Hughes v The State of Western Australia
[2015] WASCA 164
•24 AUGUST 2015
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: HUGHES -v- THE STATE OF WESTERN AUSTRALIA [2015] WASCA 164
CORAM: McLURE P
MAZZA JA
CHANEY J
HEARD: 20 FEBRUARY 2015
DELIVERED : 24 AUGUST 2015
FILE NO/S: CACR 223 of 2013
BETWEEN: MATTHEW JOHN HUGHES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 224 of 2013
BETWEEN : MATTHEW JOHN HUGHES
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
FILE NO/S :CACR 225 of 2013
BETWEEN :JOHN RIZEQ
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :McCANN DCJ
File No :IND 202 of 2013
Catchwords:
Criminal law - Application for leave to appeal against conviction - Failure by prosecution to disclose all evidentiary material under s 42(5) Criminal ProcedureAct 2004(WA) - Application of the proviso under s 30(4) Criminal Appeals Act 2004(WA) - Unsafe and unsatisfactory - Expansion of State case - Majority jury verdict - Section 80 and s 109 Commonwealth Constitution
Criminal Law - Application for leave to appeal against sentence - Totality - s 109 Commonwealth Constitution - Turns on own facts
Legislation:
Commonwealth Constitution
Crimes Act 1914 (Cth)
Criminal Appeals Act 2004 (WA)
Criminal Code 1995 (Cth)
Criminal Procedure Act 2004 (WA)
Drugs Poisons and Controlled Substances Act 1981 (Vic)
Federal Court of Australia Act 1976 (Cth)
Judiciary Act 1903 (Cth)
Juries Act 2000 (Vic)
Misuse of Drugs Act 1981 (WA)
Sentencing Act 1995 (WA)
Result:
CACR 223 of 2013
Leave to appeal on ground 1 granted
Appeal dismissed
CACR 224 of 2013
Leave to appeal refused
Appeal dismissed
CACR 225 of 2013
Leave to appeal on grounds 1, 2 and 4 refused
Leave to appeal on grounds 6 and 7 granted
Appeal dismissed
Category: B
Representation:
CACR 223 of 2013
Counsel:
Appellant: Mr S Vandongen SC
Respondent: Ms L Petrusa SC
Solicitors:
Appellant: Barone Criminal Lawyers
Respondent: Director of Public Prosecutions (WA)
CACR 224 of 2013
Counsel:
Appellant: In person
Respondent: Ms L Petrusa SC
Solicitors:
Appellant: In person
Respondent: Director of Public Prosecutions (WA)
CACR 225 of 2013
Counsel:
Appellant: Mr L A Margaretic
Respondent: Ms L Petrusa SC
Solicitors:
Appellant: Luka Anthony Margaretic
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Byrnes v The Queen (1999) 199 CLR 1
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Cheatle v The Queen [1993] HCA 44; (1993) 177 CLR 541
Gassy v The Queen (2008) 236 CLR 293
Giglia v The State of Western Australia [2010] WASCA 9
Guler v The State of Western Australia [2014] WASCA 83
Handlen v The Queen [2011] HCA 51; (2011) 245 CLR 282
Holland v The Queen [1993] HCA 43; (1993) 67 ALJR 946
Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659
Le v The State of Western Australia [2015] WASCA 73
Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
PAH v The State of Western Australia [2015] WASCA 159
Pedersen v Young (1964) 110 CLR 162
R v Hillier [2007] HCA 13; (2007) 228 CLR 618
Rizeq v The State of Western Australia [2015] WASCA 81
Solomons v District Court of New South Wales [2002] HCA 47; (2002) 211 CLR 119
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
White v The Queen [2006] WASCA 62
JUDGMENT OF THE COURT: These are applications by Mr Hughes and Mr Rizeq for leave and, if leave is granted, to appeal against conviction. Mr Hughes also seeks leave to appeal against his sentence. The applications and appeals were heard together.
Matthew Hughes, John Rizeq and Jeremy Hoban were tried together in the District Court in September 2013 on one count of possession of MDMA with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (MDA) (count 1) and one count of possession of methylamphetamine with intent to sell or supply (count 2). Mr Hughes and Mr Rizeq were convicted on both counts. Mr Hoban was acquitted of both offences.
On 30 October 2013 Mr Hughes was sentenced by McCann DCJ to 3 years imprisonment on count 1 and 9 years imprisonment on count 2. The sentences were ordered to be served cumulatively, resulting in a total effective sentence of 12 years imprisonment. On the same date, Mr Rizeq was sentenced to a total effective sentence of 10 years imprisonment.
A third co‑offender, Matthew Sumner, who had entered a late guilty plea, was also sentenced on 30 October 2013. A total effective sentence of 6 years imprisonment was imposed for the offences. A fourth co‑offender, Cem Guler, who also pleaded guilty, was sentenced in August 2013 to a total effective sentence of 8 years imprisonment.
Mr Hughes and Mr Rizeq acted in person in commencing the appeals and in preparing their appellant's cases. Thereafter, Mr Hughes was represented in the conviction (but not sentence) appeal by new solicitors and senior counsel. In Mr Hughes' appeal against conviction there is one ground of appeal, being that the prosecution failed to disclose all relevant evidentiary material.
Mr Rizeq was also represented by counsel at the hearing of the appeal. In Mr Rizeq's appeal against conviction, there are seven grounds of appeal, two of which (grounds 3 and 5) were abandoned by formal notice dated 3 March 2015. An appeal against sentence was also abandoned and withdrawn by notice dated 3 March 2015. The remaining grounds in the appeal against conviction are in the following terms:
(1)The verdict was unsafe and unsatisfactory due to the learned sentencing judge misdirecting the jury with overawing comments.
(2)The verdict was unsafe and unsatisfactory as the evidence does not support the conviction.
(4)The trial judge went beyond his duties by expanding the prosecution's case causing a miscarriage of justice.
(6)In relation to Constitutional Law the appellant's situation falls under Federal jurisdiction and should have been [tried] under Federal law and not State law, as inconsistences between the two are immensely significant.
(7)Full disclosure of evidence that supports the defence case left undisclosed and unavailable to the defence, resulting in unfair trial allowing for a miscarriage of justice.
Ground 7 overlaps with Mr Hughes' sole ground in his appeal against conviction.
The background facts
Findings made by the trial judge for the purpose of sentencing include matters which are not in contest in the appeals. Acting on evidence already gathered, on 16 July 2012 police executed search warrants at two hotels in Perth and seized a Nissan Navara motor vehicle (the Vehicle). They removed the bullbar from the Vehicle and located three packages in a specially fabricated compartment within the bullbar. One package contained approximately 2,000 MDMA tablets which weighed 509 g, another contained 403 millilitres of liquid methylamphetamine in two soft drink bottles and a third package contained 1,063 g of the cutting agent MSM.
The MDMA tablets had a purity of 18% and the methylamphetamine had a purity of approximately 80%. The liquid methylamphetamine would have been further processed and mixed with the MSM and was capable of producing at least a kilogram of good user‑level methylamphetamine.
The Vehicle was driven to Perth from Sydney by Messrs Guler, Sumner and Hoban. The journey commenced on 13 July 2012 and finished in Perth at the Formula 1 Hotel on the evening of 15 July 2012.
The Vehicle had been kept at Mr Rizeq's panel beating workshop in Sydney for a period before the commencement of the journey and was prepared for the journey at that workshop. On the afternoon of the departure, the packages were secreted in the compartment of the bullbar in which they were found. With Mr Guler's assistance, the bullbar was reinstalled on the Vehicle.
