Jared Samuel Brown v The Queen
[2020] VSCA 20
•14 February 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2018 0164
| JARED SAMUEL BROWN | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | WHELAN and PRIEST JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 7 February 2020 |
| DATE OF JUDGMENT: | 14 February 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 20 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Brown (Unreported, County Court of Victoria, Judge Smith, 12 February 2016) (Conviction) |
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CRIMINAL LAW – Appeal – Conviction – Application for extension of time to appeal – Applicant convicted of importing commercial quantity of border controlled drug – Refusal of extension of time by Registrar – Election to have application determined by Court of Appeal – More than two years’ delay in filing application – Whether directions on duress were deficient – Whether trial counsel’s admissions result of incompetence – Explanation for delay unsatisfactory – Lack of merit in proposed grounds of appeal – Application refused – R v Falzon (2018) 264 CLR 361 and R v Oblach (2005) 65 NSWLR 75 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr G J Stanton | The Law Practice |
| For the Respondent | Mr D Renton and Mr D Johns | Ms A Pavleka, Solicitor for Public Prosecutions (Cth) |
WHELAN JA
PRIEST JA:
Introduction
On 12 February 2016, a jury in the County Court found the applicant guilty of two charges of importing a commercial quantity of a border controlled drug, methamphetamine,[1] the first charge relating to an importation on or about 24 March 2013, and the second to an importation on or about 21 July 2013.
[1]Criminal Code (Cth), ss 307.1(1) and 11.2A. The maximum penalty is life imprisonment.
The judge sentenced the applicant on 27 April 2016 to be imprisoned for seven years on the first charge, and for ten years on the second. Ultimately, the judge purported to impose a total effective sentence of 12 years’ imprisonment,[2] with a non-parole period of seven years. Following a successful appeal by the Commonwealth Director of Public Prosecutions (‘the Director’), however, this Court resentenced the applicant on 23 June 2017 to 11 years’ imprisonment on the first charge, and to 16 years’ imprisonment on the second charge. Orders made for commencement of the sentences effectively resulted in four years’ of the sentence on the first charge being cumulative upon the sentence on the second charge. The total effective sentence was thus 20 years’ imprisonment, upon which the Court fixed a non-parole period of 15 years.[3]
[2]His Honour’s order for cumulation between the sentences imposed on the two charges did not comply with s 19 of the Crimes Act 1914 (Cth).
[3]DPP (Cth) v Brown [2017] VSCA 162 (Maxwell P, Santamaria JA and Beale AJA).
By an application for extension of time filed 10 August 2018, the applicant sought leave to appeal against his conviction on the two importation offences out of time.[4] That application — which was opposed by the Director — was refused by the Registrar on 6 September 2018. Unsatisfied with the Registrar’s decision, by a Notice of Election dated 12 September 2018, the applicant now seeks to have his application for extension of time considered by this Court.[5]
[4]The applicant, who was unrepresented, also filed an affidavit in support of the application; a proposed Notice of Application for Leave to Appeal Against Conviction; a Written Case; a List of Authorities; and a Schedule of Evidence.
[5]See Criminal Procedure Act 2009, s 313(2).
The proposed grounds upon which the applicant seeks to challenge his convictions are as follows:[6]
[6]An Amended Notice of Application for Leave to Appeal Against Conviction, dated 19 July 2019, signed by the applicant personally, contains the following note subjoined to the grounds:
Grounds 1 and 2 of the Amended Application for Leave to Appeal Against Conviction were drafted by Tim Game SC and David Barrow.
Grounds 3 to 6 of the Amended Application for Leave to Appeal Against Conviction were drafted by the applicant.
1. The learned trial judge’s directions to the jury on duress were erroneous and occasioned a substantial miscarriage of justice.
2. The trial judge’s directions on the possible reasons for the accused’s decision to give evidence occasioned a substantial miscarriage of justice.
3.(a) The trial judge erred in directing the jury that the elements of the offence of importation in relation to Counts 1 and 2 were admitted by the applicant. This misdirection resulted in a substantial miscarriage of justice.
(b) The trial judge misdirected the jury in relation to the answer provided to the jury question ‘About the law as it surrounds the charges of drug importation? How much does a person need to be involved/have knowledge of an import to be involved in the crime, before its more than just possession’ and ‘that all of the elements of the offence are admitted that there is no doubt that Mr Brown committed the offence of importing a commercial quantity of a border controlled drug’. The answer by the trial judge constituted a misdirection and therefore, resulted in a substantial miscarriage of justice.
4. The evidence does not support a conviction in relation to the offence of importation for Counts 1 and 2. This resulted in an unsafe and unsatisfactory verdict.
5.(a) Incompetence of defence Counsel in making a fundamental error by not asking the trial judge (after the Charge) to re-direct the jury when he directed the jury that the elements of the offences of importation in relation to Counts 1 and 2 were admitted by the applicant.
(b) Incompetence of defence Counsel in making a fundamental error by not asking the trial judge to re-direct the jury in relation to the answer provided to the jury question, ‘Can Judge Smith please tell the jury a little more about the law as it surrounds the charges of drug importation? How much does a person need to be involved/have knowledge of an import to be involved in the crime, before it’s more than just possession?’.
(c) Incompetence of defence Counsel in making a fundamental error by not asking the applicant to sign the admissions pursuant to Section 184 of the Evidence Act 2008 and not explaining and giving advice about the effect of the Notice of Admissions.
6. The combination and accumulation of all the grounds combined and errors established a miscarriage of justice and resulted in [an] unfair trial to the applicant even if each of the grounds individually failed, nevertheless the combination or aggregation of the defects said to be identified in several grounds should lead this Court to conclude that there had in truth been a miscarriage of justice.
For the reasons that follow, we would refuse the application for extension of time. Even were we prepared to accept that the reasons for the delay in filing the application for leave to appeal have been satisfactorily explained — and we are not — the proposed grounds of appeal are so lacking in merit that it would be pointless to grant the extension sought.
The essential facts
The essential facts may be briefly summarised.
On 24 March 2013, a vessel arrived in Melbourne from Long Beach, California. A shipping container unloaded from that vessel contained four motor vehicle engines (amongst other things). Concealed within the engines were packages containing approximately 4.4 kilograms of bulk methamphetamine. The shipment had been arranged by Dennis McAndrew, a Californian resident, who operated a business in Los Angeles called JT Core Buyers.
After being unloaded, the engines were collected and taken to premises in Thomastown. The engines were collected from the Thomastown premises by McAndrew, who had flown from California. Initially, McAndrew drove the engines to Sydney, but later returned with them to Melbourne. On 8 April 2013, the applicant made contact with McAndrew and arranged to meet him.
