Higgs v The Queen
[2015] VSCA 223
•26 August 2015
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2014 0264
| JOHN HIGGS | Applicant |
| v | |
| THE QUEEN | Respondent |
---
| JUDGES: | OSBORN, PRIEST and BEACH JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 17 August 2015 |
| DATE OF JUDGMENT: | 26 August 2015 |
| MEDIUM NEUTRAL CITATION: | [2015] VSCA 223 |
| JUDGMENT APPEALED FROM: | The Queen v Higgs (Unreported, King J, 24 May 2012 (conviction); 30 April 2013 (sentence)) |
---
CRIMINAL LAW — Appeal — Conviction — Conspiracy to possess a commercial quantity a border controlled drug (MDMA) — Knowledge that drug a border controlled drug — Whether the judge misdirected the jury as to knowledge — Circumstantial evidence — Whether the trial judge misdirected the jury on circumstantial evidence — Whether the verdict of the jury is unreasonable and cannot be supported having regard to the evidence — Application for leave to appeal against conviction refused.
CRIMINAL LAW — Appeal — Sentence — Conspiracy to possess a commercial quantity a border controlled drug (MDMA) — Whether the trial judge erred in assessing the extent of the applicant’s criminality — Whether the applicant sentenced on erroneous view as to nature of a prior conviction — Whether the trial judge erred in determining that the applicant’s co-operation with respect to the conduct of the trial was not a matter that could properly be taken into account in the determination of sentence — Application for leave to appeal against sentence refused.
---
| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr H Dhanji SC | Stephen Andrianakis & Associates |
| For the Crown | Mr D J Lane | Commonwealth Director of Public Prosecutions |
COURT OF APPEAL
459 Lonsdale Street, Melbourne, VIC 3000
OSBORN JA
PRIEST JA
BEACH JA:
Conviction, sentence and grounds of appeal
Following a trial in the Supreme Court which occupied 54 days,[1] the applicant, who was tried together with Rob Karam (‘Karam’), Salvatore Agresta (‘Agresta’) and Pasquale Sergi (‘Sergi’), was convicted by a jury of conspiring with his co-accused, and with Pasquale Barbaro (‘Barbaro’), Saverio Zirilli (‘Zirilli’), Carmelo Falanga (‘Falanga’), Jan Visser (‘Visser’) and others, to possess a commercial quantity of an unlawfully imported border controlled drug, MDMA (also ‘3,4-Methylenedioxymethamphetamine’ or ‘ecstasy’).
[1]The jury were empanelled on 27 February 2012, retired on 4 May 2012 and returned verdicts on 24 May 2012.
On 30 April 2013, the applicant was sentenced to be imprisoned for 18 years, upon which the trial judge fixed a non-parole period of 14 years.
The applicant has sought leave to appeal against both his conviction and sentence.
With respect to conviction, ultimately the applicant relied on three grounds[2] as follows:
1. The learned trial judge erred in failing to properly direct the jury that the Crown had to prove that the applicant knew that the substance, the subject of the conspiracy, was a border controlled drug or border controlled plant within the meaning of s 300.2 of the Criminal Code, resulting in a substantial miscarriage of justice.
2. The learned trial judge erred in her directions on circumstantial evidence resulting in a substantial miscarriage of justice.
3. The verdict of the jury is unreasonable and cannot be supported having regard to the evidence.
[2]For convenience, we have renumbered the grounds.
As to sentence, the grounds advanced were:
1. The learned sentencing judge erred in assessing the extent of the applicant’s criminality.
2. The learned sentencing judge erred in sentencing the applicant on the basis that he had previously committed an offence of conspiracy to traffic a commercial quantity of amphetamines.
3. The learned sentencing judge erred in determining that the applicant’s co-operation with respect to the conduct of the trial was not a matter that could properly be taken into account in the determination of sentence.
For the reasons that follow, we would refuse both applications.
The offending
Only a brief overview of the essential facts underpinning the charge against the applicant is necessary. The offending has previously been described a number of times in earlier judgments concerned with the applicant’s co-conspirators.[3]
[3]Barbaro v The Queen; Zirilli v The Queen (2012) 226 A Crim R 354, 356–7 [1]–[5] (Maxwell P, Harper JA and T Forrest AJA); Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58, 65–6 [1]–[5]; Karam v The Queen [2015] VSCA 50, [7]–[29] (Weinberg, Priest and Beach JJA) (‘Karam’); Visser v The Queen; Falanga v The Queen [2015] VSCA 168 [9]–[22] (Weinberg, Priest and Beach JJA) (‘Visser’).
