Papadimitriou v The Queen - [2011] WASCA 140

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: PAPADIMITRIOU -v- THE QUEEN [2011] WASCA 140

CORAM: PULLIN JA
BUSS JA
HALL J

HEARD: 8 & 9 FEBRUARY 2011

DELIVERED : 1 JULY 2011

FILE NO/S: CACR 50 of 2010
CACR 51 of 2010

BETWEEN: DIMITRIOS PAPADIMITRIOU
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :JENKINS J
File No  :INS 20 of 2009

Catchwords:

Criminal law - Conspiracy - Conspiracy to traffic in commercial quantity of controlled drug - Whether trial judge erred in directing jury about recklessness in relation to substantive offence of trafficking

Criminal law - Whether miscarriage of justice - Whether wrong decision on question of law - Whether substantial miscarriage of justice

Criminal law - Appeal against sentence - Whether sentence manifestly excessive - Whether trial judge erred in the fixing of the nonparole period

Legislation:

Crimes Act 1914 (Cth), s 16A, s 19AB
Criminal Appeals Act 2004 (WA), s 30(2), s 30(3), s 30(4)
Criminal Code Act 1995 (Cth), s 3.1, s 4.1, s 5.1(1), s 5.2, s 5.3, s 5.4, s 5.6, s 11.5(1), s 11.5(2), s 300.5, s 302.1, s 302.2(1)
Criminal Procedure Act 2004 (WA), s 143

Result:

CACR 50 of 2010:
Leave to appeal on ground 1 refused
Appeal dismissed
CACR 51 of 2010:
Leave to appeal on all grounds of appeal refused
Appeal dismissed

Category: D

Representation:

Counsel:

Appellant: Mr S B Watters & Ms A McGregor
Respondent: Mr P W Neil SC & Mr A G Elliott

Solicitors:

Appellant: Michael Tudori & Associates
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Adams v The Queen [2008] HCA 15; (2008) 234 CLR 143
AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438
Ansari v The Queen [2010] HCA 18; (2010) 241 CLR 299
Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383
Bessell v The Queen (Unreported, WASCA, Library No 980199; 4 March 1998)
Bick v The Queen [2006] NSWCCA 408
Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525
Carney v The State of Western Australia [2010] WASCA 90
Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358
Chan (1989) 38 A Crim R 337
Chua v The Queen [2001] WASCA 353
CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440
Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373
Davies v The Queen [2011] NSWCCA 19
Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367
Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20
Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293
Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372
Hili v The Queen [2010] HCA 45; (2010) 272 ALR 465
Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1
Ljuboja v The Queen [2011] WASCA 143
Lovell v Lovell [1950] HCA 52; (1950) 81 CLR 513
Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665
M v The Queen [1994] HCA 63; (1994) 181 CLR 487
Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414
Mahmood v The State of Western Australia [No 2] [2008] WASCA 259
Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605
McGrath v The Queen [2010] NSWCCA 48; (2010) 199 A Crim R 527
McKey v The State of Western Australia [2010] WASCA 210
Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493
Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457
Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161
Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466
Pedersen v The State of Western Australia [2010] WASCA 175
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
Power v The Queen [1974] HCA 26; (1974) 131 CLR 623
R v Ansari [2007] NSWCCA 204; (2007) 70 NSWLR 89
R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558
R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125
R v Lau [2009] WASCA 99
R v LK [2010] HCA 17; (2010) 241 CLR 177
R v Lopez (Unreported, WASC, Library No 930431, 13 August 1993)
R v Neale [2004] NSWCCA 311; (2004) 148 A Crim R 493
R v Nguyen [2005] NSWCCA 362; (2005) 195 FLR 1
R v Rajacic [1973] VR 636
R v RK [2008] NSWCCA 338; (2008) 73 NSWLR 80
R v Rudd [2009] VSCA 213; (2009) 23 VR 444
R v Saik [2007] UKHL 18; [2007] 1 AC 18
Roberts v The Queen [1999] WASCA 273
Sabourne v The State of Western Australia [2010] WASCA 242
Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1
Spreitzer v The Queen (1991) 58 A Crim R 114
Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145
Tan v The Queen [2003] WASCA 324
The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81
The State of Western Australia v TIK [2009] WASCA 122
TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
Tulloh v The Queen [2004] WASCA 169; (2004) 147 A Crim R 107
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365
Wilson v The State of Western Australia [2010] WASCA 82
Wong v The Queen [2001] HCA 64; (2001) 207 CLR 584
Wong v The Queen [2001] WASCA 32

TABLE OF CONTENTS

Pullin JA's reasons.................................................................................................................... 7
Conviction appeal CACR 50 of 2010 - summary
The indictment
The existence of a conspiracy by others
Relevant provisions of the Code
Evidence led by the prosecution and the prosecution's submission about the use of code
Opening address by Papadimitriou's counsel
Formal admissions made by Papadimitriou
Aids prepared by the trial judge and provided to counsel

Jury Aid 1
Jury Aid 2

Objection and submissions made by the parties about the aids by the trial judge
Analysis of the objections
The trial judge's ruling on the submission
Closing address to the jury by counsel for Papadimitriou
The summing up by the trial judge

Conspiracy
Intention to enter into the conspiracy
Intention to commit the offence
Overt acts

Trafficking
Commercial quantity
Directions about the fault elements in the offence of trafficking - recklessness

Grounds of appeal
Section 30 of the Criminal Appeals Act 2004
General observations about the grounds of appeal
The High Court decision in R v LK and Ansari
Grounds 2 and 5

Crown concedes there was an erroneous direction and wrong decision by the trial judge
Analysis of Ansari and R v LK
Analysis of the trial judge's directions in the light of Ansari and R v LK
Was there a miscarriage of justice?

Ground 1
Was there a substantial miscarriage of justice?

Conclusion
Sentence appeal - CACR 51 of 2010
Findings by the sentencing judge
Personal circumstances
The determination of sentence
Grounds of appeal
Ground 1
Ground 2
Proposed orders on appeal against conviction: CACR 50 of 2010
Proposed orders on appeal against sentence: CACR 51 of 2010

Buss JA's reasons....................................................................................................................58

Background facts and circumstances
Formal admissions made by Mr Papadimitriou at the trial
The Crown's case against Mr Papadimitriou
The opening address at the trial by counsel for Mr Papadimitriou
Mr Papadimitriou did not give evidence at the trial
The closing address at the trial by counsel for Mr Papadimitriou
The relevant provisions of the Code
The offence of conspiracy under s 11.5 of the Code
What the Crown had to prove against Mr Papadimitriou
The jury aids provided by the trial judge to the jury

Jury Aid 1
Jury Aid 2

The unchallenged directions given by the trial judge in her summing up
The contentious direction given by the trial judge in her summing up
Appeal against conviction: the grounds of appeal
Appeal against conviction: Mr Papadimitriou's submissions
Appeal against conviction: the Crown's submissions
Appeal against conviction: the merits of ground 1
Appeal against conviction: the merits of grounds 2 and 5
Appeal against conviction: s 30(3) and (4) of the Criminal Appeals Act 2004 (WA)
Appeal against conviction: in the present case, the appeal must be allowed unless this court applies the proviso
Appeal against conviction: in the present case, is this court precluded from applying the proviso?
Appeal against conviction: in the present case, should this court apply the proviso?
Appeal against conviction: conclusion
The trial judge's sentencing remarks
Appeal against sentence: the grounds of appeal
Appeal against sentence: Mr Papadimitriou's submissions
Appeal against sentence: the merits of ground 1
Appeal against sentence: the merits of ground 2
Appeal against sentence: conclusion

Hall J's reasons......................................................................................................................102

PULLIN JA: The appellant appeals against his conviction for conspiracy to traffic in a commercial quantity of a controlled drug, contrary to the provisions of the Criminal Code (Cth) (Code). He also appeals against his sentence of imprisonment.

Conviction appeal CACR 50 of 2010 - summary

The offence of trafficking in a commercial quantity of a controlled drug (trafficking) consists of three 'physical elements'. They are:
(1)trafficking in a substance;
(2)the substance is a controlled drug; and
(3)the quantity is a commercial quantity.
The first two physical elements must be accompanied by mental elements or 'fault elements' as they are called in the Code. The accused person must intend to traffic, and the accused person must intend, know, or at least be reckless about whether the substance is a controlled drug. If a person is charged with the offence of trafficking, the trial judge must inform the jury about both the physical elements and those fault elements.
However, if the person is charged with conspiracy to commit the offence of trafficking, the trial judge must direct the jury about the single physical element relating to conspiracy (conspiring to traffic in a controlled drug), and the fault element (that the accused intended to enter into an agreement to commit the offence). In addition, the judge must direct the jury that they must be satisfied that the accused intended to carry out the offence the subject of the agreement and that an overt act was committed. Finally, the trial judge must also direct the jury about the physical elements of the charge of trafficking.
What the trial judge must not do in such a conspiracy case is direct the jury about the fault elements applicable to the trafficking charge.
In this case, as the appellant contended, the trial judge did err by informing the jury about the fault elements relating to the trafficking offence. Similarly, the trial judge erred by overruling the appellant's objection to the proposed direction. The direction, although accurately stating what the fault elements were in the offence of trafficking, was unnecessary, potentially confusing and therefore an irregularity in the trial. The decision to overrule the objection was a wrong decision on a question of law amounting to an error of law and therefore a miscarriage of justice.
However, there was no substantial miscarriage of justice because the trial judge prevented any confusion from arising by directing the jury that the information given about the fault elements in the offence of trafficking was not relevant when deciding whether the appellant intended to enter into the agreement to traffic the controlled drug, and was not relevant in deciding whether the appellant intended to commit the offence the subject of the conspiracy.
The appellant contended that he was, or may have been, convicted of an offence not known to the law. That contention should be dismissed.
The appeal against conviction should be dismissed. More detailed reasons follow.

The indictment

The indictment read:
Between 1 July 2007 and 20 May 2008 at Perth in the State of Western Australia and elsewhere in Australia, Rade LJUBOJA, Dejan MEDAN, Dimitrios PAPADIMITRIOU and Fabian QUAID conspired together with Vaso ULIC and others to traffic in a substance, the substance being a controlled drug, namely 3,4 ‑ methylenedioxymethamphetamine (MDMA), and the quantity being a commercial quantity contrary to sections 11.5(1) and 302.2(1) of the Criminal Code (Cth).
Of the named conspirators, Ljuboja and Medan pleaded guilty and Quaid and Papadimitriou pleaded not guilty. They were tried together before a jury presided over by Jenkins J and both were found guilty. Ulic was at all times in Montenegro and was never charged.

