an accused can be convicted of aiding and abetting an attempt, notwithstanding the logical difficulties with combining these two concepts. In R v Hapgood,[9] H was charged with rape, and W with aiding and abetting that offence. The jury acquitted H of rape, but convicted him, instead, of the misdemeanour of attempted rape. W was convicted of aiding and abetting H in that attempt.
[9](1870) LR 1 CCR 221 (‘Hapgood’).

It was argued before the Court for Crown Cases Reserved that H’s acquittal on the charge of rape meant that W had to be acquitted entirely. In essence, it was submitted that one could not be complicit in an attempted crime. That contention was rejected, and the conviction was upheld.

Even after the enactment, in England, of the Criminal Attempts Act 1981 (UK) (‘Attempts Act’), the law regarding the relationship between aiding and abetting and attempt has remained essentially the same as at common law.

In R v Dunnington,[10] the appellant was the driver of a car which was to be used to escape from the scene of a robbery intended to be carried out by his two accomplices. The robbery was unsuccessful. All three were charged with attempted robbery, contrary to s 1 of the Attempts Act. As would be expected, the appellant was indicted as a principal, though the Crown readily conceded that the case against him was that he was an aider and abettor.
[10][1984] QB 472 (‘Dunnington’).

It was submitted on his behalf, much as has been submitted on the applicant’s behalf in the matter before this Court, that the effect (perhaps unintended) of the relevant provisions of the Attempts Act was to remove from criminal liability any acts which amounted to aiding and abetting an attempted crime.

The Court of Appeal rejected that submission and dismissed the appeal against conviction. It referred to s 1(4), upon which the appellant seemed to base his entire case. That subsection relevantly provided:

This section [which creates the offence of attempt] applies to any offence which, if it were completed, would be triable in England and Wales as an indictable offence, other than … aiding, abetting, counselling, procuring, or suborning the commission of an offence.

The trial judge had construed that section against the background of the common law. He concluded that, although it precluded criminal liability for an attempt to aid and abet, it did not have the converse effect of precluding liability for aiding and abetting an attempt.

The Court of Appeal approved that analysis. It noted that the appellant had not been charged with attempting to aid and abet but rather with aiding and abetting an attempt. He was in fact an aider and abettor, and had only been charged as a principal for procedural reasons. In that regard, he had done everything that he possibly could to facilitate the commission of the robbery, and there was no reason in principle why he should not be convicted of having aided and abetted his two cohorts in what turned out to be an unsuccessful attempt to commit the full offence.

Their Lordships said:

It is to be observed at the outset that if the construction contended for by the appellant is correct, then section 1 of the Act, which was intended to clarify and define the offence of attempting to commit a crime, has relieved of criminal responsibility all accessories or secondary parties in the commission of crimes which are thwarted … [I]t can … be confidently stated that such a result was not the intention of Parliament and we would only give effect to such a construction if the words permitted of no other sensible meaning.[11]

[11]Ibid 475. See also R v Bentley [1923] 1 KB 403, where the Court of Criminal Appeal held that a conviction for incitement to commit a preparatory offence, namely, procuring boys for immoral purposes, could stand.

The position in New Zealand is essentially the same. In R v Baker,[12] the Court of Appeal, on a case reserved, held that a person who encourages another to commit a particular offence, which is not, for whatever reason, ultimately able to be carried out, can be convicted of an attempt on the basis that he counselled or procured the commission of that particular offence.[13]
[12](1909) 28 NZLR 536.
[13]To the same effect is the decision of the New Zealand Court of Appeal in R v Barrington [1942] NZLR 502, in which the accused was convicted of an attempt to publish a subversive statement, the actual publication of which was to be carried out by another. The basis upon which the conviction stood was effectively one of counselling or procuring.

Professor Glanville Williams commented extensively upon this subject.[14] He noted that American courts had held that there could be a conviction for attempted possession, and that in some of those cases, the conviction could rest upon principles of complicity. Indeed, he went on to say that (presumably) a person could be convicted of attempting to conspire, a somewhat dubious proposition. In his view, there was only one indictable crime of intention that could not be attempted, and that was an attempt itself.[15]
[14]Glanville Williams, Criminal Law – The General Part (Stevens & Sons Limited, 2^nd ed, 1961).
[15]Ibid 615.

Professor Williams made the point that on an indictment against D for committing a crime, and against E for aiding and abetting the commission of that crime, if D were properly convicted of an attempt only, E could be convicted for aiding and abetting him.[16] He cited Hapgood,[17] to which we have previously referred, and R v Waudby[18] in support of that conclusion.
[16]Ibid 405.
[17](1870) LR 1 CCR 221.
[18][1895] 2 QB 482. The case is not strictly in point. It turns upon the archaic notion that an offender who is alleged to have aided and abetted the commission of a felony cannot thereafter, if the primary offender is convicted of the lesser offence of a misdemeanour, have aided and abetted that lesser offence.

In his later work, Textbook of Criminal Law, [19] Professor Williams accepted that in England, by statute, a person cannot be convicted of incitement to conspire, or attempt to conspire. He said that the rationale for that limitation, which he found unconvincing, was that to permit such forms of criminal liability to be maintained would ‘push liability too far back, to a stage where there is no agreement to commit the offence’.[20]
[19]Glanville Williams, Textbook of Criminal Law (Stevens & Sons Limited, 2^nd ed, 1983).
[20]Ibid 424.

In relation to the converse situation, Professor Williams simply stated, baldly, that there could be a conspiracy to incite.[21] The tenor of his analysis is plain. He saw no reason why an accused charged with an attempt should not be convicted on the basis of ordinary principles of complicity.
[21]Ibid 437.