The next day, 9 April 2013, the applicant and McAndrew took the engines to premises in Altona, occupied by a friend of the applicant’s. McAndrew there dismantled the engines (with some help from the applicant) and removed the packages of methamphetamine. The applicant then took the packages and stored them at his parents’ home in Warragul, a regional Victorian town.
On 18 April 2013, the applicant arranged to meet a man in the car park at Chadstone Shopping Centre and there handed him the drugs. These events constituted the conduct giving rise to the first charge.
Almost three months later, on 21 July 2013, another vessel arrived in Melbourne from Long Beach. A shipping container on the vessel contained nine further motor vehicle engines, which had secreted within them 102 packages containing 44.667 kilograms of pure methamphetamine. Customs officials detected abnormalities with respect to the engines. As a result, Australian Federal Police (‘AFP’) were summoned. AFP officers dismantled the engines, and the methamphetamine in packages within them was substituted with salt. The packages were then placed back into the engines, which were reassembled and made available for collection.
Subsequently, the nine engines were collected and taken to the Thomastown premises. McAndrew again flew from Los Angeles to Melbourne and collected the engines from the Thomastown premises with a rental truck. Shortly afterward, the applicant contacted McAndrew and agreed to meet him. They took the engines to the applicant’s parents’ home, where, over two succeeding days, the engines were dismantled by McAndrew, with some assistance from the applicant. The packages — now containing salt — were removed.
Thereafter, the applicant took the packages back to his apartment in Richmond. McAndrew returned to a motel in Reservoir where he had been staying, intending to fly back to Los Angeles. AFP officers had the two under covert surveillance. The applicant’s mobile telephone had been lawfully intercepted, and listening devices had been installed in the rental truck used by McAndrew.
The applicant and McAndrew were arrested on 3 August 2013, and the packages containing the substituted material were seized. These events constituted the conduct giving rise to the second charge.
AFP officers had not been aware of the first importation until after the applicant’s arrest. Examination of his mobile telephone seized upon his arrest, however, revealed details of earlier messages passing between the applicant and a man known as Ricardo Vacca. The applicant had met Vacca in Mexico in 2006 when studying there, and they had stayed in contact. A number of messages contained extensive details concerning the applicant’s involvement in the first and second importations.
At trial, the applicant’s defence was duress.[7] In very brief summary, the applicant’s evidence included the assertion that, in January 2013, Vacca and his colleagues — who were members of a drug cartel — informed him that they intended to import drugs into Australia, and that they needed someone in the country that they could trust. The applicant’s evidence was that they told him that they wanted him in Australia to receive, store and deliver the imported drugs. In effect, the applicant’s evidence was that he was forced to participate in both of the relevant importations by reason of threats of violence made with respect to his girlfriend Marisela (and her family) residing in Mexico, and with respect to the applicant and members of his family in Australia, should he refuse to cooperate. The alleged threats of violence were the basis of the defence.
[7]The trial at which the applicant was convicted was his second trial. An earlier joint trial of the applicant and Dennis McAndrew, conducted in the County Court throughout March and April 2015, resulted in McAndrew’s acquittal on 13 April 2015. The jury were, however, unable to reach a decision in the applicant’s case and were discharged without verdict on 14 April 2015. Duress had also been the applicant’s defence in the first trial.
Given the jury’s verdicts, the prosecution must successfully have negated duress.
Considerations relevant to granting or refusing an extension of time
Before turning to the merits of the application, it is convenient to set out the considerations relevant to the grant or refusal of an application for extension of time. They were summarised in Madafferi:[8]
The applicant carries the burden of persuading this Court that an extension of time should be granted. When considering the application, it must be acknowledged that time limits exist for sound reasons. Among those reasons is the desirability of achieving finality in criminal proceedings with reasonable expedition (consistently, of course, with the imperative of correcting substantial miscarriages of justice).[9] The Court has a broad discretion whether to grant an extension of time, scrutiny being invited of the reasons for the delay and the merits of the proposed appeal.[10] Although the exercise of the discretion whether to extend time must always be informed by what the interests of justice require in the particular circumstances of the case,[11] the length of the delay — and the reasons for it[12] — and the prospects of success should the extension be granted,[13] are relevant (but not necessarily decisive). The reasons for the delay and the merits of the proposed appeal will not necessarily be in equipoise.[14] Thus, where the merits of the putative appeal are very good, but the explanation for the delay is poor, the court may incline towards granting an extension. Where the merits of the proposed appeal are very poor, however, even a satisfactory explanation for the delay might not justify an extension.[15] The discretion must, as we have said, be exercised according to the individual facts of each case.[16]
[8]Madafferi v The Queen [2017] VSCA 302, [11] (Priest, Hansen and Coghlan JJA) (citations as in the original).
[9]Jopar v The Queen (2013) 44 VR 695, 707 [59] (Priest JA) (‘Jopar’).
[10]Ibid 707 [60].
[11]Kentwell v The Queen (2014) 252 CLR 601, 613 [30] (French CJ, Hayne, Bell and Keane JJ).
[12]Ibid 614 [31].
[13]Ibid 614 [33]. See also Rapovski v The Queen [2017] VSCA 175, [25] (Priest JA).
[14]Jopar (2013) 44 VR 695, 707 [60].
[15]Ibid.
[16]Ibid.
The asserted reasons for the delay are unsatisfactory
So far as the reasons for the delay are concerned, in an affidavit in support of the application for extension of time, affirmed on 12 July 2019, the applicant (so far as relevant) deposed as follows:
4. I was arrested and charged on 2 August 2013. A joint trial with my co-accused, Dennis McAndrew (my co-accused), started on 10 March 2015 before Judge Smith in the County Court in Victoria. I was represented by [‘Mr Z’] and Michael Tovey QC.
5. My co-accused was acquitted on 13 April 2015. The jury could not reach a verdict in relation to my charges and they were discharged on 14 April 2015.
6. My retrial started on 20 January 2016 before Judge Smith in the County Court in Victoria. I, again, instructed [Mr Z], solicitor, and Mr Philip Dunn QC (‘Mr Dunn QC’) to represent me at my retrial.
7. I was convicted on 12 February 2016.
8. On or about 9 February 2019,[[17]] I was informed that my then solicitor [Mr Z’s] son had committed suicide. [Mr Z] then went on a leave of absence and I did not confer with him until on or about late March 2016 when he visited me at the gaol.
[17]The date ‘2019’ plainly is an error.
9. When [Mr Z] visited me at the gaol in late March 2016, I instructed him to lodge an appeal against my conviction.
[Mr Z] said to me, words to the effect of, ‘I will brief an appellate barrister but if he can’t find anything, you need to accept it and move on’.
