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

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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.

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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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Franze v R

Details

AGLC: Franze v The Queen [2014] VSCA 352
Case: [2014] VSCA 352
Decision Date: 22 December 2014

CaseChat Overview and Summary

Franze was convicted of an attempted joint criminal enterprise involving the possession of unlawfully imported drugs. He appealed against his conviction to the High Court of Australia. The central issue before the Court was whether Franze could be held liable for an attempted joint criminal enterprise when the actual crime of possession was thwarted by police intervention. This raised questions about the applicability of common law principles of joint criminal enterprise to attempts and the extent to which statutory provisions might exclude such liability.

The Court considered the common law position, which traditionally held that parties to a joint criminal enterprise could be held liable for attempts as well as completed crimes. The Court held that there was no principled reason to exclude attempted joint criminal enterprises from this principle. The Court also examined the relevant statutory provisions, including sections 11.1, 11.2A, and 307.5 of the Criminal Code Act 1995, and concluded that these did not exclude liability for attempted joint criminal enterprises. The Court found no intention in the statutory provisions to depart from the common law position, and thus Franze's appeal was dismissed.

The Court's decision reinforces the principle that parties to a joint criminal enterprise can be held liable for attempts, aligning with the common law approach. The statutory provisions were not found to exclude such liability, and the common law principles continue to apply in cases of attempted joint criminal enterprises. The Court's ruling ensures that the law remains consistent in holding all parties to a joint criminal enterprise accountable for their roles, even in cases where the actual crime is thwarted.

Orders