The existence of a conspiracy by others

The prosecution alleged and, by the end of the evidence and addresses of counsel, the appellant did not dispute that Ulic in Montenegro and Ljuboja and Medan, who were at all material times in Australia, conspired to traffic in a commercial quantity of MDMA and that on 16 April 2008, pursuant to that conspiracy, a quantity of more than 44 kg of MDMA was imported into Australia at Fremantle on a ship called the 'Monica'. There was no dispute that Ljuboja, who was Ulic's senior operative in Australia, took possession of the MDMA, arranged for a flat to be rented, set it up with scales, a pill press and other material necessary to manufacture ecstasy pills from the MDMA and transported the MDMA to the flat in readiness for manufacture. The issue for the jury to decide was whether the appellant joined in the conspiracy. The jury, by its verdict, found that he did.

Relevant provisions of the Code

Section 11.5(1) of the Code states:
A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.
Section 11.5(2) states:
For the person to be guilty:
(a)the person must have entered into an agreement with one or more other persons; and
(b)the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c)the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
Section 302.2(1) states:
(1)A person commits an offence if:
(a)the person traffics in a substance; and
(b)the substance is a controlled drug; and
(c)the quantity trafficked is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2)The fault element for paragraph (1)(b) is recklessness.
(3)Absolute liability applies to paragraph (1)(c).
Section 302.1 states:
(1)For the purposes of this Part, a person traffics in a substance if:
(a)the person sells the substance; or
(b)the person prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or
(c)the person transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or
(d)the person guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or
(e)the person possesses the substance with the intention of selling any of it
The phrase 'controlled drug' is defined in s 300.2 to mean a substance described as a controlled drug in s 314.1. Section 314.1 contains a table of controlled drugs and quantities. MDMA is described as a controlled drug in that section and the commercial quantity of MDMA is 0.5 kg.
Section 3.1(1), (2) and (3) states:
(1)An offence consists of physical elements and fault elements.
(2)However, the law that creates the offence may provide that there is no fault element for one or more physical elements.
(3)The law that creates the offence may provide different fault elements for different physical elements.
Section 4.1(1) states:
A physical element of an offence may be:
(a)conduct; or
(b)a result of conduct; or
(c)a circumstance in which conduct, or a result of conduct, occurs.
Section 5.1(1) states:
A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.
Section 5.2(1) and (2) states:
(1)A person has intention with respect to conduct if he or she means to engage in that conduct.
(2)A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
Section 5.3 states:
A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.
Section 5.4 states:
(1)A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk;
…
(4)If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
Section 5.6 states:
(1)If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.
(2)If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.
NOTE: Under subsection 5.4(4) recklessness can be established by proving intention, knowledge or recklessness.
Section 300.5 states:
If … it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance … was a controlled drug … it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the controlled drug.

Evidence led by the prosecution and the prosecution's submission about the use of code

The prosecution case revealed that there had been a lengthy covert police surveillance operation over the period from July 2007 to May 2008. The operation involved the interception and recording of thousands of telephone calls between the conspirators and others, the covert photographing of meetings between some of the conspirators and the location of film showing the event when the MDMA was transferred from the Monica to a small vessel and taken ashore at Fremantle. It also involved the covert removal of the MDMA from the flat where the ecstasy manufacture was to take place and the substitution of an inert substance for the MDMA. Papadimitriou, Ljuboja and Medan were arrested at the front of the flat on 19 May 2008.
Relevant intercepted telephone calls, which were in English, were stored on DVDs and became exhibits. These were played to the jury and were available to the jury in the jury room and were available to members of this court to hear. Quaid and Papadimitriou spoke to Ulic and Ljuboja in English. Ulic, Ljuboja and Medan spoke with each other in Serbian. The telephone calls in Serbian were translated into English and read to the jury in court by an interpreter.
The intercepted telephone calls captured the first meeting between Ljuboja and Quaid and the first meeting of Ljuboja and Papadimitriou. In the telephone calls between Ulic, Ljuboja and Quaid, the caller rarely identified himself and the recipient rarely identified himself to the caller. Nevertheless, at the appeal, apart from minor exceptions, there was no dispute about the identity of the participants in the telephone calls.
For the purposes of this appeal, the Crown prepared a summary of all of the relevant telephone calls and events and summarised them in its written submissions. Attached to the submissions was a schedule containing a more detailed summary of all the relevant events and the substance of all the relevant telephone calls. Apart from minor exceptions, both Quaid and Papadimitriou accepted the accuracy of these summaries, save only that they put in issue what the Crown added to the schedule about the true meaning or interpretation of what was being said in those calls.

