Pinkstone v The Queen
[2003] WASCA 66
•28 MARCH 2003
PINKSTONE -v- THE QUEEN [2003] WASCA 66
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 66 | |
| COURT OF CRIMINAL APPEAL | |||
| Case No: | CCA:2/2002 | 12 & 13 NOVEMBER 2002 | |
| Coram: | MURRAY J WHEELER J ROLFE AJ | 28/03/03 | |
| 45 | Judgment Part: | 1 of 1 | |
| Result: | Appeal against conviction dismissed Leave granted to appeal against sentence Appeal allowed Sentences varied to provide for parole eligibility | ||
| A | |||
| PDF Version |
| Parties: | ANTHONY JOHN PINKSTONE THE QUEEN |
Catchwords: | Criminal law and procedure Conviction of supply of methylamphetamine and attempt to supply cocaine Supply intercepted by police Whether drug supplied to ultimate recipient Application of rule in Browne v Dunn Use of evidence of disguise Admissibility of evidence by telephone conversations between third parties Words and phrases "Supply" of prohibited drugs Sentence Validity of declaration that applicant a drug trafficker Whether aggregate term manifestly excessive Totality Parity Eligibility for parole Turns on own facts |
Legislation: | Misuse of Drugs Act 1981 (WA), s 3(1), s 6(1) |
Case References: | Azzopardi v The Queen (2001) 205 CLR 50 Birks v The Queen (1990) 48 A Crim R 385 Brazier v The Queen [2002] WASCA 278 Browne v Dunn (1893) 6 Rep 67 Dyers v The Queen (2002) 76 ALJR 1552 Jarvis v The Queen (1993) 20 WAR 201 Jones v Dunkel (1959) 101 CLR 298 Manisco v The Queen (1995) 14 WAR 303 Melbourne v The Queen (1999) 198 CLR 1 Osland v The Queen (1998) 197 CLR 316 Pearce v The Queen (1998) 194 CLR 610 Pinkstone v The Queen, unreported; SCt of WA; Library No 950088; 3 March 1995 Postiglione v The Queen (1997) 189 CLR 295 Quach v The Queen [1999] WASCA 210 R v Chick (2000) 114 A Crim R 417 R v Manunta (1990) 54 SASR 17 R v Olbrich (1999) 199 CLR 270 R v Pelham (1995) 82 A Crim R 455 R v Pinkstone (2001) 24 WAR 406 R v Powell (2001) 81 SASR 9 R v Suarez-Mejia [2002] WASCA 187 R v White [2002] WASCA 112 Royall v The Queen (1991) 172 CLR 378 Thompson v The Queen (1992) 8 WAR 387 Walton v The Queen (1989) 166 CLR 283 White v Ridley (1978) 140 CLR 342 Wong v The Queen (2001) 207 CLR 584 AB v The Queen (1999) 198 CLR 111 Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1 Atholwood v R [2000] WASCA 76 Attorney-General (SA) v Tichy (1982) 30 SASR 84 Bugmy v The Queen (1990) 169 CLR 525 Bulstrode v Trimble [1970] VR 840 Cameron v The Queen (2002) 76 ALJR 382 Garlett v R [2000] WASCA 72 Gavin v R (1992) 6 WAR 195 House v The King (1936) 55 CLR 499 Kauhanen v R [1999] WASCA 14 Lowe v The Queen (1984) 154 CLR 606 Lowndes v The Queen (1999) CLR 665 Mill v The Queen (1988)166 CLR 59 Mitchell v R, unreported; SCt of WA; Library No 960730A; 18 December 1996 Pieri v R [2001] WASCA 357 R v Carey (1990) 50 A Crim R 163 R v Gray [1977] VR 225 R v Hafner [2002] WASCA 211 R v Langridge (1996) 17 WAR 346 R v Laz [1998] 1 VR 453 R v Manisco (1995) 79 A Crim R 213 R v Marchesano (1992) 61 A Crim R 372 R v McLachlan [1999] 2 VR 553 R v Morgan & Morgan (1980) 7 A Crim R 146 R v Omar (1991) 58 A Crim R 139 R v Pop (2000) 116 A Crim R 398 R v Rawcliffe (2000) 22 WAR 490 R v Robinson [1977] Qd R 387 R v Ruich [2000] WASCA 84 R v Serrette (2000) 118 A Crim R 204 R v Shrestha (1992) 173 CLR 48 R v Votano [2000] WASCA 144 Siganto v The Queen (1998) 194 CLR 656 Tripodi v The Queen (1961) 104 CLR 1 Watt (or Thomas) v Thomas [1947] AC 484 Williams v Dawson [2000] WASCA 205 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : COURT OF CRIMINAL APPEAL CITATION : PINKSTONE -v- THE QUEEN [2003] WASCA 66 CORAM : MURRAY J
- WHEELER J
ROLFE AJ
- CCA 19 of 2002
- Appellant
AND
THE QUEEN
Respondent
Catchwords:
Criminal law and procedure - Conviction of supply of methylamphetamine and attempt to supply cocaine - Supply intercepted by police - Whether drug supplied to ultimate recipient - Application of rule in Browne v Dunn - Use of evidence of disguise - Admissibility of evidence by telephone conversations between third parties
Words and phrases - "Supply" of prohibited drugs
Sentence - Validity of declaration that applicant a drug trafficker - Whether aggregate term manifestly excessive - Totality - Parity - Eligibility for parole - Turns on own facts
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Legislation:
Misuse of Drugs Act 1981 (WA), s 3(1), s 6(1)
Result:
Appeal against conviction dismissed
Leave granted to appeal against sentence
Appeal allowed
Sentences varied to provide for parole eligibility
Category: A
Representation:
Counsel:
Appellant : Mr S A Shirrefs
Respondent : Mr K P Bates & Mr S A Vandongen
Solicitors:
Appellant : Gary Massey & Associates
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Azzopardi v The Queen (2001) 205 CLR 50
Birks v The Queen (1990) 48 A Crim R 385
Brazier v The Queen [2002] WASCA 278
Browne v Dunn (1893) 6 Rep 67
Dyers v The Queen (2002) 76 ALJR 1552
Jarvis v The Queen (1993) 20 WAR 201
Jones v Dunkel (1959) 101 CLR 298
Manisco v The Queen (1995) 14 WAR 303
Melbourne v The Queen (1999) 198 CLR 1
Osland v The Queen (1998) 197 CLR 316
Pearce v The Queen (1998) 194 CLR 610
Pinkstone v The Queen, unreported; SCt of WA; Library No 950088; 3 March 1995
(Page 3)
Postiglione v The Queen (1997) 189 CLR 295
Quach v The Queen [1999] WASCA 210
R v Chick (2000) 114 A Crim R 417
R v Manunta (1990) 54 SASR 17
R v Olbrich (1999) 199 CLR 270
R v Pelham (1995) 82 A Crim R 455
R v Pinkstone (2001) 24 WAR 406
R v Powell (2001) 81 SASR 9
R v Suarez-Mejia [2002] WASCA 187
R v White [2002] WASCA 112
Royall v The Queen (1991) 172 CLR 378
Thompson v The Queen (1992) 8 WAR 387
Walton v The Queen (1989) 166 CLR 283
White v Ridley (1978) 140 CLR 342
Wong v The Queen (2001) 207 CLR 584
Case(s) also cited:
AB v The Queen (1999) 198 CLR 111
Allied Pastoral Holdings Pty Ltd v Federal Commissioner of Taxation (1983) 1 NSWLR 1
Atholwood v R [2000] WASCA 76
Attorney-General (SA) v Tichy (1982) 30 SASR 84
Bugmy v The Queen (1990) 169 CLR 525
Bulstrode v Trimble [1970] VR 840
Cameron v The Queen (2002) 76 ALJR 382
Garlett v R [2000] WASCA 72
Gavin v R (1992) 6 WAR 195
House v The King (1936) 55 CLR 499
Kauhanen v R [1999] WASCA 14
Lowe v The Queen (1984) 154 CLR 606
Lowndes v The Queen (1999) CLR 665
Mill v The Queen (1988)166 CLR 59
Mitchell v R, unreported; SCt of WA; Library No 960730A; 18 December 1996
Pieri v R [2001] WASCA 357
R v Carey (1990) 50 A Crim R 163
R v Gray [1977] VR 225
R v Hafner [2002] WASCA 211
R v Langridge (1996) 17 WAR 346
R v Laz [1998] 1 VR 453
R v Manisco (1995) 79 A Crim R 213
(Page 4)
R v Marchesano (1992) 61 A Crim R 372
R v McLachlan [1999] 2 VR 553
R v Morgan & Morgan (1980) 7 A Crim R 146
R v Omar (1991) 58 A Crim R 139
R v Pop (2000) 116 A Crim R 398
R v Rawcliffe (2000) 22 WAR 490
R v Robinson [1977] Qd R 387
R v Ruich [2000] WASCA 84
R v Serrette (2000) 118 A Crim R 204
R v Shrestha (1992) 173 CLR 48
R v Votano [2000] WASCA 144
Siganto v The Queen (1998) 194 CLR 656
Tripodi v The Queen (1961) 104 CLR 1
Watt (or Thomas) v Thomas [1947] AC 484
Williams v Dawson [2000] WASCA 205
(Page 5)
- MURRAY J:
Introduction
After an extended process of hearings of various kinds conducted before the trial Judge under the Criminal Code (WA), s 611A the applicant was presented in the Supreme Court for trial by a jury on an indictment alleging that:
"(1) On 7 October 1999 at a Commonwealth Place, namely Perth Airport, [he] supplied a prohibited drug, namely methylamphetamine, to another.
