Harris (a pseudonym) v The Queen
[2021] VSCA 197
•14 July 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0092
S EAPCR 2019 0204
| ANTHONY HARRIS (a pseudonym)[1] | Applicant |
| v | |
| THE QUEEN | Respondent |
[1]To prevent any risk of prejudice in the proper administration of justice, this judgment has been anonymised by the adoption of a pseudonym in place of the name of the applicant.
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| JUDGE: | PRIEST, T FORREST and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 June 2021 |
| DATE OF JUDGMENT: | 14 July 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 197 |
| JUDGMENT APPEALED FROM: | DPP v Harris (a pseudonym) (Unreported, County Court of Victoria, Judge Trapnell, 7 December 2018) (Conviction); [2019] VCC 1546 (Judge Trapnell) (Sentence) |
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CRIMINAL LAW – Appeal – Conviction – Trafficking in a drug of dependence and trafficking in a large commercial quantity of a drug of dependence (heroin) – Circumstantial case – Adequacy of jury directions – Trial judge failed adequately to identify particular facts and circumstances key to conviction — Substantial miscarriage of justice –Appeal allowed – Convictions quashed – Retrial ordered – R v Thompson (2008) 21 VR 135, DPP Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299 considered.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant: | Mr O P Holdenson QC | Valos Black & Associates |
| For the Respondent: | Mr C B Boyce QC with Mr N Hutton | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA
T FORREST JA
EMERTON JA:
Introduction
On 7 December 2018, a jury empanelled in the County Court found the applicant guilty of trafficking in a drug of dependence,[2] heroin, charge 1, and trafficking a drug of dependence in a large commercial quantity,[3] also heroin, charge 2.
[2]Drugs Poisons and Controlled Substances Act 1981, s 71AC. The maximum penalty is 15 years’ imprisonment.
[3]Drugs Poisons and Controlled Substances Act 1981, s 71(1). The maximum penalty is life imprisonment.
Following a plea, on 20 September 2019 the trial judge sentenced the applicant to 11 years’ imprisonment on charge 2, and to four years’ imprisonment on charge 1, one year of which was to be served cumulatively. The total effective sentence was thus 12 years’ imprisonment, upon which the judge fixed a non-parole period of eight years.[4]
[4]On 14 February 2019, the applicant also pleaded guilty to possessing an explosive substance, for which he was convicted and fined $500.
The applicant seeks leave to appeal against conviction — he needs an extension of time in order to do so[5] — and sentence.
[5]See Criminal Procedure Act 2009, s 313.
With respect to conviction, the applicant initially relied on a single ground, formulated as follows:
The learned trial judge erred in his Charge to the jury in failing to identify for the jury the evidence of the particular facts and circumstances upon which the Crown relied in support of (that is, to sustain) the inferences that:
(i) the Applicant had twice knowingly agreed with a group of other people who acted together to sell a drug of dependence (heroin) on the two occasions the subject of the two charges;
(ii) the Applicant had, on those two occasions, knowingly engaged in a course of conduct which helped the group sell a drug of dependence;
(iii)the Applicant had, on those two occasions, intended that a drug of dependence be sold;
(iv) the Applicant, on those two occasions, knew or believed that it was a drug of dependence that he was involved in selling; and
(v) with respect to the second occasion (which was the subject of charge 2), the Applicant knew or believed that the quantity of the heroin which was sold weighed not less than 1.000 kilograms.
In the course of the hearing in this Court, counsel for the applicant was granted leave to add a second ground with respect to conviction:
The verdict of the jury on charge 2 is unreasonable or cannot be supported having regard to the evidence.
For the reasons that follow, we will grant the application for an extension of time.[6] We will also grant the application for leave to appeal against conviction on both grounds; allow the appeal on the first ground only; set aside the convictions on both charges; and order that there be a new trial. As a result, it is unnecessary to deal with the application touching sentence.
[6]See [79]–[80] below.
The prosecution case
In order to understand the issues raised with respect to the applicant’s convictions, it is necessary to summarise the prosecution case.
Operation Grote was an investigation into the syndicated trafficking of large commercial quantities of heroin. It was conducted by the Joint Organised Crime Task Force, consisting of members of Victoria Police, Australian Federal Police (‘AFP’), the Australian Crime Commission (‘ACC’) and the Australian Customs and Border Protection Service (‘Customs’).
The prosecution case was that, whilst Operation Grote was on foot, the applicant sold heroin to Victoria Police covert operatives on two occasions. It was alleged that the applicant trafficked the quantities of heroin pursuant to an agreement[7] with a syndicate involving several others, including Ali Aydin (‘Aydin’), Mohammed Osman (‘Osman’), Rami Margus (‘Margus’), Baset Wahab (‘Wahab’) and Ahmed Al-Hamza (‘Al-Hamza’).
[7]See Crimes Act 1958, ss 323(1)(c) and 324.
In his final address, the prosecutor described the applicant’s role in the syndicate as ‘the facilitator of the movement of the drugs’. Aydin, the prosecutor said, was ‘the go-to man’, being the first point of contact for those wishing to purchase heroin. Margus, referred to as ‘the boy’, was a courier for drugs and cash. Wahab was said by the prosecutor to be ‘the storer [sic] of heroin’, storing large quantities of drugs in his motor mechanic premises, ‘Baset Autotech’, and at his parents’ home. It also seems that Osman occupied a position akin to middle-manager, and that Al-Hamza was a kind of ‘odd jobs man’.[8]
[8]Charges against Al Hamza were dismissed by the Children’s Court. See also [29] below.
Thus, among other things, the prosecutor addressed the jury as follows:
Trafficking in large quantities of heroin is a risky business. There is no doubt in this case that in relation to each charge, there is a syndicate of people that are involved in the trafficking, the selling of the heroin on the days, 19 November or 15 December. That’s not in dispute. But it’s a risky business, and you might think that you’d seek to minimise your risks in various ways by not necessarily being hands-on, by having somebody fulfil a certain role, and by having others perform other roles, and it’s obvious in this case, it’s obvious in this case in relation to each charge that there are different roles by various people. And that’s how it all fits in together.