The prosecution submitted to the jury that the matters discussed during the telephone conversations evidenced an agreement to traffic the MDMA and showed the following: that Ulic was the senior overseas organiser; that Ljuboja was his senior Australian operative who facilitated the importation, storage, transportation and conversion of the MDMA into ecstasy pills; that Papadimitriou and Medan arranged for the transport of the pill press from Melbourne to Perth and were involved in setting up the granny flat and pill press; that Quaid provided funding to Ljuboja and arranged for his brother to help Ljuboja to furnish 299 Morley Drive East, which was where the ecstasy tablets were to be manufactured, and that Quaid was to be involved in distributing the drugs once they had been converted into ecstasy pills. Quaid had contacts with bikie gangs which, in effect, was circumstantial evidence supporting the prosecution case that Quaid was involved in order to arrange distribution.
The prosecution submitted that many of the intercepted telephone conversations involved the use of coded references to the MDMA which arrived on the Monica, to the landing of the drug, to the sale of the drug, to the proposed distribution of the drug and to the sale price and profits to be made in relation to the sale of the drug.
The Crown submitted that important coded telephone conversations occurred soon after the landing of the MDMA in Australia. In those telephone calls (referred to below), Ulic spoke to Ljuboja and Quaid, during which there was reference to the fact that 'the wedding' had occurred. Quaid, who gave evidence, was unable to provide any explanation as to the use of that term. The Crown submitted that the only event which had occurred, common to the parties, was that the drug had landed in Western Australia. No relevant wedding had just taken place. The Crown therefore submitted that references to the 'wedding' were to the arrival of the drugs.
A reference in the telephone conversations to a 'wooden box', the 'machine' and the 'tool' in context could be understood as a reference to a pill press. The Crown also contended that in the telephone calls referred to below:
(a)a reference to Ulic's 'cousin in America' was to Ljuboja and 'cousin' generally meant Ljuboja;
(b)the reference to the 'Greek guy' and 'Jim' was a reference to Papadimitriou;
(c)a reference to the 'restaurant now being open' meant that the conspirators were in business to sell the drugs;
(d)a reference to 'menus' and 'wine' was a reference to the drugs to be produced;
(e)a reference to '8%' was a reference to the amount Ulic was to get for the ecstasy; that is, $8 per tablet;
(f)a reference to 'credits' was a coded term for ecstasy;
(g)a reference to 'getting the cars ready for the race' was a reference to Quaid personally attending to getting the drugs ready;
(h)a reference to 'units' was not a reference to property but to units of MDMA;
(i)a reference to somebody putting 'bad fuel in the car' was a reference to the drug (after the police had covertly substituted an inert substance for the MDMA); and
(j)a reference to 'horses' was Serbian slang for money.
It was open to the jury to accept that the conversations did involve code as the Crown contended. The jury, by its verdict, clearly accepted that such code was used.
A selection of some of the evidence led at trial is set out below. It captures the most important aspects of the prosecution case (the abbreviation CSN below is to the intercepted telephone 'call sequence number' in exhibit 64):
(1)in July 2007, Ulic was in Montenegro, Quaid and Ljuboja were in Sydney, Medan was in Melbourne and Papadimitriou was in Queensland. Quaid had known Ulic for about 10 years and regarded him as a father figure (ts 2601);
(2)in July 2007, Quaid travelled to Western Australia (exhibit 3). He met Ljuboja in Subiaco on 19 July 2007 (CSN 345). Quaid had been put in touch with Ljuboja by Ulic and he had never met Ljuboja before that date (ts 2498, 2534);
(3)on 19 July 2007, after the meeting, Ljuboja called Ulic and reported on the meeting. Ulic said that he had a 'Greek' guy and that Ljuboja is to give him 5% credit (CSN 357);
(4)on 28 July 2007, Papadimitriou telephoned Ljuboja and introduced himself as 'Jim', saying that he had Ljuboja's number from his friend overseas (CSN 640);
(5)on 29 July 2007 Quaid telephoned Ljuboja and said he wanted to meet him (CSN 650);
(6)on 31 July 2007 Papadimitriou rang Ljuboja and said it was Jimmy calling and gave a number for Ljuboja to ring him on (CSN 682);
(7)on 30 November 2007 Ljuboja rang Quaid and said his cousin had rung him and he wanted to see Quaid (CSN 184);
(8)there were meetings between Ljuboja and Quaid between September 2007 and February 2008 (ts 566, 576, 579, 611 ‑ 612, 2498);
(9)on 7 April 2008 a ship, the MSC Monica, arrived at Sydney after sailing from Mauritius. One of the crew members of the Monica was a Mr Pavlovic (ts 980);
(10)on 16 April 2008 the MSC Monica arrived at Fremantle with Mr Pavlovic still a crew member (ts 980);
(11)on 16 April 2008, Mr Pavlovic came ashore and was photographed at the Angels Cafe in Fremantle in the presence of Ljuboja (ts 980);
(12)at 2.40 am on 17 April 2008, a small vessel approached the stern of the MSC Monica and bags were taken off onto the small vessel (ts 305, 980). The bags contained a large quantity of MDMA powder (ts 1465);
(13)the bags containing the MDMA were transported to unit 2/35 Heyshott Road, Balga, which was where Ljuboja was staying (ts 1242);
(14)on 17 April 2008, some hours after the drug was taken off the Monica, there was a telephone call between Ulic and Ljuboja, during which Ulic asked Ljuboja whether he had finished with 'the wedding' and Ljuboja answered 'I have' (CSN 1671, ts 1023). Other evidence in the defence case revealed that Ulic's son was to be married in August of 2008 (ts 2459). The reference to Ljuboja being finished with the wedding was therefore not to Ulic's son's future wedding;
(15)on 17 April 2008, 10 minutes after the Ljuboja/Ulic telephone call, Ulic telephoned Quaid (CSN 2486). Ulic informed Quaid 'I had a phone call from my cousin from America ‑ he went okay at the wedding'. Ulic said he was letting him have 'the good news'. Ulic said that the 'restaurant is open'. Quaid answered 'beautiful' and 'excellent'. Ulic said that someone was going to come and look for Quaid and he was going to tell Quaid what 'menus he's got';
(16)on 18 April 2008, Ljuboja telephoned Ulic and said that he had 'just been there' and that he was 'going home' (CSN 1682, ts 1045). Ljuboja said '50 is left over'. Ulic said 'How much was it for the whole group? I was told something around 85 or 80'. Ljuboja said 'No, no, I only got 50'. Ulic queried this and Ljuboja said 'only 50. It was 60. That guy took 10 … only 50. There was 60. That one - Bube's guy took 10, and that's it'. A little later, Ulic told Ljuboja to 'tell your friend to get two to three menus ready' and then Ljuboja said 'he is coming tomorrow' and then Ulic said 'leave some aside … so he can make two to three menus' (ts 1046);
(17)on 18 April 2008, in a telephone conversation between Ljuboja and Medan, Ljuboja said that 'the cousin has a solution' and 'you will have to come back straight away' and 'to give to them the green light to get on with all of that' and to 'make a menu' and 'we need samples, couple of samples' (CSN 1692, ts 1052 ‑ 1053);
(18)on 19 April 2008, Medan flew from Melbourne to Perth (exhibit 3);
(19)on 19 April 2008, Ulic rang Quaid and told him that he was going to get 'units' for him (CSN 4122). He said everything was 'okay'; that his cousin was 'good'; that he was going to see Quaid and get the 'menu' and that Quaid should look at the 'wine'. He said that he was going to rent 'the place' and that it was 'under your control';
(20)on 20 April 2008, Medan flew from Perth to Melbourne (exhibit 3);
(21)on 20 April 2008, there was a telephone conversation between Ulic and Quaid who was in Sydney (CSN 2824, exhibit 3). There was a discussion about a 100,000 credit. Ulic indicated to Quaid that it was Quaid's job to organise the 100,000 of credit. Quaid said that he would go over 'there'. Ulic indicated that whoever gets the credits, that 8% was to include him. Ulic said to Quaid that after that it was 'up to you'. Ulic asked if Quaid had someone for the credit and Quaid said 'yes'. Ulic said that it was a matter of seeing what 'we can sell it for' and 'how much we want to sell' and that he had already sold 14 units on 10% deposit. Quaid said he would 'get the cars ready for the race'. There was further discussion about profits. Quaid said that he would go over and supervise it himself. Ulic said that Quaid could make adjustments if he wanted to and that Quaid could see what he wanted to charge. Ulic said that if Quaid was not happy with the 'quality of the payments' then 'this can be changed' on the 'quality'. Quaid then asked for confirmation that he could make 'adjustments' and Ulic said that he could;
(22)on 21 April 2008, Ljuboja in a telephone call to Medan said 'I have told you a week ago that the wooden box is needed. How big is it roughly?' Medan gave some dimensions and Ljuboja then said 'he will give you - he will give you in Melbourne for this, you know' (CSN 2381, ts 1415 ‑ 1416);
(23)on 22 April 2008, Ljuboja had a telephone conversation with Ulic seeking assistance to locate 'offices'. Ulic told Ljuboja he would get someone to contact him to assist (CSN 1794, ts 1146 ‑ 1148);
(24)a short time later on 22 April 2008, Papadimitriou in Sydney, telephoned Ljuboja, who was in Perth, and asked whether Ljuboja wanted him to 'come there'. Ljuboja asked if Papadimitriou had family in Perth and Papadimitriou said he did (CSN 1795, exhibit 3);
(25)on 22 April 2008, Quaid spoke to Ulic by telephone. In that conversation Quaid indicated to Ulic that Quaid's brother Marc would help Ljuboja with everything (CSN 2957). Later evidence revealed that Quaid organised a meeting for his brother Marc to help Ljuboja. Quaid told his brother that Ljuboja was Ulic's friend and he should be helped out with some furniture and to go and see the manager of a Harvey Norman store who he knew (ts 2575 ‑ 2577);
(26)on 23 April 2008, Ljuboja rang Papadimitriou and left a message on his answering machine asking Papadimitriou to call him urgently (CSN 1798);
(27)on 23 April 2008, Ulic, in a telephone conversation with Quaid, asked Quaid if he could 'go there' and 'have a talk with the main person' who was looking after the 'units and building'. Ulic said 'if you leave to the workers' and they do 'whatever' then tomorrow 'you may scratch your head'. Ulic said 'you know how you want to leave everything'. During the conversation Quaid said that he would be making a trip 'over there soon' to see if everything is 'as good as gold' (CSN 3059);
(28)on 24 April 2008, Papadimitriou flew to Perth from Brisbane (exhibit 3). Papadimitriou made arrangements with his cousin to rent out a stand‑alone granny flat at the rear of his cousin's house at 299 Morley Drive East, Lockridge (exhibit 7, ts 1286). On 28 April, Ljuboja and Papadimitriou went round to carpet and tiling retail outlets for materials to renovate the granny flat (ts 1247 ‑ 1248). Later that day, Papadimitriou, Medan and Ljuboja met at Burswood Casino (ts 1260);
(29)on or about 28 April 2008, Ljuboja transported the MDMA to 299 Morley Drive East, Lockridge, and between 28 April and 7 May 2008, Medan arranged for and assisted in the renovations of the granny flat (ts 1246, 1251, 1254, CSN 372, CSN 2186, ts 1321 ‑ 1330). During that period, Medan went to the granny flat twice a day to check on the drugs (CSN 2146, ts 1277, 1544);
(30)on 28 April 2008, Quaid rang Ulic. Ulic referred to a sale of 10 to 15 units on 10% deposit (CSN 3392);
(31)on 30 April 2008, Medan telephoned a contractor about doing urgent work to create a gyprock wall at 299 Morley Drive East at an estimated cost of $3,500 to $4,000 (CSN 372);
(32)on 1 May 2008, Ljuboja flew to Sydney where Quaid was located (exhibit 3);
(33)on 2 May 2008, an unidentified male called Ljuboja from overseas and in the conversation Ljuboja said that 'in about 10 to 15 days, my work needs to start and then those people are already waiting you know, for me to start' (CSN 2180, ts 1313). Ljuboja said that 'a friend of mine just called me because I am without money'. He said 'I still need two and a half horses for the tool. A friend of mine who also works has invested in it, you know? The other guy needs to bring me that and get some spare money so I can start working and so on. You know what I mean?' He said 'He called me about an hour ago. He's supposed to bring it tomorrow. He also needs to sort out the transport for it. And it should start in about two weeks';
(34)on 2 May 2008, Ulic, in a telephone conversation with Quaid, said that 'my cousin is supposed to have money in the bank' (CSN 3947). He said that once the unit was finished they have done 'the job' and 'they want to get paid'. Ulic said 'one unit' has been sold. He said 'call my cousin ... he could explain how big are the units'. He said you give him the 'contact';
(35)on 5 May 2008, Ulic called Quaid and Quaid said he had caught up with 'your cousin' (CSN 4338);
(36)on 7 May 2008, Ljuboja and Medan spoke on the telephone and Ljuboja said that the 'machine has to be - tonight it has to be done'. Ljuboja added 'and urgently, the man is waiting. Jimmy is waiting for it to take it over' (CSN 2415, ts 1455 ‑ 1456);
(37)on 8 May 2008, Ulic rang Papadimitriou and referred to Western Union (CSN 003). On the same day, Ulic rang Papadimitriou demanding to know what the problem was sending cash money from Western Union to Nikola Ulic. Papadimitriou said he would do that immediately (CSN 010);
(38)on 8 May 2008, Ljuboja rang Papadimitriou (CSN 2434). Papadimitriou said that he was trying to send money by Western Union. He said that the 'cousin wants the money today'. He said that he wants 'tens straight away';
(39)on 8 May 2008, in a covert operation, police substituted a harmless powder for the MDMA, which was found in a sulo bin at 299 Morley Drive East (ts 1465). The MDMA was analysed to weigh approximately 44 kg with a purity of about 80% (ts 2132, 2983);
(40)on 10 May 2008, Ljuboja telephoned Medan and told him 'this guy' has a problem because it looked like something was mixed and not original anymore (CSN 2543, ts 1525);
(41)on 10 May 2008, Ulic telephoned Papadimitriou. In that call, Papadimitriou said he had looked at the 'fuel' and someone had put a bit of bad fuel in the car (CSN 073);
(42)on 10 May 2008, not long after the previous call, Ljuboja telephoned Papadimitriou (CSN 2566). Ljuboja said 'my friend … he tell me something'. Ljuboja said that he 'don't touch nothing'. Papadimitriou said 'he' did not say you. Papadimitriou said he would have to fix the problem;
(43)on 10 May 2008, Quaid flew from Sydney to Perth (exhibit 3);
(44)on 12 May 2008, Quaid met Ljuboja at Croissant Express in Subiaco. Ljuboja gave Quaid an envelope containing capsules which contained MDMA (ts 2683, ts 2499). Quaid agreed to provide Ljuboja with $20,000 (CSN 2693, ts 1628, CSN 1430, CSN 139);
(45)on 13 May 2008, in a telephone conversation between Ljuboja and Medan, Medan said 'this one is double the size and faster' (CSN 2742, ts 1673). Ljuboja said 'but if he had the small one it would be worthwhile'. Medan said 'it will take time, for weeks. This one can speed up everything by double';
(46)in May 2008, Papadimitriou arranged for a Mr Katsidis to fly from Sydney to Melbourne to hire a car and then for Mr Katsidis to drive that vehicle across the Nullarbor carrying a pill press (ts 1816 ‑ 1819);
(47)on 16 May 2008, Ulic and Quaid spoke by telephone and Quaid said he had spoken to a couple of gentlemen 'they should have 50 … at 14' that is 'half a million' and asked should he push for 'a 100'. Ulic told Quaid to call his 'cousin' and 'tell him to relax' (CSN 5539). Quaid admitted in cross‑examination that the reference to his 'cousin' was to Ljuboja (ts 2637);
(48)on 18 May 2008, Mr Katsidis arrived in Perth driving the Kia Carnival containing the pill press and on 19 May 2008 the pill press was taken to 299 Morley Drive East and unloaded by Medan (ts 1821, 1900 ‑ 1901). Papadimitriou and Ljuboja also assisted in unloading chemicals and binding agents from the car (ts 1900 ‑ 1902). The three left and they returned with more items which they carried into the granny flat. These included a set of scales (ts 1905, 1883 ‑ 1884, 1944);
(50)on 18 May 2008, at Perth, Quaid gave Ljuboja $20,000 in $100 notes (ts 2501, 2526);
(51)on 19 May 2008, the police arrested Ljuboja, Medan and Papadimitriou at 299 Morley Drive East (ts 1908). In the granny flat the police found the wheelie bin with its contents, the pill press, gloves with Papadimitriou's DNA on them, the scales and materials which could be used for making ecstasy pills out of MDMA powder. The Kia Carnival was at the granny flat (ts 1908 ‑ 1909, 1944, 1949, 2123, 1898);
(52)on 21 May 2008, Quaid was arrested in Sydney (ts 2489).

