Harvey v The Queen
[2017] WASCA 201
•27 OCTOBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HARVEY -v- THE QUEEN [2017] WASCA 201
CORAM: BUSS P
MAZZA JA
BEECH JA
HEARD: 17 OCTOBER 2017
DELIVERED : 27 OCTOBER 2017
FILE NO/S: CACR 131 of 2017
BETWEEN: MICHAEL ROSS HARVEY
Appellant
AND
THE QUEEN
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :GETHING DCJ
File No :IND 961 of 2016
Catchwords:
Criminal law - Appeal against conviction - Appellant convicted after trial of two counts in an indictment - Count 1 alleged an attempt to commit an offence contrary to s 307.6(1) of the Criminal Code (Cth) in that the appellant attempted to possess a marketable quantity of an unlawfully imported border controlled drug - Whether the trial judge misdirected the jury as to the fault element of intention
Legislation:
Criminal Code (Cth), s 3.2(b), s 11.1, s 307.6
Result:
Leave to appeal refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S B Watters
Respondent: No appearance
Solicitors:
Appellant: Legal Pathways
Respondent: Director of Public Prosecutions (Cth)
Case(s) referred to in judgment(s):
Nil
JUDGMENT OF THE COURT: The appellant has applied for leave to appeal against conviction.
He was convicted, after a trial before Gething DCJ and a jury, of two counts in an indictment.
Count 1 alleged that on 23 June 2014, at Perth, the appellant attempted to commit an offence contrary to s 307.6(1) of the Criminal Code (Cth) (the Code) in that he attempted to possess a marketable quantity of an unlawfully imported border controlled drug, namely methamphetamine, contrary to s 11.1(1) read with s 307.6(1) of the Code.
Count 2 alleged that on 23 June 2014, at Perth, the appellant dealt with money that he intended would become an instrument of crime and that, at the time of the dealing, the value of the money was $10,000 or more, contrary to s 400.6(1) of the Code.
We would refuse leave to appeal. Our reasons are as follows.
The Crown's case at the trial
The Crown's case at the trial was based on lawfully obtained telephone intercept material.
The appellant had arranged with a male person, who at all material times was overseas, to meet Andrew Laird at Edgewater train station on 23 June 2014 for the purpose of obtaining possession of a border controlled drug. The arrangement involved the appellant giving Mr Laird $10,000 cash (and an additional $100 cash for his taxi fares to and from the station) in exchange for Mr Laird giving the appellant a package containing the drug. The overseas male person told the appellant that Mr Laird might be dressed as a woman when he came to the station.
CCTV footage showed Mr Laird arriving at Edgewater train station on 23 June 2014 in a taxi. He was dressed as a woman. Police arrested the appellant and Mr Laird at the station. The appellant's bag was searched. The police found $10,000 cash and an additional $100 cash. The appellant also had possession of a mobile telephone. The telephone number had been monitored by the police pursuant to a telecommunications interception warrant.
The Crown's case was that the appellant was a person who trafficked or sold methamphetamine. The Crown relied on propensity evidence, namely the appellant's pleas of guilty to offences involving the trafficking or sale of the drug during the three month period before the alleged offending at Edgewater train station. In addition, the Crown adduced evidence of items found by the police when they searched the appellant's house after he was arrested. The items included digital scales with traces of methamphetamine, clipseal bags, a notebook containing entries consistent with previous drug transactions, and another mobile telephone which had been monitored pursuant to the warrant.
The prosecutor submitted at the trial that the appellant had attempted to obtain possession from Mr Laird of what the appellant thought was methamphetamine. The appellant had engaged in conduct that was more than merely preparatory to the commission of the substantive offence. In particular, the appellant brought with him to the station the cash he needed for the proposed drug transaction. Had he managed to meet with Mr Laird, the appellant would have exchanged the money for what he believed was a package containing methamphetamine. In the event, the package contained merely 500 g of rice.
The appellant's case at the trial
The appellant did not give evidence at the trial.
Defence counsel called one witness, namely the appellant's father, Gary Harvey. He gave evidence that on 19 June 2014 he had withdrawn $10,000 cash from his bank account and given it to the appellant to assist him in the operation of his limestone business (ts 165 - 167).
The appellant's case was that the Crown had not proved beyond reasonable doubt that the appellant had committed the offences. Defence counsel submitted to the jury that the appellant's conduct before he was arrested was merely preparatory to the commission of the substantive offence pleaded in count 1. It was not an attempt.
The proposed grounds of appeal
The appellant relies on two proposed grounds of appeal.
Ground 1 alleges that there was a miscarriage of justice in that the trial judge misdirected the jury as to an element of the offence pleaded in count 1.
Particulars of ground 1 assert that his Honour 'did not direct the jury adequately or at all that the fault element of intention and knowledge in s 11.1(3) of [the Code] must be present at the time of the conduct that constitutes the attempt'.
Ground 2 alleges that the verdict of guilty on count 2 was 'unsupported by the evidence'.
Counsel for the appellant said that ground 2 'falls to be considered only if ground 1 is upheld'.
Ground 1: counsel for the appellant's submissions
Counsel for the appellant submitted that the decisive issue of fact for the jury in relation to count 1 was 'whether the Crown had proved beyond reasonable doubt that [the appellant] had "knowledge" that the … package he was to collect at Edgewater train station contained a border controlled drug'.