(2) AND FURTHER that on the same date and at the same place, WAYNE JOHN YANKO had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
(3) AND FURTHER that on the same date and at the same place, [he, the applicant] attempted to supply a prohibited drug, namely cocaine, to another.
(4) AND FURTHER that on the same date and at the same place, PAUL PHILLIP BRAZIER attempted to possess a prohibited drug, namely cocaine, with intent to sell or supply it to another."
2 Michael Brazier was sentenced to 4 years imprisonment on 1 February 2002. That sentence was ordered to be served cumulatively upon any other sentences he was then serving. He was made eligible for parole. He appealed against that sentence by leave. In that appeal Michael Brazier succeeded in having the sentence reduced when the Court of Criminal Appeal directed that 3 years of the four year sentence, rather than the whole of it, be served cumulatively upon the sentence then being served, a sentence of 4-1/2 years imprisonment for an earlier drug offence.
3 The trial of the applicant and the two co-accused commenced before the jury on 22 October 2001. On 14 December 2001 the applicant was convicted as charged, i.e., that on 7 October 1999 at Perth Airport he supplied a quantity of methylamphetamine to Yanko (who was convicted
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- of possession of the drug with intent to sell or supply) and attempted to supply a quantity of cocaine to Michael Brazier, who had earlier pleaded guilty. The jury was unable to reach a verdict against Paul Brazier on count 4 of the indictment and they were discharged. For completeness, I note that Paul Brazier was acquitted by a jury on his retrial.
4 Not only was Michael Brazier sentenced on 1 February 2002, but on that date the applicant was sentenced to 6 years imprisonment for the offence which was count 3 on the indictment, that sentence being backdated to 13 October 1999. He was sentenced to 10 years imprisonment for the offence which was count 1 on the indictment, that sentence to be served partly cumulatively on the term of 6 years imprisonment. Pursuant to the Sentencing Act 1995 (WA) s 88(3)(d), it was ordered that the period of the term of 6 years imprisonment to be served before the term of 10 years imprisonment commenced was that from 13 October 1999 to 1 February 2002, a period of 2 years and 3-1/2 months. The aggregate term imposed on the applicant by way of sentence for the two offences was therefore one of 12 years 3-1/2 months from 13 October 1999. Eligibility for parole was refused. Also on 1 February 2002, for the offence which was count 2 on the indictment, Yanko was sentenced to 12 years imprisonment backdated to 16 November 2000 and, in his case also, parole eligibility was refused.
5 The applicant appeals as of right against both convictions and he seeks leave to appeal against the sentences imposed upon him.
The Facts
6 In May 1999 police officers attached to the Organised Crime Investigation Unit began to investigate the activities of the applicant. Pursuant to warrants obtained, they intercepted various telephone conversations, including a number in which the applicant participated. Listening devices were installed in his home and car. He and his associates were kept under surveillance. There was evidence adduced at the trial capable of establishing that the applicant arranged to supply Michael Brazier with half a kilogram of cocaine and that he also, during the same period, made similar arrangements to supply Yanko with a kilogram of methylamphetamine.
7 At about 12.30 pm (in NSW) on 7 October 1999, the applicant went to Sydney Airport. He presented himself at the Ansett Australia cargo counter with two boxes. They were to be consigned to Perth. One box was addressed to "One on One Security" for attention John White. The
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- second box was addressed to "Innaloo Plasterers and Security" for attention Mick Brazen. The boxes were duly consigned and left Sydney by air at about 4.45 pm local time. The aircraft arrived at Perth Airport at about 9.20 pm local time.
8 At about 2 pm officers of the National Crime Authority went to the air cargo office in Sydney and inspected and photographed the boxes which had been consigned by the applicant. They saw them loaded onto the relevant aircraft.
9 Before the aircraft arrived in Perth, two WA police officers, Kanawati and Wellstead, went to the Ansett air cargo premises at Perth Airport and dressed themselves so that they could pose as Ansett air cargo staff. This was done with the cooperation of Ansett officers. Kanawati manned the front counter. Wellstead remained in the cargo area. The two officers had been provided with descriptions of the boxes. It was planned that they would take possession of them and that they would be handed over to whoever came to collect them. Those persons would be kept under surveillance and, because the officers believed, as a result of the earlier surveillance operations, that the boxes contained methylamphetamine and cocaine, respectively, it was proposed that at an appropriate time those concerned in the receipt and handling of the goods in WA would be apprehended.
10 Just prior to the arrival of the aircraft at the Perth Airport, Paul Brazier attended at the air cargo terminal as arranged by his brother, Michael. He inquired for the box addressed to "Innaloo Plasterers and Security". Kanawati told him that the aircraft had not arrived and Paul Brazier left the premises.
11 Shortly afterwards, the aircraft did arrive and the officers took possession of the two boxes, marking them for later identification. Before the aircraft was unloaded Paul Brazier returned in a further unsuccessful attempt to obtain the box in which he was interested.
12 The box addressed to "Innaloo Plasterers and Security" was not collected. Paul Brazier did not return a second time. It appeared that he became nervous when, upon his second attendance, he was told that the box was not yet available. It was secured and retained in the possession of the police. It was later found to contain a safe within which was a cashbox which in turn contained 449 grams of cocaine. The evidence was that that quantity of the drug was worth about $90,000 if sold as one lot for ultimate distribution in the community.
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13 Events proceeded further in respect of the other box. At about 10.10 pm Yanko came to the office of Ansett air cargo at Perth Airport and inquired for the box consigned to "One on One Security". Kanawati gave it to him. He signed for it in the name of John White, for whose attention the consignment was marked. The surveillance operation proceeded with respect to Yanko. He was ultimately arrested. The police recovered possession of the box, opened it and, as in the other case, found that it contained a safe within which was a cashbox, which in turn contained 725 grams of methylamphetamine. There was evidence which valued that quantity of the drug at about $120,000 if sold as one lot for ultimate distribution in the community.
The Appeal Against Conviction
14 Ultimately this appeal, which in truth seems to me, technically, to have been an application for leave to appeal against conviction because the grounds involve questions of mixed law and fact, proceeded upon a number of grounds which I do not propose to set out in full.
15 The grounds upon which the applicant placed principal reliance, although expressed generally, applied particularly to the conviction of the applicant on count 1, the offence of supplying methylamphetamine to Yanko. The argument is that there was no act of supply within the meaning of the Misuse of Drugs Act 1981 (WA), as applied to Perth Airport by the Commonwealth Places (Application of Laws) Act 1970 (Cth) because the intervention of the police, who took possession of the methylamphetamine before the supply to Yanko occurred and who themselves supplied it to Yanko, meant that the only conclusion open to the jury upon the evidence was that they could not be satisfied beyond reasonable doubt that there had been a supply of the drug to Yanko by the applicant. Indeed, the proper conclusion, it was argued, was that the highest the matter could be put against the applicant was that he had attempted to supply Yanko, an attempt defeated by the intervention of the police.
16 A related ground, added at the hearing of the appeal, was that the trial miscarried because the trial Judge erred in that his directions to the jury were inadequate in relation to the meaning of "supply" for the purpose of count 1, because his Honour failed to give any direction to the jury on the effect of the intervention by the police officers on the supply of methylamphetamine to Yanko and, it is contended, the trial Judge erred in directing the jury that in order for the Crown to prove the element of supply for the purpose of count 1 it needed only to establish that the
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- applicant sent the methylamphetamine to Yanko because Yanko wanted it and that Yanko physically received it.
17 There are other discrete grounds of appeal against conviction. One alleges that the trial Judge failed to direct the jury sufficiently with respect to the operation and effect of what has become known as the rule in Browne v Dunn (1893) 6 Rep 67. Then there is the contention that the trial Judge erred in directing the jury that they could use evidence of the prior wearing of wigs and glasses by the applicant as evidence of "consciousness of guilt". Finally, it is contended that the trial Judge incorrectly directed the jury that the content of certain telephone calls to which the applicant was not a party were admissible against him.