Opening address by Papadimitriou's counsel

Section 143 of the Criminal Procedure Act 2004 (WA) permits an accused to give an opening address to the court about the accused's case immediately after the prosecutor has given an opening address.
Such an address was made by Papadimitriou's counsel. Before referring to what Papadimitriou's counsel said, reference must be made to what was said by Quaid's counsel. That is because counsel for Papadimitriou said that he would be 'quite brief' because counsel for Quaid had 'just outlined to you some of what applies to what I have to say'.
Quaid's counsel said in his opening address to the jury that he wanted to spell out to the jury the issues between the prosecution; that he wanted to tell the jury what facts were not in dispute (ts 341); that there would be no dispute from Quaid that the drug was imported into Australia; that 'most of the prosecution facts are not in dispute' and that:
The issue is not whether there was a conspiracy to traffic in this drug but whether Mr Quaid was involved in the conspiracy that we say clearly, on the papers we've seen, existed (ts 345).
Counsel for Papadimitriou then said:
[W]hat is not in dispute in this case is the factual basis of the drugs coming off the ship, the drugs ending up at 299 Morley Drive, Lockridge. Those matters are not in dispute. But on behalf of Mr Papadimitriou, what is in dispute is what his involvement is (ts 347).

Formal admissions made by Papadimitriou

The following formal admissions were made by Papadimitriou. They were that:
(a)the MSC Monica arrived at Sydney on 7 April 2008 (ts 980);
(b)Mr Pavlovic was part of the crew of the MSC Monica on 8 April 2008;
(c)on 16 April 2008 at 1330 hrs, the MSC Monica arrived at Fremantle;
(d)Mr Pavlovic was still aboard the MSC Monica when it berthed at Fremantle;
(e)on 16 April 2008, Mr Pavlovic came ashore and at 1735 hrs he was photographed at the Angels Cafe in Essex Street, Fremantle, in company with Ljuboja;
(f)on 17 April 2008 at 0240 hrs, a small vessel approached and appeared to stop towards the stern of the MSC Monica on the port side. The small boat was not authorised to be there (ts 981).
(g)Medan stayed at Unit 2, 35 Heyshott Road, Balga and that on four days, 1, 2, 3 and 4 May 2008, he was observed visiting the granny flat at the rear of the premises at 299 Morley Drive East, Lockridge (ts 1544);
(h)on 9 May 2008, Ljuboja was dropped off by a taxi near 299 Morley Drive East (ts 1545);
(i)continuity was not in dispute in respect of the drug found in the granny flat (ts 1465);
(j)the drug was not in dispute (ts 1465);
(k)the certificate of the analyst was not in dispute (ts 1465);

Aids prepared by the trial judge and provided to counsel

Towards the end of the prosecution case (ts 2418), the trial judge handed to counsel a draft of two documents which her Honour said she intended to give to the jury during directions. She asked counsel to look at them over the weekend and let her know the next week whether they wanted any changes made to them. She said that they were in respect of the elements of the charge of conspiracy and the elements of the charge of trafficking as well as what was called a jury check list; that is, three questions the jury could ask themselves when deliberating in respect of the elements of the charge in order to reach a verdict.
The two documents read:

Jury Aid 1

Conspiracy to traffic in a commercial quantity of MDMA
The three elements the prosecution must prove beyond reasonable doubt are:
(1) the accused you are considering entered into an agreement with one or more other persons; and
(2) that accused and at least one other party to the agreement intended that the offence of trafficking in a commercial quantity of a controlled drug, would be committed pursuant to the agreement; and
(3) that accused or at least one party to the agreement committed an overt act pursuant to the agreement.

Jury Aid 2

Jury Memory Aid - Trafficking commercial quantities of a
controlled drug
It is an offence to traffic in a commercial quantity of a controlled drug.
A person traffics in a commercial quantity of a controlled drug if he:
(1)traffics in a substance; and
(2)the substance is a controlled drug; and
(3)the quantity trafficked is a commercial quantity.
Meaning of 'traffics'
[A] person traffics in a substance if he:
(a)sells the substance; or
(b)prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or
(c)transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or
(d)guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or
(e)possesses the substance with the intention of selling any of it.

'Prepares the substance for supply' includes packaging the substance or separating the substance into discrete units.
The Crown must prove that the person intended to engage in at least one of the above acts (a) ‑ (e).
Meaning of 'controlled drug'
A controlled drug is a substance which the Australian Parliament has said is a controlled drug.
3,4‑Methylenedioxymethamphetamine (MDMA) is a controlled drug.
If the other elements of the offence are proven, a person will be guilty of trafficking in a controlled substance if they are reckless as to whether the substance is a controlled drug. A person is reckless with respect to whether a substance is a controlled drug if:
(a)he is aware of a substantial risk that it is a controlled drug; and
(b)having regard to the circumstances known to him, it is unjustifiable to take the risk.

The Crown only has to prove that a person was reckless as to whether the substance was a controlled drug. The Crown does not have to prove that the person was reckless in respect of whether it was MDMA. It would be sufficient if the accused was reckless as to whether it was another controlled drug such as amphetamine, cocaine, methamphetamine or 3,4‑Methylenedioxyamphetamine (MDA).
A person will also be guilty of trafficking in a controlled substance if he is aware that it is a controlled substance or believes that it is a controlled substance.
What is a 'commercial quantity' of MDMA?
The Commonwealth Criminal Code says that half a kilo or more of MDMA is a commercial quantity.
The prosecution only have to prove that there was half a kilo or more of MDMA. The prosecution do not have to prove that the person knew or believed that there was, or intended that there would be at least half a kilo of MDMA.
Even if a person reasonably believed that there was less than half a kilo, he would still be guilty.

Objection and submissions made by the parties about the aids by the trial judge

The following week Mr Levy, who was appearing with Mr Heliotis for Quaid, raised an objection to Jury Aid 2. No objection was raised about Jury Aid 1. The transcript reveals the following interchange. The reason why the interchange between Quaid's counsel and the trial judge is relevant to this appeal by Papadimitriou is because at the end of the interchange, counsel for Papadimitriou expressed agreement with the submissions made by Quaid's counsel:
LEVY, MR: Your Honour, I wonder if I might raise the proposed directions with respect to trafficking commercial quantities of a controlled drug.
JENKINS J: Yes.
LEVY, MR: Really, the direction that your Honour proposes with respect to the meaning of 'controlled drug' - in our submission, your Honour, it's - this is not a case about a person being reckless as to whether or not the substance is indeed MDMA, or certainly so far as Mr Quaid is concerned.
LEVY, MR: Really, the way in which the Crown has put its case is that this is clearly about MDMA. There's no confusion about the drug. And, in my submission, your Honour, it's not really necessary to provide directions about, with the greatest of respect, recklessness as to the actual substance itself.
JENKINS J: That would be what I have there, the usual sort of complete direction on that issue. When I was looking at that, it occurred to me that there - the Crown's case of course is that they're talking in code.
LEVY, MR: Yes.
JENKINS J: So no one ever says, even on the Crown's case, you know, 'We'll have so many units of MDMA.' There is always, it would seem to me, the possibility that a juror might say, 'Well, they were clearly talking about drugs but how do we know that an accused knew that it was MDMA as opposed to something else?'
LEVY, MR: Well, the difficulty with that, your Honour, is that this is clearly - the indictment reads that this is a conspiracy to traffic MDMA and an essential ingredient, therefore, would be that the agreement was for that particular drug. That's the way it's been particularised, your Honour. If they didn't know, in my submission, the way in which the case has been run - if they didn't know it was MDMA, they wouldn't be privy to all the facts of the agreement. It's simply just not this type of case, your Honour.
JENKINS J: I'll think about that over the weekend, Mr Levy (ts 2922 ‑ 2923).
Before the court adjourned on 11 December 2009, the prosecutor was asked to comment and the following exchange appears in the transcript:
JENKINS J: Mr Levy has expressed concern about, do you say that that direction should be left in or omitted in this case?
BRADDOCK, MS: The standard is recklessness, whether it is this particular controlled drug, which we say was the intention of the agreement, or another controlled drug.
JENKINS J: So it should stay in, you say.
BRADDOCK, MS: It should stay in. Without making it unduly complex, recklessness is the appropriate mental element (ts 2926).
The next week there was further discussion and leading counsel for Quaid said he opposed the reference to 'recklessness' and the following exchange occurred between counsel and the trial judge:
HELIOTIS, MR: Yes, your Honour. I've read the transcript of Friday afternoon and I'm somewhat concerned as to what your Honour wants to say to the jury in relation to recklessness in this case. I'm aware of the definition, but the directions your Honour gives need to be tailored to the facts of a particular case. And it would seem to me, with respect, particularly given that this is a conspiracy, that there are no facts that would enable them to consider recklessness in this case.
HELIOTIS, MR: The Crown case is knowledge beyond any - I mean, they've never even put material that might entice a jury to think, 'Well, perhaps it wasn't'. We've not taken any points that it wasn't. And it just seems to us, your Honour, that despite my lateral faith sometimes in the jury system, I am concerned that recklessness may be transferred - this concept of recklessness may be transferred to other areas of the law. In my submission, your Honour, in our submission, your Honour should leave this case to the jury purely on - the Crown case here is that they knew, and that doesn't seem to be an issue in this case, something to that effect.
JENKINS J: So you---
HELIOTIS, MR: Pardon me, your Honour, it just troubles me that there are other areas where intention must figure, such as, for example, the overt act of the payment of 20,000. That's got to be a payment with knowledge or an intention that it be part of the conspiracy. Now, I'm just concerned that a day down the track they may recall something about recklessness and start to apply that to areas where they need intention. Now, normally we're stuck with it. But in the facts of this case - and I've taken the opportunity to discuss it with the Crown. In the facts of this case, there really just doesn't seem to be any room for recklessness, and it's merely complicating their function, your Honour.
JENKINS J: You don't think in the sense that on the Crown case, these accused could not have known what was on the Monica, they could have only had a belief about what might be there? And in that sense, there being no evidence that they made any specific inquiries as to what was there, in essence, they were simply reckless as to what was on the Monica.
HELIOTIS, MR: It doesn't matter what we're on about, your Honour. It's a fact that it's a conspiracy that changes all of that. They've got to be satisfied that the agreement that was reached was the agreement that the Crown has led, and that is that, 'This is MDMA that's going to be made into ecstasy tablets and that's what we're going to import'.
JENKINS J: Well---
HELIOTIS, MR: Now, it doesn't matter at the end of the day---
JENKINS J: That's what their agreement is and that's what their intent is, but that their intent is and their agreement is to traffic in MDMA. But the offence of trafficking in MDMA is committed if one is simply reckless as to the identity of the drug. That's the way I look at it.
HELIOTIS, MR: The agreement, your Honour, is completed once they believe that this is MDMA. They don't need to know what it is, because in effect it need never be there. The agreement is the way that's important to them. And that's why I say that it becomes very complicated and very esoteric if we go down the path of saying, 'Well, here's what you need for the agreement, now I'll tell you what you need for trafficking, and now you need to have an intention to be reckless'. It just becomes a very difficult process for a jury to understand. And as I say, it doesn't really matter whether there's anything on the ship at all. It's their agreement to traffic MDMA and to convert it into ecstasy that is the important matter.
JENKINS J: So in respect to my handout on trafficking, what do you think it should say?
HELIOTIS, MR: Just pardon me a moment, your Honour. I, with respect, would urge your Honour to stop after the first two sentences.
JENKINS J: Under the heading of Meaning of Controlled Drug? (ts 2929 ‑ 2930)
Counsel for the prosecution then stated:
BRADDOCK, MS: Your Honour, section 5.6(2) of the Criminal Code is the provision which deals with the fault element in relation to a circumstance or result where the offence itself does not specifically provide what the fault element is. In relation to that, recklessness is the required fault element and, with respect, your Honour needs to direct in terms of the Code as to what the fault element is at that level in your Honour's direction on the elements of the offence. But the provision is subject to 5.4(4) which clearly states that recklessness can be established by proving intention, knowledge or recklessness. So in order not to cause any confusion, whilst the fault element is recklessness, your Honour may tell the jury that intention, knowledge or recklessness is sufficient to establish that as the fault element. It would be inappropriate not to give any direction as to what the fault element is. Although we have, of course, two layers here; that is to say, the conspiracy layer of the element and the trafficking layer of the element but, effectively, that is the position, your Honour, according to the Criminal Code (ts 2931).
Senior counsel for Quaid then said:
HELIOTIS, MR: That is - your Honour, all I can add to that is to say, how does one formulate the conspiracy in the terms of recklessness? An agreement - referring to this case specifically, it's an agreement to traffic whatever is on that boat by making it into ecstasy. I mean, that's the point where, in our - my submission, what's being proposed, it just becomes nonsensical and the law, and your Honour's charge, needs to be adapted to these points and I, personally, don't know how the Crown would formulate the - what they allege in this case by proving recklessness - (indistinct) recklessness.
JENKINS J: Well, is not, as I put it to you, that the Crown case is - and they've specified it - they've particularised it in the indictment ‑ that the conspiracy was to traffic MDMA and the law requires, in order for that to be proved, that the accused must intend to commit the offence of trafficking in MDMA but that that will be satisfied if the jury find that the accused agreed with others to traffic in a controlled drug and was reckless as to whether it was MDMA or knew that it was MDMA or believed it to be MDMA.
HELIOTIS, MR: I can't imagine a more speculative arena, your Honour. How could they possibly find that on the facts?
JENKINS J: So what do you think? You think they should just be told that it's sufficient if they form an agreement to commit the offence of trafficking a controlled drug, in essence?
HELIOTIS, MR: I wouldn't frankly be satisfied with that, because in the facts of this case, there is no other room for them to move. That is the facts of the case, that they agree - did they enter into an agreement here to traffic a controlled drug? Now, the Crown and everybody - this case has been led on the basis that they intended to traffic MDMA but it doesn't really matter what the - I just can't imagine - how could the jury possibly say, well, were they reckless? Where's the evidence that they may have been reckless as to what was on that boat? How can we find that? And it's just really inviting them to speculate. Personally, I wouldn't be concerned other than there are so many other areas of intention in this case that it troubles me that it's easy, 24 hours after your Honour's finished telling them the concept, if they're deliberating, to slide - to use the concept of recklessness in other areas where intention is required. And, your Honour, what would be wrong with saying to them: look, the offence is committed, they agreed to traffic in the substances, the substance being a controlled drug. Now, ladies and gentlemen, the Crown says a controlled drug is MDMA and there seems to be no issue that that was the only drug you need to concern yourself about but the offence is that they conspired to traffic a controlled drug. And I'd be content with that.
JENKINS J: Mr Tudori?
Counsel for Papadimitriou then said:
TUDORI, MR: I agree with Mr Heliotis, your Honour. There's nothing more I could add (ts 2931 ‑ 2933).
As a result, what was said by counsel for Quaid was adopted by Papadimitriou and the following analysis is of the submissions made by Quaid's counsel and adopted by Papadimitriou.