In an Australian context, Peter Gillies, in his text, The Law of Criminal Complicity, says:

At an abstract level commission of the offence of attempt as a principal offender and accessorial liability for crime resemble one another in that each involves the performance of an act in the contemplation that it may result in a crime. The principal differences between the doctrines include: (1) Attempt is a criminal offence in itself, independently of the crime attempted to be committed. The perpetrator of the act of attempt is a principal offender. (2) The person who aids and abets another to commit crime is not criminally liable as an accessory unless this crime in contemplation is completed. The obvious exception to this rule is the offence of attempt itself. Where the defendants aids or counsels another to commit crime, and the latter fails to do this, but with guilty mind performs an act sufficiently proximate to the actus reus of this crime as to incriminate himself as a principal in a criminal attempt, the defendant is liable as an accessory to this attempt. [22]
[22]Peter Gillies, The Law of Criminal Complicity, (The Law Book Company, 1^st ed, 1980) 10, citing Clayton (1843) 1 Car. & K. 128; 174 E.R 743; Hapgood (1870) LR 1 CCR 221; R v Dransfield [1975] Tas. S.R. 149; R v Baker (1909) 28 NZLR 536; (Ann) Williams (1844) 1 Car. & K. 589; 174 E.R. 950.

Code provisions in the United States and Canada

In the United States, there has been a good deal of discussion as to whether complicity can form the basis of a charge of attempt. The Model Penal Code of the American Law Institute provides a clear answer. Article 5 deals with attempt, solicitation (what we, in this country, would call counselling or procuring), and conspiracy to commit crimes. Each of these inchoate forms of liability has in common the fact that the conduct that it makes criminal is designed to culminate in the commission of a substantive offence but has, for whatever reason, failed to do so in the particular case. In other words, these three inchoate crimes are defined so that their commission does not rest on the occurrence of the evil that it is the object of the law to prevent. Rather, they operate at an anterior stage.

Section 5.02 of the Model Penal Code provides a definition of solicitation, which is in the following terms:

A person is guilty of solicitation to commit a crime if with the purpose of promoting or facilitating its commission he commands, encourages or requests another person to engage in specific conduct which would constitute such crime or an attempt to commit such crime or which would establish the complicity of such other person in its commission or attempted commission.[23]

[23]Emphasis added.

In a seminal article authored by, among others, Professor Herbert Wechsler, the analysis proffered of the position at common law was in the following terms:

It ordinarily should not be necessary to charge an actor with soliciting another to attempt to commit a crime, since a rational solicitation would never seek an unsuccessful effort but always the completed crime; the charge, therefore, should be one of solicitation to commit the completed crime. But in some cases the actor may solicit conduct that he and the party solicited believe would constitute the completed crime, but which, for reasons discussed in connection with legal impossibility, does not in fact constitute the crime. Such conduct will constitute an attempt, and under the proposed section [of the Model Code] the actor will be liable for soliciting conduct that constitutes an attempt. [24]

[24]Herbert Wechsler, William Kenneth Jones and Harold L. Korn, ‘The Treatment of Inchoate Crimes in the Model Penal Code of the American Law Institute: Attempt, Solicitation and Conspiracy’, (1961) 61 Colum. L Rev. 571, 626.

The learned authors refer to a number of authorities that are said to support the proposition that one can, at common law, solicit the commission of an attempt.[25]
[25]People v Bloom 133 NYS 708 (1912). In Kelley v Hart [1934] 1 WWR 333, the appellate division of the Alberta Supreme Court observed, by way of dicta, that a person who counsels another to commit an offence can be convicted of complicity in the attempted commission of that offence ([23]–[24]). There are other cases that stand for allied propositions. See for example R v Brown (1899) 63 JP 790 (Darling J) (an accused charged with inciting a woman to take a thing, in the belief that it is capable of procuring an abortion, is guilty of incitement to attempt abortion, although commission of the crime in the manner proposed is impossible). See also R v De Kromme (1892) 17 Cox CC 492 where it was held that an accused could be convicted of soliciting another to conspire to cheat and defraud.

In the second part of the same article, the authors refer to s 5.03 of the Model Penal Code which defines conspiracy in the following terms:

(1)Definition of conspiracy. A person is guilty of conspiracy with another person or persons to commit a crime if with the purpose of promoting or facilitating its commission he:
(a)agrees with such other person or persons that they or one or more of them will engage in conduct which constitutes such crime or an attempt or solicitation to commit such crime; or
(b)agrees to aid such other person or persons in the planning or commission of such crime or of an attempt or solicitation to commit such crime.[26]

[26]Emphasis added.

It is apparent that under the Model Penal Code it is an offence to be complicit in an attempt to commit a crime. The fact that a person will not, rationally, agree to commit an offence which that person knows will not ultimately come to fruition is no bar to such a conviction. The rationale must be one of policy. If the primary offender is to be held criminally responsible for what turns out to be a failed attempt, anyone who conspired with that primary offender to commit the full offence should not be permitted to escape liability for his or her role merely because, as it happens, the intended crime could not be completed.[27]
[27]Wechler, Jones and Korn, above n 46, 977–9.

The Model Penal Code was, of course, intended to reflect the common law. An analysis of recent authority in the United States suggests that it accurately did so. In Stevenson v State,[28] the Court of Appeals of Maryland considered whether a conspiracy to commit attempted armed robbery was an offence known to the law. The accused was convicted on the basis that he had acted in concert with three co-offenders in an unsuccessful attempt to rob the victim. He filed a petition arguing that the charge could not be supported because, as a matter of logic, one does not conspire to attempt to do something; one simply conspires to do it. He thus submitted that conspiracy to attempt was a ‘doubly inchoate’ offence which the law ought not recognise.
[28]423 Md. 42 (Ct App, 2010).

The Maryland Court rejected this argument, and held that conspiracy to commit an attempt was a cognisable offence. In doing so, the Court relied on its earlier decision in Townes v State,[29] where it was held that there was an offence of conspiracy to attempt to obtain money by false pretences. The Court in Townes said:

The logical inconsistency postulated by Townes simply does not exist in this State. A person intending to commit a crime intends also to attempt to commit that crime. The intent to attempt is viewed as correlative to and included within the intent to consummate. Accordingly, one who conspires to commit a crime concurrently conspires to attempt to commit that crime.[30]

[29]314 MD 71 (1988).

[30]Ibid 74–7.