Messrs Guler, Sumner and Hoban drove as quickly as possible from Sydney to Perth, with only one stop to sleep. They reported their progress, or attempted to do so, to Mr Hughes and sometimes to Mr Rizeq by telephone.
Mr Hughes flew to Perth on 14 July 2012 and stayed at the Hyatt Hotel. Mr Rizeq flew to Perth on 15 July 2012 and shared Mr Hughes' room at the Hyatt.
The prosecution case at trial relied heavily on covert telephone intercept material. The respondent filed a schedule in accordance with practice direction 7.4 listing all of the evidence for and against the prosecution case (the PD 7.4 schedule). The main prosecution witness was a police officer, Gavin Kerber, who gave detailed evidence of the content of the covert communications on which the State relied.
The covert material adduced in evidence at trial as summarised in the PD 7.4 schedule is as follows:
•The prosecution relied upon text messages and one phone call (CSN0007, CSN00008 and CSN000010) as evidence that Hoban was picking up something for Hughes under the name 'Jeremy'
•CSN00013 (Hughes to Hoban) call in which they discuss a 'very fucking long road trip' and Hughes tells Hoban it's not a road trip or piss up
•In CSN00018 Hughes tells Rizeq there are dramas with the 'truck' (The prosecution case was that both Hughes and Rizeq were involved in preparing the truck, albeit in different ways with Hughes placing the drugs in the [bullbar] and Rizeq getting the truck prepared mechanically)
•CSN00034 (Hughes to Guler) Hughes has trouble with putting something back together and Guler tells him where the '19' and the two '17's' should go (The prosecution alleged this was Hughes replacing the bolts on the [bullbar] after secreting the drugs)
•CSN00035 is further explanation by Guler to Hughes of the above procedure to affix the [bullbar] with the bolts
•CSN00040 - Hughes tells Guler the bar is sagging about 5 inches at the back … Guler is going to be there soon to assist Hughes get the 'bar' on
•CSN00043, 44, 45, 48, 49 and 50 are text messages between Hughes and Sumner, with Hughes telling Sumner he's needed; that 'it's too late to ask anyone else' and that they are waiting for him
•CSN00063 ‑ 70, 72 ‑ 73, are text messages between Hughes and Hoban and Sumner showing that the journey to Perth has commenced by late evening on 13/7/12 (Hoban has $1500 cash for the journey and has to pay Hughes back)
•CSN00074 ‑ 05.16 am text [from Hoban] to Hughes saying 'wakie, wakie' followed by a call from Hoban to Hughes at 05.39 (CSN00076). The prosecution allege Hoban is checking in with Hughes to advise him of their progress
•CSN00087 - Rizeq calls Hughes. Hughes asks if Rizeq is coming tonight. Rizeq says he might book for tomorrow (15/7/12). Rizeq ask Hughes if he's needed by Hughes for anything that day and is told 'No, it's all good'
•CSN00100 - Hughes call Rizeq. He tells Rizeq the boys are at Hay Plain. Rizeq asks why not 'flat stick'? The prosecution relies on the call to suggest that Rizeq knows the boys are bringing the drugs and wants them to drive more quickly
•CSN000107 ‑ 9, 111, 141 ‑ 2, 144, 147, 150, 152 ‑ 3, 168 ‑ 9, 171 and 173 ‑ 7 show Hughes arranging his flight to Perth. He departs Sydney for Perth on the afternoon of 14/7/12
•CSN00189 (Hughes to Hoban) Hoban tells Hughes they estimate being there at 5 o'clock on 15/7/12
•CSN00212 - Hughes calls Rizeq and they discuss when Rizeq will arrive in Perth. Rizeq asks if Hughes has enough money. Hughes says he is about to board his flight. The prosecution allege that keeping in close touch is part of the joint enterprise between Hughes and Rizeq
•CSN00213, 217, 219, 222, 226, 229, 230, 231, 234 ‑ 5, 340, 343. Hughes keeps texting Rizeq and the others as his flight takes off
•From CSN00482 to CSN00517 Hughes and Rizeq can't get through to the co‑accused. Discuss possible breakdown or possibility of them being 'rolled'. Prosecution allege panic because the co‑accused, in possession of the drugs, may have been arrested
•CSN00554 - Hoban calls Hughes who tells Hoban that they had him 'shitting'
•CSN00557 - Hughes then calls Rizeq to tell him they are back in touch with co‑accused
•The communications between CSN000615 and CSN00663 consists of mainly missed calls as Guler and the others arrive in Perth and attempt to contact a sleeping Hughes
•[CSN 00663] - Guler … asks Hughes where 'Johnny' is and is told he is on the plane
•CSN00671 - Hughes calls Rizeq and tells him the co‑accused have arrived and have all gone to the Formula 1 hotel
•Hughes takes a taxi to Formula 1 where he collects Hoban and Sumner and they first go back to the Hyatt (see CSN00667)
Mr Hughes did not give evidence at his trial. However, during a video‑recorded police search of his room at the Hyatt Hotel, the appellant said he was in Perth to have a 'meeting with Modern' (a roofing company); he did not have an appointment with Modern but was just going to see them; he had his own roofing company called 'MJH Roofing'; and he was originally coming to Perth to see his 'ex' but thought he would see Modern while he was here.
Mr Rizeq participated in an video‑recorded interview with police and gave evidence in his defence at trial.
Non-disclosure - appellants' and respondent's cases
Mr Hughes annexed to his appellant's case a number of documents that had not been tendered in evidence and were not the subject of oral evidence at his trial. Annexure 1 contains three screen shots of Mr Hoban's mobile telephone, one of which shows an exchange of SMS messages on 13 July 2012 between Mr Hughes and Mr Hoban. Each of those exchanges were captured by covert police surveillance and allocated a call sequence number (CSN) as follows:
Sender
Message
CSN Number
MH to JH
Can you get Chinese! I'm doing the order over the phone … Il pay ya back
CSN 5
JH to MH
Kk
CSN 6
JH to MH
Just tell me the name it's under
CSN 7
MH to JH
Jeremy is the name
CSN 8
A related communication occurred at 2.16 pm on 13 July 2012 (CSN 10), being a telephone call from Mr Hoban to Mr Hughes that includes the following:
JH to MH: Did you put that order in or what?
MH: Yeah.
JH: What, down the road near Auto[1]?
MH: Yeah. And grab, ah, grab a couple of cans of Coke there too …
Mr Rizeq annexed to his appellant's case a copy of the same screenshot of Mr Hoban's mobile telephone on 13 July 2012 (Annexure B) with an additional entry from Mr Hoban to Mr Hughes (CSN 9) which reads:
Bumpin smokes is the game.
CSN 9 adds nothing of significance to CSN 5 to 8 and 10 and can be put to one side.
The undisclosed communications in CSN 5 and 6 were relevant to the State case against Mr Rizeq because it was dependent on the State establishing the guilt of Mr Hughes.
The prosecution had disclosed CSN 7, 8 and 10 but not CSN 5 and 6. In cross‑examination by counsel for Mr Hoban, officer Kerber confirmed that all relevant covert communications had been disclosed and that CSN 1 to 6 were not deemed by police to be relevant (ts 309).
The other two screen shots on Annexure 1 to Mr Hughes appellant's case were not captured by police surveillance. Annexure 2 contains photographs of a Chinese restaurant and its address. Annexure 3 contains a bank statement for the period 10 March 2010 to 27 April 2010 (18 months before the commission of the offences) and several pages of bank statements for various months (without showing for what years) purporting to show one payment by 'Modern Roof' and other payments by other alleged roofing companies to Mr Hughes. Annexure 4 is a letter dated 6 May 2014 (around eight months after trial) from a person identifying himself as the owner of a company carrying on a roof restoration business saying he and Mr Hughes had worked for the 'Modern Group of Companies'.