The Concept of the Supply of a Prohibited Drug
18 As I have said, the offence charged in count 1 of the indictment was that Pinkstone supplied the prohibited drug, methylamphetamine, to Yanko. Such an offence is defined by the Misuse of Drugs Act 1981 (WA) s 6(1)(c). The offence is to sell or supply or offer to sell or supply a prohibited drug to another. The term "to supply" is defined by s 3(1) of the Act to include:
"… to deliver, dispense, distribute, forward, furnish, make available, provide, return or send, and it does not matter that something is supplied on behalf of another or on whose behalf it is supplied;"
19 In this case the Crown relies upon the fact that the applicant intended the drug to be received by Yanko, who intended to take possession of it. The applicant, the Crown argues, forwarded or sent the drug to Yanko by consigning it by Ansett air cargo to the addressee of the parcel in which name Yanko took possession of it in Perth. In that way, it is argued, the drug was provided to Yanko and so, in a number of respects, the Crown seeks to take advantage of the extended definition of the word "supply", even though the applicant did not directly provide the drug to Yanko.
20 But the applicant argues that when the police officers intervened and took possession and exclusive control of the drug at Perth Airport, the supply upon which the Crown relies became impossible. The police officers, it is argued, could not be regarded as the innocent agents or instruments of the applicant. It was pursuant to no arrangement with him that they took possession of the drug and, as the police officers conceded, their supply to Yanko was in the course of a controlled operation designed
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- to obtain evidence of the commission of an offence by both the applicant and Yanko. It is submitted that the offence charged, the supply to Yanko, was, if at all, committed by Kanawati.
21 It matters not for present purposes, but the applicant points out that there appears to be no evidence that Detective Kanawati was acting pursuant to an authorisation of the Commissioner of Police as an undercover officer within the meaning of, and exercising the powers provided by, s 31 of the Act. I note that under s 31(2) and (3) an undercover officer may lawfully acquire and have in his possession a prohibited drug for the purpose of detecting the commission of an offence and he is not an accomplice in respect of any offence detected in that process of investigation. I note that there is nothing in the wording of that section which would prevent the offender under investigation from being held to have sold or supplied a prohibited drug despite the fact that during the course of the investigation it came into the possession of an undercover police officer.
22 The definition of "to supply" in s 3(1) is not an exclusive definition. The ordinary and natural meaning of the word is retained, but it is given an extended definition for the purposes of the Act. The offence defined by s 6(1)(c) is complete when the act of supply is completed. In this case that was alleged to have occurred at Perth Airport and the act relied upon was the supply to Yanko, an act completed when Yanko took possession of the drug, on the evidence, intending to receive it as a thing which he wanted for his own purposes of sale or supply to others. It was that view of the charge and the facts which the Crown sought to prove which led Roberts-Smith J, the trial Judge, to hold in R v Pinkstone (2001) 24 WAR 406 that the territorial jurisdiction of this State was enlivened in respect of the trial of the offence charged under the Code, s 12(2), putting to one side the contentions which were then raised in support of applications to quash the indictment on behalf of the applicant and Yanko which involved giving attention, not now material to this appeal, to the operation of the Commonwealth Places (Application of Laws) Act 1970 (Cth), s 14.
23 There has been a debate in various cases before the Courts as to whether the provision of a prohibited drug to a mere custodian in some form will constitute an act of supply within the meaning of the legislation. The principal cases locally in which the question was debated are Manisco v The Queen (1995) 14 WAR 303 and R v Pelham (1995) 82 A Crim R 455, both decisions of the Court of Criminal Appeal. Although, for present purposes it is unnecessary to canvass the arguments debated in those cases (the concerns raised therein being answered, at least in part,
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- by the addition of the definition of the term "to supply" in s 3(1) of the Act) there is no reason to dissent from the view expressed, particularly in Manisco, that the word "supply" is not, for the purposes of the statute, synonymous with the mere "delivery" of the drug to the intended recipient. In other words, there is a mental element in the concept of "supply". The act of supply upon which reliance is placed by the Crown must, if it is to constitute an offence, be one which is consciously or deliberately performed. It must be a willed act: Criminal Code, s 23.
24 Hence the question which arises in this case may be stated as being whether the act of supply initiated by the applicant when the drug was delivered to Ansett air cargo in Sydney and completed when the drug was delivered to Yanko by the police officer Kanawati was the act of supply willed or intended by the applicant, or whether it was merely an act of supply by Kanawati whose involvement with the drug is to be regarded as severing the process of completing the act of supply by the applicant with the result that he could be convicted of no greater offence than an attempt to supply the drug to Yanko.
25 It does not necessarily interrupt the act of supply that it is completed by the agency or instrument of another or others. The involvement of an accomplice who aids the commission of the offence does not prevent the offence being committed by the principal offender, but results in the accessary also committing the offence: Criminal Code, s 7.
26 An offence of this kind may be committed with the aid of or by means of the agency of an innocent person who would not be liable as an accessary: White v Ridley (1978) 140 CLR 342. White was charged with importing a prohibited import into Australia contrary to s 233B of the Customs Act 1901 (Cth). He was held to have been properly convicted. His only act was to deliver a box containing cannabis to an air cargo operator in Singapore for consignment to Australia. As in this case, the proposed carrier and its employees were ignorant of the presence of the cannabis. The applicant travelled separately to Australia to receive the parcel. He became aware that he was under suspicion and sent a signal instructing the carrier to stop the cartage. He did not reveal the contents. The carrier did not act on the signal in time to stop the carriage and when the parcel was received in Australia it was seized by customs officers.
27 It was held that the applicant’s unsuccessful attempt to countermand the carriage did not relieve him of criminal responsibility. Gibbs J was of the view that this was merely a case of an ineffective attempt to countermand the commission of the offence with the result that White’s
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- conviction was to be sustained on the basis that he imported the cannabis through the innocent agency of the airline. In those circumstances it was well-settled that he would be liable as a principal offender (346 – 347). However, it is to be noted that this view does not depend on the fact that the agency of the airline was innocent of any involvement in the commission of the offence. It is dependent simply upon the proposition that White put in train in Singapore the events which in fact led to the commission of the offence in Australia. What White intended at the time of his actions which, upon the importation of the cannabis into this country, constituted the offence, did in fact come to pass.
28 As Stephen J put it, at 353 – 354:
"The applicant, having used an innocent instrument, Singapore Airlines, to effect the importation of the cannabis into Australia, would, had there been no more to the case than that, clearly have been guilty of an offence under s 233B(1)(b): his arrangement with that airline that it should carry the box into Australia would have involved him in the commission of the offence once the box, as a result of that arrangement, entered this country. That arrangement incriminated the applicant because it caused the importation to occur, the applicant being the importer. The airline was no more than the innocent instrument by which he effected the importation, an instrument which he set in motion for the purpose of committing the offence….
If the applicant’s arrangement with the airline be viewed in isolation, its incriminating quality lies in the fact that it was calculated to result in the importation of the cannabis into Australia. Since that importation in fact occurred, what can the applicant now rely on as sufficient to disarm the arrangement of its incriminating character? Only, I think, some event which may be seen to deprive the arrangement of its quality as the cause of the importation; that is, the intervention of some new cause for which the applicant was not responsible and which displaced the original arrangement as the event to which the importation can be causally assigned."
29 It will be noted that the offence with which the Court was there concerned was the importation of a prohibited import. It is an offence constituted by an event rather than by an act or acts done by the offender. Those acts incriminate the offender if they cause the prohibited event to
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- occur. The same may be said of a homicide or an offence defined by the infliction of harm upon the victim. Where the victim, by his or her own conduct, contributes to the death or harm the question will be whether it can still, as a matter of fact and commonsense, be said that the alleged offender caused the event in question, or whether it must be said that the victim’s own behaviour broke the chain of causation between the conduct of the alleged offender and the harm which was suffered: Royall v The Queen (1991) 172 CLR 378, Osland v The Queen (1998) 197 CLR 316, 324 – 326, 347 - 348, 365 - 366, 403 - 404.
30 In the latter case Gaudron and Gummow JJ dissented upon the question of inconsistency of verdicts. However, they did not express a view about causation which differed from the majority. Putting it shortly, their view was that in a case of homicide a person who, although his or her acts were not the immediate cause of death, did acts which substantially contributed to the death, may be guilty of murder as a principal offender.
31 In Royall, at 390, Mason CJ said that the issue of causation need not generally be linked to the accused’s state of mind, but his Honour added:
"On the other hand, in some situations, the accused’s state of mind will be relevant to that issue as, for example, where there is evidence that the accused intended that injury should result in the way in which it did and where, in the absence of evidence of intention, the facts would raised a doubt about causation."
32 It may be useful in this case to consider whether the applicant intended the supply of drug which occurred, in considering whether the act of supply may be regarded as his deliberate or willed act for which, pursuant to the Criminal Code, s 23, he was properly held to be criminally responsible.
33 In Royall reference should also be made to the judgment of Brennan J at 398 – 400 and the joint judgment of Deane and Dawson JJ at 410 – 413. Their Honours pointed out that in a case such as Royall it was no doubt the fact that the accused did not intend that his victim would meet his or her death by jumping from a window, but it was important to keep the question of causation separate from that of the mental state required to establish the offence of murder. Finally, reference may be made to the joint judgment of Toohey and Gaudron JJ at 423 and to that of McHugh J, particularly at 441 – 451.