One could perhaps cavil at the proposition that one who intends to commit a crime also intends to attempt to commit that crime. What is clear, however, is that the decision in Townes was consistent with a large number of federal appellate court decisions which had affirmed convictions for conspiracy to attempt the commission of a crime.[31]
[31]People v Teitelbaum 329 P.2d 157 (Cal. App. 2d Dist. 1958) (in which the Court of Appeal of California, Second Appellate District, affirmed a conviction of conspiracy to commit attempted grand theft); United States v Clay 495 F.2d 700 (7^th Cir. 1974) (in which the United States Court of Appeals for the Seventh Circuit affirmed a conviction of conspiring to attempt to enter a savings and loan association contrary to a particular statute); United States v Dearmore 672 F. 2d 738 (9^th Cir 1982) (where the United States Court of Appeals for the Ninth Circuit affirmed a conviction of conspiracy to commit attempted bank robbery); United States v Mowad 641 F.2d 1067 (2d Cir. 1980) (in which the United States Court of Appeals for the Second Circuit affirmed convictions of conspiracy to attempt to export firearms without an export license).

In Canada, the law is equally clear. The aiding and abetting and common purpose provision of the Canadian Criminal Code[32] is s 21. It has been held that that section can be used in conjunction with the attempt provision in s 24. An accomplice can be a party to an attempted crime, and therefore guilty of that crime.
[32]RSC 1985 c C-46.

An example of this is R v Walker.[33] W was contacted by two brothers to drive the getaway car in a holdup they were planning of a restaurant in Quebec. He was also to supply the weapons, which he did. He waited in the car while the brothers carried out the robbery. During the subsequent high speed police chase, one of the brothers fired a shot which struck a police officer in the shoulder. All three were eventually captured and charged with attempted murder. The appellant, W, was convicted on the basis of complicity. His appeal was dismissed.
[33][1964] 2 CCC 217. See also Henderson v R [1948] SCR 226 where several members of the Supreme Court of Canada assumed, without deciding, that it was possible under Canadian law for a person to be convicted, via the doctrine of common intention, of an attempt to commit an offence.

The same reasoning applies to the counselling and procuring provisions in s 22 of the Canadian Criminal Code. It is well established that that section can be used in conjunction with attempt.

The position in Australia

In Australia, there has been limited consideration of the issues discussed above. Nonetheless, there is authority in this country for the proposition that, at common law, a person can be convicted of an attempt in circumstances where that person’s liability arises through principles of complicity, including joint criminal enterprise.

In R v Downs,[34] the accused had been charged, inter alia, with conspiracy to commit burglary (count 1), and attempted burglary (count 2) in respect of the same premises. He was convicted on count 2, but acquitted on count 1. It was held that the verdicts on counts 1 and 2 were inconsistent and, accordingly, that the conviction on count 2 ought to be quashed.
[34](Unreported, Supreme Court of Victoria Court of Criminal Appeal, Young CJ, Crockett and Brooking JJ, 14 November 1984).

Of particular relevance, for present purposes, is the following passage from the judgment of Young CJ:

During the trial there were one or two references to the fact that counts 1 and 2 were really alternatives … They are not true alternatives because count 1 alleges a conspiracy of which the essence is an agreement to do the unlawful act. Count 2 alleged an attempt to do an unlawful act. The two accused could theoretically be found guilty of that offence if either they were proved to have acted in concert in the attempt, or if one made the attempt and the other aided and abetted him.[35]

[35]Ibid 8 (emphasis added). As noted, his Honour ultimately found that the verdicts on count 1 and count 2 were inconsistent because, in the circumstances of that case, the charges were not truly alternatives.

In R v Harms,[36] the Queensland Court of Appeal upheld a conviction for attempted murder in circumstances where the accused was party to an unsuccessful plan to kill the victim.
[36][2000] QCA 419.

In Question of Law Reserved (No 1 of 2008),[37] the South Australian Court of Criminal Appeal held that conspiracy to commit the offence of attempting to pervert the course of justice was an offence known to the law in that State. It must be borne in mind, however, that the offence of attempting to pervert the course of justice is not regarded as an inchoate offence, but rather as a completed offence. The theory seems to be that the course of justice is incapable of being perverted.
[37](2008) 102 SASR 398.

What emerges from this analysis is that there is a large body of authority, throughout the common law world, which holds that a person can be convicted, through the principles of complicity, of an attempt to commit a crime. That provides the background against which the applicant’s arguments regarding the interpretation of the Code should be assessed.

Complicity and attempt under the Code – the applicant’s submissions

In essence, the applicant submits that it is simply not possible under the Code to charge an accused with an attempt, pursuant to s 11.1(1), in combination with any other limb of extended criminal responsibility, such as joint commission, pursuant to s 11.2A.

As already noted, the Crown mounted its case against the applicant exclusively on the basis of s 11.2A(1)(b)(i). The Crown alleged that the applicant entered into an agreement with (at least) Sitar and Ramazanoglu to possess border controlled drugs, particularised as methylamphetamine and cocaine. The Crown further alleged that the applicant fully participated in that plan, and only failed to achieve his object because, unbeknown to him, the AFP had already intervened and substituted the drugs with water.

The applicant submits:

Trial counsel could not demur to the information, for the indictment itself did allege two charges of a valid offence. However, whilst the offence alleged was known to the law, the basis upon which the applicant was convicted of that offence was not.

The applicant points to s 11.1(7) of the Code which, as previously indicated,[38] relevantly provides that ‘it is not an offence to attempt to commit an offence against s 11.2A (joint commission)’. The drafting is unfortunate, however, since s 11.2A plainly does not create any offence but merely provides for an ‘extension of criminal responsibility’ in the circumstances which it specifies. It follows that, literally speaking, there cannot be an offence ‘against’ that section nor, therefore, an attempt to commit such an offence. The same is true of the references within s 11.1(7) to s 11.2 (complicity and common purpose) and s 11.3 (incitement). Neither of those sections creates an offence.
[38]See [49] above.