I then said to [Mr Z], words to the effect of, ‘I want to challenge some of the decisions made by you and Mr Dunn. I want to challenge your decision not to call my mother as a witness to give evidence’.
[Mr Z] replied with words to the effect of, ‘If you want to pursue an appeal on those grounds then you have to go another solicitor. Let me just get you an advice from an appellate barrister, first.’
10. On 27 April 2016, I was sentenced to serve a total term of 12 years with non-parole period of 7 years.
11. At some point after my sentence, I received a memorandum of advice from O P Holdenson QC indicating that there was no merit in an appeal against conviction.
12. I expressed to [Mr Z] that I wanted a second opinion. However, at that stage, I was informed that the Crown had lodged an appeal against my sentence. [Mr Z] said to me, words to the effect of, ‘You’ve already got money in Trust to defend the appeal by the Crown and I want to stay in it because I ran the trial. You should wait for the Crown appeal to be finalised and then we will deal with the appeal against conviction. l will make a ·note in my diary that you asked me to lodge an appeal against conviction within the 28 day timeframe in case it becomes an issue later on’.
13. At that time, I agreed and accepted this advice but I still wanted to get a second opinion once the Crown inadequacy appeal had been finalised.
14. Before the Crown appeal was finalised, I contacted [‘Mr C’], solicitor. To the best of my recollection, [Mr C] visited me at Loddon Prison on or about late June 2017. We discussed my trial and the appeal for approximately two or three hours. During that conference, [Mr C] said to me, words to the effect of, ‘Wait until your sentence appeal is out of the way and then we can lodge the appeal’. Following that conference, I attempted to contact [Mr C] for two or three months via telephone. He did not answer or return any of my phone calls. I did not speak to him again.
15. On 23 June 2017, a Crown inadequacy appeal (‘the appeal’) was allowed and the sentences were increased to a total term of 20 years with a non-parole period of 15 years.
16. At this stage, my parents had paid for my legal representation for Trial 1, Trial 2 and the Crown appeal. This had caused a great strain to their financial situation. As a family, we had to discuss and assess our financial situation and drawing on additional funds for an appeal.
17. In the time that followed, my mother and I contacted other law firms to act on my behalf but none of our attempts were successful until January or February 2018 when I engaged [‘Ms T] to act on my behalf.
18. On or about January 2018, my mother delivered the majority of the transcripts and exhibits from Trial 2 to me at Barwon Prison.
19. At that same time, I applied for a personal computer at Barwon Prison.
20. I started to read the transcripts. A fellow inmate had access to a personal computer and we used his computer to research relevant laws and case law. This process took approximately three months.
21. ln April 2018, I formulated my own grounds and submissions on appeal.
22. In May 2018, [Ms T] engaged Richard Edney (‘Mr Edney’) to read the grounds and submissions that I had formulated and provide an advice. Mr Edney advised that my grounds had merit but that he would be going on leave for three weeks and would further discuss it with me on his return.
23. On Mr Edney’s return from leave, I was informed by [Ms T] that there was ‘a conflict of interest’ and that Mr Edney could no longer act on my behalf.
24. In May 2018, my mother contacted Mr Tim Game SC’s office. As I understand it, Mr Game SC’s clerk indicated that Mr Game SC did not directly deal with clients and subsequently, recommended Sydney based lawyers.
25. In July 2018, l contacted Paul Smallwood (‘Mr Smallwood’). He read the written case and said to me, words to the effect of, ‘Your written case is ready to go. You should sign it and lodge it and then find legal representation in Sydney or Adelaide’.
26. Approximately two weeks later, on 10 August 2018, I lodged my grounds and submissions on appeal.
27. In September 2018, I was granted access to a personal computer in custody.
28. On 17 October 2018, I wrote to the Registrar and advised that I was in the process of seeking legal representation in accordance with the Registrar’s advice on 6 September 2018.
…
29. On or about November 2018, I formally engaged Martin Ricci (‘Mr Ricci’), solicitor, in Sydney (NSW) to represent me. Mr Ricci then 'briefed Mr Game SC and Mr Barrow.
30. I am informed that Mr Ricci has deposed to an affidavit on 10 July 2019 outlining the reasons for delay in lodging the appeal since his involvement in my matter.
By an affidavit affirmed on 10 July 2019, Mr Martin Ricci, a solicitor practising in Sydney, deposed that he was engaged to act in an appeal against conviction by the applicant in or about November 2018; and that, on 23 November 2018, the Registrar of this Court provided him with documents relevant to the application for leave to appeal (including the transcript of the trial).[18] Thereafter, on or about 14 December 2018, he briefed Mr Tim Game SC and Mr David Barrow to provide a ‘merit advice’ in relation to the appeal. Mr Ricci said that, given the ‘voluminous nature’ of the transcripts of the applicant’s two trials, Mr Barrow was unable to complete a ‘trial summary’ until 4 April 2019. Even at that time, however, there were relevant prosecution and defence exhibits that had not been received from the Registrar that ‘were necessary before a merit advice could be formally provided’. The ‘outstanding exhibits’ were not received from the Commonwealth Director of Public Prosecutions until 23 May 2019. Mr Ricci deposed that he received the merits advice on 26 June 2019 ‘under the hand of Mr Game SC identifying two further grounds of appeal’, they being:
i. The learned trial judge’s directions to the jury on duress were erroneous and occasioned a substantial miscarriage of justice.
ii. The trial judge’s directions on the possible reasons for the accused’s decision to give evidence occasioned a substantial miscarriage of justice.
[18]On 23 November 2018, Mr Ricci filed in the Registry a Notice that Practitioner Acts with respect to the applicant.
Accepted at face value, the applicant’s affidavit material reveals that he instructed his trial solicitor to lodge an appeal in the month following his conviction by the jury, and that, at ‘some point’ following being sentenced on 27 April 2016, he received senior counsel’s advice that ‘there was no merit in an appeal against conviction’. Thereafter, the applicant asserted, his trial solicitor advised him to await the outcome of the Crown appeal against his sentence before dealing with an appeal against conviction. No steps appear to have been taken to advance an application for leave to appeal against conviction, however, between the time that senior counsel’s advice was received and ‘on or about late June 2017’ when the applicant was visited in prison by Mr C (a period of more than a year).
After the Crown appeal was allowed on 23 June 2017, so the applicant claimed, he was not successful in engaging another solicitor ‘until January or February 2018’, when Ms T was engaged. Significantly, however, beyond the bare assertion that he and his mother ‘contacted other law firms to act on [his] behalf but none of [their] attempts were successful’, the applicant provided no detail of any steps taken throughout the balance of 2017 either to secure legal representation or to file an application for leave to appeal.