In late May 2007, a shipping container packed with an enormous quantity of ecstasy — more than 15 million tablets, weighing 4.4 tonnes and containing in excess of 1.4 tonnes of pure MDMA — concealed in some 3000 large cans, each labelled ‘Peeled Tomatoes’, was loaded on board the ‘MV Monica’ in Naples, Italy. The MV Monica docked in the Port of Melbourne on 28 June 2007, and the vessel was unloaded on the same day. Customs officers opened the shipping container, inspected the contents and discovered the illicit drugs.
It should be noted, however, that the charged conspiracy did not relate to the importation of the tablets. Instead, the prosecution alleged that the conspirators’ object was to obtain possession of the drug after it had been landed in Australia.
In essence, the applicant’s role in the conspiracy was said to be that of a conduit between Karam on the one hand, and Barbaro, Zirilli and Falanga on the other. The prosecution asserted that he obtained information from Karam — who had experience working in customs clearance and freight forwarding — with respect to obtaining safe access to the container and its contents, which he then conveyed to Barbaro, Zirilli and Falanga. It was also alleged that the applicant facilitated various meetings involving Barbaro, Zirilli, Sergi and Visser, in furtherance of the conspiracy.
In a record of interview with police on 8 August 2008, the applicant’s account was one of an innocent association with the alleged co-conspirators. Indeed, he explained his meeting with Barbaro on the basis that he wanted to sell him a hoist for use by Barbaro in his agricultural pursuits.
At trial, the prosecution relied on a substantial body of circumstantial evidence — including a large volume of intercepted conversations, transcripts of text messages and police surveillance of the various alleged co-conspirators — in order to prove the existence and object of the conspiracy, and the applicant’s participation in it. Although the applicant did not contest that Barbaro, Zirilli and Falanga were involved in a conspiracy to obtain possession of a significant quantity of a border controlled drug imported into Australia within a shipping container, he asserted that the prosecution evidence did not prove beyond reasonable doubt that he knew of, or became party to, the conspiracy.
First conviction ground — claimed misdirection with respect to the applicant’s knowledge of the nature of the substance
In support of the first ground, the applicant’s counsel submitted that in order to establish the applicant’s guilt the prosecution needed to prove that the conspiracy related to a ‘border controlled drug’, but that the judge’s directions failed to deal with the ‘particularity of what was required’. It was argued that the trial judge had misdirected the jury by instructing them that ‘all illegal drugs are border controlled drugs’. This was, it was submitted, a serious misdirection in the context of a case where the central issue was the applicant’s knowledge of the identity of the relevant substance, including whether the prosecution could exclude the possibility that the applicant’s mental state was consistent with an intention to possess some other form of contraband.
The trial judge’s directions have previously been scrutinised by this Court. They were not found wanting. Thus, in Karam it was contended that the judge had misdirected the jury on the elements of the offence. Much of what her Honour told the jury in her oral and written directions is set out at length in the Court’s reasons,[4] and, beyond what is set out below, need not here be repeated. The Court described the directions as ‘thorough, complete and accurate’.[5] For present purposes, we adhere to that description.
[4]Karam, [125]–[143].
[5]Ibid. [140].
Section 307.5 of the Criminal Code (Cth) provides that a person who possesses an unlawfully imported border controlled drug in a commercial quantity commits an offence. By virtue of s 11.5 of the Code, a person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence. At the time of the alleged offending, s 300.2 provided that a border controlled drug was a substance listed or described as a border controlled drug in s 314.4. Some 155 substances, together with a drug analogue or alkaloid of any such substance, were specified, usually by their chemical name.[6] Moreover, there was capacity for a border controlled drug to be specified by regulation; or, in an emergency, by legislative instrument under the hand of the Minister.
[6]Item 101 listed ‘3,4-Methylenedioxymethamphetamine (MDMA)’, but not the drug’s common name, ‘ecstasy’.