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34 In my respectful opinion, this case does not present the sort of conceptual or factual difficulties attendant upon a case of that kind. The applicant performed in NSW deliberate or willed acts intended to result in the delivery of the drug to Yanko at Perth Airport. The process of supply to Yanko was always to be completed by using others as the instruments to effect that purpose. It could not be suggested that it would prevent the conclusion that the applicant was criminally responsible for the supply to Yanko if the cooperation of the Ansett staff at Perth Airport had been obtained so as to enable them to physically put Yanko into possession of the drug.
35 I cannot see that it made any difference that police officers took possession of the drug and delivered it to Yanko. They may have suspected that the package contained methylamphetamine, but the evidence is that they did not then know that it did so. Their participation in the process of supply did not involve them in the commission of any offence and it would not have mattered had they become accomplices implicated in the act of supply. The participation of the police did not alter the character of the supply. What occurred was precisely what the applicant intended should occur. It was always his purpose that, having consigned the goods in Sydney, others would be involved as the instruments by which the drug was ultimately conveyed to Yanko, its intended recipient.
36 The point raised by these grounds of appeal was not raised at trial. His Honour the trial Judge directed the jury simply that, in the circumstances of the facts as I have related them, if they were found by the jury, to prove the element of supply:
"the Crown would have to satisfy you beyond reasonable doubt that Pinkstone sent the methylamphetamine to Yanko because Yanko wanted it and that Yanko actually physically received it."
37 In the circumstances of this case, in my opinion, no further direction was required.
The Rule in Browne v Dunn
38 The ground complains that the trial miscarried because the trial Judge, in summing up to the jury, gave insufficient directions and warnings concerning the operation and effect of the rule in Browne v Dunn (1893) 6 Rep 67. The ground does not contend and it was not
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- asserted in argument that the so-called rule does not apply in criminal cases. However, it was suggested that it may have been preferable if no comment had been made in relation to the rule in the Judge’s summing up. That, however, is not an argument which would fall within the ground of appeal. I propose to consider this ground in its terms and against the background of the evidence and the comment made by the trial Judge.
39 What is described as the rule emerging from the decision of the House of Lords in Browne v Dunn is not really a rule of law at all. It is a dictate of good practice designed to assist the fact-finder by enhancing the fairness of the trial process and, incidentally, fairness to the witnesses themselves. Unless issue is, in some other way, fairly joined upon a particular question of fact, a witness whose evidence-in-chief is proposed to be contradicted or not accepted should have put to him or her in cross-examination those matters upon which it is proposed that the witness will be challenged in presenting the case of the opposing party, but there is a second aspect to the rule which may, in appropriate circumstances, be available. A failure to observe the rule may have an impact upon the weight or cogency of the evidence relied upon by the party who is in breach of the rule, if that party is represented.
40 It is an obvious enough point. Counsel are presumed to know the rules of practice and this is an important one, intimately connected with the fairness of the trial process. It may be, therefore, unless there is some other explanation for a failure to comply with the rule which precludes an adverse view of the credibility of the witnesses for the party in breach of the rule, that it will be open to the finder of fact to conclude that a failure to comply with the rule indicates recent invention, or at least a concern that a witness who may present opposing evidence should not be given the opportunity to do so. In either case, the adverse impact upon the weight to be accorded to the evidence of a witness or witnesses for the party in breach of the rule is obvious enough. It is equally obvious that care should be taken, before drawing any such adverse conclusion, that there is no innocent explanation for the breach of the rule.
41 As I have said, it was not doubted in argument before us that the rule might apply in criminal cases as much as in civil cases and so much was expressly held by the Court of Criminal Appeal of NSW in Birks v The Queen (1990) 48 A Crim R 385. If it appears that the rule has been breached then it may be appropriate for the trial Judge to make a comment about that and the use to which it may be put by the jury when summing up the case to them. In Birks, Gleeson CJ adopted the observations made
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- by King CJ in R v Manunta (1990) 54 SASR 17 as to the care which must be taken. At 397 his Honour said:
"It is one thing to remark upon the fact that a witness or a party appears to have been treated unfairly, it is quite another thing to comment that the evidence…of a person should be disbelieved, perhaps as a recent invention, because it raises matters which were not put in cross-examination to other witnesses by that person’s counsel. Depending upon the circumstances of the case, either or both of those comments may be available."
"I would add that one particular matter which makes it difficult for jurors to use the conduct of counsel as a basis for drawing inferences of fact is that most jurors are unaware of the principles, some of which have been set out earlier in this judgment, relating to the wide discretion available to counsel as to the manner in which a trial may be conducted. It may be easy for a jury, unless given an appropriate warning, to assume that a barrister is merely some kind of "mouthpiece" for the client, conducting the case in close conformity with the client’s directions. For reasons that have already been explained, this is far from the truth."
43 The question of the application of the rule arose in the following way: after the opening by the learned prosecutor the applicant formally admitted that he had shipped the two boxes containing the safes from Sydney to Perth via Ansett air cargo. It was put that the central issue for the jury to consider was the applicant’s knowledge that the safes contained the drugs methylamphetamine and cocaine, respectively.
44 The circumstances of the consignment were given in evidence for the prosecution by a witness named O’Brien, an employee of the Ansett cargo office in Sydney. He said that a male person, whom he described, came into the office and arranged the consignment by a specific flight. It was a routine transaction. O’Brien had been asked to identify the person from photographs and he identified the applicant. Later, two police officers arrived. They identified the packages and saw them sent down to the aircraft which was to carry them to Perth.
45 The applicant gave evidence in his own defence. He said that he believed that the safes contained jewellery. His evidence was that he had
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- been asked to consign them to Perth by an acquaintance, a man named Ray Landers, with whom he had been associated since 1997 in transactions involving dealings in pearls and other jewels. He said that the mode of transporting jewels adopted by Landers was in portable safes.
46 On the morning of 7 October 1999, the alleged date of the offences, he was with his girlfriend, Reggie Mikellidis. They met Landers at his hotel by arrangement. In his room, Landers had a quantity of pearls and uncut diamonds. Landers asked the applicant to take two consignments in safes to Perth. The applicant refused, but he assisted Landers to pack the safes, one of which was to be consigned to Michael Brazier and the other to a Perth jeweller. Because the jeweller’s security agent was not available to pick up his consignment, the applicant arranged for his friend, Yanko, to perform this service.
47 The applicant arranged to take Landers, his luggage and the two boxes containing the safes to Sydney Airport. Landers was to travel to Darwin. Because they were running late, the applicant agreed, at Landers’ request, to consign the safes to Perth. The applicant was told to ask for Craig; that is O’Brien’s first name. When he did so at the Ansett air cargo office, the man behind the counter said, "You must be Ray’s mate." A special rate was charged for the carriage. The applicant filled out the consignment notes, providing the details which had been previously arranged, and took the sender’s copies to the passenger terminal where he gave them to Landers. That, according to his evidence, was the only involvement he had with the safes and their contents which, it will be observed, he said in evidence he had reason to think, from what he saw, contained jewels.
48 Nothing concerning Landers had been put to O’Brien. When the applicant was cross-examined by the crown prosecutor she asked him whether Landers was a real person and she put to the applicant that his story about Landers was a complete fabrication. The applicant’s evidence was supported by the evidence given by Mikellidis. Both counsel commented upon these matters when addressing the jury. Learned defence counsel (not Mr Shirrefs) said that it was not for the accused to search out Landers and produce evidence from him. The fact remained, he said, that the evidence of the applicant and Mikellidis about these matters was unchallenged and should be accepted. On the other hand, the learned prosecutor suggested that the jury ought to place little weight on the evidence of the applicant and Ms Mikellidis because the defence had failed to put matters concerning Landers to O’Brien who, if the defence evidence was true, must have been able to provide support for the story.
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49 In my opinion, from the point of view of the trial Judge, approaching the matter with the care and circumspection required by the authorities, in the circumstances of this case and having regard to the submissions of counsel, this was a case where it was appropriate for the trial Judge to make some comment. In doing so, it was, in my opinion, not necessary, as was submitted on behalf of the applicant, that his Honour should have directed the jury that the so-called rule was a dictate of practice rather than a rule of law and it was not incumbent upon him to expound at length or at all upon the two aspects of the operation of the rule or upon circumstances which might explain defence counsel’s failure to comply with the rule consistently with the lack of any adverse impact upon the credibility as witnesses of the applicant and Mikellidis.
50 The trial Judge was not to give the jury a treatise upon the law. He was to make such comment as seemed to him appropriate in the circumstances of the case to inform the jury of the proper use to which they might put what occurred during the course of the trial, accompanied by such warnings as were deemed to be necessary to prevent the jury from making improper use of what occurred in considering whether they were satisfied of the applicant’s guilt beyond reasonable doubt: Melbourne v The Queen (1999) 198 CLR 1, particularly per Hayne J at 52 – 54 [142] – [144], a case about when a direction might be given as to the use of evidence of good character and what the content of such a direction might be, particularly concerning its potential impact upon the credibility of the witness whose character is put in issue.