Annexure C to Mr Rizeq's appellant's case is the same photograph as Mr Hughes' Annexure 2.
Save for CSN 5 - 8, there is nothing to suggest the prosecution was ever in possession of any of the other evidence in the Annexures. There is no application in Mr Hughes' appeal (or affidavit in support) to adduce the other evidence, which can only be categorised as new, not fresh (the new evidence).
Although senior counsel for Mr Hughes informed the court at the hearing of the appeal that he did not have instructions to abandon reliance on the new evidence, no application was made to amend the grounds of appeal and no oral submissions were advanced in support of a 'new evidence' ground. No doubt that is because such a ground would have no reasonable prospect of succeeding.
Mr Rizeq's counsel swore an affidavit dated 13 January 2015 in which he claims the photographs in Annexure C will assist the court 'with conceptualising the geographic proximity between the restaurant and Mr Rizeq's workshop'. In the absence of evidence that the restaurant was in fact the subject of the undisclosed SMS messages, they do not. As the new evidence is irrelevant to any of the grounds of appeal, it can be ignored.
Mr Hughes also applied to adduce in evidence in his conviction appeal a covert recording (CSN 595) of a conversation at 17:39 on 15 July 2015 between the appellant and an unknown person unconnected with Mr Hughes' offending. The exchange suggests the unknown person was an acquaintance. After it became clear from Mr Hughes' responses that he was in Perth, the acquaintance asked what he was doing over here, to which Mr Hughes responded:
Oh, just setting up roofing and shit.
The respondent conceded at the appeal hearing that CSN 5, 6, and 595 had not been disclosed by the prosecution to the appellant. However, there was no evidence concerning when and how the appellants became aware of the content, and had come into possession, of the screenshot of CSN 5 to 9. At the conclusion of the hearing, the court ordered the appellant to file affidavits addressing the source and timing of their knowledge of the content of the non‑disclosed material.
In an affidavit dated 12 March 2015 Mr Hughes swore that his mobile telephone was taken from him by police at the time of his arrest; he had not listened to the recordings of the covert material disclosed by the prosecution; he first became aware of the text messages in his Annexure 1 after sentencing when Mr Hoban sent him a printout of screenshots from his telephone; until he received those screenshots, he had no recollection of the content of those text messages; he only became aware of CSN 5, 6, and 595 in February 2015 after his new lawyer obtained a disc containing all of the covert intercept material recorded by police.
Mr Hughes' trial counsel, Mr Tudori, swore in an affidavit dated 12 March 2015 that he no longer had knowledge of, and therefore could not comment on, their knowledge of the substance of the matters in the covert material that was not disclosed by the State.
Mr Rizeq filed an affidavit dated 3 March 2015 that does not descend to particulars of when and how he or his trial counsel first became aware of the content of CSN 5, 6 and 9. There was no evidence from his trial counsel.
The prosecution brief served on the appellants prior to trial contained a schedule of around 155 intercepted communications and a transcript of each of those communications. However, it was clear from the text of the schedule that there were at least 682 intercepted communications. Very oddly, there was no request by or on behalf of the appellants to have access to the intercepted communications that had not been disclosed by the prosecution.
The respondent's written submissions in the conviction appeal reflect a misguided and cavalier approach to disclosure. There is no recognition or acknowledgement of the fact that the prosecution had failed in its statutory (and common law) duty to disclose CSN 5 and 6 to the appellants. The appellants' complaint is erroneously characterised as not really about non‑disclosure but rather the prosecution's failure to play all the intercepted communications at trial: [18], [34]. Much is made of the fact that the appellant's counsel did not complain of non‑disclosure or request that the specified intercepted communications be played at trial: [21], [25], [28]. We are told 'it should be firmly kept in mind' that CSN 5 and 6 were either from or to the appellant: [32], [36]. There is no reference in the respondent's written submissions to CSN 595 because that was raised just prior to the appeal hearing.
Further, as demonstrated below, the first entry in the respondent's PD 7.4 schedule set out above misstates the prosecution case based on CSN 7 and 8. The summary is otherwise accurate.
It was not until the hearing of the appeal that senior counsel for the respondent conceded, correctly on any view, that CSN 5, 6 and 595 should have been disclosed by the prosecution to the appellants prior to trial. However, there appeared to be a misapprehension as to the scope of the disclosure obligation in s 95(6) of the Criminal Procedure Act 2004 (WA) (CPA). It is to that matter we now turn.
CPA disclosure obligations
The prosecution's statutory disclosure obligations are contained in s 42, s 45 and s 95 of the CPA. Sections 42 and 45 are in pt 3 div 4 relating to the summary jurisdiction procedure on a charge of an indictable offence.
Section 42(5) relevantly provides:
As soon as practicable after a charge is adjourned under section 41(4), the prosecutor must serve the accused with the following ‑
(a) …
(b)any evidentiary material that is relevant to the charge.
Section 41(4) provides that if an accused enters any plea other than a plea of guilty or does not plead to the charge, the court must adjourn the charge to a disclosure/committal hearing on a new court date that allows a reasonable time for the prosecutor to comply with s 42 of the CPA.
In a court of summary jurisdiction, the 'prosecutor' is defined to mean the person who commenced the prosecution or a person who in court represents that person (s 3(1)). The person will ordinarily be a police officer.
The expression 'evidentiary material relevant to a charge' is defined in s 42(1). CSN 5, 6 and 595 fall within par (e) of the definition which requires disclosure of material that may assist the accused's defence. Indeed, it is as plain as a pikestaff that CSN 5, 6 and 595 should have been disclosed under s 42(5)(b) of the CPA and should have been disclosed as soon as practicable after the charge was adjourned under s 41(4). It is unnecessary to decide whether all covert surveillance which records a statement by the appellant falls within par (a)(iv) of the definition. As to which, see PAH v The State of Western Australia [2015] WASCA 159.
Section s 45(3) of the CPA relevantly provides that, within a prescribed period after an accused is committed for trial under s 44(1)(a)(ii), the prosecutor must give the relevant authorised officer, inter alia, any evidentiary material that is relevant to the charge and a certificate under s 45(5).
Section 45(5) relevantly provides:
The certificate required by subsection (2) or (3) must ‑
(a)be signed by a person who was involved in, and has knowledge of, the investigation of the charge; and
(b)certify that ‑
(i) … section 42 [has] been complied with; and
(ii)the relevant authorised officer is being given a copy of all … evidentiary material that is relevant to the charge and that has been served on or made available to the accused under this Part; and
(c)state the person's grounds for so certifying and any inquiries made by the person before so certifying, where inquiry has been necessary; and
(d)contain any information prescribed.
The term 'relevant authorised officer' in relation to an indictable charge is defined in s 80 of the CPA to mean the authorised officer who is responsible for the prosecution of the charge in a superior court. Relevant authorised officers include the Director of Public Prosecutions (DPP) or a member of the DPP's staff authorised in writing as an authorised officer.
Section 95(6) of the CPA provides:
Within the prescribed period after an accused is committed for trial on a charge, the relevant authorised officer must lodge the following and, if any of the following has not already been served on or received by the accused, serve the accused with it ‑
…
(c)any evidentiary material that is relevant to the charge;
(d) …
(e)a copy of the certificate given to the officer under section 45.
The question of statutory construction is whether s 95(6) requires the relevant authorised officer to make an independent assessment of whether the material handed over by the prosecutor constitutes all the material required to be disclosed under s 42 of the CPA or if he or she entitled to simply rely on the s 45(5) certificate.