It’s fair to say, Aydin is the go-to man. The go-to man by those who want to purchase heroin, in this case, undercover operatives in relation to each charge. Aydin refers to Osman. I’ll come to it, but you’ll remember the clandestine meetings in parks where nobody else is, the conversations walking up and down the street together, clearly as a result of information and the setting in motion of events necessary for those involved in this syndicate to effect the purchase or the sale.
Osman, it’s fair to say in relation to each charge, contacts the [the applicant], and in relation to each charge requests of him the assistance of someone else, described as ‘the boy’ in relation to each charge. And ultimately the boy in relation to these charges delivers the heroin, having picked it up from somewhere else, either alone or with [the applicant].
The boy in relation to Charge 1, 19 November, is Margus. Rami Margus. And the boy in relation to Charge 2, Mr Al Hamza.
We’re not interested in this case, and it’s not necessary for you to determine, whether any of those people other than the accused is guilty of this offence. The issue in this case is to determine on the evidence as it has unfolded before you in relation to each charge, the guilt of the accused man in relation to each of them.
We allege [the applicant] facilitates the movement of the drugs on each occasion in the way that the evidence has indicated, and which I’ll get to. He is not the one standing there collecting, personally, the 110,000 in cash or the 220,000 in cash, and handing over the drugs. He is a party to this agreement to sell, traffic drugs, and his role is as the facilitator of the movement of the drugs, as I opened to you, and which the evidence in our respectful submission proves.
Charge 1 involved the sale on 19 November 2014 of 498.5 grams of heroin (in a mixture) to a Victoria Police undercover operative, ‘Daz’, for $110,000; and charge 2 involved the sale on 15 December 2014 of 1001.6 grams of heroin in a mixture — a large commercial quantity[9] — to two undercover officers, ‘Vili’ and ‘Daz’, for $220,000.
[9]At the relevant time, a large commercial quantity of heroin in a mixture was one kilogram. See Drugs Poisons and Controlled Substances Act 1981, sch 11, pt 3, column 1B.
Investigators obtained telecommunication interception warrants for multiple mobile telecommunication services used by members of the alleged syndicate (including encrypted Blackberry devices), and utilised surveillance devices, physical surveillance and covert police operatives. The prosecution alleged that syndicate members used codes in the course of their communications relating to heroin trafficking, so that symbols were used to refer to quantities of heroin; buyers were referred to as ‘girls’ or ‘girlfriend’; and meeting places where drugs or money were exchanged were referred to as ‘the bar’ or ‘the restaurant’.
Importantly, at about 5.43 pm, on 3 December 2014 — subsequently to the sale the subject of charge 1, but prior to the sale the subject of charge 2 — Aydin met with covert operatives ‘Tony’ and ‘Vili Nolan’ at a park in Ascot Vale. Among other things, Aydin stated that codes should be used in messages arranging purchases of heroin, a dollar sign ($) being a reference to a kilogram of heroin, and a yen symbol (¥) being a reference to half a kilogram of heroin.
Circumstances of charge 1
On 7 November 2014, Osman contacted the applicant, and in the course of several coded conversations, Osman instructed the applicant to send ‘the boy’, allegedly Margus (who, as we have said, apparently served as courier of the heroin). The next day, 8 November 2014, the applicant and Osman spoke again, and the applicant said he would ‘send his little friend’ — apparently referring to Margus — to see Osman. Over the next ten days, Osman and other syndicate members, and their connections, had a number of conversations.
At 5.35 pm, on 19 November 2014, Osman called the applicant. In a coded conversation, the applicant arranged to ‘send’ Margus to Osman ‘in half an hour’, allegedly to assist in a drug transaction.
Later that evening, at 7.59 pm, covert operative Daz handed $110,000 in cash to Aydin via an intermediary, ‘Tony’. This was in payment for heroin.
Around the same time, the applicant and Margus went to Wahab’s business, Baset Autotech, which was allegedly a storehouse for the syndicate’s drugs. Margus collected a bag containing half a kilogram of heroin from that location, and the applicant left in a separate vehicle. At 8.43 pm, Margus delivered the drugs to Daz in the vicinity of the Al-Diwan Restaurant. Margus walked to the front passenger side of Daz’s vehicle and placed an ‘Officeworks’ plastic bag through the open window and onto the front passenger seat, and said: ‘Hey buddy, how are ya? For you. Alright mate? Take care’.
The ‘Officeworks’ bag contained a clear vacuum seal bag containing approximately half a kilogram of heroin. Significantly, the applicant’s DNA was found on the vacuum sealed bag containing the heroin. Subsequent analysis revealed that there was 498.5 grams of heroin in the bag, with a purity of almost 50 per cent.
Circumstances of charge 2
On 15 December 2014, at about 2.41 pm, ‘Vili’ sent a coded text message to Aydin using the ‘$’ symbol. Aydin then met with Osman at approximately 3.30 pm. Following that meeting, at around 5.19 pm, Osman called the applicant and asked him to ‘send the boy’ to see him, and arranged to meet the applicant in 45 minutes’ time. It was alleged that this was a coded request for a courier to attend for the purposes of a drug transaction which was to take place that evening.
At about 6.28 pm that day, the applicant picked up Wahab from a Caltex Service Station in Sydney Road, Fawkner. At about 7.20 pm, the applicant and Wahab went to the Al-Diwan Restaurant and met Osman and Aydin. While the applicant and Osman remained in the restaurant, Wahab transferred a black plastic garbage bag, which contained a little over one kilogram of heroin, from the applicant’s motor vehicle to Aydin’s motor vehicle. Aydin drove off with the heroin, and the applicant and Wahab together drove off in the applicant’s motor vehicle.
Later that evening, at about 8.03 pm, Aydin met covert operatives Daz and Vili in one of their vehicles in a car park in Thomastown. They gave him $220,000 in cash contained in a green enviro bag. Aydin then got out of the vehicle, and retrieved a black plastic garbage bag from a row of plants. Through the open window, he placed the garbage bag onto the front passenger seat of Daz’s vehicle.