So as to assist the jury to comprehend her oral directions concerning the elements of the offence, the judge provided the jury with two documents, entitled respectively ‘Written Directions to the Jury as to Elements of the Crime Charged’ and ‘Decision Tree’. Given the manner in which the case was conducted at trial, these documents accurately set out the elements of the offence charged. They complemented the judge’s oral directions, which were full and accurate. The judge repeatedly made clear to the jury — orally and in writing — that the prosecution had to prove that the accused knew that they were attempting to possess a border controlled drug.
In the course of her oral directions, the judge said:[7]
You have had evidence that MDMA is a border controlled drug and the evidence is overwhelming that the items sought to be possessed was being smuggled through the Australian Customs hidden within tins and secreted within a container upon the Monica which had brought the container and its contents from Naples to Melbourne.
What is disputed by each of the accused is that they knew what was in the container was a border controlled drug and that that was what was being sought to be possessed. They say the Crown has failed to prove that knowledge on their part.
The Crown must of course prove beyond reasonable doubt in the case of each accused that he knew that what they were agreeing to possess was in fact a border controlled drug. If the Crown fail to prove that, then they fail to prove that the accused has entered into the named conspiracy as this element of the offence that they are accused of conspiring to commit would not have been proven. If the Crown cannot prove that the accused entered into an agreement knowing that what was going to be possessed was going to be a border controlled drug, then they failed to prove that any accused, the accused that you are considering, has entered into that particular agreement that they must prove.
Further, … they have to prove that the quantity that was going to be possessed and is within the agreement of the border controlled drug was a commercial quantity. In this case the highest amount for a commercial quantity of drug or plant under the Commonwealth Criminal Code is 100 kilograms, which is applicable to cannabis … In respect of morphine or heroin, the commercial quantity is 1.5 kilos. Methamphetamine or speed, the amount is .75 of a kilo, 750 grams. In respect of 3, 4 methylenedioxymethamphetamine, which is what MDMA is and the subject of the charge here, the commercial quantity is half a kilogram or 500 grams. The Crown submit that there is ample evidence that the conspirators were attempting to possess drugs and a huge quantity of drugs.
[7]Emphasis added.
The judge later directed the jury:
… like all counsel I have used the specific words of the legislation to indicate what it is the accused must be agreeing to do, that is obtaining possession of a border controlled drug in a commercial quantity. And I wondered if in fact I was confusing you, because that doesn’t mean that is what they have to discuss or know, those particular terms. It’s a matter for you if you are satisfied that what it is that they know fits in within the definition of a border controlled drug in a commercial quantity. That’s why I gave you the quantities of different border controlled drugs so you would have knowledge of what are the commercial quantities required.
All illicit drugs are border controlled drugs, all of them, cannabis, heroin, speed, ecstasy, it just goes on the list.[8] I haven’t read you the whole of the list because it is written in a wonderfully scientific language of the 3, 4 methylenedioxy [sic.], so it includes all illicit drugs. They are border controlled drugs, they are not entitled to bring them into the country.
So you would not be expecting that an accused person or anyone involved in a conspiracy of this nature would sit around and say, ‘Look, I'm going to bring in some border controlled drugs in a commercial quantity, do you want to have an involvement?’ That's not what has to happen. They don’t have to turn their mind and say, ‘Well, in relation to this we've used the exact terms’. I’ll give you some examples of the sort of discussions that would constitute the potential for you to find that in fact the agreement relates to a border controlled drug in a commercial quantity and these are just things that I am giving you as examples, they are not evidence in the case, no one has said any of these things that are recorded, all right. So I’m not suggesting that this is recorded in any way, but I’m trying to give you an indication of what I mean in relation to that.
So, if someone says, ‘I've got a container load of drugs coming in, can you help?’ If someone says, ‘I've got a couple of tonnes of eccies coming in through the port’. If someone says, ‘I have’ and you can think of a number of expletives that might go in there ‘load of drugs coming in’, all of that is the type of material you would expect because it’s turning the mind to the fact that they are coming in.
Now of course this is attempting to possess what’s in a container and I’m not sure there is a great deal of dispute about the container aspect of it, but that’s a matter for you, so it is whether or not they have turned their mind to the fact that something is coming in and that something is drugs.