In our view, it is the former for the following reasons. First, the statutory criterion obligating disclosure in par (e) of the definition of 'evidentiary material relevant to a charge' requires knowledge and understanding of the full range of issues, legal and factual, that will or could arise at trial. It is to be expected that the DPP, who bears the responsibility for preparing and conducting the trial, will be in a significantly superior position than a police prosecutor to assess what is evidentiary material that must be disclosed.
Second, that expectation is fortified by the statutory requirement that the person signing the s 45(5) certificate identify both the grounds for certifying compliance and any inquiries made to enable such certification. The purpose of that requirement is to enable the relevant authorised officer to consider the adequacy of the grounds and the inquiries identified by the prosecutor.
Third, the requirement for an independent assessment is consistent with the text of s 95(6)(c). It imposes an obligation to lodge (and, if necessary, serve) any evidentiary material that is relevant to the charge, not the evidentiary material provided by the prosecutor under s 45.
A limitation in the scope of the duty is in that part of the definition of 'evidentiary material relevant to a charge' which requires that the material be in the possession of the organisation or person who investigated the offence.
The effect of non‑disclosure
The consequence of the continuing failure to disclose to the appellants all evidentiary material relevant to the charge was that the prosecutor misled the court. He said in opening:
At about 2 pm on … 13 July 2012, you'll see that there are a series of SMS messages passed between Mr Hughes and Mr Hoban. Now, Mr Hughes asks Mr Hoban to pick up a package for him at about 2 o'clock in the afternoon. The package is under the name of Jeremy (ts 235).
The SMS messages to which he refers are CSN 7 and 8. In closing, the prosecutor again referred to CSN 7 and 8. He said:
Let me just have a look at some of the evidence. At the first few pages of those transcripts, page 1 and 2, there is a series of SMS messages between Mr Hughes and Mr Hoban. This is at 2 o'clock on the 13th. Mr Hughes arranges for Mr Hoban to pick up a package which is held under the name … (ts 6 ‑ 7).
The prosecutor is interrupted by the trial judge with a query and then returns to the subject:
So, around about 2 o'clock on the 13th and this is Perth time there's a series of SMS messages between Mr Hughes and Mr Hoban. Mr Hughes arranges for Mr Hoban to pick up a package held under the name of Jeremy. A few hours later at around 5 pm on the same there's a series of phone calls between Mr Hughes and Mr Guler and they're discussing having some trouble getting the bar back on the car (ts 7).
There is no reference to a 'package' in either CSN 7 or 8. The dog whistle suggestion in the prosecutor's opening and closing is that the package may have contained the drugs which later that afternoon were secreted in the compartment within the bullbar. An intention to go beyond the language of the text in the way the prosecutor did should have prompted him to review the six undisclosed communications that preceded CSN 7 and 8.
Counsel for Mr Hoban understood the prosecutor to suggest the package may have contained the drugs. He said in his closing:
Firstly, he referred to some SMS messages that passed between Mr Hughes and Mr Hoban on 13 July 2012, at around 2 pm. And he said to you Mr Hughes asked Mr Hoban to pick up a package for him under the name of Jeremy, that's about 2 pm, that's at page 235 of the transcript.
Well, frankly so what? Even if Mr Hughes did ask Mr Hoban to pick up a package for him what's that got to do with this trial? Was there any mention of drugs? Was there actually any mention of a package? (ts 27).
Counsel for Mr Hoban then went through CSN 7, 8 and 10 in considerable detail to make the point that the prosecutor's suggestion was baseless (ts 27 ‑ 29).
We turn now to CSN 595. The prosecutor referred to Mr Hughes' stated purpose for coming to Perth in his closing address. He said:
When [Mr Hughes] is interviewed by the police at the other end when he is picked up at the Hyatt Hotel, he tells them a story about going to Perth to see an ex‑girlfriend and also he says to try and get some work or try and arrange some work with the Modern Group …
As the police ask more and more questions, the story simply seems to be just falling apart. To start off with he says he is there to try and get some work or arrange some work but as they ask more questions it becomes apparent that there is really nothing there at all, he has not made any contact with this Modern Group, has not made any sort of appointment to go in and talk to them, has not rung them before hand, has not got anything in place at all.
He says he is basically just going to drop in there on Monday and see what the story is. Now, if you put that together with the cause about the bullbar and the drugs, the fact that he is keeping an eye on the car constantly and the fact that there is clearly some urgency to the trip, it just does not make any sort of sense at all (ts 14).
Mr Hoban also said in his police interview he was coming to Perth to try and get roofing work with the Modern Group. The prosecutor repeated the same points he made in relation to Mr Hughes' out of court statements on the subject (ts 17 ‑ 18).
Miscarriage and the proviso
Pursuant to s 30(3)(c) and s 30(4) of the Criminal Appeals Act 2004 (WA), the Court of Appeal must allow the appeal if in its opinion there was a miscarriage of justice unless it considers that no substantial miscarriage of justice has occurred. The appellant bears the onus of establishing a miscarriage of justice. The responsibility for raising and establishing the proviso (that no substantial miscarriage of justice has occurred) rests with the State.
Both statutory criterion bear two aspects, outcome and process: Nudd v The Queen (2006) 80 ALJR 614 (which focuses on the notion of a miscarriage of justice) and Weiss v The Queen (2005) 224 CLR 300 (the leading authority on the proviso). The close overlap between the two statutory expressions makes it difficult at times to know the precise basis of an outcome. See, for example, Holland v The Queen (1993) 67 ALJR 946, 951 ‑ 952, 954. The leading authority on non‑disclosure, Mallard v The Queen (2005) 224 CLR 125, is also illustrative of the challenges in that regard.
As in White v The Queen [2006] WASCA 62 [192] ‑ [193], we propose to approach this appeal on the basis that the breaches of the statutory (and common law) duty of disclosure in this case give rise to a miscarriage of justice that requires the court to allow the appeal unless it considers no substantial miscarriage of justice has occurred.
Weiss, a case in which prejudicial inadmissible evidence was adduced at trial by the prosecution, is authority for the following propositions which address the 'outcome' aspect of the proviso. First, the appellate court must itself decide whether a substantial miscarriage of justice has occurred. Second, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. In particular, the task is not to be undertaken by attempting to predict what a jury, whether the jury at trial or some hypothetical future jury, would or might do. Third, the standard of proof of criminal guilt is beyond reasonable doubt [35], [39].
In particular, the appellate court must make its own independent assessment of the evidence adduced at trial (and any evidentiary material not disclosed) and determine whether, making due allowance for the natural limitations that exist in an appellate court proceeding, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty [41].
Generally, the appellate court's task must be undertaken on the whole of the record of the trial, including the fact that the jury returned a guilty verdict. In that event, the issue is whether the error in question would, or at least should, have had no significance in determining the verdict that was returned by the trial jury [43]. Where the error or miscarriage arises from the absence of evidentiary material relevant to the charge at trial, the question is whether the additional material would, or at least should, have no effect on the verdict that was returned by the trial jury: White [193]. If the answer is uncertain or in the negative, the proviso cannot apply.
It is a necessary, but not always sufficient, condition of the exercise of the proviso that the appellate court is persuaded that the evidence properly admitted at trial (together with any relevant additional evidence) proved beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty: Weiss [44].
The 'process' aspect is engaged where the proviso should not be invoked even though the appellate court is satisfied beyond reasonable doubt of the accused's guilt of the offence on which the jury returned its verdict. Examples in this category include where there has been a significant denial of procedural fairness at trial; a serious breach of the presuppositions of a trial; a failure which departs from the essential requirements of a fair trial; or where the appellate court is deprived of the capacity justly to assess the strength of the case against the appellant.