The black plastic garbage bag, tied in a large knot at one end, contained a clear vacuum seal bag containing 1001.6 grams of heroin of approximately 60 per cent purity. Once more, the applicant’s DNA was found on the sealed plastic bag containing the heroin.
At 8.33 pm, Osman called the applicant and arranged to meet him. When they met a short time later, Osman gave to the applicant the green enviro shopping bag containing the $220,000 cash. After obtaining the cash from Osman, the applicant drove off in his motor vehicle.
On 17 December 2014, the applicant was arrested at his Docklands apartment. He did not participate in a record of interview.
On the trial, the applicant neither gave nor called evidence.
The issues in the trial
At trial, the applicant did not dispute that there had been a drug syndicate comprising Osman, Aydin, Wahab and Margus.
Moreover, it is clear that the applicant accepted for the purposes of charge 1 that 498.5 grams of heroin in a mixture had been sold to Daz for $110,000 on 15 November 2014; and for the purposes of charge 2 that 1001.6 grams of heroin in a mixture was sold to Daz and Vili for $220,000 on 19 December 2014.
It is equally clear, however, that the applicant disputed that he was part of the alleged drug syndicate, let alone had agreed with members of that syndicate to sell heroin. He disputed that he knew anything of the two sales of heroin; that he ever had any intention to sell heroin; that he had any involvement in the two sales of the heroin; and that he had any role in, or knowledge of, the actual transactions involving the two sales of heroin on 19 November 2014 and 15 December 2014. Specifically for the purposes of charge 2, the applicant disputed that he had any knowledge, belief or awareness that the weight of the mixture of heroin which was sold was not less than 1.000 kilogram.
Hence, at the close of the prosecution case there was the following discussion, as contemplated by s 11(b) of the Jury Directions Act 2015 (‘JDA’):
HIS HONOUR: You don’t dispute that there’s a syndicate comprising Osman and Wahab and Aydin and Al Hamza, do you?
[DEFENCE COUNSEL]: No.
HIS HONOUR: Who are engaged in providing these drugs to – selling these drugs to the undercovers in this case on 19 November and 15 December?
[DEFENCE COUNSEL]: If I could substitute Al Hamza for Mr Margus.
HIS HONOUR: All right. Well, you want to leave Al Hamza out of the list?
[DEFENCE COUNSEL]: Yes, Your Honour. Yes.
HIS HONOUR: So those other four?
[DEFENCE COUNSEL]: Yes.
HIS HONOUR: Who are co-accused and you’re – what you say is well, we just knew nothing about that. We’re not part of that.
[DEFENCE COUNSEL]: Yes, Your Honour, in essence, yes. That’s right.
HIS HONOUR: So you’re not challenging the actual transactions or what the Crown case is about what happened.
[DEFENCE COUNSEL]: No.
HIS HONOUR: It’s just you’ve got no role in it and no knowledge of it.
[DEFENCE COUNSEL]: That’s right, Your Honour.
HIS HONOUR: Is that right?
[DEFENCE COUNSEL]: Yes and that’s why in a sense we’re not in a position to challenge it because we don’t have the requisite knowledge.
HIS HONOUR: And you don’t challenge the weights that were actually sold or that it’s heroin or that it’s mixed with another substance or substances?
[DEFENCE COUNSEL]: That’s right, Your Honour. We don’t have the acquired knowledge to do so we say.
HIS HONOUR: And you don’t say there’s any alternative offence that your client’s committed?
[DEFENCE COUNSEL]: No. That’s right, Your Honour.
HIS HONOUR: Or any alternative basis of complicity?
[DEFENCE COUNSEL]: That’s right also. Yes.
The applicant’s submissions
In this Court, senior counsel for the applicant submitted that the conviction of the applicant on the two charges on the indictment required the jury to draw inferences to the criminal standard that the applicant: first, had twice knowingly agreed with a group of other people who acted together to sell heroin on the two occasions the subject of the charges; secondly, had on those two occasions, knowingly engaged in a course of conduct which helped the group sell a drug of dependence; thirdly, had on those two occasions, intended that a drug of dependence be sold; fourthly, on those two occasions, knew or believed that it was a drug of dependence that he was involved in selling; and, fifthly, knew or believed with respect to the second occasion (the subject of charge 2) that the quantity of the heroin which was sold weighed not less than 1.000 kilogram.
There was, counsel submitted, no direct evidence of these five matters. As a result, the trial judge was under a duty to identify for the jury the evidence of the particular facts and circumstances drawn from the evidence upon which the prosecution relied to support those inferences.[10] Nothing in ss 65 or 66 of the JDA derogated from this duty.
[10]Counsel cited: DPP Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299, 305–6 [15], 308–9 [21]–[23], 310 [28], 311 [32] and 312–3 [37] (Vincent, Eames and Nettle JJA); R v Page (2008) 183 A Crim R 66, 67–8 [6] (Maxwell P, Buchanan and Neave JJA); Mustica v The Queen (2011) 31 VR 367, 377 [44] (Ashley JA, Bongiorno and Hansen JJA agreeing); and R v Thompson (2008) 21 VR 135, 162–3 [134]–[136] (Redlich JA).
Counsel for the applicant submitted that a trial judge is under a duty to assist the jury in its fact-finding function by carefully directing as to the facts and circumstances relevant to, and requiring, the jury’s consideration. The trial judge is under a positive duty to define clearly for the jury’s attention and consideration the particular (or critical) conduct of the accused person from within the evidence and upon which the prosecution relies in order to prove the disputed elements of the offences charged. Hence, the jury must clearly be directed as to the particular evidence capable of sustaining the inferences sought to be drawn by the prosecution concerning the issues in dispute, and which must be resolved in favour of the prosecution before the jury may convict the accused. Those duties are not discharged by the trial judge merely directing the jury as to the elements of the offences charged and then leaving it to the jury to apply those directions to the evidence placed before the jury. But, so counsel submitted, that is what the judge did in the present case.