Analysis of the objections

Reduced to their essential points, counsel said that directions needed to be tailored to the 'facts of a particular case', that there were 'no facts' that would enable the jury to consider 'recklessness in this case' and that all the parties, 'the Crown and everybody', understood that the conspirators intended to traffic MDMA. Counsel suggested that the direction should be in the following terms:
Now ladies and gentlemen, the Crown says a controlled drug is MDMA and there seems to be no issue that that was the only drug you need to concern yourself about but the offence is that they conspired to traffic a controlled drug.
Counsel said that he would be 'content with that'.

The trial judge's ruling on the submission

Her Honour then said, having heard the submissions:
I have decided to leave my handout in the way that it is. I will, however, direct the jury that this is the only area where recklessness has any part to play. And I will stress to them that on the facts of this case that even in respect to this particular issue, they are unlikely to find that they have to bother themselves with the issue of recklessness. I will stress that to them (ts 2933).

Closing address to the jury by counsel for Papadimitriou

Counsel for Papadimitriou submitted, in effect, that Papadimitriou was not involved in the conspiracy. He asked rhetorically:
And what is the elaborate conspiracy? The preparation and manufacture of a very large amount of ecstasy tablets, obviously illegal. Why would Mr Papadimitriou be hiring a car in his name? Why would Mr Papadimitriou be leaving an identifiable paper trail everywhere? He's flying in his own name. He hires the car in his own name, uses his credit card, flies Mr Katsidis down using his credit card, leaving a paper trail; either an incredibly stupid criminal or he does not know what Ljuboja and Ulic are really up to (ts 2908).
Later he said 'now, ladies and gentlemen, if Mr Papadimitriou had actual knowledge of what was going on - and you have to be satisfied beyond reasonable doubt that he had actual knowledge of the conspiracy ‑ why would he do these - the following things? (ts 2909)'
He then asked why he would have left an identifiable paper trail and why he would get his cousin involved.
Later, he said:
It is for you members of the jury ... to decide are you satisfied beyond reasonable doubt that Mr Papadimitriou conspired - when I say 'conspired' that he had actual knowledge of what Mr Ljuboja and Mr Ulic were up to and then he agreed to participate in that conspiracy. Are you satisfied beyond reasonable doubt? Have the prosecution really proven to you beyond reasonable doubt? [If] you have no doubt [then] you must convict ... you couldn't be so satisfied and it is your duty ... if you have a reasonable doubt ... you must acquit (ts 2911 ‑ 2912).
By the close of evidence and addresses there was no dispute that at least Ulic and Ljuboja had conspired to traffic in more than 44 kgs of MDMA, that pursuant to that conspiracy the MDMA had arrived on the Monica and was being manufactured and prepared for distribution. The issue for the jury was whether Papadimitriou was a party to the conspiracy.
There was no issue raised that Papadimitriou thought that the substance the subject of that conspiracy was some substance other than a controlled substance. It would have been impossible for such an issue to arise. Papadimitriou, in practical terms, could not have advanced as his defence, that he knew nothing about the conspiracy to traffic in the MDMA and at the same time claim that he thought that the substance was not MDMA.
That meant the jury had to consider whether the appellant agreed (and intended to agree) with at least one of the other named conspirators to traffic in what was admitted by Papadimitriou to be a commercial quantity of MDMA, whether there was intention to commit that offence and whether an overt act was committed.

The summing up by the trial judge

As well as summarising the prosecution case and Papadimitriou's case, the trial judge gave directions about the law as follows.

Conspiracy

The trial judge directed the jury that:
In broad terms, a conspiracy is simply an agreement between two or more people for them to commit an offence; in this case the offence of trafficking in a controlled drug (ts 2943).
There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

Intention to enter into the conspiracy

The trial judge directed the jury that:
[W]here I've used the word 'intention' or 'intended', the Crown must prove that the accused you are considering meant to enter into the agreement (ts 2951).
There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

Intention to commit the offence

The trial judge directed the jury that:
In this case, the prosecution allege that each accused formed an agreement with at least one other person named in the charge to produce and then distribute ecstasy tablets from the MDMA powder that was to be imported into Australia … and which ultimately came off the MSC Monica in April 2008 (ts 2945).
[H]e and at least one other party to the agreement, must have intended and must be proven to have shown that they intended that the offence of trafficking would be committed pursuant to the agreement.
…
The Crown must prove that the person intended to engage in at least one of the … acts (a) to (e) [see under 'Trafficking' below]. The Crown does not have to prove that there was an intent to engage in all of them (ts 2948 ‑ 2950).
After referring to the part of Jury Aid 2 which defined trafficking in pars (a) to (e), the trial judge then said:
It's not sufficient for the Crown … merely to prove that an accused was reckless as to whether those things were going to occur.
There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

Overt acts

The trial judge directed the jury that:
The Crown must prove … that that accused or at least one party to the agreement committed an overt act pursuant to the agreement (ts 2952).
There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

Trafficking

The trial judge directed the jury that:
A person traffics in a commercial quantity of a controlled drug if he (a) traffics in a substance and (b) the substance is a controlled drug and (c) the quantity trafficked is a commercial quantity … A person traffics in a substance if he (a) sells the substance or (b) prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it or (c) transports the substance with the intention of selling any of it or believing that another person intends to sell any of it or (d) guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it or (e) possesses the substance with the intention of selling any of it. Prepares the substance for supply includes packaging the substance or separating the substance into discrete units (ts 2950 ‑ 2951).
There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

Commercial quantity

The Crown [must] … prove that the accused and at least one other party to the agreement intended that the offence of trafficking in … a commercial quantity of a controlled drug would be committed pursuant to that agreement (ts 2951).
A half kilo or more of MDMA is a commercial quantity (ts 2951).

There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

Directions about the fault elements in the offence of trafficking - recklessness

What is a controlled drug? A controlled drug is a substance … and MDMA …. is a controlled drug …If the other elements of the offence are proven, a person would be guilty of trafficking in a controlled substance if they are reckless as to whether that substance is a controlled drug. A person is reckless with respect to whether a substance is a controlled drug if (a) he is aware of a substantial risk that it is a controlled drug and (b) having regard to the circumstances known to him, it is unjustifiable to take that risk. The Crown only has to prove that a person was reckless as to whether the substance was a controlled drug. The Crown does not have to prove that the person was reckless in respect to whether it was MDMA. It would be sufficient if the accused was reckless as to whether it was another controlled drug such as amphetamine, cocaine, methamphetamine or MDA. A person will also be guilty of trafficking in a controlled substance if he is aware that it is a controlled substance or believes that it is a controlled substance. Members of the jury, I have referred to the recklessness here because I am required by law to tell you what it means to traffic in a controlled drug. And at law, to traffic in a controlled drug means that a person will be guilty of trafficking in a controlled drug if they are reckless as to whether the substance is a controlled drug or whether they believe it is a controlled drug or whether they are aware that it is a controlled drug (ts 2950).