They do not have to know what type of drug, at all, but they do have to understand that it is a quantity of drugs coming in, into Australia, and it is going to be very large, such that would fit in to the category of a commercial quantity.
[8]Emphasis added.
There was no exception by the applicant’s counsel — or, indeed, by any of the other experienced counsel in the case — to these directions. Despite the absence of any exception, however, counsel for the applicant in this Court submitted that the judge was required to direct that ‘it was necessary to prove that the applicant agreed to import a border controlled drug rather than simply a drug or an illicit drug’. It was submitted that the prosecution could prove this by proving that the applicant agreed to import, first, either a substance he knew to be in the class ‘border controlled drug’ (although the precise identity of the substance may have been unknown to him); or, secondly, MDMA (in which case it was not necessary that he knew that MDMA was a border controlled drug); or, thirdly, some other ‘particular’ border controlled drug (in which case it would not matter that the applicant was mistaken as to the identity of the precise border controlled drug), although it was not necessary to prove that the applicant knew the particular drug was on the list of border controlled drugs. There was, it must be said, an air of unreality attending these submissions.
Of course, strictly speaking — and divorced from the real issues in the trial — it was not correct to say that ‘all illicit drugs are border controlled drugs’, there being various illicit substances under State and Commonwealth law that were not border controlled drugs. But in our view, in light of the way the case was conducted, the judge’s directions were entirely apposite. The shipping container held many times the commercial quantity of any specified border controlled drug. It was the prosecution’s case that the alleged conspiracy was to possess the contents of the container. There was ample evidence to show that the applicant knew that the container held a large quantity of something that had been illegally imported, the live question being whether the applicant knew or believed that the container held a commercial quantity of MDMA or other border controlled drug, as distinct from some other illegally imported item. That was the battleground upon which the trial was fought. Counsel for the applicant raised the single innocent hypothesis that the evidence was consistent with a belief by the applicant that the container held tobacco, guns, stolen valuables or money. Significantly, at no time neither did counsel for the applicant posit that the applicant believed — or might have believed — that the container held an illicit drug or precursor chemical or similar substance which was not a border controlled drug; nor, as far as we can determine, did the evidence raise that as a possibility. During the trial there was no mention of precursor chemicals or any other illegally imported drug which was not a border controlled drug. Indeed, in his record of interview with police the applicant claimed, among other things, that all of his dealings with Barbaro related to an attempt to sell Barbaro a hoist. In light of the evidence in the trial, and given the way the defence was conducted, it would have been wholly unrealistic for the trial judge to have directed the jury in the manner that it is now contended that she should have.[9]
[9]See Visser, [193].
During the course of his final address, senior counsel for the applicant — who, it might be observed, is very experienced in large drug cases — made plain the narrow issue joined between his client and the prosecution. He said:
Now in my submission to you, the prosecution case is based on an assumption of agreement and participation in the relevant conspiracy.
Pausing there. I'm not going to argue that Barbaro, Zirilli and Falanga weren’t involved in a conspiracy. No problem. If I need to concede it, I concede it. But the evidence is obvious. So they were involved in agreeing with each other to possess those drugs. … There’s a conspiracy between those three.
But it’s Mr Higgs’ involvement in that conspiracy, his intent to be involved in that conspiracy, that he is charged with.
…
So there is a conspiracy. There is an agreement and it involves Falanga, Zirilli and Barbaro. But in my submission the balance of the Crown case against my client involves assumption in participation in that conspiracy, as opposed to the possibility of an agreement to do something that doesn’t involve the necessary knowledge.
So, in my submission, the prosecution case and its treatment of every evidentiary issue is coloured by a prosecution presumption of participation. …
Counsel had earlier addressed the jury as follows:
Now, in my submission to you it’s not sufficient if John Higgs was agreeing to assist in the obtaining of a container. That is self-evident because the crime is not possessing a container. …
It’s not enough if he was agreeing to connect or liaise with Mr Karam to help find or organise a container. That’s not enough.
It’s not enough if he was agreeing to help obtain the container and he had a knowledge or belief that there was some potentially valuable product that might be hidden within the container. That’s not enough. That’s not enough.