The judge, counsel submitted, correctly directed the jury as to the elements of the offence, but then left it to the jury to work out what evidence there was to support those elements ‘by reference to a big pool of evidence’. Counsel submitted that the judge repeatedly directed the jury that it was for them to determine whether to draw the required inference, using the expression, ‘from all the facts and circumstances of the case’ or ‘based on all the evidence’. At no point, however, did the judge identify what the relevant evidence was, leaving the jury to their own devices to determine what evidence they could use to determine this case.
In his charge to the jury, counsel submitted, the judge directed: first, as to the elements of the two charged offences; secondly, the elements of the form of complicity upon which the prosecution relied; thirdly, the drawing of inferences; fourthly, the circumstances in which inferences adverse to the applicant could be drawn; and, fifthly, the matters that the defence had put in dispute which the prosecution was required to prove beyond reasonable doubt. Having done so, however, with respect to each of the matters placed in dispute, the judge then simply — and repeatedly with respect to each matter — directed the jury that it was for them to determine whether to draw the required inference from all the facts and circumstances of the case, or ‘based on all the evidence’. By so doing, the judge failed to discharge the duties referred to above.
Further, so counsel submitted, the problem was compounded by the fact that the judge failed: first, to summarise either the evidence, or the more significant parts of the evidence; secondly, to summarise the prosecution case against the applicant on each charge; thirdly, to summarise the particular evidence upon which the prosecution had placed substantial reliance in proof of the prosecution case against the applicant; and, fourthly, to refer to, describe or identify, the particular pieces of circumstantial evidence upon which the prosecution had relied in order to prove (by inference) the material matters in dispute. As a result, the applicant was denied a fair trial. Additionally, the judge gave no ‘separate consideration’ direction with respect to the two charges, directing the jury instead to have regard to all the evidence.
As to charge 2, counsel submitted that the prosecutor in his final address did not set out the evidence upon which the prosecution relied in order to establish that the applicant intended to traffick in more than one kilogram of heroin. Nor did the judge set out for the jury’s consideration the evidence which might bear on the applicant’s intention to traffick in more than a commercial quantity. Instead, the judge simply directed the jury to have regard to all of the evidence. As counsel put it, when it came to ‘the mens rea with respect to large commercial quantity the subject of charge 2 … the jury were allowed to roam free’.
Moreover, in contending that the jury’s verdict on charge 2 is unreasonable or cannot be supported having regard to the evidence, counsel submitted that the evidence was not sufficient to support a finding beyond reasonable doubt that the applicant had the requisite mental element for the offence of trafficking in a quantity of heroin which weighed not less than 1.000 kilogram. Neither the contextual evidence, nor the chronology of communications, enabled the jury to conclude beyond reasonable doubt that the applicant himself had the requisite mental element for the offence of trafficking in a quantity of heroin which weighed not less than 1.000 kilogram. In this regard, counsel submitted, it must be borne in mind that the quantity the subject of the sale was 1001.6 grams, a quantity only just in excess of the relevant threshold.
The respondent’s submissions
With respect to the first ground, the respondent’s counsel in this Court pointed out that the applicant had indicated at trial that the only fact in issue was his knowledge of, and participation in, the syndicate.
Counsel for the respondent submitted that the trial judge complied with s 66 of the JDA by identifying so much of the evidence as was necessary to assist the jury to determine the only matters placed in issue by the applicant’s counsel; that is, the applicant’s knowledge and participation.
Hence, the judge reminded the jury what the prosecution and defence exhibits were, and reminded them of a number of admissions made throughout the trial. He then broke the evidence into five time periods, and listed those who had given evidence. Counsel submitted that with respect to both charges the judge also identified that the ‘defence’ was that the applicant was not part of the group; that he knew nothing of any sale of heroin; and that he had no involvement in any sale of heroin. The judge also correctly spelled out the elements of the charges, including dealing with the mental element concerning large commercial quantity on charge 2. He also correctly directed the jury that the intention to traffick in not less than a large commercial quantity can be proven by inferential reasoning from all of the evidence in the case.
Further, counsel for the respondent submitted that experienced defence counsel took no exception to the charge, which is an indication that he regarded the charge to be unexceptionable.
As to the contention under cover of the second ground that the verdict on charge 2 is unreasonable or cannot be supported having regard to the evidence, the respondent’s counsel submitted that evidence against the applicant, ‘from go to whoa’, told ‘a relatively simple story’. Thus, counsel submitted, the evidence permitted the following inferences to be drawn.
The undercover operative, by use of the ‘$’ sign, ordered one kilogram of heroin from Aydin. Aydin then spoke with Osman, and Osman went to Baset Autotech. Finding no-one there, he spoke to the applicant who said that he was at the Al-Diwan Restaurant and that Osman should meet him there. Osman wanted to know where ‘the boy’ was. The applicant said that ‘the boy’ was not with him. Osman then met the applicant at Al-Diwan. Next, the applicant contacted Al-Hamza and arranged to meet him at the Caltex Service Station on Box Forrest Road, Fawkner. Al-Hamza and the applicant then travelled together to the Al-Diwan Restaurant, where Osman and Aydin were present. They brought with them the packaged substance containing heroin, which weighed a little over a kilogram. The applicant and Al-Hamza entered the Al-Diwan restaurant. Al-Hamza exited the restaurant and moved the heroin from the applicant’s to Aydin’s vehicle. Aydin then drove the heroin away to the sale location and the sale was completed. Later, Osman, in the vicinity of Al-Diwan, handed the proceeds of the sale, $220,000.00, to the applicant.
Counsel for the respondent submitted that the applicant could be guilty of trafficking in a large commercial quantity of heroin if he was complicit in the heroin’s sale whilst intending to traffick in a large commercial quantity of the substance. It would be open to infer such intention if the applicant knew, believed or was aware that there was a significant or real chance that the packaged substance weighed not less than one kilogram. A DNA sample taken from the inner, clear plastic packaging which encased the heroin the subject of charge 2 suggested that the DNA was 1.6 billion times more likely to be the applicant’s than another person’s chosen at random. It was thus open to infer that the applicant had come into physical contact with the subject package containing the heroin.