The applicant deposed that, having received the relevant material on or about early January 2018, he then formulated his own grounds of appeal and submissions in April 2018, which were provided to counsel briefed by Ms T (counsel later being found to have a ‘conflict of interest’). Having been informed by other counsel in July 2018 that his written case was ‘ready to go’, so the applicant deposed, on 10 August 2018 he filed an application for leave to appeal that he had prepared. (The applicant made no attempt to explain why Ms T did not file the application.) To that point, there had been a delay of some 27 or 28 months since the applicant had first been sentenced in late April 2016.
A couple of months after he filed his application for leave to appeal, in November 2018, the applicant engaged Mr Ricci, who briefed counsel to provide a ‘merits advice’. That merits advice was provided on 26 June 2019, and identified two new grounds of appeal.[19]
[19]See [20] above.
Other material also demonstrates that, on 22 July 2019, Mr Ricci filed an amended proposed Notice of Application for Leave to Appeal Against Conviction (containing two new grounds and four amended grounds); an Amended Written Case; an Amended List of Authorities; the applicant’s affidavit affirmed 12 July 2019; and his own affidavit affirmed 10 July 2019. Further supplementary submissions, signed by counsel, were also filed on the applicant’s behalf on 19 December 2019.
For the purposes of this application, we take the relevant delay to be more than two years, constituted by the period between the initial sentence on 27 April 2016, and the date on which the applicant personally filed his application for leave to appeal on 10 August 2018.
We are unable to accept the applicant’s unspoken suggestion that he was prepared to accept Mr Z’s advice to await the outcome of the Director’s appeal before considering an appeal against conviction. Both in his evidence in the trial, and in the documents that he authored for use in this Court, the applicant demonstrated himself to be an intelligent, astute and forthright individual. Indeed, on at least one occasion during the hearing in this Court, as a result of discussion between the members of the Court and counsel, the applicant sought to give his solicitor and counsel instructions on matters pertinent to that discussion. It thus beggars belief that, had he genuinely sought to challenge his convictions, he would have been content simply to abide the result of the Director’s appeal before seeking to challenge those convictions. Moreover, as we raised with the applicant’s counsel in the course of the hearing in this Court, the applicant did not satisfactorily explain what supposed steps he and his mother had taken between June 2017 and January or February 2018 to engage another legal practitioner. As we have said, the applicant provided no detail of any steps taken throughout the balance of 2017 either to secure legal representation or to file an application for leave to appeal.
The applicant’s inadequate explanation for the delay is a consideration that militates against exercising the discretion to grant an extension of time in his favour. But as we earlier indicated, even had we considered the delay to have been satisfactorily explained, we would nonetheless have refused an extension of time. In our view, the proposed grounds of appeal against conviction are so lacking in merit that it would be futile to extend the time within which to bring an application for leave to appeal against conviction.
It is convenient therefore that we turn to the merits of the proposed grounds.
Proposed ground 1 — Directions on duress
As we have mentioned, the applicant’s defence was duress.
The defence of duress is codified by s 10.2 of the Criminal Code (Cth) (‘the Code’), which provides:
(1) A person is not criminally responsible for an offence if he or she carries out the conduct constituting the offence under duress.
(2) A person carries out conduct under duress if and only if he or she reasonably believes that:
(a)a threat has been made that will be carried out unless an offence is committed; and
(b)there is no reasonable way that the threat can be rendered ineffective; and
(c)the conduct is a reasonable response to the threat.
(3) This section does not apply if the threat is made by or on behalf of a person with whom the person under duress is voluntarily associating for the purpose of carrying out conduct of the kind actually carried out.
Among other directions that he gave on duress, in the course of his charge the judge instructed the jury as follows:
Now, when you look at that document that I gave you and on the first page where we said (a), (b) and (c) and I have read out the preliminary words, ‘A person carries out conduct under duress if, and only if, he reasonably believes in all of those three matters’. You will note the use of the word ‘and’ at the end of every one of those. He would only be acting under duress if he reasonably believed in each of those things.
The words ‘he reasonably believes’ are important. They mean firstly that the person must in fact have had that belief. Further, that it was a reasonable belief on the part of that person. And … in that respect, it is an objective test. So for example, if you were satisfied beyond reasonable doubt that although the accused man did actually hold such a belief – let us say you are looking at part (a) here, or part (b) or part (c), but you look at them separately. If you were satisfied that although Mr Brown did actually hold such a belief, it was not a reasonable belief in all the circumstances, then you would be satisfied that the Crown has negated that aspect.
These directions — and the other detailed directions given by the judge on duress — provoked no exception by experienced senior counsel for the applicant.
Despite the absence of any exception, however, the applicant contended in this Court that the judge’s directions were deficient in that, having told the jury that they were to apply an ‘objective test’ in determining whether the applicant held ‘a reasonable belief in all the circumstances’, the judge provided no guidance to the jury as to the content of the test or how it should be applied. The applicant submitted that the Court should apply this Court’s decision in Parker[20] in preference to that of the New South Wales Court of Criminal Appeal in Oblach.[21] Notwithstanding that Parker was concerned with a different statutory regime,[22] the applicant submitted that, in conformity with Parker, the judge should have directed the jury as follows:[23]
The phrase ‘the person reasonably believes’ in its natural meaning requires regard be had to the characteristics of the accused. The words connote what an accused might reasonably believe in the circumstances in which the accused found himself or herself having regard to the personal characteristics of the accused. They encompass the subjective belief of the accused, informed by the personal characteristics of the accused with an objective overlay in the form of reasonableness which allows community standards to be taken into account when assessing the culpability of an accused.
[20]DPP v Parker (a Pseudonym) (2016) 258 A Crim R 527 (Redlich, Osborn and Priest JJA) (‘Parker’).
[21]R v Oblach (2005) 65 NSWLR 75 (‘Oblach’).
[22]Section 9AG(2) of the Crimes Act 1958 provided:
A person carries out conduct under duress if and only if the person reasonably believes that —
(a) subject to subsection (3), a threat has been made that will be carried out unless an offence is committed; and
(b) carrying out the conduct is the only reasonable way that the threatened harm can be avoided; and
(c) the conduct is a reasonable response to the threat.
See now s 322O of the Crimes Act 1958 which is in similar (although not identical) terms.
[23]Parker, 544–5 [58].
There are two short answers to the applicant’s submissions.