The applicant’s argument then appeared to proceed as follows. Since s 11.1(7) is said to apply to an offence ‘against’ s 11.2A, and since no such offence exists, the only way to give meaning to the provision is to read the word ‘against’ as though it carried the meaning ‘under’. According to the argument, the section thus interpreted reveals a legislative intention to preclude the affixing of criminal liability for attempt in either of two types of case, namely:

(a) where the accused attempts to enter an agreement with others to commit an offence; and

(b) where the accused enters into such an agreement and there is then a failed attempt to commit the agreed offence.

We will refer to these types of attempt respectively as ‘attempt to agree’ and ‘joint attempt’.

In our view, this is a somewhat strained interpretation of s 11.1(7). Yet it is said to be supported by the history leading up to the enactment of the Code, by the decision of the High Court in Handlen v The Queen,[39] and also by considerations of public policy.
[39](2011) 245 CLR 282 (‘Handlen’).

Insofar as the argument is based upon the precise language of s 11.1(7), the relevant analysis, as the High Court has repeatedly said, both begins and ends with the text.[40] What that subsection does, when given its ordinary and natural meaning, is to preclude a conviction for attempting to commit an offence against s 11.2A. Even if one substitutes the word ‘under’ for the word ‘against’, the subsection does no more than stipulate that there cannot be an attempt to agree to commit an offence.
[40]Thiess v Collector of Customs (2014) 250 CLR 664, [22].

Of course, the applicant was not convicted of attempting to agree to commit the agreed offence. He was instead convicted of joint attempt, that is, of attempting to commit the agreed offence (under s 307.5(1)). Accordingly, giving the words of the subsection their ordinary meaning, it has no application to the applicant’s situation, and affords him no immunity from criminal liability.

The applicant submitted, however, that an analysis of the history of the Code would reveal that s 11.1(7) was intended to exclude not only an attempt to agree to commit an offence but an attempt to commit an agreed offence. Attention was drawn to Sir Harry Gibbs’ recommendation that Commonwealth criminal law be unified and codified, and the work done by the Model Criminal Code Officers Committee. That Committee delivered its final report in December 1992.[41] Proposed s 401.6, dealing with attempt, stated:

This section does not apply to an offence under s 402 (complicity and common purpose) or s 405 (conspiracy).[42]

[41]Criminal Law Officers Committee of the Standing Committee of Attorneys-General, Model Criminal Code, Chapter 2: General Principles of Criminal Responsibility, Final Report (December 1992).

[42]Ibid 74 (emphasis added).

The applicant, in his written submissions, drew attention to the word ‘under’, as emphasised above. He noted that, as subsequently enacted in 1995, s 11.1(7) of the Code stated:

It is not an offence to attempt to commit an offence against s 11.2 (complicity and common purpose) or s 11.5 (conspiracy).[43]

[43]Emphasis added.

The applicant further noted that, as regards s 11.1(7), the Explanatory Memorandum stated:

Proposed subsection 11.1(7) provides that there can be no offence of attempt in relation to proposed sections 11.2 (complicity and common purpose) or 11.5 (conspiracy).[44]

[44]Explanatory Memorandum, Criminal Code Bill 1994, 37 (emphasis added).

It was submitted that the shift from the term ‘under’ in the original report to the term ‘against’ in the Code itself, and the explanation of that term as meaning ‘in relation to’, was significant. Once again, it was noted that that pt 2.4 of the Code deals with what are described as ‘extensions of criminal liability’, and not with offences as such.

Despite the misleading heading immediately above s 11.2 (‘Complicity and common purpose’), it is clear that the Code as originally drafted made no provision for any doctrine of ‘common purpose’. Section 11.2 is confined to aiding and abetting and counselling or procuring. Those terms are associated with the most basic forms of complicity. To use the traditional — but now outmoded — language of the past, the section attaches criminal liability to an offender who would, historically, have been described as an accessory before the fact (counsel or procure) or a principal in the second degree (aid and abet). The section says nothing whatever about any form of common purpose, whether joint criminal enterprise or acting in concert. This was confirmed by the High Court in Handlen.[45]
[45](2011) 245 CLR 282.

The Code was subsequently amended in 2010 to introduce s 11.2A.[46] It was a logical corollary of the enactment of s 11.2A that s 11.1(7) should itself be amended to include a reference to the new section, so as to preclude liability for an attempt to engage in a joint criminal enterprise.[47]
[46]Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth) (‘2010 Amending Act’) sch 4 s 4. The amendments introduced by the Act came into effect prior to the High Court’s decision in Handlen, but after the trial of the accused in that case. Accordingly, the amendments, including the introduction of s 11.2A, did not apply to the accused in Handlen.
[47]Ibid sch 4 s 1.

The applicant relies heavily upon the Revised Explanatory Memorandum to the 2010 Amending Act.[48] The relevant passage reads as follows:

The insertion of a reference to section 11.2A into section 11.1(7) is a consequential amendment arising from the insertion of new section 11.2A into Part 2.4. The effect of this amendment is that a person cannot be charged with attempting to engage in conduct that meets the requirements of section 11.2A. This is appropriate because joint commission only applies to completed offences.[49]

[48]Revised Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth).

[49]Ibid 139 (emphasis added).

This point may be disposed of shortly. As the earlier discussion shows, if the words italicised in the last sentence above were intended to state the position at common law, they were plainly wrong.

The applicant also relies upon the Second Reading Speech in relation to the 2010 Amending Act. He notes that the Attorney-General, when explaining the operation of s 11.2A, gave the example of a completed offence, saying:

Joint commission targets members of organised groups who divide criminal activity between them. If, for example, three offenders agree to import heroin into Australia and two of the offenders each bring in 750 grams of heroin, all three offenders can be charged with importing a commercial quantity under the joint criminal enterprise provisions.[50]

[50]Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2009, 6967 (Robert McLelland MP, Attorney-General).

There is nothing in this point either. As might be expected, s 11.2A is concerned only with completed offences. Thus s 11.2A(1)(b) extends liability to the parties to an agreement when ‘an offence is committed’, either in accordance with the agreement or in the course of carrying it out. The Minister’s example merely illustrates how the provision operates.