It goes without saying that all sorts of items can be valuable. Lots of things can be illicit. Why must it be a border controlled drug in a commercial quantity? Don’t let the fact that we’ve had the photos of the open doors and the stacked pallets and the 3000 tins and the 15 million tablets sway your minds in terms of what was known at the time when those people were talking on the telephone and meeting. We know that because we’ve been shown that. But there’s no evidence, in my submission, to you. It doesn’t go within a bull’s roar of John Higgs knowing that. Not a bull’s roar. Nowhere near it.
Why mightn’t the subject of the conversation have been masses of tobacco? Why wasn’t it guns? Stolen valuables, money. Who knows? I’m not inviting speculation on that, but it’s the Crown that needs to satisfy you that the conversations that it relies on and the movements it points to must have been for a border controlled drug in a commercial quantity.
…
… But where in one call, in one bit of evidence that you can be satisfied about can you say to yourselves, ‘Oh, I can be satisfied that Barbaro told John Higgs details of what was in that container’. Anywhere in any of this.
Of course, the Crown says that you can infer, you can draw conclusions by pointing to the various activities to reach the conclusion that Higgs knew. The question I ask you is: did Pat Barbaro tell him? Did Zirilli tell him? Did Falanga tell him? Zip. No evidence.
Thus, it is clear that the major issue in the applicant’s trial was whether he knew that the container contained a border controlled drug, or whether there was a reasonable hypothesis that he believed that it contained some other illicit goods. There was no contest, however, that if the applicant knew the nature of the container’s contents, then he knew that those contents were a border controlled drug.
Given the manner in which the trial was conducted, it would be wholly unrealistic to have expected the judge to have directed the jury in the manner pressed in this Court. In our view, the jury were adequately directed as to the need to be satisfied that the applicant knew or believed that the substance he intended to possess was a border controlled drug, it being unnecessary for the prosecution to prove that the applicant knew or believed that the container in particular held MDMA.[10]
[10]Weng v The Queen (2013) 279 FLR 119, 139 [74] (Osborn JA, Buchanan and Neave JJA agreeing). Cf R v Franze (2013) 37 VR 101 (Kaye J).
There is no substance in the first ground.
Second conviction ground — asserted misdirection as to circumstantial evidence
Under cover of the second ground the applicant’s counsel submitted that the prosecution case against the applicant sought, by way of circumstantial evidence, to establish an inference as to his state of mind. The applicant’s case was that the evidence was not capable of establishing the relevant state of mind beyond reasonable doubt. Thus, it was submitted, the directions on circumstantial evidence were of central importance. So much may be accepted.
In discussion of this ground, however, it is unnecessary to set out the judge’s directions on the drawing of inferences and circumstantial evidence in any detail, since — with, perhaps, three qualifications — counsel for the applicant acknowledged that they were free from error.
The first qualification arose out of a direction given by the judge which was intended to meet an erroneous submission made to the jury by Karam’s counsel in his final address. In effect, counsel had submitted that certain evidence supported the inference that Karam’s death had been planned and that a ‘hitman’ had been enlisted to carry out the task. Plainly, since it lacked any proper evidentiary foundation, the submission should not have been made, and the judge thus felt obliged to correct any misleading impression it might have engendered in the jury. Although her directions doing so were directed at the submission made by Karam’s counsel, counsel for the applicant in this Court submitted that a miscarriage of justice flowed from her Honour’s remarks; and in particular, when she said:
What was being put as an alternative hypothesis or view has absolutely no basis founded on the evidence and would be nothing more than speculation, guesswork.
Counsel for the applicant acknowledged that the direction was correct, but asserted that it ‘introduced a degree of confusion as to the need for evidence to support an inference as opposed to evidence which leaves open a reasonable possibility’. It was said that the judge’s next directions blurred the distinction between possibilities open on the evidence (in the sense, not excluded) and ‘positive conclusions’ that could be drawn from the evidence. Counsel criticised the following passage:[11]
So, when I say to you about competing inferences, it must be competing inferences that are open on the evidence. It must be a reasonable hypothesis supported by the evidence, not some fanciful speculation. This is not story writing. It is not like the ad you see on TV where that annoying man says in the insurance add, ‘What if we are abducted, wait for it, by aliens’, you will recall that. It is not that sort of situation, that’s not what we are talking about when we are talking about inferences. It must be a conclusion that is open from the evidence, that is the evidence leads you to say, ‘This is a conclusion that can be drawn by me because there is evidence that indicates it is a proper and right conclusion’.