It is the reference to recklessness in this passage which Papadimitriou submits was unnecessary and for that reason, erroneous. The appellant submits that Jury Aid 2, which was handed to the jury, also contains the same unnecessary and therefore erroneous direction. However, that passage was followed by the following direction, which is important when the respondent's submission about no substantial miscarriage of justice is considered:
I stress that this is the only area where recklessness plays any part … in this offence. I have referred to the elements of the offence of conspiracy which require the Crown to prove that the accused intended to enter into an agreement to traffic a controlled drug and I have also referred to the elements which require the Crown to prove that the accused and at least one other party to the agreement intended that the offence of trafficking in a controlled - sorry; in a commercial quantity of a controlled drug would be committed pursuant to that agreement. Now, when I refer to intention, I mean just that in those circumstances. It's not sufficient for the Crown in those circumstances merely to prove that an accused was reckless as to whether those things were going to occur. In those circumstances where I've used the word 'intention' or 'intended', the Crown must prove that the accused you are considering meant to enter into the agreement and meant for the offence of trafficking in a commercial quantity of a controlled drug to be committed pursuant to that agreement.
This issue of recklessness is only relevant to the issue of proof of the substance that the person is intending to traffic, and in that sense they will be guilty if they know that the substance they intend to traffic is a controlled substance, if they believe it is a controlled substance or they are reckless as to whether it is a controlled substance (ts 2950 ‑ 2951).

Grounds of appeal

There were originally five grounds of appeal. The grounds of appeal read:
1.The learned trial Judge directed the jury in such a manner that:
(a)the jury has; or, in the alternative,
(b)there is a substantial risk that the jury has;
convicted the Appellant of an offence not known to the law and, as a consequence, there has been a substantial miscarriage of justice;
Particulars
(i)The learned trial Judge, in directing the jury with respect to the elements of the offence of conspiracy to traffic in a commercial quantity of a controlled drug contrary to ss 11.5(1) & 302.2(1) of the Criminal Code Act, 1995 (Cth), directed the jury that one of the elements of the offence of trafficking in a commercial quantity of a controlled drug is that the accused is 'reckless' as to whether the substance is a controlled drug.
(ii)There cannot be such a conspiracy in which the parties to the agreement are 'reckless' as to whether the substance is a controlled drug.
2.The learned trial Judge erred in her directions to the jury with respect to the elements of the one offence specified in the Indictment and, as a consequence, there has been a substantial miscarriage of justice;
Particulars
(i)The Appellant refers to and repeats Ground 1 herein.
3.(Abandoned)
4.(Abandoned)
5.The learned trial Judge erred in interpreting Section 11.5 of the Criminal Code, 1995 (Cth), such that to be guilty of conspiracy to commit an offence that has a physical element for which a fault element of recklessness is prescribed, it need not be proved that the offender intended that physical element.

Section 30 of the Criminal Appeals Act 2004

Section 30(2) of the Criminal Appeals Act 2004 (WA) provides that unless under s 30(3) the Court of Appeal allows the appeal, it must dismiss the appeal. Section 30(3) states that the Court of Appeal must allow the appeal if in its opinion:
(b)the conviction should be set aside because of a wrong decision on a question of law by the judge; or
(c)there was a miscarriage of justice.
Section 30(4) states that 'despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred'.
If a trial judge errs by making a wrong decision on a material question of law, that will also constitute a miscarriage of justice: see Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 [7] (Gleeson CJ). On that basis, the court, when deciding whether the conviction should be set aside, may consider whether or not there has been any substantial miscarriage of justice. If it considers that there has been no substantial miscarriage of justice by reason of the wrong decision on a question of law, then the Court of Appeal may dismiss the appeal under s 30(4). Alternatively, the court may form the opinion that although there was a wrong decision on a question of law, the conviction should not be set aside. The court would form that opinion if it considered that the wrong decision gave rise to no substantial miscarriage of justice.

General observations about the grounds of appeal

The three points raised by grounds of appeal 1, 2 and 5 are that:
(a)the appellant may have been, or was, convicted of an offence not known to the law (ground 1); and
(b)the trial judge made a wrong decision on a question of law in overruling the objection to the proposed direction to the jury about recklessness (ground 5); and
(c)there was a miscarriage of justice in that the trial judge misdirected the jury by directing that recklessness was the mental element of trafficking and which had to be considered by the jury (ground 2).
The application for leave to appeal on ground 1 has been referred to the hearing of this appeal. Ground 1 has no reasonable prospect of success and leave should be refused for reasons which appear later: see [102] ‑ [103]. Leave to appeal on grounds 2 and 5 has been granted.
Grounds 2 and 5, in effect, raise the same point. The appellant submits that the trial judge erred in law in overruling the objection to Jury Aid 2 and then erred likewise in directing the jury in accordance with Jury Aid 2. These grounds are considered in detail in the following paragraphs.
After the hearing of the appeal, the appellant's lawyers advised that grounds 3 and 4 were abandoned.

The High Court decision in R v LK and Ansari

The appellant calls in aid the High Court decisions in R v LK [2010] HCA 17; (2010) 241 CLR 177 (R v LK) and Ansari v The Queen [2010] HCA 18; (2010) 241 CLR 299 (Ansari), which were handed down five months after Papadimitriou's conviction. The appellant relies on these decisions in support of his submissions in grounds 1, 2 and 5.

Grounds 2 and 5

Crown concedes there was an erroneous direction and wrong decision by the trial judge

Counsel for the respondent conceded there was a misdirection as alleged by the appellant. If that concession is correctly made, then it follows that the respondent must also agree that her Honour's ruling on the objection was a wrong decision on a question of law. However, the respondent submitted that notwithstanding the misdirection and the wrong decision, there was either no substantial miscarriage of justice or, alternatively, that the error did not concern a live issue and that as a result there has been no miscarriage at all.
It is first necessary to consider whether the Crown's concession was properly made because agreement between the parties about a question of law cannot determine the law: Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 and Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [17] ‑ [20].
Because the appellant places great reliance on R v LK and Ansari, it is important to closely consider what was decided in those cases.

Analysis of Ansari and R v LK

Ansari is authority for the proposition that persons can conspire to commit an offence the mental element of which is recklessness [18], [37], [38]. This is because, by the operation of s 5.4(4), recklessness may be proved by intention or knowledge [18], [37]. The Crown set out to prove knowledge in R v Ansari [2007] NSWCCA 204; (2007) 70 NSWLR 89 [18]. In Ansari, the High Court adopted its reasons in R v LK about the elements of the offence of conspiracy: French CJ [2] and the plurality at [58]. As a result, particular attention needs to be paid to the decision in R v LK.
In R v LK the Crown sought to prove that the accused conspired to deal with money, being reckless as to whether or not the money was the proceeds of crime. This caused the trial judge to direct an acquittal.
In this case the Crown did not open its case alleging that the accused were reckless about the nature of the substance. Furthermore, as the case developed, it became clear that there was no issue about the substance being MDMA and no issue that any participant in the conspiracy was reckless about the nature of the substance. Papadimitriou's defence was not that he did not think that the substance trafficked was MDMA. His defence was that he did not conspire with anyone to traffic in the substance, which he admitted was MDMA.
In R v LK, although the conspiracy alleged was not a conspiracy to traffic in drugs, the structure of the charge in that case allows the discussion about the law concerning the offence of conspiracy to be applied to the circumstances of this case. In R v LK, the offence the object of the conspiracy had a physical element that was a circumstance, namely the dealing with money that 'is the proceeds of crime' [119]. Likewise, in the present case, the offence the object of the conspiracy has a physical element that is a circumstance, namely that the substance 'is a controlled drug'.
The Code provides that an offence must contain one or more physical elements and, subject to provision to the contrary, a fault element must attach to each such physical element: see s 3.1 and s 3.2. Section 4.1 provides that a physical element may be conduct or a result of conduct or a circumstance in which conduct or a result of conduct occurs.
The plurality in R v LK described the offence of conspiracy as being an offence which:
[H]as a single physical element of conduct: conspiring with another person to commit a non‑trivial offence. The (default) fault element for this physical element of conduct is intention (s 5.6(1) of the Code). At the trial of a person charged with conspiracy it is incumbent on the prosecution to prove that he or she meant to conspire with another person to commit the non‑trivial offence particularised as being the object of the conspiracy. In charging a jury as to the meaning of 'conspiring' with another person, it is necessary to direct that the prosecution must establish that the accused entered into an agreement with one or more other persons and that he or she and at least one other party to the agreement intended that the offence particularised as the object of the conspiracy be committed pursuant to the agreement. Proof of the commission of an overt act by a party to the agreement conditions guilt and is placed on the prosecution to the criminal standard [141].
The following points may be extracted from the above passage and from other parts of the reasons in R v LK:
(a)The words 'conspires' and 'conspiracy', as used in s 11.5(1), are to be understood as fixed by the common law, subject to express statutory modification. The use of those words, without definition, in the statement of the Code offence, was intended to be understood by reference to that common law meaning [107].
(b)The elements of the offence of conspiracy are to be found in s 11.5(1) and not in s 11.5(2) [91]. There is a single physical element of conduct involved in conspiracy, which is an agreement to commit a non‑trivial offence [132] and [141]. See also French CJ [57].
(c)Paragraphs (a) and (b) of s 11.5(2) are merely epexegetical of what it is to conspire. They do not specify elements of the offence [132] and [133].
(d)The mental or fault element of a charge of conspiracy is intention [141] ie, intention to enter into the agreement. See also French CJ [54] and [64]. The fault element is not expressly stated in s 11.5(1) but by default the fault element of a physical element that consists of conduct is intention [141]: see s 5.6(1). A person has intention with respect to conduct (the physical element, ie to agree) if they mean to engage in that conduct: s 5.2(1).
(e)There is a second mental condition (referred to in s 11.5(2)(b)) that the prosecutor must establish to make out the offence of conspiracy, and that is that the accused and at least one other party to the agreement intended, pursuant to the agreement, to commit the offence the subject or object of the conspiracy [75], [133]. This is not an 'element' of the offence [133]. Section 11.5(2)(b) informs the meaning of 'conspires' [117]. An intention to commit the offence requires knowledge or belief in the existence of facts that make the conduct the subject of the agreement an offence [117].
(f)It is not sufficient proof of this second mental condition that the person realised that the probable consequences of the agreed conduct might result in the performance of an unlawful act, or that the person was reckless as to whether the agreed conduct might result in an unlawful act [110] (approving Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 [66] (McHugh J)). In short, there cannot be a conspiracy in which the parties to the agreement are reckless as to the existence of a circumstance which is a necessary element of the offence the conspirators agree to commit [77]. The common law offence of conspiracy requires that an accused know the facts that make the proposed 'act' or 'acts' unlawful [94] and [114]. The reference to the 'act' or 'acts' is a reference to the physical elements of the substantive offence comprising the conduct, or circumstance or result involved in the commission of the substantive offence: see French CJ [57].