The applicant also relies upon four words in a single sentence in the judgment of the High Court in Handlen,[51] as follows:

The Code has been amended since the date of the appellant’s trial by the insertion of s 11.2A, providing for criminal responsibility in circumstances involving the joint commission of a substantive offence.[52]

[51](2011) 245 CLR 282.

[52]Ibid [5].

This point is also without merit. Put simply, the High Court in Handlen had no occasion to consider the relationship between s 11.2A and s 11.1. Unsurprisingly, the summary of argument in the Commonwealth Law Reports makes no mention of that issue.

Looking at the matter more broadly, counsel could point to no policy rationale which might explain a deliberate legislative decision to depart from the common law and abolish the offence of joint attempt, that is, of attempting in accordance with an agreement to commit the agreed offence. Counsel conceded — properly, in our view — that this attempt offence was conceptually straightforward and, moreover, was the mirror image (in the area of joint liability) of the offence of attempt as charged against an individual.

The only ‘policy reason’ suggested by the applicant in support of the broader interpretation of s 11.1(7) was that it would avoid what was said to be the improbable result of imposing joint liability for an attempt to commit a drug offence of this kind. The submission emphasised what were said to be the unfair consequences of applying to ‘joint attempt’ the ‘special liability’ provisions which apply to proof of the substantive drug offence. According to the submission, Parliament could not have intended that a person in the applicant’s position be guilty of the offence of attempt if all that needed to be proved (apart from his entry into the agreement) was that he intended any party to the agreement to possess any border-controlled drug in any quantity.

As can readily be seen, however, this was really a complaint about how the ‘special liability’ provisions operate. In turn, those provisions reflect the clear legislative policy that prosecutors should not have to prove knowledge of either the quantity or the identity of the drug the subject of the offence. Counsel conceded that there would be no similar concern in relation to ‘joint attempt’ for offences under the Code which did not have ‘special liability’ provisions, for example, offences against Commonwealth buildings.

It is important to emphasise that, on the applicant’s argument, s 11.1(7) represented a very major change from the common law position. The kind of ‘joint attempt’ liability which this case exemplifies would account for almost all of the attempt cases likely to arise. The cases which the common law ruled out — of attempting to enter an agreement — would be, relatively speaking, very rare.

That being so, and there being no discernible explanation in logic or policy for abolishing ‘joint attempt’ liability, we would not adopt the applicant’s construction unless the statutory language made quite explicit the intention to abolish that species of liability. It would also be expected that, if that were the intention, the Minister would have noted the departure from the common law position and explained why it was thought to be necessary and justified. Nothing of that kind is to be found in the provisions themselves or in the extrinsic material.

The conclusion that s 11.1(7) does not preclude liability for joint attempt derives support from a recognised legal text. In Principles of Federal Criminal Law, Stephen Odgers asserts, by reference to the Code, that it ‘is not an offence to attempt to jointly commit an offence’ but that ‘it would be an offence to jointly commit an offence of attempt under s 11.1’.[53]
[53]Stephen Odgers, Principles of Federal Criminal Law (Law Book Co of Australasia, 2^nd ed, 2010) 195.

The respondent relied upon R v Inegbedion,[54] a decision of the New South Wales Court of Criminal Appeal. In that case, the appellant had been convicted of attempting to possess a marketable quantity of heroin, contrary to s 307.6(1) of the Code. Rothman J, with whom Hoeben CJ at CL and McCallum J agreed, noted that the conduct of the appellant, in the particular circumstances of the case, was sufficient to prove his guilt without having to rely upon the doctrine of joint criminal enterprise.
[54][2013] NSWCCA 291.

Nonetheless, his Honour referred to the connection between ss 11.2A and 11.1(7) in the following terms:

The provisions of s 11.1(7) of the Code understandably exclude relevantly an attempt to commit an offence by common purpose (s 11.2) or joint commission (s 11.2A) or commission by proxy (s 11.3). That is for the obvious reason that, in the case of common purpose, there is either an agreement or there is not.
Nevertheless, the converse is not prohibited. A person can be criminally liable by reason of common purpose, joint commission or commission by proxy of an offence which is an attempt. For example an agreement to commit a murder in which both agreeing parties participate may end “unsuccessfully” and the death of the intended victim not eventuate. The parties would be guilty of attempt by joint criminal enterprise.[55]

[55]Ibid [56]–[57].

His Honour went on to make it abundantly clear that these comments were, of course, dicta, as they plainly are. Nonetheless, the respondent submitted that they accurately reflect the correct interpretation of s 11.1(7), and should be followed by this Court.

We note that there is some additional, albeit slight, authority for the proposition that one can, under the Code, aid and abet an attempt to possess drugs. In R v Karan,[56] the respondent pleaded guilty to just such an offence. The matter came before the New South Wales Court of Criminal Appeal on a Director’s appeal against sentence. It may not matter very much, but there was no suggestion in the judgment of any difficulty with an offence couched in those terms.
[56][2013] NSWCCA 53.

Conclusion on ground 1

We are, of course, fully conscious of the fact that we are construing a Code, and not a statute. Nonetheless, it is clear that the drafters of the Code often used terminology derived directly from the common law. Thus, for example, the language used in s 11.2 is drawn directly from traditional common law principles of complicity. The terms ‘aid and abet’, and ‘counsel or procure’, are creatures of the common law. They carry with them much of the baggage of the common law which cannot simply be ignored.[57]
[57]In R v Campbell (2008) 73 NSWLR 272, the Court of Criminal Appeal held that these words are ‘plainly intended to bear the same meaning as they do at common law’: at [155]. See also R v Jo (2012) 273 FLR 437, [35].

In our view, s 11.1(7), when given its ordinary and natural meaning, was intended merely to replicate long established common law doctrine. As we have pointed out, there is nothing to indicate any intention to depart from the position at common law. The subsection should be read in much the same way as the English Court of Appeal read the relevant provisions of the analogous English legislation in Dunnington.[58]
[58][1984] QB 472.

The very fact that s 11.1(7) speaks of there being no offence of attempting to commit an offence against either ss 11.2 or 11.2A means that one cannot attempt to aid and abet, or counsel or procure, or engage in the joint commission of a crime. That simply replicates the common law on this subject.