First, experienced senior counsel imbued with the atmosphere of the trial — and acutely conscious of the fact that the applicant’s sole answer to the prosecution case was duress — saw no deficiency in the directions. Counsel made no submission that the jury should be directed that, in assessing whether the applicant reasonably believed, first, that a threat has been made that will be carried out unless an offence was committed; secondly, that there was no reasonable way that the threat could be rendered ineffective; and, thirdly, that the applicant’s conduct was a reasonable response to the threat; the jury should have regard to the circumstances in which the applicant found himself in light of his personal characteristics. (Indeed, so far as we can see, it was never sought to identify any of the applicant’s ‘personal characteristics’ said to be relevant to the issue of duress.)
Secondly, it was held in Oblach — which was distinctly concerned with the interpretation of s 10.2 of the Code — that, in determining whether a person holds a reasonable belief within the meaning of s 10.2, an accused’s personal characteristics are irrelevant.[24] Thus, Hulme J said that[25]
it does not seem to me possible to differentiate in any satisfactory way, and certainly not in a way susceptible of definition for a jury, between an accused’s perception of those matters on the one hand and the process of the formation of belief on the other. Taking the view that, as a matter of construction, an accused’s perception of the circumstances, as distinct from those that objectively exist are not to be taken into account, it must follow that such personal characteristics as may influence the formation of beliefs are also irrelevant. The test of the reasonableness of belief under s 10.2(2) … is thus entirely objective.
[24]See Oblach, 85 [59], 86 [66] (Spigelman CJ); 87 [74], 87 [77] (Sully J); 90–1 [93] (Hulme J). See also Parker, 533–4 [20].
[25]Ibid 90–1 [93].
As an intermediate appellate court, this Court should not depart from a decision of an intermediate appellate court in another jurisdiction on the interpretation of Commonwealth legislation unless convinced that the interpretation is plainly wrong.[26] In the circumstances, the applicant has failed to persuade us that the reasoning in Oblach is plainly wrong.
[26]R v Falzon (2018) 264 CLR 361, 380–1 [49] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; CAL No 14 Pty Ltd v Motor Accidents Insurance Board (2009) 239 CLR 390.
Finally, we note that the Court in Parker recognised that the contextual provisions in the Crimes Act 1958 differ from those in the CriminalCode (Cth), ‘and it is not necessary that s 9AG be given the same construction as s 10.2 of the Code’.[27]
[27]Parker, 534 [23].
For these reasons, the applicant’s submissions under cover of proposed ground 1 lack substance.
Proposed ground 2 — Directions on applicant’s reasons for giving evidence
Proposed ground 2 impugns the following directions in the judge’s charge:
… In this case, the accused man chose to give evidence. He did not have to do that. Under our system of law, every accused person has the right to remain silent in court. In choosing to give evidence, he swore to tell the truth and submitted himself to cross-examination, which is the way that lawyers test the witness’ credibility and truthfulness.
Bear in mind that when assessing his evidence, that a guilty person might make a decision to try and tough out cross-examination in the hope that it would be more likely to be believed [if] he takes the risk of giving evidence [than] if he dodges cross-examination. On the other hand in a criminal trial, there is nothing more that an innocent person can do, other than give evidence and subject himself to cross-examination. And you should consider both of those comments when you evaluate his evidence. …
Directions such as those in the emphasised portions of the charge extracted immediately above are now prohibited by s 44J(b) of the Jury Directions Act 2015.[28] The applicant’s trial was, however, conducted prior to the amendments to the Act effected by the Jury Directions and Other Acts Amendment Act 2017 (with operation from 1 October 2017) — which inserted ss 44H to 44K — and at a time when it was a ‘standard direction’ to tell a jury that ‘while an accused can do no more than get into the witness box and give evidence, it is always possible that a guilty person may decide to brazen it out in the witness box in the hope that he or she will be more likely to be believed by taking the risk of cross-examination than by dodging it’.[29]
[28]Section 44J now provides:
Prohibited directions in relation to evidence of an accused
The trial judge must not direct the jury about any of the following matters in relation to the evidence of an accused—
(a) whether the accused is under more stress than any other witness;
(b) that the accused gave evidence because—
(i)a guilty person who gives evidence will more likely be believed; or
(ii)an innocent person can do nothing more than give evidence.
[29]See R v Buckley (2004) 10 VR 215, 231 [56] (Nettle JA); R v Haggag (1998) 101 A Crim R 593, 598 (Callaway JA). See also Hargraves v The Queen (2011) 245 CLR 257, 277 [45]–[46].
At the time that they were given, the impugned directions were orthodox. That they were not seen to be prejudicial to the applicant may be gleaned from the fact that senior counsel took no exception and sought no redirection. Proposed ground 2 is therefore without merit.
Proposed ground 3 and 5 — Directions on elements and counsel’s incompetence
It is clear that, from the outset of the trial, the applicant did not dispute that he was involved in the importations that were the subject of charges 1 and 2. The issue, it was made clear, was whether he was acting under duress (or, perhaps more accurately, whether the prosecution could prove to the criminal standard that he was not acting under duress).
So much may be gleaned from the Summary of Prosecution Opening, and the Defence Response to Summary of Prosecution Opening. Thus, in relation to both charges 1 and 2, the Summary of Prosecution Opening alleged that the applicant was party to an agreement to commit the relevant importation offences.[30] It included the following:[31]
[30]So far as relevant, s 11.2A of the Criminal Code (Cth) provides:
11.2AJoint commission
Joint commission
(1) If:
(a)a person and at least one other party enter into an agreement to commit an offence; and
(b)either:
(i) an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or
(ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));
the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.
Offence committed in accordance with the agreement
(2) An offence is committed in accordance with the agreement if:
(a)the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b)to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and
(c)to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.
Offence committed in the course of carrying out the agreement
(3) An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4) For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
Agreement may be non‑verbal etc.
(5) The agreement:
(a)may consist of a non‑verbal understanding; and
(b)may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.
…
[31]Both charges 1 and 2 on the Indictment alleged that the applicant ‘and Dennis Joseph McAndrew and others … did import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a commercial quantity’. And in each case the Statement of Offence was: ‘Import a commercial quantity of a border controlled drug, contrary to subsection 307.1(1) of the Criminal Code (Cth) by virtue of section 11.2A of the Criminal Code (Cth)’.
1. On 21 July 2013 a large amount — 44 [kilograms] pure — of the drug methamphetamine arrived in Australia from the US concealed in nine car engines.
2. The Crown alleges that the accused man Jared Brown acting pursuant to an arrangement or agreement with others including people based overseas, imported the drug into Australia being a commercial quantity [being at least 750 grams] and being a border controlled drug.
3. It is alleged the accused intentionally imported the substance and did so with the knowledge that the substance contained methamphetamine [Charge 2]. Another man by the name of Dennis McAndrew, an American citizen, was also involved it is alleged.
