Handlen v The Queen

Case [2011] HCA 51


HIGH COURT OF AUSTRALIA

FRENCH CJ,
GUMMOW, HAYNE, HEYDON, CRENNAN, KIEFEL AND BELL JJ

Matter No B26/2011

DALE CHRISTOPHER HANDLEN  APPELLANT

AND

THE QUEEN  RESPONDENT

Matter No B27/2011

DENNIS PAUL PADDISON  APPELLANT

AND

THE QUEEN  RESPONDENT

Handlen v The Queen
Paddison v The Queen
[2011] HCA 51
8 December 2011
B26/2011 & B27/2011

ORDER

In each matter:

1.        Appeal allowed.

2.Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 23 December 2010 and in lieu thereof order that:

(a)     the appeal to that Court be allowed;

(b)the appellant's convictions be quashed and sentences set aside; and

(c)     a new trial be had.

On appeal from the Supreme Court of Queensland

Representation

P J Davis SC with G J D del Villar for the appellant in B26/2011 (instructed by Legal Aid (Qld))

M J Byrne QC with C L Morgan for the appellant in B27/2011 (instructed by Legal Aid (Qld))

W J Abraham QC with J G Renwick for the respondent in both matters (instructed by Commonwealth Director of Public Prosecutions)

Interveners

S J Gageler SC, Solicitor-General of the Commonwealth with G A Hill and R J Orr intervening on behalf of the Attorney-General of the Commonwealth (instructed by Australian Government Solicitor)

M G Sexton SC, Solicitor-General for the State of New South Wales with J K Kirk intervening on behalf of the Attorney-General for the State of New South Wales (instructed by Crown Solicitor (NSW))

W Sofronoff QC, Solicitor-General of the State of Queensland with A D Scott and A D Anderson intervening on behalf of the Attorney-General of the State of Queensland (instructed by Crown Law (Qld))

M K Moshinsky SC with C J Horan intervening on behalf of the Attorney-General for the State of Victoria (instructed by Victorian Government Solicitor)

Notice:  This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Handlen v The Queen
Paddison v The Queen

Criminal law – Appeal – Jury misdirection – Application of proviso – Appellants in joint trial each convicted of multiple drug‑related offences under Criminal Code (Cth) ("Code"), including two counts of importing commercial quantity of border controlled drugs into Australia contrary to s 307.1 of Code ("importation offences") – Trial conducted on mistaken assumption that guilt of importation offences could be established by proof that appellants parties to joint criminal enterprise – Whether prosecution upon basis not known to law denied application of proviso under s 668E(1A) of Criminal Code (Q) – Whether directions to jury on "group exercise" distracted from real issues in trial of each count in indictment.

Words and phrases – "aids, abets, counsels or procures", "joint criminal enterprise", "proper conduct of trial", "proviso".

Criminal Code (Cth), Ch 2, ss 11.2, 307.1.
Criminal Code (Q), s 668E(1A).

  1. FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ.   These appeals were heard together.  The appellants were convicted, following their joint trial before the Supreme Court of Queensland (Applegarth…

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AGLC
Handlen v The Queen [2011] HCA 51
Case
[2011] HCA 51
Decision Date

CaseChat Overview and Summary

The High Court of Australia heard appeals from Dale Handlen and Dennis Paddison, who had been convicted in a joint trial of multiple drug-related offences under the *Criminal Code* (Cth), including importing commercial quantities of border-controlled drugs. The central dispute concerned whether the jury had been adequately directed on the law, particularly in relation to the concept of a joint criminal enterprise, and whether the prosecution's case had proceeded on a legally erroneous basis.

The legal issues before the High Court were whether the trial judge's directions to the jury on the concept of a "group exercise" or joint criminal enterprise were sufficient to establish guilt for the importation offences, and whether the prosecution's reliance on this basis, if legally flawed, precluded the application of the proviso under s 668E(1A) of the *Criminal Code* (Qld). The Court also considered whether these directions had distracted the jury from the essential elements of each count in the indictment.