Analysis of the trial judge's directions in the light of Ansari and R v LK

The trial judge in this case correctly directed the jurors that they had to be satisfied about the existence of the physical element of agreement; that the necessary fault element in relation to the physical act of agreement was intention to agree; that the prosecution also had to prove an intention on the part of the appellant and at least one other party to the agreement to commit the offence of trafficking; that they must be satisfied that the appellant knew that the offence involved trafficking a controlled drug; and that the prosecution needed to prove that an overt act occurred.
The trial judge also gave directions, as she was required to do, about the meaning of 'trafficking' and about the meaning of a 'commercial quantity' of MDMA. What was required was a direction about the meaning of trafficking as stated in s 302.1 of the Code and a direction about the physical elements of the offence of trafficking as stated in s 302.2(1); that is, that a person traffics in a substance (s 302.2(1)(a)), that the substance was a controlled drug (s 302.2(1)(b)) and that the quantity trafficked was a commercial quantity (s 302.2(1)(c)). Those directions were given.

On 18 May 2008, Mr Katsidis arrived in Perth. He collected Mr Papadimitriou from Perth airport. They spent the night at a hotel.
On 19 May 2008, Mr Papadimitriou left Mr Katsidis at the hotel and drove the Kia Carnival vehicle to the granny flat. On the morning of 19 May 2008, Mr Ljuboja and Mr Medan also went to the granny flat, arriving shortly before Mr Papadimitriou. Mr Ljuboja, Mr Papadimitriou and Mr Medan unloaded the pill press, the chemicals and the binding agents from the vehicle and carried them into the granny flat. They left and returned. On their return they carried more items into the granny flat including a set of scales [48].
In the early afternoon of 19 May 2008, Mr Ljuboja, Mr Papadimitriou and Mr Medan were arrested by police in front of the granny flat.
The trial judge made these observations in relation to Mr Papadimitriou:
Mr Papadimitriou is 41 years of age. He was born and raised in New South Wales. His parents and sister live in Sydney. There is nothing unremarkable in his upbringing. Mr Papadimitriou married in 1998 and separated from his wife in 2006. He has three children aged between 10 and 15. Mr Papadimitriou told the author of the pre-sentence report that it was the stress caused by his severe financial difficulties that resulted in his separation.
Those financial difficulties apparently arose from the failure of a business. This necessitated the sale of the family home and some possessions. He also had to borrow money from family members and from Mr Ulic. His wife and family lived in Cyprus between May 2007 and July 2008. He visited them on four or five occasions. Since he has been in custody he has had phone contact three times per week with his children. Not unnaturally, Papadimitriou reports that his children are very upset at his imprisonment.
Mr Papadimitriou left school after year 10. He undertook an automotive mechanic's course, although he did not complete the qualification. He reports that he has been employed or self employed consistently since then either as an importer and/or retailer of cars. He has also been involved in property development. I am satisfied beyond reasonable doubt that in 2008 he was also involved in drug trafficking and not only in respect of the drugs that came off the MSC Monica. In 2006 he says that a business venture involving the importation and retailing of pre-owned luxury cars caused him to lose $4 million.
He says this was because of the actions of his former business associates. He says that he has subsequently repaid his debts and that he now has no financial resources. Mr Papadimitriou reports that he has good health. He says he has never used illicit drugs and does not associate with people who do. He has one drink driving conviction in Queensland in 2007. He denies that this is indicative of a pattern of alcohol misuse. Mr Papadimitriou does receive credit for being of good character in the sense that he does not have any relevant prior criminal history.
As Mr Papadimitriou denies his involvement in this offence, did not give evidence, did not provide any information to the police and provided little information to the author of the pre-sentence report and to the court, there is little direct evidence about his motivation for the commission of this offence. He did not commit the offence in order to support his own drug habit. There is evidence that he was an associate of Ulic and he acknowledges that he borrowed money from Ulic. As I have said, he also had outstanding debts. It is probable that a combination of those reasons caused him to commit this offence.
I have received a number of references from people on his behalf. The authors of those references are apparently well respected members of the Australian community. They speak of Papadimitriou as being a decent, hard-working and honest family man. The authors are very surprised to find Papadimitriou is involved in this offence. The only insight that they give me as to why he might do so is that he had a strong drive to be successful in life and he developed an entrepreneurial attitude. It may be that he misdirected those desires and attributes into what he thought would be a get-rich-quick scheme. A number of the references suggested that a lenient sentence would be appropriate for Papadimitriou because he is remorseful and unlikely to reoffend. I find it difficult to accept those submissions in light of the lack of remorse displayed to the court. The first step to rehabilitation is acknowledging the commission of the offence [103] ‑ [108].
The trial judge concluded her remarks in relation to Mr Papadimitriou, as follows:
(a)he knowingly assisted Mr Ljuboja;
(b)his assistance was not as extensive, but it was equally as important, as that given by Mr Medan;
(c)her Honour was satisfied beyond reasonable doubt that Mr Papadimitriou would have been paid in drugs for his efforts; and
(d)he had previous good character, but had shown no contrition, and her Honour had no confidence in his prospects of rehabilitation [130].

Appeal against sentence: the grounds of appeal

Mr Papadimitriou relies on two grounds in his appeal against sentence.
Ground 1 alleges that the trial judge erred in the exercise of her sentencing discretion by imposing a sentence that was manifestly excessive in all the circumstances, including the offending conduct viewed as a whole, with insufficient regard to matters personal to Mr Papadimitriou.
The allegation in ground 1 that her Honour paid insufficient regard to matters personal to Mr Papadimitriou is, in substance, a complaint about the attribution of weight.
An alleged failure by a sentencing judge to give any or adequate weight, or a complaint that a sentencing judge gave excessive weight, to a relevant sentencing consideration will only constitute an express appealable error if it amounts to a failure to exercise the discretion conferred on the judge. See Mallet v Mallet [1984] HCA 21; (1984) 156 CLR 605, 614; Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 [26]; Pedersen v The State of Western Australia [2010] WASCA 175 [37] (Buss JA, McLure P & Mazza J agreeing). A complaint about the attribution of weight to a particular sentencing factor therefore does not ordinarily give rise to an error that enlivens an appellate court's jurisdiction to intervene.
Ground 2 alleges that the trial judge erred when she failed to consider factors that were relevant to the fixing of Mr Papadimitriou's non‑parole period.
It is apparent from Mr Papadimitriou's submissions that he challenges both the head sentence and the non‑parole period.
On 26 July 2010, Mazza J referred the application for leave to appeal against sentence to the hearing of the appeal.

Appeal against sentence: Mr Papadimitriou's submissions

As to ground 1, counsel for Mr Papadimitriou relied on the following contentions:
(a)Mr Papadimitriou had no relevant prior criminal history and was aged 41 years when sentenced;
(b)his level of criminality reflected his lower place in the organisational hierarchy and was essentially confined to locating premises for the operation and facilitating the transport of the pill press to Perth; and
(c)comparable cases suggest that the sentence imposed by her Honour 'fell toward the upper end of an appropriate range, when the criminality involved on the part of [Mr Papadimitriou] should have resulted in the imposition of a term more toward the mid‑point of that range'.
As to ground 2, the factors which, according to counsel for Mr Papadimitriou, her Honour failed to consider were these:
(a)the length of the head sentence and its position in the permissible range;
(b)the seriousness of the offence and the prospects of rehabilitation;
(c)the need to ensure the non‑parole period reflected the criminality involved; and
(d)Mr Papadimitriou's prospects for rehabilitation.

Appeal against sentence: the merits of ground 1

By s 16A(1) of the Crimes Act 1914 (Cth), a court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence. Section 16A(2) provides that, in addition to any other matters, the court must take into account such of the matters specified in the subsection as are relevant and known to the court.
The major sentencing considerations for offences of dealing or trafficking in dangerous drugs of addiction are general and personal deterrence. The weight of the drugs in question is not, generally, the chief factor to be taken into account in fixing a sentence, but it is a matter of importance. Other matters to be taken into account include the nature and level of the offender's participation in drug dealing or trafficking within a particular organisation or generally, and whether the offending was committed for commercial gain. The degree of purity is often regarded as significant. Matters personal to an offender will almost always be subsidiary considerations, but they are not completely irrelevant. All of these propositions are well-established by the case law.
A ground of appeal which alleges that a sentence is manifestly excessive asserts the existence of an implied error. It does not assert a specific error.
It is necessary, in determining whether a sentence is manifestly excessive, to examine it from the perspective of the maximum sentence prescribed by law for the relevant offence, the standards of sentencing customarily observed with respect to that offence, the place which the criminal conduct occupies on the scale of seriousness of offences of the kind in question, and the personal circumstances of the offender.
In my reasons in Ljuboja v The Queen [2011] WASCA 143, I consider, in the context of an appeal against sentence by Mr Ljuboja, the maximum penalty for the conspiracy offence and comparable cases. It is unnecessary to reproduce those observations in these reasons.
In the present case, the weight, purity and value of the MDMA, and the issues of general and personal deterrence and appropriate punishment, were of particular importance in the sentencing process. The MDMA powder would have produced at least 350,000 tablets [82]. It would have been sold for between $14 million and $24 million [82].
Mr Papadimitriou's role was crucial in the planning and implementation of the illegal enterprise. He became involved in the conspiracy at an early stage. Mr Ulic put Mr Papadimitriou in contact with Mr Ljuboja for the purpose of providing him with practical support and to enable the MDMA to be converted into ecstasy tablets.
Mr Papadimitriou's role in the offending included:
(a)arranging the granny flat for the storage of the MDMA and its conversion into ecstasy tablets;
(b)travelling with Mr Ljuboja to carpet and tiling retail outlets for the purpose of arranging the renovation of the granny flat to enable the ecstasy tablets to be produced;
(c)arranging the hire of the Kia Carnival vehicle in Melbourne, and arranging for Mr Katsidis to drive the vehicle from Melbourne to Perth in order to transport the pill press, the chemicals and the binding agents to be used in the production of the ecstasy tablets; and
(d)his presence at the granny flat in circumstances which indicated that he, Mr Ljuboja and Mr Medan were about to commence the conversion of the MDMA powder into ecstasy tablets.
Although there were differences in the offending of Mr Papadimitriou compared to Mr Quaid, the trial judge was correct to deal with them on the basis that their objective criminality and the culpability of their offending was similar. Also, the differences in their personal circumstances did not justify distinguishing between them in the sentencing outcome [135].
I note that:
(a)Mr Papadimitriou had a greater role in the conspiracy up to the date of his arrest compared to Mr Quaid who had agreed to play a greater role in the future;
(b)Mr Papadimitriou was requested to provide money to enable the operation to be set up in the granny flat, but he delayed and 'fobbed off' Mr Ljuboja; and
(c)Mr Papadimitriou met with Mr Ljuboja on at least five occasions and spoke with him by telephone at least 59 times.
The fact that Mr Papadimitriou was aged 41years when sentenced and had no relevant prior criminal history was a matter to be taken into account, but the very serious nature of his offending required that very little weight be given to those matters.
The submission by counsel for Mr Papadimitriou to the effect that Mr Papadimitriou had a 'lower place in the organisational hierarchy' is without merit. The only conclusion reasonably open is, as her Honour found, that Mr Papadimitriou was at a lower level in the organisational hierarchy than Mr Ljuboja but was at a level similar to Mr Quaid.
I do not accept the submission made on behalf of Mr Papadimitriou that comparable cases suggest that the sentencing imposed by her Honour 'fell towards the upper end of an appropriate range'. On my examination of the comparable cases (see my reasons in Ljuboja [78] ‑ [98]), the sentencing outcome for Mr Papadimitriou was well within the range of sentences reasonably open to her Honour on a proper exercise of her discretion.
Mr Papadimitriou participated in the criminal conspiracy for personal financial gain. The trial judge found that he was to be paid in drugs. Mr Papadimitriou was not motivated by an addiction to illicit drugs. He did not act impulsively and the period of his offending was not transient. The material facts and circumstances reveal careful planning. An example of this careful planning is the discussions in code between the conspirators.
Mr Papadimitriou was unwilling to acknowledge his guilt.
In my opinion, Mr Papadimitriou's head sentence and non‑parole period bear a proper relationship to the overall criminality of his offending, after having regard to all relevant circumstances including his age when sentenced, the absence of any relevant prior criminal history, his objective criminality and his place in the organisational hierarchy. The head sentence and the non‑parole are not disproportionate to the maximum penalty or any sentencing pattern revealed by comparable cases. The sentencing outcome was not plainly unreasonable or unjust and there is no basis for inferring error.
Ground 1 fails.