51 I digress, before turning to what the trial Judge told the jury, to make the comment, because it was raised in passing in debate at the hearing of the appeal, that the issues raised by a failure to cross-examine an opposing witness so as to put in issue an opposing case seem to me to be quite different from the directions which may be required of a trial Judge in respect of a party’s failure to produce a witness in a criminal case, or a party’s failure to adduce evidence at all or in respect of a particular question arising in a case, as to which see the decision of the High Court in Dyers v The Queen (2002) 76 ALJR 1552, a case concerned with the non-application to criminal trials of the case Jones v Dunkel (1959) 101 CLR 298, and Azzopardi v The Queen (2001) 205 CLR 50, a case concerned with the directions which might be given when the accused fails to give evidence or fails to adduce evidence to contradict some aspect of the prosecution case.
52 The trial Judge introduced the topic of the course of cross-examination of witnesses by saying:
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- "What is required is that if it is intended to say a witness’s evidence is wrong or untruthful or an allegation is to be made against the witness, that must ordinarily be put to the witness so he or she has an opportunity to respond to it and to agree with it or to deny it or to explain it."
53 His Honour is criticised for describing this as a requirement rather than a rule of practice that is not inflexible in its operation. In my opinion, the criticism lacks foundation, but indeed many cases have referred to the rule of practice as a requirement, something which was bound to be done, something which is "absolutely unjust" if not done, something which was necessary, something which is "essential to fair play" and like strong terms, always qualified by the rider that the rule may be regarded as being satisfied where it is already clear that a matter is to be raised which would put in issue what the witness is saying. In that event, of course, it may be expected to be dealt with in eliciting the witness’s evidence-in-chief. The trial Judge alluded to such matters in the course of his address to the jury.
54 As to the factual matters concerning Ray Landers, his Honour described these as central to the applicant’s defence and he observed that the jury would need to look at the evidence of the applicant and "the positive case being advanced by him" in the same way that they would look at any other evidence in the case. His Honour reminded the jury that all that defence counsel had done was to mention the name "Ray" to a prosecution witness (not O’Brien) without providing a surname. Specifically as to Landers and the dealings with O’Brien, his Honour merely said:
"So when considering the evidence the accused Pinkstone gave about this, you would do so against that background, that none of those things were put to O’Brien. You have therefore not had the opportunity of knowing what he would have said about any of those things had they been put to him and you would be entitled to take that into account in deciding how much weight you should give to the accused Pinkstone’s evidence about Ray Landers and his dealings with Craig O’Brien."
55 His Honour went on to remind the jury of the relevant evidence, including the things which were not put to O’Brien. I can see nothing in what his Honour said which might have caused a miscarriage of justice by leaving the jury with an erroneous view about how, in this context, the credibility of the applicant and Mikellidis might be approached.
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Evidence of Disguise as "Consciousness of Guilt"
56 This ground contends that the trial miscarried because of what was said by the trial Judge in summing up to the jury when commenting upon certain evidence which had been led over the objection of the defence. It is not contended that his Honour erred in admitting the evidence.
57 The evidence in question includes that with which the ground is concerned. The Crown were permitted to lead evidence designed to rebut the defence contentions that the applicant’s association with Yanko and Michael Brazier were of an innocent character, associated with legitimate business activities. The evidence was concerned to establish that the applicant conducted a business of dealing in drugs and it was in this context that he dealt with Yanko and Brazier. That was evidence which in turn was said to be, and in my opinion was, relevant to prove that the applicant knew that the content of each safe was methylamphetamine and cocaine respectively. The evidence included that upon the applicant’s arrest he had a bag containing cannabis, pepper spray, an expandable baton and a set of scales. There was a replica gun. He had in his possession a wig and glasses capable of being regarded as things which could be used as a disguise. There were documents in a false name. There was evidence that he had worn wigs and glasses when under surveillance on a number of occasions prior to 7 October 1999.
58 I am not sure that I understand what is meant in this context by the term "consciousness of guilt", a term which was used in argument and, indeed, at the trial, by counsel and the trial Judge. As I have said, I think there can be no doubt that the evidence was admissible as evidence relevant to establishing that on 7 October 1999 the applicant knew that the contents of the safes were prohibited drugs. I think the point being made in this ground is that the evidence of the wearing of a disguise on other occasions could not be used as evidence directly implicating the applicant in the commission of the offences which were counts 1 and 3 on the indictment.
59 In my opinion, his Honour’s remark, made in the course of reviewing the evidence, that the Crown relied upon this evidence, "as evidencing a consciousness of guilt, which in turn they rely on as showing that he knew what was in the parcel when he consigned it", could not, in the context of this part of the summing up have confused or misled the jury as to the relevance of the evidence in question.
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The Admissibility of Telephone Calls to which the Applicant was not a Party
60 This ground complains that the trial miscarried because the trial Judge, in his summing up, incorrectly directed the jury that the content of certain telephone calls to which the applicant was not a party were admissible against him. It is clear that his Honour did so direct them. The matter arose in the following way.
61 At pre-trial hearings conducted under s 611A of the Code, there was contention about evidence of what was said in a number of telephone calls intercepted by the police. Rulings were made and in the context of the joint trial the two conversations with which this ground is particularly concerned were held to be admissible, over defence objections. Both calls were made on 7 October 1999. They were made after the boxes containing the safes had been consigned by air from Sydney, but, it would seem, before the aircraft arrived in Perth. The first is between an unknown female and Michael Brazier. It was timed at 4.51 pm. The woman says, "I am actually calling to see if your cousin Charles has turned up." Michael Brazier replies, "No. Apparently he’s not in town. It, it may be here on the weekend, apparently." Brazier adds, "Yeah, it may come in on the weekend."
62 The second call with which this ground is concerned was made later. It was timed at 9.25 pm. The caller is Paul Brazier. The other person involved is his brother, Michael. It apparently refers to Paul Brazier’s second attendance at the counter of the air cargo office. It will be recalled that when he first went, Kanawati told him that the aircraft had not arrived. He left and returned a short time later. When Kanawati told him that the aircraft had arrived, but had not yet been unloaded, he left again and did not return. In this telephone call he says that he has returned home because "There are fucken dogs everywhere." He says that he had been advised to come back in 10 minutes and that he had been told that, "It’s just landed." There is discussion between the two about whether it is safe to return. Paul Brazier asks, "What’s in it?" Michael Brazier replies, "There should be some charlie in it," and he adds, in response to a further question from Paul Brazier, that he does not know how much. There was evidence that "charlie" is a term commonly used in the drug trade to refer to cocaine.
63 The trial Judge directed the jury that the first of these calls between the unidentified female and Michael Brazier might show that Michael Brazier had an expectation at that time that he would shortly be in a
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- position to supply the woman caller with cocaine. The trial Judge told the jury that would be evidence against the applicant if, as a result of the evidence generally, the jury found that Michael Brazier had that expectation because the applicant told him so. As to the second call, the trial Judge directed the jury that would be evidence against the applicant, "as showing Michael Brazier’s expectation, if you find it to be so from his contact with the accused Pinkstone, that the parcel would contain cocaine."
64 In my opinion, those directions involve no error on the part of the trial Judge. The reasoning is that which emerges from the decision of the High Court in Walton v The Queen (1989) 166 CLR 283, a murder case in which evidence was admitted from a witness who overheard a telephone conversation between the deceased and the accused, in which the deceased’s three-year-old son participated, in which the deceased, who told the witness that the caller was the accused, agreed to meet the caller the following day, the day upon which she was killed. The evidence was held to be admissible as constituting conduct on the part of the deceased from which her state of mind and expectation could be inferred although, of course, it did not provide evidence that the person the deceased met on the following day was in fact the accused. The headnote accurately summarises the ratio decidendi of the judgments as follows:
Evidence of a relevant out-of-court statement is admissible to prove the maker’s knowledge or state of mind in a case where that knowledge or state is itself a fact in issue or is provable (as against the party against whom the evidence is tendered) as a fact relevant to a fact in issue.
65 The particular fact in issue in this case was that concerning count 3, that the applicant knew that the drug consigned in the second package was cocaine. If the jury accepted that the references to "charlie" were references to cocaine, the telephone conversations in which Michael Brazier participated showed that he expected that the particular parcel consigned would contain cocaine. That Michael Brazier knew that was relevant to the question of the applicant’s knowledge if, upon the whole of the evidence, the jury concluded that Michael Brazier’s knowledge was derived from his contact with the applicant.
66 In my opinion, the appeal against conviction in respect of both offences should be dismissed and I turn now to the application for leave to appeal against sentence.