For these reasons, we would refuse leave to appeal in relation to ground 1.

Ground 2

This ground complains of a failure on the part of the trial judge to direct the jury that, in order to convict the applicant, they had to be satisfied that he knew or believed that the drugs that he intended to possess, methylamphetamine (charge 1) and cocaine (charge 2), exceeded the applicable threshold for a commercial quantity. As previously indicated, in the case of methylamphetamine, that is 0.75 kilograms, and in the case of cocaine, 2 kilograms.

Unlike ground 1, this point was squarely raised, and fully argued, below. The judge delivered a comprehensive ruling[59] setting out why, in his opinion, the contention should be rejected.
[59]R v Franze (Ruling No 1) (2013) 37 VR 101, 102-8; [2013] VSC 229.

In effect, it was submitted on behalf of the applicant below that the Crown was required to prove that the alleged agreement:

(a) was directed to the possession of a commercial quantity of the particular border controlled drug specified (‘Ruling No 1’); and

(b) was to possess a quantity of the particular border controlled drug specified in the indictment, and that it was not sufficient to prove that the agreement related to the possession of any border controlled drug (‘Ruling No 2’).

The trial judge found in favour of the Crown in relation to Ruling No 1, but in favour of the applicant in relation to Ruling No 2. In part, the applicant complains that the two rulings are inconsistent with each other, and cannot both be correct. He uses that submission as the basis, in part, for his attack upon Ruling No 1, which is the subject of ground 2.

Having set out ss 307.5, 11.1 and 11.2A of the Code, his Honour noted that the dictionary defined a ‘special liability provision’ to mean (inter alia) a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence.[60] Section 6.2 of the Code provides that if a law that creates an offence provides that the offence is one of absolute liability, there are no fault elements for any of the physical elements of the offence, and the defence of mistake of fact (under s 9(2)) is unavailable.
[60]Criminal Code Act 1995 Dictionary (definition of ‘special liability provision’).

The argument advanced before his Honour was essentially this. It was submitted that the applicant’s contention should be accepted because (a) he was charged with an attempt, and (b) the charge was brought in reliance upon joint criminal enterprise.

As to the first of those two limbs, it was submitted that a person could not be found guilty of an attempt to commit an offence unless that person intended to perform all the acts necessary for the commission of the completed offence.[61] This meant that the prosecution had to establish intentional conduct on the part of the accused of attempting to possess, in each case, a commercial quantity of the substance. Otherwise, so it was submitted, the accused could not have intended to commit the completed offence, but some lesser offence.
[61]It is clear, at common law, that the mens rea for attempt must be an intent to go on and reach a definite objective. In R v Whybrow (1951) 35 Cr App R 141 it was held that on a charge of attempted murder, it is essential to prove an intent to cause death. An intent to cause grievous bodily harm would not be sufficient. This is, of course, the law in this State as well. Note also that on a charge of attempting to commit an offence of strict, or even absolute, liability, there must be proof of an intent to achieve the relevant object even if such proof is not required for the primary offender: see Gardner v Ackeroyd [1952] 2 All ER 306.

With regard to the second of those two limbs, it was submitted that an accused could only be liable for the offences charged, on the basis that he was a party to a joint criminal enterprise, if the agreed enterprise was directed to possession of a commercial quantity of the substance. Otherwise, so it was submitted, an accused might be found liable for an offence against s 307.5 notwithstanding that he had only agreed, with his co-offenders, to obtain possession of a significantly smaller amount of the substance.

As to the first limb, the trial judge drew attention to ss 11.1(3), 11.1(3A) and 11.1(6A). These subsections read:

(3)For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
(3A)Subsection (3) has effect subject to subsection (6A).
…
(6A)Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

His Honour also had regard to s 11.2A(8), which provides:

(8)Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.

His Honour noted that s 307.5(2) provides that absolute liability applies to the element of the principal offence that the quantity possessed is a commercial quantity. He accepted the Crown’s submission that s 11.1(3A) and s 11.1(6A), as well as s 11.2A(8), were unambiguously directed to ensuring that, notwithstanding the ordinary principles at common law governing proof of an attempt to commit a crime, the prosecution was not required to prove any knowledge or intent in relation to the particular physical element of commercial quantity.

In the course of his ruling, the trial judge accepted that, absent these particular provisions, the prosecution would, if it charged attempt, have to prove an intention on the part of the accused to commit the completed offence.

His Honour found support for that conclusion in the judgment of the plurality[62] in R v LK.[63] In that case, the charge was one of conspiracy to commit an offence under s 400.3(2) of the Code, namely, dealing with money to the value of $1 million or more, that money being the proceeds of crime. Section 400.3(4) had the effect that the prosecution was not required to prove that the accused knew that the value of the money dealt with was $1 million or more, but it was submitted that this exemption from ordinary fault principles was confined to the substantive offence, and had no application to a charge of conspiracy under s 11.5.
[62]Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[63](2010) 241 CLR 177.

Section 11.5(7A) is, as his Honour noted, relevantly identical to s 11.1(6A). It provides that any special liability provisions that apply to an offence also apply to the offence of conspiracy to commit that offence.

Although the trial judge’s direction to the jury to acquit the accused was upheld by the High Court on a different basis, the plurality did say, by way of dicta, that the effect of s 11.5(7A) meant that:

Proof of the intention to commit an offence does not require proof of knowledge of, or belief in, a matter that is the subject of a special liability provision.[64]

[64]Ibid 228.

His Honour then turned to the second limb of the submission, based upon joint criminal enterprise. He noted that, irrespective of what the law of attempt might require, there was a separate argument to address regarding joint criminal enterprise. He concluded that the prosecution was not required to prove that the agreement which formed the basis of the joint criminal enterprise was to possess a commercial quantity of the substance, having regard to s 11.2A(8) which specifically incorporated the special liability provisions of the Code into s 11.2A.

The applicant submits that his Honour fell into error in two quite separate, but alternative, respects.