It was open on all the evidence, counsel submitted, to conclude beyond reasonable doubt that the applicant was knowingly and criminally complicit in Aydin’s sale of the drug to the undercover operative. Counsel submitted that ’context is everything’.
Moreover, so counsel submitted, from all this evidence it was open to conclude beyond reasonable doubt that the applicant possessed the mental element required for guilt of the offence of trafficking in not less than a large commercial quantity. The chronology of communication commencing with Vili’s ‘$’ text to Aydin, moving step-by-step through Osman, the applicant, Al-Hamza and, ultimately back to the applicant (with the handing over of the money) left it open to infer that the applicant was more than a ‘mere courier’. Examined against the backdrop of all the evidence it could be inferred that Osman had conveyed to the applicant the quantity of the heroin that he was to obtain (and perhaps package, given the location of the DNA sample). The DNA evidence alone suggested handling, packaging or such close physical proximity to the packaged substance as to give rise to an inference supportive of the mental element.
The first ground: Was the charge deficient?
In our view, the applicant has established the first ground. We consider that a substantial miscarriage of justice was occasioned by the judge’s failure adequately to identify for the jury’s consideration the particular facts and circumstances that the prosecution relied upon to support inferences key to its case, and which they had to find proven in order to convict.
As we have indicated, the prosecution case against the applicant was based on complicity; specifically, an agreement to commit an offence.[11] Thus, in his final address the prosecutor told the jury that it is ‘obvious and clear and you should be so satisfied beyond reasonable doubt that he was a party to an agreement in relation to each charge’. Having then asked rhetorically where the evidence of an agreement is, the prosecutor referred to ‘a few phone calls’ without, so it seems to us, much in the way of detailed analysis.
[11]See Crimes Act 1958, s 323(1)(c).
It was against that background that the judge came in his charge to direct the jury on the issue of complicity. When so doing, the judge correctly set out the elements that the prosecution needed to prove in order to find that there relevantly was an agreement, culminating in the following summary:
So to summarise, before you can find [the applicant] guilty of trafficking in a drug of dependence, Charge 1, trafficking in a drug of dependence in a large commercial quantity, Charge 2, or trafficking in a drug of dependence in not less than a commercial quantity, the alternative to Charge 2, the prosecution must prove beyond reasonable doubt (1) the [applicant] agreed with other people or another person to commit the relevant offence, and that the agreement remained in existence when that particular offence was committed; (2) that [the applicant] acted to support this agreement; (3) that a party or parties to the agreement committed the relevant offence; and (4) that when [the applicant] agreed to commit the relevant offence, he intended to traffic in a drug of dependence if it is Charge 1, or he intended to traffic in a drug of dependence in not less than large commercial quantity if it is Charge 2, or he intended to traffic in a drug of dependence in not less than a commercial quantity if you are dealing with the alternative to Charge 2.
If you find that any of these elements have not been proven beyond reasonable doubt, then you must find [the applicant] not guilty of committing the charge that you are then dealing with, whether it is Charge 1 on the indictment, Charge 2 on the indictment, or the alternative to Charge 2 on the indictment.
With respect to the second element, participation, the judge had earlier directed the jury as follows:
The second element that the prosecution must prove is that [the applicant] acted to support the agreement. For this element to be met, the prosecution must prove beyond reasonable doubt that [the applicant] did something to help the group commit the relevant offence.
The allegation here seems to be that he was the person responsible for obtaining the courier, if you like, the boy, Mr Al Hamza being the second one, the person who was going to do the actual couriering of the drugs from point A to the place where the transaction was going to be conducted. So his role was … recruiting or providing or obtaining that courier.
Nowhere in his charge, however, did the judge point specifically to any evidence that the jury might use to establish the asserted agreement (or, for that matter, any evidence that they were not entitled to use). That was a serious deficiency. The jury simply could not be left to their own devices to identify and isolate such evidence as might bear on the issue of whether there was an agreement in place, and, if so, its relevant details. It is the obligation of a trial judge — one which the judge in the present case did not adhere to — not only to direct the jury on the applicable law, but to assist them to apply that law to the facts of the case before them by telling them what, in the light of the directions of law, are the real issues raised in the case.[12]
[12]See R v Anderson [1996] 2 VR 663, 666–7 (Winneke P); JDA, ss 65 and 66.
Earlier in his charge, the trial judge had directed that they must decide the case ‘solely on the evidence’. He had then summarised the various categories of evidence, and had said that he would provide the jury with an ‘aide memoire’ consisting of a list of witnesses; the topics to which their evidence related; and the transcript page references for their evidence (the jury having been provided with a transcript).
The judge then directed the jury that it was for them to decide ‘what the facts are in this case … from all of the evidence that has been given during the trial’. Having done so, the jury was to ‘apply the law to the facts that [the jury] have found and decide whether the accused is guilty or not guilty of any of the offences charged’. The judge had then told the jury what the exhibits were; said that there had been a number of admissions and concessions made by the defence (without detailing what they entailed); and made clear that the jury would have a complete transcript of the evidence upon retirement. He told the jury that it was their ‘duty to decide this case only on the basis of the witness’ testimony, the exhibits, and the admissions and concessions which have been made’; and said that the jury ‘should consider the evidence which is relevant to a particular matter in its individual parts and as a whole, and come to a decision one way or another about the facts’.
Having dealt with the need to put aside prejudice, sympathy and outside information, and directed the jury on the assessment of witnesses, the judge turned to circumstantial evidence. As part of the direction on circumstantial evidence, the judge directed the jury that it might be helpful ‘to consider the pieces of evidence to be like the pieces of a jigsaw puzzle’, so that while ‘one piece may not be very helpful by itself, when all the pieces are put together, the picture may become clear’. The judge then dealt with the burden and standard of proof — directing that it ‘is the essential ingredients or elements of the charges that [the prosecution] must prove beyond reasonable doubt’ — before giving a separate consideration direction. In the course of the separate consideration direction the judge said: ‘Each charge must be considered separately in the light only of the evidence which applies to it’. He also said:
You will note that I said you must consider each charge in light only of the evidence which applies to it. This is because some of the evidence you have heard, and I will explain this to you in more detail, in this case, is only relevant to one charge or another. If a particular piece of evidence is only relevant to one charge, you may only use it when deciding whether or not the accused is guilty of that charge. You must not consider it in relation to the other charge.