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Appeal Against Sentence
67 I have mentioned that for the offence of supplying methylamphetamine the applicant was sentenced to 10 years imprisonment. He was sentenced to 6 years imprisonment for the offence of attempting to supply cocaine. That sentence was backdated to 13 October 1999 and the sentence for supplying the methylamphetamine was made partly cumulative to commence on the date of sentence, 1 February 2002. That resulted in an aggregate term of 12 years 3-1/2 months. Parole eligibility was refused. On the same date Yanko was sentenced to 12 years imprisonment for his possession of the methylamphetamine with intent and, in his case also, parole eligibility was refused. His sentence was backdated to 16 November 2000. Michael Brazier who, it will be recalled, pleaded guilty, was sentenced to 4 years imprisonment to be served cumulatively upon a sentence of 4-1/2 years imprisonment imposed in the District Court on 19 June 2000. In his case, parole eligibility was ordered.
68 I have mentioned his appeal. As I read the judgment, the sentence was not reduced in length, but the order for cumulative service was modified by ordering its service to be partly cumulative so as to preserve to Brazier the benefit of his custody following his plea of guilty on 10 October 2001 until he came to be sentenced on 1 February 2002. In the final result, this Court proposed that the order made should effectively provide for 3 of the 4 years of the sentence to be served cumulatively. There was some difficulty as to how that might be achieved, in which the Court was subsequently engaged, but how that was finally resolved in terms of final orders need not concern the Court at this stage.
69 I have, I think, sufficiently set out the facts of the case, subject only to the addition of some particular detail and a reference to matters personal to the applicant. Again, there are a number of grounds of appeal and leave was granted at the hearing of the application for leave, to amend the grounds by adding to them. I propose to deal with them in what seems to me to be generally a convenient order having regard to the sentencing process, rather than the order in which the grounds are numbered.
Drug Trafficking
70 When sentencing the applicant, the trial Judge made a declaration that the applicant was a drug trafficker, a declaration which has particular consequences to which I need not refer. For present purposes it is sufficient to note that such a declaration is to be made upon the
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- application of the Director of Public Prosecutions in the case, among others, where a person is convicted of a serious drug offence in respect of a prohibited drug in a quantity not less than that specified in Sch VII of the Act: Misuse of Drugs Act, s 32A(1)(b)(i). A serious drug offence is defined by s 32A(3) as an indictable offence under s 6(1), s 7(1) or s 33(2)(a) of the Act. As I have noted, count 1 was an offence against s 6(1) of the Act. Relying upon that provision, the trial Judge made the declaration that the applicant was a drug trafficker.
71 His Honour made a similar declaration specifically in relation to the offence which was count 3 in the indictment, the offence of attempting to supply cocaine. Section 33(1) provides, inter alia, for an attempt to commit an offence defined by the Act. It provides that a person who attempts to commit such an offence commits, "if the principal offence is an indictable offence, the indictable offence": s 33(1)(a). The subs goes on to provide, however, that the person is liable on conviction to a punishment which may not exceed half the fine or imprisonment prescribed for the completed offence.
72 S 33(1) is not mentioned within the definition of the term "serious drug offence", although s 33(2)(a) is mentioned. That subparagraph provides that a person who conspires with another to commit an offence commits:
"(a) if the principal offence is an indictable offence under s 6(1) or 7(1), the indictable offence, but is liable on conviction to the penalty referred to in s 34(1)(b);"
73 Had 33(2)(a) not been expressly mentioned in the definition of a serious drug offence in s 32A(3), I would have been inclined to say that there was no need to expressly mention an attempt or inciting another to commit or becoming an accessary after the fact to an indictable offence and no need to mention a conspiracy to commit an indictable offence, for such an offence to constitute a serious drug offence within the meaning of s 32A. I would have taken that view because, relative to this case, both the offence of attempting to commit an indictable offence under the Act and the offence of conspiring to commit an indictable offence under the Act are treated by s 33 as the commission of the indictable offence itself, a different penalty being provided for in each case.
74 That is different from the usual treatment of such subsidiary offences which are normally, by statute, constituted as offences in their own right. That is the case, for example, in respect of the definition of such offences
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- in the Criminal Code. If that view were right it would be sufficient, therefore, that a serious drug offence, in circumstances relevant to the present case, is defined to include an indictable offence under s 6(1), because the attempt to commit such an offence is itself, by the Act, treated as the commission of the offence. However, the different treatment by the Act of the offence of conspiracy in the context of the identical formula adopted by s 33(1) and (2) persuades me that it should be held that the omission of the offences referred to in s 33(1)(a) from the definition of a serious drug offence in s 32A(3), must mean that an attempt to commit such an offence is not, of itself, to be regarded as a serious drug offence, the conviction for which will expose the offender to a declaration that he or she is a drug trafficker.
75 However, that does not mean that leave should be granted and the appeal against sentence allowed on this ground, because I note that although his Honour, the sentencing Judge, pronounced the declaration twice, specifically in relation to each offence of which the applicant had been convicted, the form of order provided for in s 32A(1) is a mere general declaration that the offender, convicted as the applicant was of a serious drug offence, is a drug trafficker. Despite the way in which the order was pronounced, it seems to me that it should be interpreted as an effective declaration that the applicant was a drug trafficker. That declaration was justified by his conviction of the offence contained in count 1 and that is sufficient to dispose of this ground against the applicant, although it was conceded by the respondent.
A Mistake of Fact
76 Of potentially more significance is the fact that when, in the course of his Honour's sentencing remarks, the trial Judge recounted the significant features of the applicant's criminal history, he said that by far the most significant previous conviction was that in the Supreme Court on 28 July 1993 for an offence of being knowingly concerned in a prohibited importation of two tonnes of cannabis resin. His Honour noted the sentence of imprisonment for 7 years and 4 months. He said that the offence had been committed while on parole for earlier offences in New South Wales and his Honour went on to summarise the significant matters in relation to the importation offence by reference to the sentencing remarks of Walsh J, the sentencing Judge on that occasion. His Honour made no further reference to the proposition that the previous offence had been committed whilst on parole. It was a wrong finding and the error was corrected on appeal: Pinkstone v The Queen, unreported; SCt of
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- WA; Library No 950088; 3 March 1995. The applicant's appeal against his sentence was dismissed despite the error made by the sentencing Judge.
77 For the applicant it is argued that the error had considerable significance in the exercise of the sentencing discretion on this occasion, both in relation to the denial of eligibility for parole and in fixing the term of imprisonment. It is submitted that it would have adversely affected his Honour's perception of the credibility of the applicant, who expressly told the sentencing Judge that he had not breached parole. His Honour made no reference to this statement and he did not say that he took the view that the applicant had sought to mislead him. Indeed, there is little further reference to the matter except in passing and, to my mind, it is not clear that the mistake of fact had any impact upon the sentencing process, except perhaps, in respect of parole eligibility, to which I shall come in due course.
A Question of Comparative Criminality
78 A ground of the application alleges error on the part of the sentencing Judge in finding that the criminality of the applicant, for sentencing purposes, was greater than that of his co-offenders, Yanko and Michael Brazier.
79 His Honour found, and there was ample justification for the finding, that the applicant, Yanko and Brazier were associated in very significant drug-dealing relationships. The applicant was a supplier of drug to the other two who, in their turn, operated significant drug distribution businesses in WA. It was clear, his Honour found, for reasons to which I need not refer, that the applicant devised the system by which the drugs were transported to this State and that he was close to the ultimate source of supply. The quantities of drug were significant. The operation conducted by the applicant was of a highly professional and sophisticated character. It included the use of a number of SIM cards for mobile telephones registered in false names and the adoption of other anti-interception telephone techniques. As has been seen earlier in these reasons, those involved in the operation, including the applicant, used, as is common, code language in their telephone conversations. He adopted disguises to confuse any surveillance. He used a number of false names in various aspects of his life to conceal his identity in respect of accommodation, the use of hire cars, air travel and the like.
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80 For the applicant it is put, relying upon the decision of the High Court in R v Olbrich (1999) 199 CLR 270, that the distinction drawn for sentencing purposes between the culpability of the applicant and that of Yanko, in particular, and Michael Brazier, was artificial. A proper view of the facts, it is argued, was that the applicant and those he supplied simply ran complementary drug distribution businesses and it was not as if they were members of some drug syndicate in which relative seniority could be established. Yanko and Brazier ran their businesses independently of the applicant.
81 All of that is true and yet, it seems to me, that the applicant's culpability was open to be found by the sentencing Judge to be at least marginally greater than that of Yanko and Brazier, if for no other reason than that the successful conduct of their drug distribution businesses was, in the cases the subject of the indictment at least, dependent upon the successful conduct of his business of wholesale supply by the applicant.
82 To the extent that the sentencing Judge ranked the culpability of the applicant somewhat above that of Yanko and Brazier, it does not seem to me that it can be said that he erred. I note also that this Court appears to have accepted, in Brazier v The Queen [2002] WASCA 278, per Malcolm CJ at par [30], that it was appropriate to characterise the applicant as a wholesaler supplying Yanko and Brazier, who were properly to be regarded as distributors, albeit perhaps on a wholesale basis, of the drugs within WA. I do not overlook, of course, the fact that the offences concerned with the relationship between the applicant and Brazier were an attempt to supply and an attempt to possess cocaine respectively. In my opinion, this particular ground cannot be made out.