Process and outcome are related because the object of due process is to secure a just result: Nudd [7]. Although it is not always clear whether a result is outcome or process related, on our reading of the authorities, the process aspect determined the result in AK v The State of Western Australia (2008) 232 CLR 438 (failure to give reasons on an important subject in a judge alone trial); Cesan v The Queen (2008) 236 CLR 358 (jury distracted by the judge falling asleep from time to time); Gassy v The Queen (2008) 236 CLR 293 (unbalanced summing up); Handlen v The Queen (2011) 245 CLR 282 (case run on mistaken assumption as to legal basis of liability).
Mr Hughes' conviction appeal
There are two aspects to the failure to disclose CSN 5 and 6. The first is the objective significance of that evidence and the second is the misleading submissions made by the prosecution in opening and closing as to the effect of CSN 7 and 8.
CSN 5 and 6 could not be used positively in the presentation of the defence case. They could only be used negatively to rebut the prosecutor's misleading submissions. If CSN 5 and 6 had been disclosed, as they should have been under s 42 and s 95 of the CPA, the prosecutor could not and would not have relied on CSN 7 and 8 for the purpose he did. The breach of the duty to disclose facilitated the making of misleading submissions by the prosecutor.
However, we are satisfied that the misleading submissions would, or at least should, have had no significance in determining the verdicts that were returned by the trial jury against Mr Hughes.
In his closing address, Mr Hughes' counsel made no mention of the prosecutor's submissions based on CSN 7 and 8. That is consistent with our assessment that the issue was of no, or no material, significance in the context of the overwhelming objective evidence against Mr Hughes at trial.
Further, the judge made it clear in his summing up that CSN 7 and 8 were of limited probative value. After reciting their content, the trial judge said:
[That] is evidence that Hoban was asking Hughes for details about something, and Hughes gave Hoban those details. What that something is we don't know. The State say it's something to do with drugs. Well, that's a matter which would obviously depend on more evidence than this (ts 487).
The failure to disclose CSN 595 is also of no, or no material, significance. Saying the same thing twice, first to an acquaintance and then to police, as to the purpose for visiting Perth does not add in any significant way to the probative value of the evidence.
Further, CSN 595 does not derogate from the accuracy and appropriateness of the prosecution's closing submissions on the subject. In any event, as the trial judge instructed the jury, 'the State would be perfectly content to suggest that you could convict even if the men were also going to look for some work with Modern Roofing' (ts 501).
Based on our review of the evidence adduced at trial together with CSN 5, 6 and 595, we are satisfied that Mr Hughes was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdicts of guilty.
However, Mr Hughes submits that even if this court is so satisfied, there has been a failure of process which prevents reliance on the proviso.
There is no suggestion the prosecutor intentionally misled the court. In any event, the object of the exercise of the proviso is not to discipline or discover misconduct by the prosecution: Lawless v The Queen (1979) 142 CLR 659; Mallard [64] ‑ [65].
The failure of process in this case, being the failure to disclose evidentiary material that resulted in a misleading submission, is not of such a nature that its effect cannot be overcome by pointing to the strength of the prosecution case. It did not deprive Mr Hughes of a fair trial. There has been no failure to observe the conditions essential to a satisfactory trial nor is this court deprived of the capacity to assess the safety of the guilty verdicts.
Notwithstanding the prosecution's breach of its statutory and common law duty to disclose evidentiary material relevant to the charges against Mr Hughes, we are satisfied there has been no substantial miscarriage of justice.
We would grant leave to appeal and uphold ground 1 of Mr Hughes' appeal. However, Mr Hughes' conviction appeal must be dismissed because there has been no substantial miscarriage of justice.
Mr Hughes' appeal against sentence
There are two grounds of appeal for which leave is sought. The first is a claim that the sentence is manifestly excessive and the second is to the effect that the appellant was erroneously sentenced under State law instead of the relevant federal law. For the reasons that follow, neither ground has a reasonable prospect of succeeding. Accordingly, leave to appeal must be refused and the sentence appeal dismissed.
McCann DCJ sentenced all the co‑offenders and, in the process, took into account and applied the parity principle. Mr Hughes' involvement in, and culpability for, the offending was the highest of all the co‑offenders. Mr Guler's appeal against his total sentence of 8 years imprisonment was dismissed: Guler v The State of Western Australia [2014] WASCA 83.
The sentencing judge found that Mr Hughes hid the drugs in the bullbar of the Vehicle; knew the exact composition of the drug consignment; had ready access to a significant commercial supply of prohibited drugs; and was in sole executive control of the enterprise (ts 617 ‑ 618).
In particular, the sentencing judge found that Mr Hughes was the organiser, coordinator and entirely autonomous leader and principal of the operation. He was also in charge of the financial side of the operation and set up the false Modern Roofing cover story about the drivers travelling to Perth for work (ts 618 ‑ 619).
Mr Hughes was aged 28 at the time of sentencing and had two children from a prior relationship. He was born and raised in New South Wales and was educated to year 9. He established a roofing business which was initially successful but later struggled. Although Mr Hughes had no relevant prior record of offending, the sentencing judge found that he was at a high risk of reoffending in a similar way.
This court can only intervene if the sentencing judge made an express or implied material error of fact or law. The claim of manifest excess applies an to individual sentence and relies on the implication of error. The individual sentence must be shown to be unreasonable or plainly unjust, it being outside the range of a sound sentencing discretion. A claim of breach of the totality principle applies to the total effective sentence. It also relies on the implication of error.
It is apparent from Mr Hughes' written submissions that his first ground of appeal relates to the total effective sentence (12 years imprisonment) and thus the totality principle applies.
Under the totality principle, the total effective sentence must bear a proper relationship to the overall criminality involved in all the offences, viewed in their entirety and having regard to the circumstances of the case, including those referable to the offending personally.
The sentencing judge took into account the totality principle by reducing the sentence on count 1 from 6 years imprisonment to 3 years imprisonment and ordered total cumulation. Thus, the cumulation order was made with an eye to achieve what the sentencing judge regarded as an appropriate total sentence. That approach is consistent with principle: Giglia v The State of Western Australia [2010] WASCA 9.
We have had regard to sentences customarily imposed in comparable cases. They provide a yardstick or reference point for ensuring broad consistency in sentencing, bearing in mind the scope for significant variations in relevant sentencing factors and the fact that there is no single correct sentence. As to comparable cases, see Le v The State of Western Australia [2015] WASCA 73 and the cases in Annexure A thereto.
The individual sentences and the total effective sentence imposed on Mr Hughes are broadly consistent with the sentences customarily imposed in this jurisdiction. Leave to appeal on ground 1 must be refused.
As to ground 2, it is difficult to follow the basis of the claim. The suggestion appears to be that the penalties in s 34 of the MDA for a contravention of s 6(1) of the MDA do not apply to the appellant because they are inconsistent, within the meaning of that term in s 109 of the CommonwealthConstitution, with the penalties for the equivalent federal offences in the Criminal Code (Cth). As we understand it, the effect of the inconsistency is said to be that the penalties in the Criminal Code (Cth) apply to the appellant's contraventions of s 6(1) of the MDA.
Both aspects of the claim are inconsistent with the reasoning of the majority and the outcome in Momcilovic v The Queen (2011) 245 CLR 1. Ground 2 has no reasonable prospect of succeeding. Leave to appeal on that ground must also be refused.
Conclusion - Mr Hughes
We would grant leave to appeal but dismiss the appeal against conviction. We would refuse leave to appeal on both grounds in the sentence appeal. Accordingly, the appeal against sentence is taken to be dismissed.