First, he submits that, contrary to the trial judge’s ruling, attempted possession must, as a matter of basic principle, require proof of knowledge or belief as to the relevant quantity of the substance in question. Secondly, he submits that possession pursuant to a joint criminal enterprise, whether it be substantive possession or attempted possession, must, again as a matter of basic principle, require proof of knowledge or belief as to the relevant quantity of the drug.

Plainly, the applicant must contend with the operation of s 11.1(6A) and s 11.2A(8). The way in which the applicant sought to deal with these provisions was as follows. He submitted that the ‘special liability’ exemption carved out by s 11.1(6A) could not avail the prosecution in this case. That was because the offence charged was an offence under s 11.1(1), whereas s 11.1(6A) was limited, in its scope, to s 11.1(3).

Even without reference to authority, we would regard that submission as highly doubtful. Section 11.1 must be read in its entirety. There is nothing in the text to suggest that sub-ss (3A) and (6A) have no application to what is, surely, at the very heart of s 11.1, namely, the offence of attempt contained in s 11.1(1). While it may be accepted that, absent sub-ss (3A) and (6A), intention and knowledge would be the fault elements as to each physical element of the offence attempted, it does not follow that their presence in the Code can simply be wished away.

It is plain that the reason why those subsections were included in s 11.1 was to expand the scope of liability when dealing with a special liability provision. Section 307.5 makes it clear that the offence created thereunder is an offence to which special liability provisions apply.

There is no reason, textually, why sub-ss (3A) and (6A) should be read down as the applicant contends. The result would be that the prosecution is not required to prove intention or knowledge as to commercial quantity when the charge is one of possession, but is required to do so when, for reasons entirely unconnected with the accused’s state of mind, the drugs have been intercepted, and only a charge of attempt is available.

If as a matter of policy, the legislature has chosen to impose absolute liability in relation to, inter alia, the issue of whether the drugs are of a commercial quantity, there is every reason to suppose that the same view would be taken in relation to a person charged with attempted possession.

However, there is a simpler and more direct answer to this point. In Luong v DPP,[65] which was decided some months after the trial judge’s two rulings in this case, this Court specifically held that the Crown is not required to prove intention or knowledge as to quantity in order to establish the offence of attempted possession of a commercial quantity of an unlawfully imported drug.
[65](2013) 279 FLR 453.

The applicant submitted, albeit formally, that Luong was wrongly decided. However, as we understand his case, he does not contend that the decision was ‘plainly’ or ‘clearly’ wrong. That being so, and Luong being a recent decision of this Court that seems is directly in point, we would regard ourselves as bound to follow that decision.

Accordingly, the first limb of the applicant’s case must fail.

The second limb of ground 2 is not predicated upon the offence being one of attempt, but rather upon the applicant being party to a joint criminal enterprise. Accordingly, so it was submitted, the decision in Luong (which did not concern that doctrine) does not stand as an obstacle to the applicant’s submission.

In this alternative way of advancing the argument, the applicant contends that his criminal responsibility was based solely upon s 11.2A. Pursuant to s 11.2A(2)(a), the conduct of one or more parties to the alleged criminal enterprise which ‘makes up the physical elements’ consisting of conduct of an offence (the ‘joint offence’) must be ‘in accordance with the agreement’, as well as ‘of the same type as the offence agreed to’.

The applicant submits that, while the possession of a ‘marketable quantity’ of a drug may be ‘in accordance with’ an agreement to possess a ‘commercial quantity’ of that drug, the reverse is not necessarily true. In other words, it was possible that the applicant agreed with Sitar and Ramazanoglu to possess something less than a commercial quantity of each of the two drugs. Although the consignment in the present case contained both methylamphetamine and cocaine in commercial quantities, the conduct alleged against the applicant was an attempt to possess those drugs in those quantities. In order to prove that his conduct was ‘in accordance with the agreement’, the Crown had to establish that he entered into an agreement to possess methylamphetamine and cocaine in at least commercial quantities.

In support of that application, and perhaps somewhat paradoxically, the applicant relies upon Ruling No 2,[66] which went in his favour. In that ruling, his Honour held, in effect, that the prosecution was required to prove as part of its case that the applicant knew or believed that he would be taking possession of, in the case of charge 1, methylamphetamine, and in the case of charge 2, cocaine. The applicant says that, if it be the case that the Crown must establish the relevant state of mind in relation to the nature of the drug, it must also follow that it is required to establish that state of mind in relation to the quantum of the drug.
[66]R v Franze (Ruling No 2) (2013) 37 VR 101;[2013] VSC 230.

Whatever merit there may be in that submission, the critical question before this Court is not whether Ruling No 2 was correct, but whether his Honour erred in Ruling No 1. If Ruling No 2, requiring proof of knowledge or belief as to the type of drug, happened to be unduly favourable to the applicant, as the Crown contended below, and still contends before this Court, that cannot avail the applicant in support of this ground.

Before turning to that question, however, it is necessary to make a few observations regarding Ruling No 2 which may go some way to answering the applicant’s specific complaint.

In at least one aspect, it must be acknowledged that his Honour’s conclusions in Ruling No 2 are not consistent with the subsequent decisions of this Court in Weng v The Queen[67] and Nelson v DPP.[68] That aspect concerned the application of s 300.5 of the Code, which provides:

If, in a prosecution for an offence against this part, it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance … was … a border controlled drug … it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the … border controlled drug.

[67](2013) 279 FLR 119 (‘Weng’).

[68][2014] VSCA 217R (‘Nelson’).

His Honour concluded that s 300.5 had no application to an offence of attempt under s 11.1 and, accordingly, did not assist the Crown’s argument that it was not required, in the present case, to prove that the applicant knew or believed that he was taking possession of the particular drugs in question. His Honour went on to note that the consequence of this finding might be that ‘the prosecution is required to prove more, in order to establish an attempt to commit an offence, than it is required to prove in order to establish the completed offence’.[69]
[69]R v Franze (Ruling No 2) (2013) 37 VR 101, 111 [17].