Matters Personal to the Applicant
83 The complaint here is that, in sentencing the applicant, the Judge failed to give any or sufficient weight to matters personal to the applicant, being, in particular, the applicant's participation and involvement in the prison Peer Support Group and that the applicant would serve his prison sentence interstate, here in WA, and away from family and friends in NSW. Reference is also made to the applicant's cooperation in the penal system and with the authorities generally. Reference to such matters formed a substantial part of the plea in mitigation. They were detailed in a separate hearing held in camera. His Honour's reactions to and findings about this material are set out in a separate part of his remarks upon sentence, subject to a direction by the Court that they should not be
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- published, nor disclosed to any person apart from the applicant and the Crown.
84 The sentencing Judge expressly said that he had regard to all of these matters and he observed that it was the matters set out in the confidential reasons which provided the grounds for such mitigation of punishment as was available to the applicant. In relation to both offences, the Judge said that, on account of these matters, he would reduce the sentence which he would otherwise regard as being appropriate by a period which, in each case, amounts to about a third of the sentence which would otherwise have been imposed.
85 In my opinion, it is perfectly evident that all of the matters personal to him and his situation which the applicant asserts were overlooked by the sentencing Judge, were taken into account and indeed accorded substantial weight in the sentencing process. It may still be possible to complain that the terms finally imposed were manifestly too long, but there can be no legitimate complaint that the sentencing discretion miscarried because relevant matters were overlooked.
Were the Sentences Manifestly Excessive?
86 Indeed, the second ground of the application makes just this complaint, although it does so in respect of the terms which the Judge said he would have imposed had it not been for the matters for which he allowed in mitigation, periods of 14 years and 9 years respectively, for the offences of supplying methylamphetamine and attempting to supply cocaine. I have noticed the adoption of such an approach in other cases recently. It is, in my view, an unfortunate side-effect of the adoption of a two-tiered sentencing process, a process which has, in my opinion, now been firmly proscribed by the High Court, at least since the decision in Wong v The Queen (2001) 207 CLR 584. Reference may also be made to the case R v Powell (2001) 81 SASR 9 and the recent decision of this court in R v Suarez-Mejia [2002] WASCA 187; 17 July 2002.
87 Whatever may be said of the sentencing process itself, it is not legitimate to couch a ground of appeal so as to complain that a "starting point" is manifestly excessive. It is only the sentence imposed by the Court of which such a complaint may be made. In this case, for the supply of methylamphetamine, the applicant was liable to a fine of $100,000 or imprisonment for 25 years or both. He was sentenced to a term of 10 years imprisonment. For the offence of attempting to supply
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- cocaine, the applicant was liable to a fine of $50,000 or imprisonment for 12-1/2 years or both. He received a sentence of 6 years imprisonment.
88 It requires no recitation of authority to support the proposition that at this point the question is whether the sentences were individually to be regarded as manifestly excessive having regard to all the circumstances, both aggravating and mitigating. One must have regard to the levels of punishment generally employed, but it must always be remembered that each case turns upon its own circumstances in relation to the commission of the offence and each offender has different personal circumstances. Whilst having regard to other cases, as I have had regard to the cases cited to us, the court needs to take care when imposing sentence and evaluating whether the exercise of sentencing discretion has been appropriate, not to be overly driven by considerations of tariff or the quantities of the drug involved, a point made firmly by the High Court in Wong.
89 Further, in a case such as this where the offences were committed in the course of what was clearly a business enterprise of some magnitude, it will be rare that favourable personal circumstances will carry any substantial weight in mitigation of punishment: Quach v The Queen [1999] WASCA 210 per Ipp J at [13]. The principal aim of punishment in a case such as this is personal and general deterrence and punishment must always be imposed having regard to the penalty range provided by the statute: R v Chick (2000) 114 A Crim R 417 per Anderson J at 424 - 425 [30]. In this case severe punishment was inevitable. I will endeavour to summarise why I make that observation.
90 The applicant is a mature man. He is a recidivist offender. His offences were committed in the way of business for profit. His operation was of a sophisticated kind. Count 1 involved the trafficking of 725 grams of methylamphetamine of a high degree of purity, over 50 per cent. Count 3 involved the attempt to put into circulation nearly 500 grams of cocaine, again of a high degree of purity, nearly 80 per cent. I would expressly concur in the view of the sentencing Judge that the matters of co-operation and the prospects of rehabilitation they revealed were really the only matters of significant mitigation and, as I have observed, they were allowed for in a substantial way. Neither by reference to the circumstances of the case within the available penalty ranges, nor by reference to the other cases cited to us, am I persuaded that either of these sentences may be interfered with on the ground that it is manifestly excessive.
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The Totality of the Aggregate Term
91 It is convenient and appropriate then at this point to have regard to the complaint that, having regard to the partial accumulation of the terms, the aggregate term of 12 years, 3-1/2 months offends the totality principle. In my opinion, the principles to be applied require no discussion in this case. The question is whether at the end of the sentencing process, taking a last look at what is proposed to be done, the final effect of the sentences to be imposed remains proportionate to the total criminality involved in the commission of the offences in question. Here it would be proper to consider those offences, serious as they were individually, as separate parts of a course of criminal conduct which might be described as the wholesale supply of drugs. A convenient source of discussion of the principles involved is the decision of this Court in Jarvis v The Queen (1993) 20 WAR 201 and, more recently, the decision of the High Court in Postiglione v The Queen (1997) 189 CLR 295.
92 Having fixed the individual terms for the two offences, his Honour looked at questions of accumulation or concurrency and thereafter of totality. His Honour, in other words, correctly adopted the sentencing process adverted to by the High Court in Pearce v The Queen (1998) 194 CLR 610 at 623 - 624 [45] - [49]. His Honour noted that both parcels had been consigned from Sydney at the same time and they were both part of the applicant's drug-dealing business "and so could be regarded as one transaction in that sense".
93 However, his Honour went on to observe, in my respectful opinion, appropriately, that they were completely separate serious offences, involving different drugs being sent to different people, with each of whom the applicant had a separate drug-dealing relationship. In a very real sense these were separate transgressions of the law. On that basis his Honour concluded that the offences ought, in principle, to attract cumulative terms and I think, having regard to the way in which decisions about accumulation are to be made, that reasoning may not be faulted: see generally R v White [2002] WASCA 112 per McKechnie J at [15] and [26].
94 From the standpoint that cumulative terms were warranted because these were properly to be regarded as separate transactions, his Honour considered, expressly on totality grounds, that there should be some amelioration of the effect of cumulative sentencing and hence the decision to order partial cumulacy under the Sentencing Act 1995 (WA), s 88. I am unable to accept that the final result is disproportionate to the total
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- criminality involved in all the circumstances of the case. To my mind, this ground is not made out.
Questions of Parity
95 Again this is not a case which requires any substantial discussion of the principles of parity. Reference may be made to the decision of the High Court in Postiglione. The complaint made by the applicant in ground 4 with respect to parity, firstly, relates to the sentence of 12 years imprisonment, backdated to 16 November 2000, without eligibility for parole, imposed on Yanko upon his conviction of the offence in count 2 on the indictment. On the other hand, the sentence imposed upon the applicant for the related offence in count 1 on the indictment was a sentence of 10 years imprisonment, with effect from the date when it was passed, 1 February 2002. Yanko, it appears, did not have available to him the mitigation allowed for in the case of the applicant. His offence was committed in breach of a parole order. There was some difference in their respective culpability of a relatively minor kind to which I have already referred. I can see no disparity of a kind which would require a further reduction in the 10-year term imposed upon the applicant on parity grounds.
96 So far as a comparison of the treatment of the applicant and Brazier is concerned, it will be recalled that for the offence of attempting to supply cocaine, which was count 3 in the indictment, the applicant was sentenced to 6 years imprisonment, backdated to the commencement of his custody on 13 October 1999. I have already mentioned that Brazier pleaded guilty shortly before the trial commenced, but he was not sentenced until the applicant was sentenced on 1 February 2002. I have mentioned that he was sentenced to 4 years imprisonment, cumulative on a term he was already serving, and I have observed that on appeal orders were made which had the effect of reducing that degree of cumulacy effectively to 3 years. It will be recalled that that was done because he had lost the benefit of the service of some months on remand between the date when he pleaded guilty and the date when he was sentenced. Effectively, therefore, his sentence remains a backdated sentence of 4 years imprisonment, to be compared with the 6 years imposed on the applicant.
97 It has already been seen that there were distinctions between the two. I would hold that it was proper to treat Brazier as being somewhat less culpable than the applicant for the reasons I have given. Their antecedents were not relevantly distinguishable and the offence which was
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- count 4 on the indictment was committed by Brazier whilst on bail. On the other hand, his plea of guilty was properly regarded as being an acceptance of responsibility and, although made late, the sentencing Judge, in my respectful opinion properly, held that it merited a reasonably substantial discount. In addition, like the applicant, Brazier had made efforts demonstrably directed towards his rehabilitation while in prison. He had participated in various programmes, including the Peer Support Group.