Mr Rizeq's conviction appeal
At the hearing of the appeal, Mr Rizeq's counsel did not address at any length, or at all, grounds of appeal 1 to 6. By notice dated 3 March 2015, signed by the appellant's counsel, grounds 3 and 5 in the conviction appeal were abandoned.
After the hearing of the appeal, Mr Rizeq, representing himself, filed two applications in the conviction appeal. The first was framed as an application for bail pending appeal but was in substance an application to review the decision of Mazza JA in November 2014 refusing bail pending appeal: Rizeq v The State of Western Australia [2015] WASCA 81. An extension of time is required to review that decision. The bail application was based solely on the alleged strength of ground 6. We infer the purpose of the review application was to enable the appellant to make oral submissions in support of ground 6. That purpose was achieved.
The second application was for leave to 'reinstate any abandoned grounds' in the conviction appeal. It appears Mr Rizeq understood that his counsel may have abandoned all of grounds 1 to 6. He was informed of the correct position. Both applications have been dismissed for reasons published contemporaneously with these reasons.
Ground 1
Mr Rizeq contends the trial judge misdirected the jury with 'overawing' comments. He complains that the trial judge said, and we quote:
Mr Rizeq can only be found guilty if Matthew Hughes is guilty. If Matthew Hughes is not guilty, then John Rizeq is not guilty. And whether or not he is depends on whether he participated as a co‑or joint venturer with Matthew Hughes.
That is an inaccurate statement of what the trial judge said, which was as follows:
The State says [John Rizeq's] role was confined to a co-venturer with Mr Hughes. In other words, he wasn't a lone wolf. If he's guilty at all it's because he was a joint venturer with Hughes.
So Mr Rizeq can only be guilty if Matthew Hughes is guilty. If Matthew Hughes is not guilty, then John Rizeq is necessarily not guilty. If Matthew Hughes is guilty, the question of whether John Rizeq is also guilty will arise for your consideration.
And whether or not he is depends on whether he participated as a co or joint venturer with Matthew Hughes about which I will give you directions later (ts 457).
There is no merit in the claim that the effect of the trial judge's direction was that if the jury decided that the appellant participated in the enterprise then he was guilty. The trial judge repeatedly directed the jury that a guilty verdict against Mr Hughes did not require a finding that Mr Rizeq was guilty; that Mr Rizeq would only be guilty if he was engaged in a joint criminal enterprise with Mr Hughes; and explained in detail what was required in order to be satisfied that there was a joint criminal enterprise. The trial judge said:
If a person reaches an understanding or arrangement amounting to an agreement with another person or other persons that they will commit a crime, and one or other of the parties to the understanding or arrangement does, or they do between them in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute a crime, then all of them are equally guilty of the crime, regardless of the part played by each in its commission (ts 472).
The next direction complained of is the trial judge's statement:
So that's the State case. That's ‑ I say that's how he was participating (ts 474).
The complaint is the trial judge told the jury that the appellant was participating and they no longer needed to decide that for themselves.
In the five paragraphs immediately before that statement, the trial judge made it clear he was summarising the State case against Mr Rizeq. The statement complained of would be seen and understood as a reference to the State case. In any event, we have listened to the recording of the summing up. The trial judge clearly says 'they say' not 'I say'.
The third aspect of the summing up complained of is as follows:
'Yeah, looking at this I was there', but he's not actually saying I remember that afternoon and I was there. On that particular point he of course had every reason to remember it by the Monday when the Police arrested him and that of course is something that you could take into account in assessing his credibility (ts 497).
The direction relates to the content of a telephone call (CSN 36) from Mr Hughes to Mr Guler concerning Mr Hughes' difficulties in re‑attaching the bullbar. The exchange is as follows:
MR HUGHES: This fucking, um, bar is a cunt to get on.
MR GULER: Is Johnny with you?
MR HUGHES: Yeah. Like, he can't help me man. This going back on the other car.
Mr Rizeq's evidence‑in‑chief on the subject was that he believed he heard Mr Hughes say, 'like, "Johnny's working on another car"' when asked about CSN 36 (ts 362).
In cross‑examination in connection with CSN 36, Mr Rizeq said he was at the time working on a different car, not the Vehicle which 'wasn't at my shop' (ts 393). The cross‑examination continued:
Working on another car in the shop?---Yes.
Right, okay?‑‑‑I must have been on a car but I don't know but here it says car.
Right, okay?---Yep.
All right. So you were at the shop, you were working on another car, not the Navara?---Yeah.
Okay. And did you see Mr Hughes working on the Navara at that time?‑‑‑No, I didn't see the car at my shop.
Right, so according to the call at least, Mr Hughes is there working on the Navara and the bullbar but you are not, you're working on another car?---I can't see here where it says he's working on the ute, sir.
No, no. But he's just talking with Mr Guler. There's a series of these calls here where he's discussing the bullbar. I think you told Mr Hope that yesterday?---About a bar on the car.
That's right. So this is all happening at this time and you're working on another car at the same time?---Yeah, but I'm not aware of this phone call.
…
Yes, okay. All right. So you didn't see Mr Hughes actually working on the Navara then?---No, I don't recall seeing that car at my shop then.
…
McCANN DCJ: Sorry to interrupt. Do you mean you didn't ‑ don't remember seeing it at the shop that day or you don't recall ever seeing it at the shop?---No, just at ‑ at this time, at this stage, sir (ts 394).
In the context of Mr Rizeq's rather unpersuasive evidence as a whole, the trial judge's comment is fair.
Ground 1 has no reasonable prospect of succeeding. Accordingly, leave must be refused.
Ground 2 - unsafe and unsatisfactory
This court must allow the appeal if, in its opinion, the verdict of guilty on which the convictions are based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported: s 30(3)(a) of the Criminal Appeals Act 2004 (WA).
Courts frequently express their conclusion on whether a verdict is unreasonable or not supported by the evidence in terms of a verdict that is unsafe or unsatisfactory: M v The Queen (1994) 181 CLR 487, 492.
In M, the plurality held that the test for an unsafe or unsatisfactory verdict was whether the court thought that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty (493). In answering that question the court must not disregard nor discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or that the jury had the benefit of having seen and heard the witnesses (493).
The question before the court is whether it was open to the jury as a matter of fact to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt: Libke v The Queen (2007) 230 CLR 559 [113].
The case against Mr Rizeq was circumstantial. Circumstantial evidence is not necessarily inherently less compelling than direct evidence: AK v The State of Western Australia (2008) 232 CLR 438 [27].
Circumstantial evidence must be evaluated in its entirety, not considered on a piecemeal basis. In R v Hillier (2007) 228 CLR 618, the plurality stated:
Often enough, in a circumstantial case, there will be evidence of matters which, looked at in isolation from other evidence, would yield an inference compatible with the innocence of the accused. But neither at trial, nor on appeal, is a circumstantial case to be considered piecemeal [48].
In summary, the defence case was as follows. Mr Rizeq was a panel beater and spray painter with a special interest in doing up 'muscle' cars. He had a workshop, being a shed of about 200 sqm on a block of about 600 sqm. Typically there were approximately 40 ‑ 50 vehicles in the shed and the yard. Mr Guler, a friend of Mr Rizeq's, had possession of keys to the shed. Mr Rizeq knew Mr Hughes for about two months before travelling to Perth. He did not know Messrs Sumner or Hoban well but had met them a few times before his arrest. Mr Hughes was using the workshop to work on some vehicles.