According to counsel for the appellant:
The [trial judge's] failure to explain that the belief was required to be held at the time of the offending created a real risk that the jury would interpret any intent or knowledge [the appellant] held about drugs generally as relevant, rather than the specific knowledge [the appellant] was required to have about the package in question at Edgewater Train Station at the time he went to collect it.
Ground 1: the relevant statutory provisions
Section 307.6 of the Code provides, relevantly:
(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 marketable quantity.
Penalty:Imprisonment for 25 years or 5,000 penalty units, or both.
(2)Absolute liability applies to paragraphs (1)(b) and (d).
(3)The fault element for paragraph (1)(c) is recklessness.
Section 11.1 of the Code provides, relevantly:
(1)A person who attempts to commit an offence commits the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
(2)For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(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.
Note:Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.
(3A)Subsection (3) has effect subject to subsection (6A).
(4)A person may be found guilty even if:
(a)committing the offence attempted is impossible; or
(b)the person actually committed the offence attempted.
…
(6A)Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence. (original emphasis)
Although s 11.1(3) of the Code states that, 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, by s 3.2(b) of the Code, in respect of each physical element for which a fault element is required, only one of the fault elements for the physical element must be proved.
So, as regards the provision in s 307.6(1)(a) that a person commits an offence if, relevantly, 'the person possesses a substance':
(a)by s 11.1(3), the fault elements in relation to the physical element of possessing a substance within s 307.6(1)(a) are 'intention' and 'knowledge';
(b)however, by s 3.2(b), only one of the fault elements of 'intention' and 'knowledge' must be proved.
The expression 'special liability provision' referred to in s 11.1(6A) is defined in the Dictionary of the Code to mean, relevantly, 'a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence'.
Ground 1: its merits
In the present case, count 1 on the indictment alleged that on 23 June 2014 the appellant attempted to commit the offence in question.
The relevant fault element in relation to the possession of a substance, for the purposes of the offence pleaded in count 1, was that the appellant intended to possess a substance, being the contents of the package he was to collect at Edgewater train station. It was necessary that the appellant had that intention when he engaged in conduct that was more than merely preparatory to the commission of the offence.
The trial judge directed the jury in his summing up that, in order to establish the appellant's guilt on count 1, it was necessary for the Crown to prove five elements. His Honour said:
Has the Commonwealth proven beyond reasonable doubt [that] [the appellant] intended to possess a substance, being the contents of the package he was to collect at the Edgewater Train Station?
Has the Commonwealth proven beyond a reasonable doubt that [the appellant] … was aware of the substantial risk that the substance he intended to possess was a border controlled drug, and having regard to the circumstances known by [the appellant] it was unjustifiable to take the risk the substance was a border controlled drug?
[Has] the Commonwealth proven beyond reasonable doubt that [the appellant] intended to possess a border controlled drug that had been unlawfully imported?
Has the Commonwealth proven beyond reasonable doubt that [the appellant] had begun to put his intention to possess a border controlled drug into effect by doing an act that was more than merely preparatory to the commission of the offence?
And finally:
Has the Commonwealth proven beyond a reasonable doubt that [the appellant] intended to possess more than a marketable quantity of a border controlled drug (ts 187 ‑ 188).
In our opinion, it is not reasonably arguable that the jury could have been uncertain or in doubt as to whether it was necessary for the Crown to prove beyond reasonable doubt that:
(a)the appellant intended to possess a substance, being the contents of the package he was to collect at Edgewater train station; and
(b)the appellant had that intention when he engaged in conduct that was more than merely preparatory to the commission of the offence in question.
We are of that opinion because count 1 alleged that the appellant attempted to commit the offence on 23 June 2014; it was not in contest at the trial that on 23 June 2014 the appellant went to Edgewater train station; his Honour directed the jury that the Crown must prove beyond reasonable doubt that the appellant intended to possess a substance, being the contents of the package he was to collect at the station; his Honour directed the jury that the Crown must prove beyond reasonable doubt that the appellant intended to possess an unlawfully imported border controlled drug; and his Honour directed the jury that the Crown must prove beyond reasonable doubt that the appellant had begun to put into effect his intention to possess a border controlled drug by doing an act that was more than merely preparatory to the commission of the offence.
In particular, the trial judge's direction that the Crown must prove beyond reasonable doubt that the appellant had begun to put his intention to possess a border controlled drug into effect undoubtedly and unequivocally conveyed to the jury that the Crown must prove beyond reasonable doubt that the appellant had the requisite intention when he engaged in conduct that was more than merely preparatory to the commission of the offence.
The appellant's experienced defence counsel (who was not the appellant's counsel in the appeal) did not request his Honour to redirect the jury or give the jury a further direction on the point now raised in ground 1.
Ground 1 is without merit.
It is unnecessary to consider whether the directions which the trial judge gave to the jury were, as a matter of law, unduly favourable to the appellant.
Conclusion
Ground 1 has no reasonable prospect of success. Accordingly, ground 2 falls away. The appeal is hopeless and should not have been brought. Leave to appeal should be refused and the appeal dismissed.
0
0
1