And also:
64. The Crown case is that the accused Brown was not threatened and was not the subject of duress. He was a willing and enthusiastic participant in each of these importations with the objective of making money. In any event the evidence will reveal that Brown at no stage, prior to his arrest on 2 August 2013, went to the police either in Mexico or Australia. This is consistent with him never having been threatened or at the very least having no reasonable belief that (i) a threat would be carried or (ii) that there was no reasonable way that the threat could be rendered ineffective
Significantly, the Defence Response to these allegations was:
1. As to paragraphs 1 to 3 thereof:
It is disputed that the Accused was party to an agreement to import a commercial quantity of methamphetamine. The Accused agreed under duress from persons he believes were members of a Mexican drug cartel to assist in the recovery and passing on of drugs in Australia, believing that if he did not do so his partner and members of her family in Mexico, as well as members of his own family in Australia, would be killed or severely hurt.
And also:
14. As to paragraph 64 thereof:
This is disputed. The Accused did participate, but did so under duress. The Accused did not volunteer information to authorities in Mexico or Australia, prior to 2 August 2013, due to fear of the consequences. But he did do so after, following his arrest.
As is clear from the Defence Response — which ‘must identify the acts, facts, matters and circumstances with which issue is taken and the basis on which issue is taken’[32] — the applicant conceded that he ‘did participate’ in the importations that were the subject of charges 1 and 2, but claimed that he ‘did so under duress’. His case was that although he ostensibly was ‘party to an agreement to import a commercial quantity of methamphetamine’, he ‘agreed under duress’.
[32]See Criminal Procedure Act 2009, s 183(2).
Moreover, in his oral response to the prosecutor’s opening to the jury,[33] senior counsel for the applicant made it abundantly clear that the principal issue in the trial was duress. Hence, he told the jury (among other things):
[33]See Criminal Procedure Act 2009, s 225.
Well let me tell you right at the start, that this case has some unusual features to it and the first point is, there’s hardly any dispute about the facts. It is admitted and will be admitted by Jared Brown and by me, (1) that in 2013, he was contacted by people in Mexico from an area in northern Mexico, up around the Sinaloa-Monterrey, and he was asked to do certain things. Not asked, told.
He was told the drugs would be arriving in Australia. He was told, in very broad terms, that there were drugs. He was asked — when I say ‘asked’, directed to collect — to collect the drugs that the man, McAndrew, had brought into the country. He was asked to store them for a certain period of time and then he was asked to pass them on to a buyer, and all of that happened in April.
In July, again he’s been contacted — and you'll see many of these communications. Contacted, he’s told things are coming, he’s told to get in touch with Danny, or Denise [scil., Dennis]. It turns out to be Dennis McAndrew. He is told to meet him, he’s told to collect something from him and to store it. That happens in July. All of those things are admitted.
What is put by the defence is that this is not something that he wanted to do, it’s not something that he elected or that he chose to do, this is something that happened because he was threatened, his girlfriend was threatened, his family in Warragul were threatened and he was threatened in Mexico where he has a long connection. He didn’t want to be involved, he wasn’t willingly involved and he did so because he was threatened.
Now the criminal law recognises and His Honour will tell you these things about the law, that sometimes people are forced to do things. …
So, the questions that you’re going to have to ask yourselves, because the facts are going to be pretty much admitted, is … how did Jared Brown get involved? And we say, because he’s threatened by a dangerous Mexican cartel. Secondly, why did he get involved? And thirdly, what was his job? What was he doing? Was he a partner, a principal, an active hand, or was he somebody kept in the dark, given limited information and being given directions what to do and being used like a pawn?
These threats, if they overbear you will, are what lawyers call ‘duress’ and the test is, did somebody do an act because they were in fear, because they were threatened? …
It is clear that, given the meaning of the term ‘import’, a person may in some circumstances commit an offence under ss 307.1(1) and 11.2A of the Code if he or she agrees to ‘collect’ or ‘store’ an unlawfully imported border controlled drug.
When the Code was first enacted, the definition of import was, ‘import includes bring into Australia’. As a result of the decision of the New South Wales Court of Criminal Appeal in Campbell,[34] however, as from 20 February 2010 the definition of ‘import’ in the Code was repealed and replaced with the following:[35]
import in relation to a substance, means import the substance into Australia and includes:
(a) bring the substance into Australia, and
(b) deal with the substance in connection with its importation
Hence, to ‘import’ a border controlled drug includes to bring the drug into Australia, and to deal with the substance in connection with its importation. Quite plainly, the definition of ‘import’ was extended to capture conduct that included dealing with a substance in connection with its importation, and relates to conduct before and after the time at which border controlled drugs are landed in Australia. Drug importation offences in the Code are thus intended to catch criminal activity concerned with the bringing of drugs into Australia, and also subsequent criminal activity connected with the importation. The term ‘deal with the substance in connection with its importation’ is of broad application, and would include conduct such as recovering drugs once they have been landed in Australia; clearing imported drugs through Customs; putting imported drugs into storage; unpacking concealed imported drugs; making or receiving payment for the imported drugs; and related conduct.
[34]R v Campbell (2008) 73 NSWLR 272. See DPP (Cth) v Farmer (a Pseudonym) (2017) 54 VR 420, 491–2 [277] (Priest JA).
[35]See Criminal Code (Cth), s 300.2.
It was not contested in relation to charges 1 and 2 that a relevant agreement existed to import border controlled drugs, the sole issue being whether the applicant did what he did in apparent pursuance of the agreement by reason of duress. Thus, in his evidence-in-chief the applicant said that, during a meeting in a restaurant in Mexico in January 2013, a member of the cartel, ‘Carlos’, in Vacca’s presence ‘explained quite clearly that their intention was to import drugs into Australia through the various methods’, and ‘he went into detail talking about that and what they wanted me to do’. They told the applicant that they wanted him involved because he spoke Spanish and was a ‘cleanskin’ (that is, had no criminal record), and explained how they had ‘tortured someone and killed someone’ who ‘hadn’t kept his word’. The applicant’s evidence continued:
[APPLICANT’S COUNSEL] [W]hat did he say? Just tell us as best you remember?---Well, he said that that man didn’t have his word and that a man without his word is a man without life.
Did he say anything after that to you?---Yes.
What did he say?---Well, he explained that that man, you know, chose not to cooperate and straight after that he asked me if I was going to be cooperating.
If you were going to cooperate?---That’s right.
So what did you say?---I said yes straight away.
After you said you’d cooperate was there any change amongst the group at this … restaurant?---Yeah. That was … after I said yes, that I’d cooperate Carlos reassured me that I’d made the right decision, nothing would happen to Marisela, it was best not to tell her anything and - - -
Best not to tell who?---Marisela. Best not to tell her anything, nothing would happen and as long as I, as long as I did what was asked of me then, then I’d be fine and they – that was the termination of the conversation.