The High Court reasoned that the trial judge's directions on joint criminal enterprise, particularly the "group exercise" formulation, were inadequate and potentially misleading. The Court found that the prosecution's case, as presented and directed to the jury, may have proceeded on a mistaken assumption about how guilt for the importation offences could be established. This fundamental flaw in the directions meant that the jury may not have properly considered the individual culpability of each appellant in relation to the importation offences. Consequently, the Court concluded that the proviso, which allows an appellate court to dismiss an appeal despite a misdirection if it is of the opinion that no substantial miscarriage of justice has occurred, could not be applied.

In each matter, the High Court allowed the appeal, set aside the orders of the Court of Appeal of the Supreme Court of Queensland, and ordered that the appellants' convictions be quashed and their sentences set aside. A new trial was ordered.

Orders

Orders of the court

In each matter:

1. Appeal allowed.

2. Set aside the order of the Court of Appeal of the Supreme Court of Queensland made on 23 December 2010 and in lieu thereof order that:

(a) the appeal to that Court be allowed;

(b) the appellant's convictions be quashed and sentences set aside; and

(c) a new trial be had.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Following his arrest, Reed cooperated with the authorities and pleaded guilty to charges arising out of his role in the two drug importations. He gave evidence for the prosecution at the appellants' trial. An account of that evidence and the other evidence given at the trial, as summarised by the Court of Appeal, is set out below. Before turning to that summary, reference should be made to the remainder of the counts in the indictment. The appellant in the first appeal, Dale Handlen, was convicted of the possession of a commercial quantity of border controlled drugs that had been unlawfully imported into Australia[31]. This offence related to the possession of the drugs imported in the May shipment. Each of the appellants was also convicted of attempting to possess a commercial quantity of border controlled drugs that had been unlawfully imported into Australia[32]. These counts concerned the appellants' conduct in attempting to gain possession of the drugs that were imported in the September shipment. A third man, Kelsey Nerbas, was jointly charged with the same four counts as Handlen. Nerbas entered pleas of guilty to each count during the course of the trial. [31]Code, s 307.5. [32]Code, ss 11.1, 307.5. The evidence Reed, a Canadian citizen, worked for a computer recycling company in Vancouver. He said that he was introduced to Handlen in August 2005 by a colleague known as "TJ" and that the three of them discussed the possibility of exporting drugs to Australia, concealed inside computer monitors. Reed prepared costings for the warehousing and freight of a consignment of computer monitors at Handlen's request. Thereafter, he arranged for the purchase of 480 monitors using funds provided by Handlen. In January 2006, Reed, Handlen and TJ leased a warehouse in the name of Cyberdesk, a legitimate business that was operated by TJ ("the Cyberdesk warehouse"). The monitors were delivered to the warehouse and, in March 2006, Reed, Handlen and TJ met there to pack the drugs inside the cathode ray tubes of selected monitors. The appellant in the second appeal, Dennis Paddison, and his father-in-law assisted in this task. In early April 2006, Reed and Handlen flew to Brisbane. The tickets were booked by Reed with money given to him by Handlen. Reed was on friendly terms with Nerbas, a Brisbane resident. At Reed and Handlen's instigation, Nerbas arranged for the registration of a company, Reliable Computer Conversions Pty Ltd ("Reliable"), of which he and Reed became directors. Reliable was to be the consignee of the shipment of monitors. Nerbas and Reed were each signatories to Reliable's bank account. They signed a lease for a warehouse located in Geebung ("the Geebung warehouse"). Nerbas paid the security deposit and rent for the warehouse. There was evidence that moneys had been transferred from accounts associated with Paddison to an account operated by Nerbas in May 2006. Reed organised to have the monitors collected in Vancouver, placed in a container and shipped to Brisbane. He engaged customs brokers in Brisbane, providing them with the bill of lading and an invoice from Cyberdesk addressed to Reliable for the consignment. Handlen gave Reed the name of a union official, who he said might facilitate the process of clearing the consignment through Customs. Reed made contact with this individual. In due course, the consignment was cleared and delivered to the Geebung warehouse.

Decision

Reasons for decision

FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ HEYDON J

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Ratio Decidendi

Legal Principle Established

Established by: FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ, HEYDON J

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