Mr Rizeq travelled to different States from time to time to look for parts and shells of cars to do up. He said he wanted to travel to Western Australia to look at local papers and drive around looking out for vehicles (ts 352). Mr Rizeq said he had always wanted to go to Perth for work and when he knew Mr Hughes was going, he decided to go because Mr Hughes was someone he could relate to. He later learned that the other boys were driving the Vehicle and taking some equipment to Perth. He had driven the Vehicle once or twice and was aware it had problems. He had checked its sparkplugs, fuel pump, water and oil before it was driven to Perth. He flew because it was quicker, which meant less time away from his business.
Mr Rizeq denied all knowledge of the existence of the drugs or of the plan to transport them to Perth in the Vehicle. He said he did not know that the bullbar had been removed from and replaced on the Vehicle and had no knowledge that the boys were taking drugs to Perth. Mr Rizeq provided innocent explanations for his communications with Mr Hughes, in particular CSN 212, 482 ‑ 517, 557, 671. There was no DNA or other forensic evidence linking Mr Rizeq to the crimes. He was a man of prior good character.
The jury must have positively rejected Mr Rizeq's exculpatory evidence. After examining the trial record and weighing the evidence, in particular the covert communications, we are satisfied that it was reasonably open to the jury to reject Mr Rizeq's version of events and to be satisfied beyond reasonable doubt as to his guilt of the offences. The trial record does not require the conclusion that the jury must necessarily have entertained a doubt about Mr Rizeq's guilt. We entertain no doubt as to the correctness of the verdicts.
This ground does not have reasonable prospects of success. Leave to appeal must be refused.
Ground 4
Mr Rizeq contends the trial judge improperly 'expanded' the State case in a number of ways, first, by identifying four ways in which Mr Rizeq participated in the joint criminal enterprise.
The trial judge directed the jury in his summing up that:
The State contends that Mr Rizeq participated in a number of ways. Firstly, by making his premises available for the vehicle, in other words the Navara, to be prepared and/or packed for the journey. Secondly, by himself helping to prepare the vehicle, checking the spark plugs, the brakes, and looking under the hood, taking it for a drive, and so on. Thirdly, offering to help Mr Hughes as needed, and travelling to Perth for that purpose. Fourthly, by encouraging him and giving him advice as required (ts 473).
The trial judge's summary of Mr Rizeq's participation in furtherance of the joint criminal enterprise is not in terms picked up from the prosecutor's opening or closing address. However, the conduct referred to was relied on in the State case, was established by the objective evidence and confirmed in substance by Mr Rizeq. The matter in issue at trial was whether he acted in furtherance of an agreement with Mr Hughes to transport the drugs from Perth to Sydney.
Second, Mr Rizeq complains of the trial judge's observations relating to the lack of forensic evidence as follows:
And again its pointed that there's no forensic evidence linking [Mr Rizeq] to the incriminating evidence such as fingerprints and DNA. Of course the argument here is that's evidence he didn't handle them. The State's answer to that is it's not evidence he didn't either (ts 498).
It appears the State did not address in these terms. However, it was open to the trial judge to make the comment he did and to the appellant's advantage that he ascribed it to the State.
Third, Mr Rizeq complains of the trial judge's statement to the jury that:
You need to consider the hypothesis or possibility that Mr Hoban was being used by someone (ts 496).
The background to Mr Rizeq's complaint is the exchange between the trial judge and counsel in Annexure A to the appellant's case. In essence, the trial judge was of the view that the evidence entitled the jury to consider whether Mr Hoban had been pressured by Mr Hughes to do the road trip to Perth on the pretext of obtaining work in Perth (that is, without informing him of the true purpose of the trip). The trial judge foreshadowed a proposal to say words to the effect that the evidence was not inconsistent with Mr Hoban having been used by someone else (ts 461). Mr Hughes's counsel had no objection. Further, there was no opposition from Mr Rizeq's counsel at that stage or after the completion of the summing up.
It is clear from the summing up as a whole that the issue would only become relevant if the jury was first satisfied beyond reasonable doubt of Mr Hughes' guilt. Thus it had no relevance, directly or indirectly, to Mr Rizeq.
Ground 4 does not have a reasonable prospect of succeeding. Leave to appeal should be refused.
Ground 6
Mr Rizeq's constitutional argument is difficult to follow. He claims he had to be tried under federal law (the Criminal Code (Cth)), and not State law (the MDA), because of inconsistencies between the two. The submission is based on s 109 of the Constitution which provides:
When a law of a State is inconsistent with a law of the Commonwealth, the latter shall prevail, and the former shall, to the extent of the inconsistency, be invalid.
The submission must be to the effect that s 6(1) of the MDA and associated provisions are invalid. The ground is peremptorily dismissed in two paragraphs in the respondent's written submission.
The sole inconsistency relied on is in the mode of trial. Mr Rizeq was convicted of the offences, and verdicts of guilty were entered, on the decision of 11 of the 12 jurors at his trial. He contends the majority verdict of guilty of the s 6(1) offences, permitted by s 114(2) of the CPA, is inconsistent with s 80 of the Constitution, which relevantly provides:
The trial on indictment of any offence against any law of the Commonwealth shall be by jury …
The High Court has construed s 80 of the Constitution as requiring a unanimous verdict: Cheatle v The Queen (1993) 177 CLR 541. If s 80 applies, it has not been complied with.
Mr Rizeq claims that the District Court was exercising federal jurisdiction in his trial of the s 6(1) offences.
At all relevant times, Mr Rizeq was a resident of New South Wales. Having regard to s 75(iv) of the Constitution, s 39(2) of the Judiciary Act 1903 (Cth) and the decision of the High Court in Momcilovic, it can be accepted that the District Court was indeed exercising federal jurisdiction.
Mr Rizeq contends that as a result of some or all of s 68(2), s 68C and s 79 of the Judiciary Act and s 23FI of the Federal Court of Australia Act 1976 (Cth), s 80 of the Constitution applied to the trial of the charges against him under the MDA.
Section 68(2) of the Judiciary Act relevantly provides:
The several Courts of a State … exercising jurisdiction with respect to:
…
(c) the trial and conviction on indictment;
of offenders or persons charged with offences against the laws of the State … shall, subject to this section and to section 80 of the Constitution, have the like jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth.
The purpose and effect of s 68(2) is to confer on State courts jurisdiction with respect to persons who are charged with offences against the laws of the Commonwealth. Thus, persons charged with offences against the laws of the Commonwealth can be tried and convicted in the relevant State court, to which trial s 80 of the Constitution will apply. Section 68(2) does not expand the scope of s 80 of the Constitution to apply to the trial on indictment of an offence against any law of the State. See Byrnes v The Queen (1999) 199 CLR 1 [70] ‑ [73]. However, as discussed below, the question is whether an offence under a State law that is 'picked up' under s 79(1) becomes 'an offence against a law of the Commonwealth' for the purposes of s 80 of the Constitution.
Section 68C of the Judiciary Act applies if the Federal Court has jurisdiction to try a person on indictment for the offence. The Federal Court does not have jurisdiction to try a person on indictment for an offence under the MDA. Section 23FI of the Federal Court Act only applies to the trial and conviction of indictable offences within the jurisdiction of the Federal Court.
That leaves the effect of s 39 and s 79 of the Judiciary Act. Belatedly, this court issued a s 78B notice under the Judiciary Act on this subject. The Attorney General of Western Australia has intervened and filed and served written submissions. The respondent has filed written submissions in response.
Section 39(1) of the Judiciary Act operates to deprive State courts of all jurisdiction in matters in which the High Court has original jurisdiction and s 39(2) confers federal jurisdiction on State courts in respect of those matters.
The High Court has original jurisdiction in all matters between a State and a resident of another State under s 75(iv) of the Constitution. Thus, there is no State diversity jurisdiction, only federal diversity jurisdiction under s 39(2).