Regrettably, however, the judge did not at any point ‘explain … in more detail’ the particular evidence that the jury would have to act on in order to find each charge proven.
The judge then directed the jury on the elements of the offence of trafficking in a drug of dependence, charge 1. Among other directions, he told the jury:[13]
Here the prosecution allege that [the applicant] was part of a group of people who acted together to sell 498 grams of heroin to covert operative Tony in Campbellfield in the vicinity of the Al-Diwan restaurant on 19 November 2014 for $110,000. So if you accept he was knowingly part of that group, [the applicant] does not have to do all the acts relating to any sale himself. So long as you are satisfied beyond reasonable doubt that he played his part in the sale, as I say I will give you more detailed directions about that aspect of the case later.
The defence argue he was not part of that group, and he knew nothing of any sale of heroin, and that he had no involvement in any sale of heroin. It is for you to determine based on all the evidence whether [the applicant] sold heroin and intended to make that sale.
[13]Emphasis added to this and following passages.
Next, the judge turned to the elements of trafficking in a drug of dependence in not less than a large commercial quantity, charge 2. He directed the jury (among other things):
So far as the first element is concerned in relation to Charge 2, the prosecution allege that [the applicant] was part of a group of people who acted together to sell 1,001.06 grams of heroin to covert operative 290, Billy [Vili] Nolan, and covert operative 279 Daz in Campbellfield in the vicinity of the Al-Diwan restaurant on 15 December 2014 for $220,000.
If you accept [the applicant] was knowingly part of that group, [the applicant] does not have to do all the acts relating to any sale himself, so long as you are satisfied beyond reasonable doubt he played his part in the sale. As I said earlier, I will give you more detailed directions regarding this aspect in a moment.
The defence argue he was not part of that group and knew nothing of the sale of the heroin on that day, and had no involvement in any such sale of heroin or any other drug.
Of significance, when giving the jury directions on the elements of the two offences, the judge repeatedly told the jury that they would have to determine whether a particular element was proven to their satisfaction ‘based on all the evidence’, without identifying the particular evidence which may have had a bearing on proof of the element in question. He should have done so.
Once he had charged the jury on ‘statutory complicity’,[14] the judge directed the jury on the DNA evidence (including its ‘limitations’). In the course of those directions, he set out the defence arguments concerning possible transference. The judge then dealt with the applicant’s failure to give evidence, the substance of those directions being uncontroversial.
[14]See [50]–[52] above.
The judge next said that he was ‘just very briefly going to give [the jury] a summary of the evidence and also indicate what evidence relates to which of the two charges’. He then provided the jury with an ‘aide memoire’,[15] which was ‘a list of all the witnesses, the date they gave their evidence, the name of the witness, their rank if they are a police officer, their role and so you will see that a number of them are listed under 19 November and others are listed under 15 December’. The judge told the jury ‘that will assist [them] to see which witnesses gave evidence about which of the two alleged transactions and then there is the page numbers in the transcript to their evidence’, and said he would ‘take [them] through that shortly’. According to the transcript of the charge, the judge then said:
Now, I have to give you some general directions about what I am about to tell you which are given to all juries. I am not [sic] going to take you briefly to the issues you need to decide and remind you of some of the evidence that has been given in relation to those issues. Well, I have actually gone through some of the evidence when I took you through the elements and went through the issues thereto but this is a more general presentation.
Before doing so, I want to remind you again that the mere fact that I may leave out a part of a particular witness's evidence does not mean that the evidence is not important. Similarly, the fact that I include evidence from a particular witness does not make that evidence more important than the evidence of other witnesses. You must consider all of the evidence, not just the parts of it that I mention. Which parts of that evidence are important or not important is a matter entirely for you to determine.
You have a complete transcript of all the evidence or at least it will be complete by the time you go into the jury room. I think the last trench [scil, tranche] is going to be given to you. It is sitting there to go into the jury room as you retire and you have also had two excellent closing addresses where the counsel have drawn your attention to the issues, as they see them, and the evidence that they say supports their respective cases in relation to those issues.
[15]See [53] above.
The judge then gave the jury ‘a skeletal outline of the case as [he saw] it’, reminding the jury that it was not his responsibility to decide the case. He then told the jury that ‘it seems to [him] that the evidence in this trial breaks down into five time periods’, which he set out. As part of that exercise, the judge told the jury in general terms the witnesses whose evidence related to those time periods, and the other evidence concerned, by reference to a jury folder that had been provided. The judge then summarised the exhibits. Significantly, when dealing with the many telephone text messages and recorded telephone calls, the judge made no attempt to instruct the jury as to the manner in which any one of them had relevance to any of the disputed issues in the trial. He concluded that part of his charge by saying:
So that is really a bit of a roadmap, if you like, to really the jury book, the other exhibits, and the witness’ testimony, and I have suggested you might not compartmentalise, but look at it in terms of its chronology.
Next, the judge gave the jury some brief directions about how they ‘might go about [their] deliberations’, before instructing the jury on the necessity for unanimous verdicts. Finally, the judge gave the jury instructions as to how their verdicts would be taken.
From the foregoing survey of the judge’s charge, it may be appreciated that the judge neither directed the jury specifically to any evidence which they might use to determine the disputed issue whether the applicant was a member of the drug syndicate alleged, nor to evidence that might have shown that he had agreed with members of that syndicate to sell heroin. Further, on charge 2, the judge did not point the jury specifically to any evidence bearing on the issue whether the applicant had any knowledge, belief or awareness of the fact that the weight of the heroin sold (in a mixture) was not less than one kilogram.