In Weng, which was decided shortly after his Honour handed down his decision in Ruling No 2, Osborn JA, (with whom Buchanan and Neave JJA agreed), reached the opposite conclusion regarding s 300.5.[70] That is, Osborn JA concluded that s 300.5 did apply to an offence of attempt under s 11.1, with the consequence that the prosecution was not required to prove intention to possess a particular border controlled drug, either for the completed offence or for an attempt.
[70]Weng (2013) 279 FLR 119, 142 [87].

The decision in Weng was recently affirmed by this Court in Nelson. In Nelson, it was held that, in relation to the offence of attempting to import a border controlled drug, the prosecution was not required to identify any particular border controlled drug as the subject of the alleged attempted importation.

It follows that, to the extent that Ruling No 2 rested on the general proposition that proof of knowledge or belief as to the identity of a particular substance is required in the case of an attempt, that ruling must now be regarded as incorrect.

It is readily apparent, however, that his Honour’s decision in Ruling No 2 did not rest solely upon such a proposition.[71] That is because, leaving aside the position in relation to an attempt, his Honour appears to have separately concluded that proof of knowledge or belief as to the particular substance in question is a requirement which emerges from the nature of a joint criminal enterprise. So much is clear from the following passages of his Honour’s ruling:

As such, the proof of the commission of a crime, pursuant to a joint criminal enterprise, requires the prosecution to prove that the accused was a party to an understanding, arrangement or agreement to commit the crime. Subject to the principles of ‘extended common purpose’ (which is not relied on by the prosecution in this case), the offence committed must fall within the criminal purpose which was agreed by the parties, and in particular by the accused. In that way, it is clear that the agreed criminal conduct must be capable of a degree of definition, notwithstanding that it may not have the same measure of certainty as that required of a contract at common law.
…
In this case, the prosecution contends that the accused man is criminally liable for the actions of Sitar and Ramazanoglu in dealing with the consignment which contained commercial quantities of the border controlled drugs methamphetamine and cocaine. The prosecution alleges that there was a joint enterprise between Ramazanoglu and Sitar to deal with the consignment containing those border controlled drugs, and that the accused man was a party to that agreement. In order to determine whether the accused is liable for the actions of Sitar and Ramazanoglu, the jury will need, first, to be satisfied as to the nature and scope of the alleged joint enterprise, to which it is alleged the accused was a party. Further, the jury will need to be satisfied that the accused participated in the commission of the offence, which was the subject of the agreement. Thirdly, the jury will need to be satisfied that the accused intended to commit the particular offence which is the subject of the agreement. As I stated, the jury will need to be satisfied that the offence committed by Sitar and Ramazanoglu was the offence which fell within the purpose agreed by the parties, was the offence in which the accused participated, and which was the offence which the accused intended be committed. In that way, as I stated, the agreed criminal conduct, which was the subject of the enterprise, must be capable of a sufficient degree of definition for those purposes.[72]

[71]See Weng (2013) 279 FLR 119, 139 [73]. It is for that reason that the Court in Weng distinguished Ruling No 2, rather than stating unequivocally that it was incorrect.

[72]R v Franze (Ruling No 2) (2013) 37 VR 101, 112-113 (emphasis added).

In one sense, these passages provide some support for the applicant’s contention that there is an inconsistency in the reasoning lying behind Ruling No 1 and Ruling No 2. In particular, it might be thought that his Honour’s observations in the passages emphasised above ought to have applied with equal force to the question, on Ruling No 1, whether the prosecution was required to prove the applicant’s state of mind in relation to the quantum of the drug attempted to be possessed.

There is, however, a simple answer to this complaint. As we have noted, his Honour’s rejection of the applicant’s argument in relation to Ruling No 1 turned, primarily, upon his interpretation of the effect of ss 11.1(6A) and 11.2A(8). Those sections specifically incorporate any special liability provisions applying to the substantive offence of possessing a commercial quantity of an unlawfully imported border controlled drug under s 307.5, into an offence of attempt under s 11.1, and an offence based on joint commission under s 11.2A.

However, those provisions had no application to his Honour’s decision in relation to Ruling No 2. That was because, although a special liability provision does attach to the physical element of commercial quantity under s 307.5,[73] no such provision attaches to the element of the substance being a border controlled drug under that section.[74] Accordingly, notwithstanding his Honour’s observations, in Ruling No 2, regarding the ordinary principles governing proof of the commission of a crime by way of joint criminal enterprise at common law, it does not follow that his rejection of the applicant’s arguments in relation to Ruling No 1 was, in fact, inconsistent with his acceptance of those arguments in Ruling No 2.
[73]The element of ‘commercial quantity’ within s 307.5(1)(d), being a provision to which absolute liability applies under s 307.5(2), is not a ‘special liability provision’, having regard to the definition of that expression in the Dictionary.
[74]The element of a ‘border controlled drug’ within the meaning of s 307.5(1)(c) is not a special liability provision because it does not fall within the definition of that expression in the Dictionary.

In the final analysis, it is not necessary, in order to resolve this application, to determine whether Ruling No 2 was correct. The matter was not argued at any length before this Court, and the particular ruling went in favour of the applicant.

In our opinion, Ruling No 1 was correct. However, irrespective of the correctness, or otherwise, of that ruling, this was not a case in which it could possibly be said that a misdirection on this point could give rise to a substantial miscarriage of justice.

Given the particular facts of this case, the jury must have determined that the applicant was aware, prior to 26 October 2011, that his co-offenders were involved in importing both methylamphetamine and cocaine, and that he was party to an agreement to possess those drugs (which had been brought into this country in more than 1000 bottles, contained in boxes on at least eight pallets). That being so, it is inconceivable that the applicant intended only to possess less than a commercial quantity of each drug.

The evidence as to the scale of this operation was overwhelming. As we have indicated, the consignment contained 133.3 kilograms of methylamphetamine, almost 200 times the commercial quantity of that drug. It also contained 14.1 kilograms of cocaine, just over 7 times the amount stipulated as a commercial quantity for that drug. This was an elaborate, highly organised, and large-scale criminal enterprise involving the importation of an enormous quantity of drugs.

For all of the reasons set out above, we would reject ground 2. It follows that we would refuse leave to appeal.

- - - - -

[2014] VSCA 352

22 December 2014