Prima facie, that takes us to s 79(1) of the Judiciary Act which provides:
The laws of each State or Territory, including the laws relating to procedure, evidence, and the competency of witnesses, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all Courts exercising federal jurisdiction in that State or Territory in all cases to which they are applicable.
State laws upon which s 79 operates do not thereby apply of their own force in the exercise of federal jurisdiction. It is said the State laws are picked up and applied as a surrogate Commonwealth law: Solomons v District Court of New South Wales (2002) 211 CLR 119 [21]; Pedersen v Young (1964) 110 CLR 162, 165. That is so in relation to procedural, as opposed to substantive, provisions.
An issue for determination in this case is whether the offence creating provisions of the MDA are picked up and applied as Commonwealth law by s 79(1). The answer is to be found in Momcilovic.
In Momcilovic, the appellant was convicted after trial, on the unanimous verdict of a jury, of one count of trafficking in a drug of dependence contrary to s 71AC of the Drugs Poisons and Controlled Substances Act 1981 (Vic) (State Drugs Act). The court was exercising federal diversity jurisdiction. A quantity of methylamphetamine was discovered by police in the appellant's apartment. The trial judge directed the jury that s 5 of the State Drugs Act (which reversed the legal onus of proof on possession) applied to a s 71AC offence. The High Court held that s 5 did not apply and set aside the verdict. The appellant also argued that there was s 109 inconsistency between the State Drugs Act and the equivalent provisions in s 302.4 of the Criminal Code (Cth) (the Commonwealth Code). The appellant relied on the reverse onus provision, which had no equivalent in the Commonwealth Code; the fact that there were higher penalties in the State Drugs Act than in the Commonwealth Code; and differences as to the mode of trial, in particular, s 80 of the Constitution required a unanimous verdict for an offence under a law of the Commonwealth whereas s 46 of the Juries Act 2000 (Vic) permitted a majority verdict.
Section 300.4 of the Commonwealth Code stated that Pt 9.1 was not intended to exclude or limit the concurrent operation of any State or Territory law. Further, s 4C(2) of the Crimes Act 1914 (Cth) provides that where an act or omission constitutes an offence under both a federal law and that of a State and the offender has been punished for that offence under State law, the offender shall not be liable to be punished for the offence under federal law.
The High Court held that the trial court had been exercising federal diversity jurisdiction and that there was no s 109 inconsistency: [106] ‑ [112] (French CJ), [276] ‑ [277] (Gummow J), [486] (Heydon J), [656] ‑ [657] (Crennan & Kiefel JJ), [660] (Bell J). In determining the inconsistency issue the focus was on the norm or offence creating provision and associated sanctions and remedies of the State Drugs Act as a whole. Relying in part on s 300.4 of the Commonwealth Code and s 4C(2) of the Crimes Act, it was determined that there was no direct, indirect or operational inconsistency between the State Drugs Act and the Commonwealth Code. Gummow J identified the appellant's conviction and sentence as being 'under the State law' [277]. Further, the fact that State law permitted a majority jury verdict did not result in any relevant inconsistency. Gummow J explained:
The steps in the prosecution, conviction and punishment of the appellant were taken in the general milieu of the system for adjudication of criminal guilt. The body of legislative provisions for the operation of that system is not part of the 'law of a State' which may be rendered inoperative by reason of inconsistency with the federal laws upon which the appellant relied [237].
French CJ agreed with this proposition [109]. Further, after referring to s 39(2) of the Judiciary Act and the fact that the trial court was exercising federal jurisdiction, French CJ continued:
There is a question, not debated at the hearing of the appeal, whether in the exercise of that jurisdiction the provisions of the Drugs Act [Vic] applied directly along with the statutory and common law rules affecting their interpretation. Although I would not wish, in the absence of argument on the point, to express a concluded view, there is much to be said for the proposition that they did so apply and not by virtue of section 79 of the Judiciary Act. As Windeyer J said in Felton v Mulligan, in a passage approved by Mason, Murphy, Brennan and Deane JJ in Fencott v Muller:
'The existence of federal jurisdiction depends upon the grant of an authority to adjudicate rather than upon the law to be applied or the subject of adjudication.'
A 'matter' between a State and a resident of another State is a matter of federal jurisdiction notwithstanding that it arises under a State law or the common law or both. In that event the 'matter' may be said to be defined by reference to the rights and liabilities to be determined under the relevant State law and/or the common law [99].
Crennan and Kiefel JJ also approached the matter as if the appellant was charged with and convicted of State offences [656], noting that different modes of trial and different sentencing regimes are part of the legal and constitutional landscape in respect of the administration of criminal justice in Australia. They continued:
They are a product of constitutional arrangements which permit the Commonwealth … and the State of Victoria … to legislate in respect of the administration of their respective criminal justice systems, and also of the circumstances that section 80 of the Constitution applies only in relation to offences against some Commonwealth laws. Such considerations cannot give rise to a relevant inconsistency for the purpose of section 109 [655].
If the offence creating and penalty provisions of the State Drugs Act had been picked up under s 79(1) of the Judiciary Act and had thereby become an offence against a law of the Commonwealth for the purposes of s 80 of the Constitution, the statutory provision permitting a majority verdict would be inconsistent with s 80 of the Constitution, regardless of whether or not it had been invoked. We infer the offence creating and penalty provisions of the State Drugs Act must have retained their character as State offences. Alternatively, the expression 'law of the Commonwealth' in s 80 of the Constitution must have the same meaning as in s 109 of the Constitution: Momcilovic [222], [226].
Based on the reasoning of the majority in Momcilovic, there is no s 109 inconsistency between the MDA and the Criminal Code (Cth) as the Commonwealth has at no relevant time exercised any power under the Commonwealth Code to prosecute Mr Rizeq for the conduct the subject of the charges under the MDA.
Moreover, the existence of differences between the MDA and the Commonwealth Code in relation to penalties and mode of trial (a reference to s 80 of the Constitution) does not render the State offence invalid because of inconsistency under s 109 of the Constitution. Mr Rizeq's claim that the offence creating provision in the MDA under which he was charged was invalid for inconsistency must fail.
Mr Rizeq was convicted by a majority verdict whereas the appellant in Momcilovic had been convicted by a unanimous decision of the jury. Being procedural rather than substantive in character, the weight of authority is that, if not inconsistent with the Constitution, s 114(2) of the CPA would be picked up and applied as a surrogate Commonwealth law under s 79(1) of the Judiciary Act.
Section 114(2) of the CPA is not inconsistent with s 80 of the Constitution because s 80 applies only to trials on indictment of 'any offence against any law of the Commonwealth'. Based on the reasoning in Momcilovic, s 6(1) of the MDA is and remained an offence against the law of this State, notwithstanding that the trial court was exercising federal diversity jurisdiction, or alternatively, it is not relevantly 'a law of the Commonwealth'.
We would grant leave to appeal but dismiss ground 6.
Ground 7
The reasons for dismissing ground 1 of Mr Hughes' appeal are also applicable to this ground of Mr Rizeq's appeal. We are satisfied that the misleading submissions made by the prosecutor arising from the failure to disclose CSN 5, 6 and 9 would, or at least should, have had no significance in determining the verdicts that were returned by the trial jury against Mr Rizeq. As discussed in ground 2, we are satisfied Mr Rizeq was proved beyond reasonable doubt to be guilty of the offences on which the jury returned its verdicts. We would grant leave to appeal but dismiss ground 7.
Conclusion - Mr Rizeq's conviction appeal
For these reasons, we would dismiss Mr Rizeq's conviction appeal.
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