In Thompson, Redlich JA discussed the common law obligations of a judge in a criminal jury trial:[16]
[16]R v Thompson (2008) 21 VR 135, 162 [134] (‘Thompson’) (citations as in original).
The common law obligations of a judge in every jury trial were summarised in R v AJS.[17] They include an explanation to the jury as to how the law applies to the facts of the case, identification of the issues in the trial, relating the issues to the facts of the case[18] and summarising so much of the evidence as is relevant to the facts in issue by reference to the issues in the case. These obligations subsume the judge’s obligation to ensure that the prosecution and defence case is clearly placed before the jury, usually by summarising the addresses of counsel, on both sides.[19]
And he added:[20]
The principle stated in Alford v Magee[21] that the law must be given to the jury with an explanation of how it applies to the facts,[22] together with the well-established concomitant obligation to identify the issues and the evidence relevant to those issues, has been the subject of extensive attention in this court.[23] Alford v Magee was again discussed in Fingleton v R[24] by McHugh J who referred to the obligations of the trial judge to ‘identify the real issues in the case, the facts that are relevant to those issues and [provide] an explanation as to how the law applies to those facts’.
[17](2005) 12 VR 563.
[18]RPS v R (2000) 199 CLR 620, at 637, [41]–[43] per Gaudron ACJ, Gummow, Kirby and Hayne JJ; R v Defrutos [1998] 2 VR 589, at 597–8 per Callaway JA; R v Anderson [1996] 2 VR 663, at 666–7 per Winneke P.
[19]R v Yusuf (2005) 11 VR 492; R v Crockett (2001) 124 A Crim R 312, at 315 per Ormiston JA; R v Dao (2005) 156 A Crim R 459, at 465 per Buchanan, Vincent JJA and Byrne AJA.
[20]Thompson, 163 [136] (citations as in original).
[21](1952) 85 CLR 437.
[22]Alford v Magee (1952) 85 CLR 437, at 466 per Dixon, Williams, Webb, Fullagar and Kitto JJ; R v Zilm (2006) 14 VR 11, at 22, [48] per Eames JA.
[23]R v Anderson [1996] 2 VR 663, at 667 per Winneke P, Brooking JA and Southwell AJA concurring; R v Franks [1999] 1 VR 518, at 524, [17] per Winneke P, Tadgell and Batt JJA concurring; R v Dao (2005) 156 A Crim R 459, at 465, [18] per Buchanan, Vincent JJA and Byrne AJA; R v De’Zilwa (2002) 5 VR 408 at 411, [5] per Ormiston JA; at 416–17, [23]–[28] per Charles JA.
[24](2005) 227 CLR 166, at 197, [77].
In AJS, the Court had summarised a judge’s obligations as follows:[25]
[25]R v AJS (2005) 12 VR 563, [55]–[56] (Maxwell P, Nettle JA and Redlich AJA) (citations as in original).
Axiomatically, it is the responsibility of the trial judge in every jury trial:
(a)to decide what are the real issues in the case;
(b)to direct the jury on only so much of the law as is necessary to enable the jury to resolve those issues;
(c)to tell the jury, in the light of the law, what those issues are;
(d)to explain to the jury how the law applies to the facts of the case; and
(e)to summarise only so much of the evidence as is relevant to the facts in issue, and to do so by reference to the issues in the case.
These propositions are of long-standing and of high authority. They have often been repeated in this court.[26] If adhered to, they should serve to simplify, rather than complicate, the task of the trial judge. Adherence to them is, of course, essential if the jury is to be adequately equipped for its task.
[26]Alford v Magee (1952) 85 CLR 437, at 466; R v Wilkes & Briant [1965] VR 475; R v Jellard [1970] VR 802; Bellizia v Meares [1971] VR 641, at 644–5; R v Anderson [1996] 2 VR 663, at 666–7; R v Franks [1999] 1 VR 518, at 524–5; R v De’Zilwa (2002) 5 VR 408, at 416–17; R v Dardovska (2003) 6 VR 628, at 633; R v Taylor (2004) 10 VR 199, at 205–6, [23]; R v Yusuf (2005) 11 VR 492, at 499–500, [15].
Properly understood, ss 65 and 66 of the JDA — which are located in Part 8, ‘Trial judge’s summing up’ — do little more than reflect the common law.[27] They are in the following terms:
[27]See Mathieson v The Queen [2020] VSCA 102, [62] (Priest, Kyrou and T Forrest JJA), in which the judge’s duty to put the accused’s case is discussed.
65 Trial judge’s obligations when summing up
In his or her summing up to the jury, the trial judge—
(a) must explain only so much of the law as is necessary for the jury to determine the issues in the trial; and
(b) must refer the jury to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial but need not summarise the closing addresses of the prosecution and the accused; and
(c) need not give a summary of the evidence but, in accordance with section 66, must identify so much of the evidence as is necessary to assist the jury to determine the issues in the trial; and
(d) may use a combination of oral and written components.
66 Trial judge required to identify only evidence necessary for determination of issues
(1) The trial judge is required to identify only so much of the evidence given in the trial as is necessary to assist the jury to determine the issues in the trial.
(2) In determining whether and if so to what extent identification of evidence is necessary under subsection (1), the trial judge must have regard to—
(a) the facts in issue; and
(b) the complexity of the facts in issue; and
(c) the length of the trial; and
(d) the complexity of the evidence; and
(e) the submissions and addresses of the prosecution and the accused; and
(f) any reference to the way in which the prosecution and the accused have put their cases in relation to the issues in the trial; and
Note
See section 65(b).
(g) any special needs or disadvantages of the jury in understanding or recalling the evidence; and
(h) any transcript of the evidence in the trial or any other document provided to assist the jury to understand the evidence.
Note
Section 223 of the Criminal Procedure Act 2009 provides for the trial judge to give the transcript of the evidence in the trial and certain other documents to the jury for the purpose of helping the jury to understand the issues or the evidence.
(3) In addition to the requirements of subsection (2), the trial judge may have regard to any other matter that he or she considers appropriate.