[11]The risk of miscarriage was, as we understood it, said to lurk in the italicised portions.
With respect, when the criticised passage is read against the background of the other unimpeachable directions given on the topic of inferences and circumstantial evidence, in our view it is unlikely that the distinction between hypotheses open on the evidence, and the drawing of concrete conclusions, became blurred.
The second qualification expressed by the applicant’s counsel related to an analogy that the judge used concerning a ‘jigsaw puzzle’, which, it was submitted, was apt wrongly to suggest that any hypothesis consistent with innocence had to be established as a positive inference. Her Honour had said:
So circumstantial evidence of the type involved in this case consists of events, facts or circumstances that fit together like the pieces of a jigsaw puzzle to make a picture. In such a case the strength of the proof doesn’t depend on any particular individual piece of evidence but upon the clarity of the picture when the pieces are properly assembled.
You might even have a sufficiently certain picture without using all of the pieces or wondering if pieces may in fact come from a particular other puzzle, but in a case such as this you should examine the assembling of those pieces with care to see that enough of them exist and that they could only be assembled to paint the picture of guilt.
If they can be assembled, if those circumstances and facts that you find proven can be assembled to paint some other picture other than the picture the Crown have to paint, then you would have a reasonable doubt about the existence of the guilty picture.
The analogy of a jigsaw puzzle is sometimes used to illustrate the necessity to have regard to the whole of the evidence before reaching conclusions about individual aspects of it or its probative value as a whole.[12] In the present case, the prosecutor used the analogy in his final address. In turn, counsel for Sergi responded with the submission that the analogy illustrated the fundamental fault with the Crown case, namely that it was premised upon a preconception into which the Crown was artificially seeking to fit the evidence. In a similar vein, counsel for the applicant submitted to the jury that if they went through the voluminous evidence there was not one piece of it that directly linked him to the container and its contents.
[12]R v O’Neill [2001] VSCA 227, [101]–[106], [110] (O’Bryan AJA, Ormiston and Buchanan JJA agreeing).
Given the course of addresses it is not surprising that the trial judge employed the analogy that she did. It was responsive to the way the parties had joined issue. Moreover, it was buttressed by repeated instructions that the law is clear and unequivocal that in any circumstantial case an accused person may not be convicted unless the jury is satisfied beyond reasonable doubt that the only reasonable inference or conclusion that can be drawn from the proven facts is that the accused is guilty. There is nothing in this point.
The third qualification related to directions that the judge gave in answer to a jury question. After retirement the jury asked a question concerning an example that the judge had used in her charge to illustrate the drawing of inferences. The example the judge had used was concerned with several people robbing a bank, and the jury’s question returned to that analogy. In context, however, in our view the jury would have understood the judge’s answer to their question as affirming that, before they were entitled to convict, based on all of the circumstantial evidence the jury needed to be satisfied that the only reasonable hypotheses available were that a conspiracy of the kind alleged existed, and that the accused under consideration had entered the conspiracy.
The jury cannot have been misled by any of the directions concerning circumstantial evidence that were singled out for criticism.
Ground 2 thus cannot be upheld.
Third conviction ground — claim that the verdict is unsafe and unsatisfactory
The contention in the third ground to the effect that the verdict is unsafe and unsatisfactory cannot be upheld.
In his application for leave to appeal against conviction, Visser also contended that his conviction was unsafe and unsatisfactory. That contention failed.[13] Significantly, the main body of the prosecution’s evidence against Visser was substantially the same as that relating to the applicant, although it seems to us that the evidence showed the applicant’s active involvement in the conspiracy to be more extensive, and to span a longer period, than Visser’s. Unlike Visser, however, the applicant did not give evidence in the trial. He simply relied on his record of interview with police, which, it might be said, contained a number of falsehoods, and a wholly improbable account of the applicant’s dealings with Barbaro in relation to the purchase of a hoist.
[13]Visser, [28]–[57].
