Kapeliotis v The Queen

[1996] HCATrans 75

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney  No S126 of 1995

B e t w e e n -

CONSTANTINOS KAPELIOTIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

DAWSON J

GAUDRON J

GUMMOW J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 15 MARCH 1996, AT 11.03 AM

Copyright in the High Court of Australia

MR G. NICHOLSON, QC:  If the Court pleases, I appear with my learned friend, MR B.W. CROSS, for the appellant.  (instructed by Steven Naris & Co)

MR P.S. HASTINGS, QC:  If the Court pleases, I appear with my learned friend, MR G.J. TABUTEAU, for the respondent.  (instructed by the Commonwealth Director of Public Prosecutions)

MR NICHOLSON:   Your Honours, I have listened with interest to what has just passed and it is a very similar issue that is raised, although I would like to make this free concession at the start.  It seems to me that the issue is crystallised more clearly in the matter of Barbouttis, and indeed I had sought to use the decision in Barbouttis in the court below in support of my argument.

I would like to, if I may, address the issue of impossibility in conspiracy, and invite your Honours to consider, perhaps from a different perspective.  If one views the object of the conspiracy objectively, then impossibility, as a doctrine, could apply.

GAUDRON J:   But do not we need to know what is the agreement alleged.   In this case, we need to know, do we not, whether it was a more general conspiracy into which the police informant was inserted as a method of carrying out the agreement, or whether it is a more precise conspiracy.

MR NICHOLSON:   I will be contending for a far more concise conspiracy.

GAUDRON J:   Well it is not a matter for what you contend really, Mr Nicholson, it is the matter what went to trial.

MR NICHOLSON:   Yes.  Your Honour, may I address that issue.  Before may I complete the point I started to make about the objects of the conspiracy.  If the conspiracy is to - I take the worse situation - import drugs into Australia, then, in a specific way, a particularly precise way, if the object of the conspiracy is viewed objectively, then the argument in favour of impossibility becomes real.  If the object of the conspiracy is viewed subjectively, that is, in the minds of the conspirators, then it would be arguably far more difficult to argue in favour of the impossibility position.

In short, a question of significance is whether, in the context of considering the application of impossibility, if at all, in Nock, whether it is the mind of the actors, the conspirators, or the objective nature of the object of the conspiracy.  If it is the subjective question, we are dealing with men’s beliefs and state of mind.

DAWSON J:   Why does it matter?  Why was this not simply any agreement to import heroin and the situation arose in which those who agreed approached, as it turned out, the wrong person, an undercover policeman.

MR NICHOLSON:   The position in this particular case that went to the jury was that the Crown case was the conspiracy was hatched, had its birth between Postiglione and Lentze.  Subsequently Savvas was introduced into it and subsequently Kapeliotis - the applicant - was introduced into it.  At that time, the person Lentze had pretended a source of heroin - no specific place - but he then entered into arrangements with the police and the agreement became specific as to 20 kilograms of heroin from Chinese contacts in Bangkok, known to Mr Davies, the undercover operative.

DAWSON J:   Can we stop there, Mr Nicholson.  That certainly was an agreement to do something which was unlawful.

MR NICHOLSON:   Yes, certainly.

DAWSON J:   And it was not an agreement to do something which was impossible.

MR NICHOLSON:   Well, that is the issue that I do take.  I will deal with that issue now.  The impossibility - and sometimes I believe the authorities refer to it, impossibility in the relevant sense, although I do not know that that has been considered with clarity - the impossibility here contended for is one, the non-existence at all of a specific amount of heroin the subject of the agreement, 20 kilograms.  Two, the non-existence ‑ ‑ ‑

GAUDRON J:   Well there were 20, I mean you cannot say the non-existence of 20 kilograms of heroin.  I mean you might be able to say if it were a specific 20 kilograms of heroin, in a suitcase, in such-and-such a place, but your conspiracy was not so particularised.  It was 20 kilos of heroin to come from Bangkok.  For all we know, there were 20 kilograms of heroin in Bangkok.

MR NICHOLSON:   Well we do have evidence of that.  The evidence in the trial was that Lentze pretended, and maintained the pretence from the beginning as to the availability of that substance, and that Mr Davies did not have those contacts.  So for me to have any chance of success, I need to persuade your Honours to the position - and I realise it is difficult ‑ that the relevant impossibility attaches not just to the identity of a substance but to the capacity of individuals to deliver the substance.

In other words, it is not limited ‑ take the case of white powder ‑ if it was white powder in someone’s possession, the fact that it was never in someone’s possession would also be an impossibility, as distinct from the fact that it was lignocaine.  And that is what I am asking your Honours to consider. 

But there is another here, that the way that the conspiracy developed was a controlled development of the conspiracy, taking it down the line to the object of the 20 kilograms introduced by the policing authorities.  Now a relevant issue is whether, in terms of policing, the development of a conspiracy through the medium of the undercover agent and the prison informer to do that which was physically not available through physically non-existent people, whatever its culpability may have been in a moral sense, whether in fact it is, in reality, anything at all the object of the agreement if it is specific to the conspiracy developed through the police and the undercover officer, and the prison informer.