So did the mood change?---The mood changed straight away. As I said yes and it was explained to them they were happy, like, they were reassuring me in a sense that I’d made the right decision.
You’d made the right decision?---Yeah, that’s, that’s what they were, yeah.
Was there any time limit put on what was going to happen?---No, there was no specific time limit put on it, no.
Was there any specific import date or anything about when the boat was going to arrive or not arrive?---No, there was no specific dates or imports mentioned.
Not only was the applicant’s evidence that he entered into an agreement in Mexico to assist in the importation of drugs (albeit under duress), but he accepted that his role in Australia was to receive, store and later deliver the imported drugs. Thus, by way of example, he gave the following evidence concerning the second importation in the course of cross-examination by the prosecutor:
On 15 July [2013]?---Yes.
You’re getting anxious to know about it?---Yeah. That’s, that’s – I was told about it in May without given a timeline, I was, yeah.
...
Why were you anxious about wanting to know when the importation would be arriving? That’s what you just told the jury. Why?---I, I can’t recall why I – I mean I can’t recall why exactly I was, I was anxious. I was, I’m sitting there waiting to receive something, something that I don’t want to do. I’ve, I want, yeah. It’s – and I’m not being fed any information about it. It’s, it’s not a comfortable position.
It doesn’t make sense I suggest, Mr Brown. You seem to be a bit proactive about this one yet on previous occasions you’re fobbing off Ricardo and trying to stall him. Why would you be so interested?---Why would I be so interested?
Yes, in the second importation?---I had, I had plans at the end of July to, to travel to my mother’s birthday. I was eager to, to get whatever I had to get done before then.
That was your priority, your mother’s birthday?---Yeah, it was a priority.
...
So you’re wanting to hurry them along a bit. You know there’s an importation and you want it in as quickly as possible, is that right?---No. I was told, I was told – I think there’s messages even earlier that suggested it’s on it’s, that it’s on its way and I’m simply asking for information as to if I can be told when so I have a rough idea as to when.
What did you understand your role to be at that point in time?---To receive it, store it, wait and deliver.
And to assist the person bringing it in to get the drugs out of the engine?---At this stage I wasn’t aware how they were coming in, so at this stage all I, all I thought I was doing was receiving.
Moreover, in discussion between the trial judge and counsel contemplated by s 11 of the Jury Directions Act 2015 conducted prior to counsel’s final addresses and the judge’s charge, senior counsel for the applicant accepted that the sole issue for the jury’s determination was duress. The judge provided counsel with a document — which he informed counsel he intended to provide to the jury — setting out the elements of the offences charged in the Indictment which made clear that, subject to the issue of duress, the elements were admitted. Ultimately — and without any demur from counsel — the judge provided this document to the jury in the course of his charge, which included the following directions:
Now, what I want to give you now is two documents. I want to give you firstly a document which sets out the elements of the offence in question. And secondly, I want to give you a document that is entitled ‘Duress’ and I will come to that in just a moment. Now, you will see the first document – have [sic] let me go through it with you. If you turn it, elements of the offence of importing a commercial quantity of a border-controlled drug.
Now, before I do that, I want to say to you that a border-controlled drug is defined in a schedule to one of the pieces of Commonwealth legislation and … I can tell you as a matter of law that methamphetamine is a border-controlled drug. Never was an issue in this case.
I should also tell you upfront that a commercial quantity of a border-controlled drug … in the case of methamphetamine … is more than 750 [grams]. And you will recall that the evidence in this case is that the first importation seems to be 4400 [grams], well above [750] obviously and the second importation was measured precisely by the police at something like 44 kilograms of pure methamphetamine. So there is no doubt in this case that the amount of both importations well and truly exceeded 750 grams. But that is what a commercial quantity means of methamphetamine.
The elements of the offence – just going back to the document – are four-fold. (1), that the accused imported a substance. Now, that is admitted by the accused. Secondly, that the accused … imported that substance intentionally. That is also admitted.
Thirdly, that the accused knew that the substance was a border-controlled drug. That is admitted. I should put for completeness there that it is not necessary … that he particularly knows its methamphetamine … [So] long as … he knew that it was a border-controlled drug. That would the third element. And that is admitted by the accused here.
And finally, and fourthly, that the accused imported a commercial quantity of that border-controlled drug, that is more 750 grams. And that is also admitted.
Now, you might think, ‘Well, he’d admitted everything. What are we here for?’ And of course, the reason you are here is because he has pleaded not guilty to both of these offences on the basis that he carried out the acts that constitute the offences under duress. And duress is a defence to an offence such as this. …
The directions extracted immediately above were not the subject of any exception by senior counsel for the applicant.
Further, before completing his charge, the judge was provided with a note from the jury, which resulted in further directions as follows:
… In response to your note that was handed to me a short time ago, reading as follows: ‘Can Judge Smith please tell the jury a little more about the law as it surrounds the charges of drug importation. How much does a person need to be involved/have knowledge of an import to be involved in the crime, before it’s more than just possession?’ And that is the query that you have raised with me.
Members of the jury, you may recall at the outset of this trial, I gave you a document setting out the elements of the offence of importation of a commercial quantity of a border controlled drug. And I gave it to you as a matter of completeness, really, because those elements are not in issue in this trial. Each of those elements are admitted by the accused man. So there could be no issue in this trial as to whether in fact he did import a commercial quantity of a border controlled drug. That is not an issue.
Now, in some other trials, it may be an issue, or one or other of those elements might be an issue that is hard fought and the jury would have to decide upon. This is not one of those cases. The various elements have a good deal of law attached to them but it is not advantageous and certainly not necessary for me to go through the law, insofar as it relates to something that is not relevant to your considerations in this trial.
So my response to the query is that all of the elements of the offence are admitted. There is no doubt that Mr Brown committed the offence of importing a commercial quantity of a border controlled drug, subject to his defence of duress. And that is the issue in this trial. Did he act under duress within the meaning that I have set out both in the written document that I have provided to you and in what I have told you verbally about that defence? So that is all you have got to worry about in this trial.
Once more, these further directions were not the subject of any exception by experienced senior counsel for the applicant.
From the foregoing, it will be appreciated that in relation to both charges senior counsel for the applicant appears to have made a deliberate forensic choice to concede — subject to the issue of duress — that the applicant was party to an agreement to import a border controlled drug. On its face, that forensic strategy may be readily understood and appreciated. Indeed, given the applicant’s own sworn testimony, it was entirely rational. Counsel may well have sought to avoid the jury being distracted from a consideration of the applicant’s essential ‘defence’ by a concentration upon the elements of the offences.