In the main, the evidence in the trial consisted of surveillance device recordings, surveillance observations and intercepted telephone calls and text messages. Very little of it was challenged. Indeed, many surveillance observations and other circumstantial facts were the subject of admissions. In our view, that evidence established that the applicant was the conduit between Karam on the one hand, and Barbaro, Zirilli and Falanga on the other. The applicant was an intermediary between them with respect to information pertinent to the container. Importantly, the evidence was overwhelming — and the applicant did not contest — that at least Barbaro, Zirilli and Falanga were parties to a conspiracy to possess the contents of the container, knowing the contents were a commercial quantity of an illegally imported border controlled drug. The real issue for the jury was whether the applicant joined that conspiracy. This Court must ask itself whether the jury, acting reasonably and having regard to all of the evidence, must have — as opposed to might have — entertained a reasonable doubt that the applicant did so.
To prove the applicant’s guilt, the prosecutor relied on six main points. In his final address to the jury, he summarised them as follows:
Point one. We point to what is his revealed role as a conduit, a middle man, between Mr Karam on the one hand and Mr Barbaro, Mr Zirilli and Mr Falanga in particular on the other, we say insulating Mr Karam from the need to communicate directly, electronically at least, with the leadership group at crucial early stages in the conspiracy, otherwise than by the more safe face-to-face meeting.
Secondly, we point to the content and to the timing of the numerous communications, and they are numerous, message and voice, in respect of which Mr Higgs admits involvement in terms of the timing and the content.
Third, we point to the admitted fact, admitted by Mr Higgs, that is the fact and the timing of the numerous meetings that occur over time with co-conspirators, we say.
Fourth, we point to the content and to the timing of the conversations in which he is assuredly involved within room 609 of the Pacific International Suites. We point in particular to the incriminating conversation, and this is a separate point we say, worthy of separation, we point in particular to the incriminating content of the conversation in room 609 on the afternoon of the 4th of July 2007, the ‘delivery successful’ conversation.
Sixth, he we point to Mr Higgs’ repeated expressions of concern during the conspiracy period that his use of telephones would incriminate him with respect to the matter with which he is charged.
In our opinion, it was well open to the jury on all of the evidence to be satisfied of the applicant’s guilt. Having carried out our own independent assessment of the evidence, we are of the view that the case against the applicant was very strong. He had hundreds of communications with Karam, and with Barbaro, Zirilli, Falanga and other associates, during the period of the alleged conspiracy, including text messages, telephone calls and meetings. It seems clear from the evidence that the applicant made himself available to Karam, Barbaro, Falanga and Zirilli at all hours of the day and night, and spent days awaiting instructions. It is fair to say that he devoted a deal of energy to his dealings with those individuals, in circumstances where it was plain that he knew that a team was involved in a joint enterprise of a commercial nature. The evidence revealed that the applicant knew that, as part of that enterprise, various of the members of the team often made interstate trips and trips overseas. The recorded conversations demonstrate that the conspirators spoke freely to him and in his presence. These things, taken together, are highly probative of the applicant’s guilt.
The evidence also revealed that, on 4 July 2007, after an apparently anxious wait for information about the container, the applicant reported to Barbaro and others that he had received a message, ‘delivery successful’ (albeit that the applicant’s understanding was wrong). There were then discussions between the conspirators as to arranging a truck to collect the container. The applicant was party to those discussions, that fact being clear evidence of his knowledge of the enterprise. Indeed, in a covert recording Zirilli said, ‘the truck driver’s waiting for us’, prompting the applicant to say, ‘give ’im a hundred thousand to sit on his arse and wait again ... we’ve just gotta let it fuckin’ take its time ... what they want to do is take it there, empty it ... take the shit back, leave it there, ring the truckie, help them load it and fuck off’.
In our view, the prosecution’s case was compelling. There is nothing in the submission that the verdict is unsafe and unsatisfactory.
The application as to sentence
As to sentence, we do not accept that the judge erred — as the applicant claimed that she did — in assessing the extent of the applicant’s criminality.
For the purposes of sentencing them, the judge attempted to determine ‘the positions occupied by the various persons involved in the conspiracy’.[14] In so doing, she put Barbaro and Falanga at the apex (although Falanga was not a ‘overtly involved’), with Zirilli in a ‘slightly lower position than Falanga’. Next was Karam, ‘who was below those three people at the head of the organisation, but still held a very important position within the planning group, in that his advice was sought and his views accepted and acted upon’. The applicant came next. He ‘was in an inferior position to Karam, and was considered by some of the group to be reckless and foolish in his behaviour, but still considered by all to be an important participant, with his knowledge, experience and contacts’. Finally, the ‘foot soldiers’, with no decision-making or decision-influencing role, were Agresta and Sergi. In our view, the judge’s characterisation of the applicant’s role was entirely apt.