As we have endeavoured to make clear, the judge in the present case failed to ‘identify so much of the evidence as is necessary to assist the jury to determine the issues in the trial’. The significance of that failure cannot be understated in the present case, which largely turned on the applicant’s alleged complicity.
In that context, it is important to understand that the prosecution did not distinctly rely on any kind of Tripodi reasoning in order to establish either of the charges against the applicant.[28] Thus, it was not suggested that any of the acts or declarations of the other parties to the alleged agreement were admissible in proof of the case against the applicant. That, in our view, is particularly significant so far as the applicant’s conviction on charge 2 is concerned.
[28]Tripodi v The Queen (1961) 104 CLR 1, 7–8 (Dixon CJ, Fullagar and Windeyer J); Ahern v The Queen (1988) 165 CLR 87, 94–5.
As we have mentioned,[29] on 3 December 2014 — prior to the sale founding charge 2 — Aydin met with covert operatives ‘Tony’ and ‘Vili Nolan’ at a park in Ascot Vale. Aydin stated that codes should be used when arranging purchases of heroin, a dollar sign ($) being a reference to a kilogram of heroin, and a yen symbol (¥) being a reference to half a kilogram of heroin. Importantly, when arranging the sale the subject of charge 2, the undercover operative sent a message to Aydin using a dollar sign, indicating that the buyer wanted to purchase a kilogram of heroin. When he charged the jury, however, with respect to the applicant’s ‘mental state’ on charge 2 — whether he ‘intended to traffic[k] in a drug of dependence in not less than large commercial quantity if it is Charge 2, or intended to traffic[k] in a drug of dependence in not less than a commercial quantity if it is the alternative to Charge 2’ — the judge gave no directions at all, first, as to whether the jury were permitted to use Aydin’s provision of the codes concerning weights to the undercover police in order to fix the applicant with knowledge of the quantity of heroin negotiated to be sold on 15 December 2014; or, secondly, if they were so permitted, the circumstances in which they could do so.
[29]At [14] above.
In Nguyen, when dealing with a charge of trafficking in a commercial quantity of a drug of dependence under s 71AA of the Drugs Poisons and Controlled Substances Act 1981, the Court observed:[30]
[W]e answer the principal question in the application for leave to appeal and the question raised in the director’s reference as follows:
(1) In order to prove the commission of an offence under s 71AA of the Act, the Crown must prove beyond reasonable doubt that the accused intended to commit the act of trafficking which is alleged and hence that the accused knew or believed that it was, or was likely, that the subject of the act of trafficking was prohibited drugs and that the amount in question was not less than a commercial quantity.
(2) Absent relevant admissions, the question of intention must ordinarily be determined by the jury as a matter of inference from proof that the accused did the physical act of trafficking which is alleged and proof of the circumstances in which it was done.
(3) It is a question of fact to be decided by the jury as part of that process as to whether the circumstances are sufficient to establish the requisite knowledge or belief.
(4) The judge should identify for the jury any evidence of facts and circumstances capable of sustaining the inference and, ordinarily, but subject always to the facts of the particular case, the judge may direct the jury that proof beyond reasonable doubt that the accused believed that there was a significant or real chance that the subject of the act of trafficking was prohibited drugs and that the amount in question was not less than a commercial quantity, is capable of sustaining the inference.
(5) The judge should further direct the jury, however, that it is in the end a matter for them whether the inference of intention is properly to be drawn and that they should not draw an inference of intention unless satisfied that it is the only inference reasonably open.
[30]DPP Reference No 1 of 2004; R v Nguyen (2005) 12 VR 299, 312–3 [37] (Vincent, Eames and Nettle JJA) (emphasis added).
In the instant case, for the purposes of charge 2 the judge did not distinctly identify for the jury any evidence of facts and circumstances capable of sustaining the inference that the applicant intended to traffick in a large commercial quantity of heroin. Hence, he did not ‘identify … so much of the evidence given in the trial as [was] necessary to assist the jury to determine [one of] the issues in the trial’.
We consider that the judge’s failure on both charges on the indictment sufficiently to identify for the jury’s consideration the particular facts and circumstances that the prosecution relied upon to support inferences key to its case, and which were indispensable to conviction, has led to a substantial miscarriage of justice. The deficiencies in the judge’s charge are such that we find ourselves unable to conclude that, absent those deficiencies, conviction would have been inevitable.[31]
[31]Baini v The Queen (2012) 246 CLR 469; Andelman v The Queen (2013) 38 VR 659.
The first ground must be upheld.
The second ground: Is the verdict unreasonable or incapable of being supported by the evidence?
The second ground may be shortly disposed of.
In our opinion, there is sufficient evidence for a properly instructed jury to find charge 2 proven to the criminal standard.
At the time of the applicant’s offending, a large commercial quantity of heroin was one kilogram. We consider that it would be open to a reasonable jury to conclude on the available evidence that the applicant intended to traffick ‘in a quantity of a drug of dependence … that is not less than the large commercial quantity’.[32]
[32]Drugs Poisons and Controlled Substances Act 1981, s 71(1).
In that regard, it will be remembered that the heroin the subject of charge 2 was supplied to the undercover police in a black plastic garbage bag, tied in a large knot at one end, within which was a clear vacuum seal bag containing 1001.6 grams of heroin of approximately 60 per cent purity. Very significantly, the applicant’s DNA was found on the sealed plastic bag containing the heroin. In our view, that evidence — when considered with the other evidence in the case — would permit a properly instructed jury to conclude that the applicant was responsible for packaging not less than a kilogram of heroin, with the intention of trafficking not less than that quantity to the putative purchaser.
Although it is appropriate to grant leave to appeal with respect to ground 2, it cannot be upheld.
Extension of time
As we have indicated, the applicant needs an extension of time.
The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[33] In circumstances in which it must be concluded that the applicant has suffered a substantial miscarriage of justice, it is plain that the extension of time must be granted.
[33]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA).
Conclusion
The application for an extension of time within which to file a notice of application for leave to appeal against conviction, and the application for leave to appeal against conviction, should both be granted; the appeal should be allowed; the convictions on both charges should be set aside; and a new trial should be ordered.
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