Subject to narrow qualifications, counsel’s adoption of a deliberate forensic strategy would ordinarily bind the applicant. So much was made clear by Gleeson CJ in Nudd:[36]
... A criminal trial is conducted as adversarial litigation. A cardinal principle of such litigation is that, subject to carefully controlled qualifications, parties are bound by the conduct of their counsel, who exercise a wide discretion in deciding what issues to contest, what witnesses to call, what evidence to lead or to seek to have excluded, and what lines of argument to pursue. The law does not pursue that principle at all costs. It recognises the possibility that justice may demand exceptions. Nevertheless, the nature of adversarial litigation, with its principles concerning the role of counsel, sets the context in which these issues arise. Considerations of fairness often turn upon the choices made by counsel at a trial. … It is the fairness of the process that is in question; not the wisdom of counsel. As a general rule, counsel’s decisions bind the client. If it were otherwise, the adversarial system could not function. The fairness of the process is to be judged in that light. The nature of the adversarial system, and the assumptions on which it operates, will lead to the conclusion, in most cases, that a complaint that counsel’s conduct has resulted in an unfair trial will be considered by reference to an objective standard, and without an investigation of the subjective reasons for that conduct.
[36]Nudd v The Queen (2006) 80 ALJR 614, 618–9 [9] (citations omitted; emphasis added) (‘Nudd’).
And more recently, it was observed in Schanker:[37]
It is well settled law that parties are bound by the conduct of their counsel, save for some exceptions. As observed in Patel v The Queen[38] this is ‘a cardinal principle of litigation’[39] and reflects the adversarial nature of the justice system, where parties are entitled to determine how they put their cases.
Where an appellate court is invited to consider whether an appellant should be released from counsel’s conduct, it does not involve consideration of the correctness of the decision. It is a question of whether there has been some unfairness in the process below, resulting in obvious and overwhelming prejudice to the appellant.[40] Therefore, an informed and deliberate decision by counsel to seek to admit evidence or to allow evidence to be admitted, which amounts to a rational, tactical decision, will invariably bind an appellant.[41]
[37]Schanker v The Queen [2018] VSCA 94, [76]–[77] (Tate and McLeish JJA, and Kidd AJA) (‘Schanker’) (citations as in the original).
[38](2012) 247 CLR 531.
[39]Ibid 562 [114].
[40]Ibid; Ulutui v The Queen (2014) 41 VR 676, 681 [27].
[41]Jansz v The Queen [2010] VSCA 137, [21], [38]; R v Mateiasevici [1999] 3 VR 185, 196 [36]–[37]; Pate (a pseudonym) v The Queen (2015) 250 A Crim R 425, 453–4 [138]–[140]; NJ v The Queen (2012) 36 VR 522, 533 [45]–[46].
In the present case, the applicant contends that counsel’s failure to ask the judge to give further directions on the elements of the charged offences constituted a fundamental error borne of incompetence. It was submitted that senior counsel at trial should have asked the trial judge to redirect the jury that the applicant did not, as the judge had told the jury, admit the elements.
We cannot agree.
As we have said, counsel’s forensic strategy appears to have been to avoid the jury being distracted from a consideration of the applicant’s essential defence. Rather than demonstrating incompetence, we consider that it was entirely rational for counsel to proceed in the way that he did.
For these reasons, proposed grounds 3(a), 3(b), 5(a) and 5(b) are without substance.
Before leaving proposed ground 5, we note that under cover of sub-ground 5(c) the applicant contended that a fundamental error occurred in that counsel rather than the applicant signed a ‘Notice of Admissions’, Exhibit F, in which various admissions purportedly were made pursuant to s 184 of the Evidence Act 2008. The applicant asserted that Exhibit F was signed without his instructions, and submitted that the judge failed to comply with s 184(2)(b) of the Act.
It is enough to dispose of this ground to observe that the applicant — a not unintelligent individual — apparently made no complaint about these matters at the time of the trial; and that, in any event, as the Court raised with his counsel during the hearing of the present application, there was nothing in the admissions made on the applicant’s behalf in Exhibit F that could have occasioned him any improper prejudice.
Proposed ground 4 — Claimed unsafe and unsatisfactory verdicts
The following submissions in the applicant’s Amended Written Case provides the essential flavour of the contentions advanced by the applicant under cover of proposed ground 4:[42]
The submission in relation to Counts 1 and 2 is that the applicant is a mere foot soldier/hired help and involved after both importations have well and truly arrived in Australia. In relation to the first import, the applicant is involved 15 days after the importation. In relation to the second import, the applicant is involved 10 days after the importation.
The Crown’s case in relation to Counts 1 and 2 is that the applicant formed an agreement with McAndrew and others to import a commercial quantity of a border controlled drug contrary to sub-s. 307.1(1) of the Criminal Code (Cth) by virtue of s.11.2A of the Criminal Code (Cth).
There is no evidence (or any available inference that can be drawn from the evidence) that the applicant made an agreement with McAndrew (or any other persons) to import a commercial quantity of a border controlled drug in relation to Count 1 or Count 2. Both McAndrew and the applicant were foot soldiers with different handlers and different tasks. It is a common modus operandi of Mexican Cartels to separate everything off into compartments.
[42]Emphasis in original.
In our opinion, once the jury rejected the notion that the applicant acted under duress, his conviction was inevitable. By his own admission in the course of sworn evidence, the applicant admitted that his role was to receive and store, and ultimately deliver, the drugs. That conduct fell within the meaning of ‘import’ for the purposes of the Code.
Furthermore, in our view it was open to the jury to reject the notion that the applicant was acting under duress. We consider that senior counsel’s concessions and admissions, coupled with the applicant’s own evidence, amply justified the findings of guilt on both charges.[43] More importantly, perhaps, having reviewed the whole of the evidence, we do not entertain a reasonable doubt about the applicant’s guilt flowing from the evidence bearing on the applicant’s claim of duress.[44] In particular, the WhatsApp communications passing between Vacca and the applicant from 22 March 2013 to 2 August 2013 seem to demonstrate a congenial and friendly relationship between the two, rather than one characterised by menace and threats. The distinct impression gleaned from an examination of those communications is of two relatively equal parties to a commercial arrangement transacting business, including negotiation concerning the applicant’s remuneration.
[43]M v The Queen (1994) 181 CLR 487, 493 (Mason, Deane, Dawson and Toohey JJ).
[44]Ibid 494–5.
Proposed ground 4 has no merit.
Proposed ground 6 — Aggregation of errors
No error having been demonstrated under the cover of grounds 1 to 5, there is no occasion to consider this ground.
Conclusion
For these reasons, the application for an extension of time must be refused.
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