Appeal against sentence: the merits of ground 2

Section 19AB(1) of the Crimes Act provides, relevantly, that subject to s 19AB(3), where a person is convicted of a 'federal offence', and a court imposes on the person a 'federal sentence' of imprisonment that exceeds 3 years, and at the time the sentence is imposed, the person is not already serving or subject to a federal sentence, the court must, relevantly, fix a non-parole period in respect of that sentence. Section 19AB(3) confers on the court a discretion, in particular circumstances, to decline to fix a non-parole period. The term 'federal offence' means an offence against the law of the Commonwealth and the term 'federal sentence' means a sentence imposed for a federal offence. See s 16(1).
Where a sentencing judge fixes a non-parole period, the non-parole period is part of the sentence. See R v Rajacic [1973] VR 636, 641; R v Hopkins [2008] NTSC 15; (2008) 22 NTLR 125 [12].
The fixing of a non-parole period serves the interests of the community rather than those of the offender, even though a minimum term confers a benefit on the offender. See Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525, 531.
The non-parole period is the minimum period of imprisonment that justice requires the offender to serve. It mitigates the offender's punishment in favour of rehabilitation through conditional freedom after imprisonment for the minimum period. See Power v The Queen [1974] HCA 26; (1974) 131 CLR 623, 628 ‑ 629; Deakin v The Queen [1984] HCA 31; (1984) 58 ALJR 367, 367; Griffiths v The Queen [1989] HCA 39; (1989) 167 CLR 372, 396; Bugmy (531).
The considerations which a sentencing judge must take into account when fixing a non-parole period are the same as those applicable to the setting of the head sentence. However, the weight to be given to these factors, and the manner in which they are relevant, will differ in consequence of the different purposes underlying each function. See Bugmy (531).
In Bick v The Queen [2006] NSWCCA 408, Price J (Hodgson JA & Howie J agreeing) summarised the main factors which are relevant to the determination, in any case, of the appropriate ratio between the non-parole period and the head sentence. His Honour said:
Factors identified as material to the determination of the appropriate ratio for a non-parole period include the length of the head sentence and its position in the permissible range: (see Bernier ((1998) 102 A Crim R 44) (at 49) and Sweet 125 A Crim R 341 [at 346]), the seriousness of the offence and the prospects of rehabilitation (see Stitt (1998) 102 A Crim R 428 and Meloh [2001] NSW CCA 211 at [10]) and the need to ensure that the sentence reflects the criminality involved and does not lose the important significant effect of general deterrence (see Drazkiewicz unreported, Court of Criminal Appeal, NSW 23 November 1993) [15].
The principles applicable to the fixing of the length of a non-parole period for a Commonwealth drug importation or related drug offence are set out in my reasons in Bertilone v The Queen [2009] WASCA 149; (2009) 231 FLR 383 [29] ‑ [33] (McLure & Miller JJA agreeing). I need not repeat them.
In the present case, the trial judge, in the course of determining the head sentence, dealt in detail with the matters raised by counsel for Mr Papadimitriou in his submissions on ground 2. Her Honour was not required expressly to address these matters again in the course of fixing the non‑parole period. More significantly, a failure by a sentencing judge expressly to refer to all relevant factors in sentencing remarks does not establish a failure to consider those factors. See Keating v The State of Western Australia [2007] WASCA 98; (2007) 35 WAR 1 [27] (Steytler P

& McLure JA); Bessell v The Queen (Unreported, WASCA, Library No 980199; 4 March 1998). It is difficult to make out that a sentencing judge has failed to take into account a relevant consideration. See McKey v The State of Western Australia [2010] WASCA 210 (McLure P, Buss JA & Mazza J agreeing). I am not persuaded that, on a fair reading of the trial judge's sentencing remarks and an evaluation of the sentencing outcome in the context of all relevant facts and sentencing considerations, her Honour ignored the matters in question in setting the non‑parole period.

Ground 2 fails.

Appeal against sentence: conclusion

Neither of the grounds of appeal has any merit. Leave to appeal should be refused and the appeal against sentence should be dismissed.
HALL J: I have had the benefit of reading in draft the reasons of Pullin JA and those of Buss JA. They have both concluded that leave to appeal on ground 1 against conviction should be refused. They have also concluded that although there was an error in the trial judge's directions to the jury, as referred to in grounds 2 and 5, the appeal against conviction should be dismissed as there was no substantial miscarriage of justice: s 30(4) Criminal Appeals Act 2004 (WA). I agree with those conclusions. I also agree that leave to appeal against sentence should be refused.
The facts and relevant statutory provisions are detailed in the reasons of Pullin JA and Buss JA and it is unnecessary for me to repeat them. My reasons for joining in the conclusion that the appeal against conviction must be dismissed are substantially the same and can be briefly stated.
The grounds of appeal against conviction are identical to those of the co‑offender, Fabian Quaid. My reasons for concluding that this appeal should be dismissed are essentially the same, though I have taken into account the differences in the evidence relating to the appellant as compared to Quaid.

Ground 1 asserts that the appellant was convicted of an offence not known to law. That ground has no merit. The appellant was convicted of conspiring with others to commit an offence, namely trafficking in a controlled drug, contrary to s 11.5(1) and s 302.2(1) of the Criminal Code Act 1995 (Cth). That is plainly an offence known to the law. There is nothing in the way in which the charge was framed or the prosecution

case presented that provides any support for a contention to the contrary. Accordingly, leave with respect to this ground must be refused.

Grounds 2 and 5 address the same issue; whether the trial judge erred by referring to recklessness in her directions to the jury as to the fault elements of the offence charged. The relevant portions of the trial judge's directions are set out in Pullin JA's reasons. Ground 2 asserts that the misdirection resulted in a substantial miscarriage of justice.
A conviction may be set aside where an error of law is made by a trial judge or there is a miscarriage of justice: s 30(3) Criminal Appeals Act. Not every error will also be a miscarriage of justice. That will depend on the nature and significance of the error. In any event, an appeal may be dismissed notwithstanding the existence of an error if this court considers that no substantial miscarriage of justice has occurred: s 30(4) Criminal Appeals Act.
I agree that there was an error, though the nature of it is important in deciding whether there was any substantial miscarriage of justice. Her Honour correctly directed the jury as to the elements of the offence of conspiracy, including that it was necessary for the prosecution to prove that the appellant and at least one other party 'intended that the offence of trafficking … in a commercial quantity of a controlled drug would be committed pursuant to that agreement'.
No doubt because the conspiracy was an agreement to commit an offence of trafficking the trial judge considered it necessary to explain the nature of that offence. It was in that context that her Honour referred to recklessness. The directions in that regard were an accurate reflection of s 302.2(2) which provides that the fault element in regard to whether the substance that has been trafficked is a controlled drug is recklessness. However, in the context of a conspiracy charge recklessness had no part to play in assessing the fault elements applicable to the appellant. Whilst it is possible to commit the substantive offence of trafficking by being reckless as to the substance being trafficked, in the case of conspiracy the possibility of recklessness is subsumed by the necessity to prove that the person charged entered into an agreement with the intention that the offence of trafficking would be committed. In these circumstances any reference to recklessness is irrelevant and unnecessary.
Any risk that the jury might be misled into applying the wrong fault element was obviated by the directions given in regard to conspiracy. If those directions were properly applied the jury would have no occasion to consider recklessness. For the jury to conclude that the appellant was guilty of conspiracy they must have been satisfied beyond reasonable doubt that he agreed with at least one other person to traffic in MDMA and that he intended that such trafficking would in fact occur pursuant to the agreement. If the jury followed the directions that they were given in regard to conspiracy, as it must be assumed that they did: Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22, then the reference to recklessness as being an element of the substantive offence could have had no effect on the outcome.
To ask whether any error that has been identified could have been material in all the circumstances is not, of course, a substitute for applying the statutory test as to whether there has been any substantial miscarriage of justice: Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293. There can be occasions where, notwithstanding that the appellate court is persuaded of the appellant's guilt, there has been some significant departure from the essential requirements of a fair trial such that it cannot be said that a substantial miscarriage of justice has not occurred: AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438. That is not to say that the proviso is excluded; rather in applying the statutory test to such cases a substantial miscarriage of justice cannot be discounted.
In my view the direction in regards to recklessness did not involve a significant departure from the essential requirements of a fair trial. All of the necessary and appropriate directions were given. The fact that an additional and unnecessary direction was given is of no practical significance in all of the circumstances of this case.
Because the misdirection was in regard to a matter that was not in issue at the trial it is not reasonably possible that it could have misled the jury. For this reason I am of the view that the error resulted in no substantial miscarriage of justice. I have, however, also considered the evidence at the trial. In my view it was proven beyond reasonable doubt that the parties to the agreement, including the appellant, intended that MDMA would be trafficked. I agree with Pullin JA that there was an overwhelming case against the appellant. No substantial miscarriage of justice has occurred and thus the appeal should be dismissed.
I also agree that the grounds of appeal against sentence are without merit and that leave in respect of them should be refused. I agree in this regard with the reasons expressed by both Pullin JA and Buss JA.