[14]See Olbrich v The Queen (1999) 199 CLR 270; Dao v The Queen [2014] VSCA 93, [39] (Redlich JA).
Counsel for the applicant also criticised a passage in the judge’s sentencing remarks in which she said that other conspirators believed ‘that Higgs and Karam had contacts and expertise, in respect of obtaining safe possession of containers from the docks, particularly because of Karam’s history in international freight forwarding, and Higgs experience generally, in the illegal drug industry’. It was submitted that it was not open to her Honour to conclude that the applicant had expertise with respect to obtaining safe possession of containers from the docks. That is not, however, what the judge found. In the criticised passage the judge was merely recounting what the other conspirators thought. She was not making a positive finding as to the applicant’s expertise. There is no substance in the submissions advanced as to the judge’s findings concerning the applicant’s role.
Next, counsel submitted that the exercise of the sentencing discretion was vitiated by the judge inaccurately referring to the applicant’s prior conviction for trafficking amphetamine as relating to a commercial quantity. We would not uphold this submission.
At one point in her sentencing remarks the judge correctly recounted that on 11 March 1999 the applicant had been convicted at the County Court of Victoria on one count of conspiracy to traffic in a drug of dependence, amphetamine, for which he was sentenced to be imprisoned for six years with a non-parole period of four years. Later, however, the judge incorrectly described the conviction as being a conspiracy to traffick in a ‘commercial quantity of amphetamines’, it being accepted by the parties that the conviction in 1999 did not relate to a commercial quantity of illicit drugs.
In our view, however, the reference to a ‘commercial quantity’ was a mere slip. It could not have influenced the exercise of the sentencing discretion. There is nothing in the submission that it might have done so.
Finally, echoing a submission advanced in Karam, counsel argued that the judge erred in determining that the applicant’s co-operation in the conduct of the trial was not a matter that could be taken into account in the determination of sentence. Having observed that there was ‘no doubt that the materials were presented in a co-operative manner’, that the applicant ‘did not object to the prosecution proving matters through witnesses who may not have been strictly or legally the person who could prove the matter’, and that he ‘co-operated in terms of the presentation of material in written form and in a logical manner for the jury’, the judge said in her sentencing remarks:
I am aware that some Judges have expressed the view that there should be some reward for such co-operative behaviour, but I am unable to agree that such behaviour should produce a reduction in a sentence.
The applicable principles were spelt out in Karam, where the Court said:[15]
In our view, the authorities show that the co-operation by the accused with the Crown and the facilitation (shortening) of the conduct of the trial may be a matter taken into account upon sentencing even when remorse has not been shown. The utilitarian value of such conduct, in appropriate circumstances, is a matter that might mitigate a sentence that would otherwise be imposed. That is not to say that there should always be a reduction in sentence. Each case will depend upon its own circumstances. In some cases, where admissions have been made, it might be plain that such admissions were made for good strategic reasons. In such circumstances, it may be that it is illusory to talk about a utilitarian benefit where none really exists because no rational person would have prolonged his or her trial by putting in issue matters that the Crown was plainly in a position to prove.
In considering any amelioration of sentence that might be afforded for an accused’s co-operation or admissions made during the course of a trial, care needs to be taken to ensure that other accused who might not have made admissions or who might have more vigorously contested the Crown case are not penalised for exercising their legal rights to defend themselves.
[15]Karam, [155]–[156] (footnotes omitted).
In so far as her Honour’s remarks might be understood as suggesting that co-operation in the conduct of a trial is never a matter which might be reflected in an amelioration of sentence, her Honour erred. In the context of this case, however, it is an error of no importance. Nobody in the applicant’s position at trial, exercising sound judgment, would have put the prosecution to strict proofs of matters which it plainly was in a position to establish. The applicant’s co-operation could not have resulted in any meaningful reduction of sentence. There is no merit in the contention that it could have.
None of the grounds relating to sentence can be upheld.
Conclusion
For the foregoing reasons, both applications must be dismissed.
---
4
10
0