There is no doubt that if it was viewed at large as conspiracy to import heroin, then I could not be heard.  But what happened was, the development of the conspiracy through the agency of Mr Davies, working with Mr Kapeliotis, introducing to him the concepts of volume and identity and the conspiracy initially hatched by Mr Lentze, with Mr Postiglione and Mr Lentze working with the police.  Now the object of the conspiracy, in a general sense, of course, was criminal.  But in a real sense it just did not exist.  Now, if your Honours are not with me on the question of impossibility extending to the medium of delivery of the 20 kilos, as distinct from it being at large, then I cannot take the matter further.

DAWSON J:   Mr Nicholson, you need an extension of time, do you not?

MR NICHOLSON:   I was not aware of that - I do apologise.  Yes.

DAWSON J:   What was the period of delay?

GAUDRON J:   Well, maybe you do not, do you?   31 August was the notification of court’s determination of application.  I am not too sure what it was in - and your application was in September.  Well you were four days short, where you?

DAWSON J:   Well you need not worry about any further ‑ ‑ ‑

MR NICHOLSON:   Thank you, your Honour.  And might I indicate that I apologise for the slightly late introduction of the summary of argument as well.  Our reasons are set out in the document.

The method of policing is to encourage, or rather to target and develop a conspiracy, as I think has happened here.  The heroin 20 kilograms did not exist - I have been through that - I do not wish to be repetitive about it.  The question is whether, in the relevant sense, impossibility can extend to the machinery of the agreement, rather than the identity precisely of the substance, as in Nock.  It is a method of policing.  But it is a method of policing which does create the impression of reality where, in truth, nothing happened, or could ever happen, in the context of that agreement. 

It may demonstrate a preparedness to enter into those arrangements.  But the specific objective could never have been achieved.  It was physically impossible.  It does show up, certainly, a propensity at large to engage in that type of activity.  But if you like it could be viewed as a controlled conspiracy regulated and developed to do that which was impossible.  Is the law a conspiracy in the police method to extend as far as securing agreement to do the impossible.  Beyond that, I do not think I could take it any further than happened on the previous application.

GAUDRON J:   You are using “impossibility” really to mean that which would not have happened if the agreement had run its course.

MR NICHOLSON:   That which “could” not have happened if it had not run its course.  It could not.  It was clear in the evidence that the person Lentze maintained the sham and that that was furthered by the person Davies.  It was about 20 kilograms of heroin, and it was not delivered and could never been delivered.  It did not exist, nor did the alleged Chinese associates of Davies.

GAUDRON J:   That “it did not exist” point.

MR NICHOLSON:   I am sorry.  It is not that heroin did not exist.  It is that “that heroin” - because it was a sham from the start according to Lentze.  It was a charade.

GAUDRON J:   Well I follow the argument.

MR NICHOLSON:   I certainly do not suggest that heroin does not exist, or 20 kilograms of heroin do not exist in that part of the world.  Only that in relation to a specific identifiable sum associated with Lentze and Davies and their Chinese associates, it simply did not exist and could never have existed, and it was a pretence from the start.

Now, it demonstrates on the part of the persons who - particularly Mr Kapeliotis joining later - a willingness, as I have to accept on the record of the court’s proceedings, at its highest a willingness to become involved in that sort of transaction.  But whether that type of transaction, a conspiracy to commit that which could never have happened, could be other than to conspire at the impossible is what I seek to argue.  I seek to argue that the conspiracy and impossibility nexus outlined in Barbouttis in the Court of Criminal Appeal of the difference opinion, if I could put it that way, or difference of emphasis, perhaps, amongst those members of the Bench, I would seek to contend for the decision embracing the judgment of Justice Smart where he emphasises, I think, the reality of the situation rather than the unreality. 

There has to come a time when we are poking at windmills that do not exist, if we want to have an offence at large, by all means, but at the moment we are creating a conspiracy to do something which could never have happened and people are going to gaol on the basis that it could have.  So, on that basis, I seek to agitate this argument.  I think it is significant as to policing methods and it is significant as to the proper ambit of both conspiracy and impossibility.

GAUDRON J:   It is, however, an argument that you did not put at trial.

MR NICHOLSON:   I was not appearing in the trial.  The point was not taken at trial, it is so.  It was raised in the Court of Criminal Appeal by me on the unsafe heading and it was not taken at trial.  The Ridgeway issue was also taken at the Court of Criminal Appeal but was dismissed at that point.  That type of issue was not taken at trial either.  It was raised for the first time at the Court of Criminal Appeal.  However, I would ask your Honours to consider, specially in light of what has just passed in the other application, whether this does not raise squarely the issue of policing method which could be readily involved in the same type of jurisprudential point.

I can take it no further, unless I can assist your Honours.  It certainly was not raised at trial.

DAWSON J:   Thank you, Mr Nicholson.  The Court need not trouble you, Mr Hastings.

The Court of Criminal Appeal was, we think, correct in concluding that the conspiracy to import heroin did not amount to a conspiracy to do something which was impossible.  The question which arose in Director of Public Prosecutions v Nock does not therefore arise and there is no sufficient reason to doubt the correctness of the decision of the Court of Criminal Appeal.  The time within which to make the application is extended but special leave to appeal is refused.

MR NICHOLSON:   If the Court pleases.

AT 11.20 AM THE MATTER WAS CONCLUDED