98 The sentencing Judge went through all the various matters to which I have referred and I note that he allowed, in the process of calculation in respect of sentence, a discount of 2 years for the plea of guilty. There alone lies sufficient reason for the disparity between the sentence of 4 years imprisonment imposed upon Brazier and the term of 6 years imposed upon the applicant. I can see no basis upon which this Court should feel compelled to interfere with the sentences imposed on the applicant on purely parity grounds.
Eligibility for Parole
99 Again the principles are clear. The relevant considerations emerge with clarity from s 89(2) of the Sentencing Act. The way in which they should be approached was discussed and summarised by this Court in Thompson v The Queen (1992) 8 WAR 387 at 395 - 396. There are two grounds of the application which contest the refusal to order parole eligibility. Again I need not set them out in full.
100 In considering the question of parole, his Honour commenced by referring generally to the fact that he had had regard to all of the matters already mentioned material to the term of imprisonment, including those dealt with in camera. It must be accepted, I think, that his Honour overlooked nothing of relevance. He referred to Thompson and to s 89(2) of the Sentencing Act. His Honour commenced his consideration of parole eligibility by saying, "I bear in mind that parole serves to mitigate punishment as well as provide an opportunity for rehabilitation." In my respectful opinion, there can be no quarrel with his Honour's approach.
101 He referred to the criminality involved in the commission of the offences. He said expressly, but, as we have seen, incorrectly, that the cannabis importation offence for which he had been sentenced by Walsh J in July 1993 was committed while on parole. His Honour added that the commission of these offences in the circumstances of their commission showed that the opportunity of parole afforded under the previous
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- sentence, although completed successfully, did not result in the applicant's rehabilitation. So much was unarguably correct.
102 His Honour projected himself forward in time, as he is required by s 89 to do, to consider what might be the position at the time when the applicant would be eligible for parole in respect of the sentences now being imposed. His Honour said:
"Your complete lack of remorse, contrition or insight and your cynical manipulation of the truth, combined with these other considerations, in my view make it inappropriate to order that you be eligible for parole. Indeed, I consider it would be contrary to the interests of the community were you to be given the opportunity of early release before serving your full sentence."
103 Of course, the applicant was entitled to defend himself, and he was not to be punished for doing so unsuccessfully, but nonetheless the verdict of the jury and the applicant's conviction of the two offences necessarily resulted in the conclusion that his defence was a fabrication. In my view, the comment of his Honour that there was a complete lack of remorse or contrition and a cynical manipulation of the truth was well justified. It clearly bore on the question of his eligibility for parole.
104 More difficult, I think, is the prognostication about the possibility of rehabilitation necessarily implied in his Honour's remarks. Although the sentencing Judge clearly accepted and took account of what had been put before him in the part of the hearing which was conducted in camera, the question arises in my mind whether sufficient weight was afforded to these matters. There was demonstrated co-operation over an extended period of time and of a kind which, if what occurred became known, might expose the applicant to danger and difficulty in the service of his sentences. There was the involvement in rehabilitation programmes and, in particular, in the Peer Support Group within the prison.
105 There were very favourable reports upon him by prisoner support officers, one of whom was a Justice of the Peace, which were placed before his Honour. They spoke of the applicant being a leader in a positive sense, providing guidance and support for fellow prisoners. They expressed the view that the applicant had "both the ability and the resources, as well as the motivation, to build a constructive life outside prison and to be of benefit to the community generally".
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106 In my respectful opinion, while these matters were not overlooked by his Honour, they were given insufficient weight. They were, to my mind, positive factors which spoke in favour of an order of parole eligibility and, in my respectful opinion, his Honour's conclusion that it would indeed be "contrary to the interests of the community" if the applicant was to be afforded the opportunity of parole, was not supported by the material before the Court. In my opinion, the sentencing Judge erred in declining eligibility for parole and I would vary the sentences imposed by making that order.
107 To do so would, of course, affect the order for partial cumulacy. The sentence first imposed, dating from the commencement of the applicant's custody on 13 October 1999, was one of 6 years imprisonment. Under s 88, if eligibility for parole is ordered, the maximum extent to which there could be partial accumulation is the period of 2 years which would represent the non-parole period of that sentence of 6 years imprisonment, a period which would expire before the applicant was sentenced on 1 February 2002, but the period involved is only 3 months and 18 days and the necessary adjustment should be made.
Conclusion
108 Although I would dismiss the appeal against conviction, I would grant leave to appeal against the sentences imposed. I would allow the appeal to the extent necessary to accommodate an order of eligibility for parole which I would make. That I would do by leaving unaffected the order imposing for count 3 a sentence of 6 years imprisonment to commence on 13 October 1999. Pursuant to the Sentencing Act 1995, s 88(3)(d) and (4), I would direct that the sentence of 10 years imprisonment imposed for count 1 should commence on 13 October 2001 and, as I say, pursuant to s 89(5), I would make a parole eligibility order in respect of both terms so imposed.
109 Before finally leaving this case, I think I should express my understanding of the practical effect of the imposition of sentences in that form. I do so because at the hearing there was some debate about that, having regard to the provisions of the Sentencing Act and, in particular, s 94(2). My views are as follows.
110 These are both "parole terms" within the meaning of s 85(1). By s 94(1), for the purpose of calculating eligibility to be released on parole and the parole period, they are to be aggregated completely, subject to s 94(2) and s 94(3). In a case of partial cumulacy the effect of those
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- subsections is to achieve only partial aggregation, to the extent to which the two terms are partly accumulated. In a case of terms to be served concurrently there will be no aggregation at all because they will run concurrently. It is not the case that there is no aggregation at all in a case of partial cumulacy.
111 The effect then of what I would do is to create a partially cumulative aggregate term of 12 years. It is to that term that s 93 is to be applied and eligibility for parole will result after the service of a period of 6 years imprisonment from 13 October 1999.
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112 WHEELER J: I have had the advantage of reading in draft the reasons for decision of Murray J. I agree with those reasons, and with the orders proposed by his Honour.
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113 ROLFE AJ: I have had the advantage of reading the draft judgment of Murray J. It sets out in detail the circumstances giving rise to this appeal, many of the factual matters required in determining the issues raised by the appeal and those issues. It is therefore unnecessary for me to repeat what his Honour has written and I am able to identify immediately a primary conclusion to which he has come with which I respectfully disagree. It is his Honour's view that the appeal against the appellant's conviction on the first count should be dismissed. This conclusion is arrived at on the basis that on the particular facts of this case the appellant supplied a prohibited drug to Mr Yanko. In my opinion, the facts do not establish that and, by way of emphasis, I make it clear that I am dealing only with the specific facts of this case.
114 Before stating the reasons for the view to which I have come, it is convenient to note certain matters, which, I believe, are essentially consistent with his Honour's judgment. First, "supply" requires an element of intent on the part of the appellant, as supplier, and Mr Yanko, as supplyee, for the former to deliver or have delivered to the latter the prohibited drug. Secondly, that intent was to be effected in a certain agreed manner. Thirdly, both parties acted conformably with that intent by the appellant's arranging for the relevant parcel to be delivered to Ansett air cargo for transportation from NSW to WA, the obvious inference being that it was the parties' intent that Ansett would comply with its contractual obligations and deliver the parcel to Mr Yanko. Fourth, the parcel was delivered to Mr Yanko. However, this delivery was not made in the manner contemplated by the parties, but by an officer of the WA police.
115 In my opinion, and I do not consider the contrary could be asserted, it was never intended by the parties that the parcel should come into the possession of the WA police, as part of a covert police operation, and then be delivered to Mr Yanko. Not only could there have been no such intention, but, as a matter of fact, the parties would never have agreed upon supply which included that element. Indeed, the irresistible inferences are that if either party or both parties had been aware of the police intervention, no attempt would have been made to supply, which necessarily included some form of delivery of the prohibited drug; nor would either party, if aware of the true situation, have tried to obtain delivery of the parcel from Ansett or, for that matter, from anywhere else.
116 In my opinion, the quality and character of the police intervention was such, whether one considers the matter in relation to intent or causation, to terminate the applicant's attempt to supply the prohibited
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- drug to Mr Yanko. The police, having taken possession and control of the parcel, had a number of options open to them as to what they should do. The fact that the course taken was to deliver the parcel to Mr Yanko, as part of their operation, was not, in any causal sense, nor in accord with the intention of the parties, a supply by the appellant to Mr Yanko of the parcel. It was a supply by the police. Thus, it was not a supply by the appellant and it could not, in the circumstances, be argued that the police were acting as the appellant's agent to make the delivery and, thereby, complete the supply.
117 I appreciate that the WA police may not have known definitely that the parcel contained a prohibited drug, but the evidence is clear that they certainly suspected, on what turned out to be good grounds, that this was so. In any event, for present purposes, I do not think it matters what was in the parcel. The result is that by taking possession and control of it, their delivery to Mr Yanko constituted, in my opinion, supply of it to him.
118 Prior to the arrival of that flight in Perth, two Western Australian police officers, Mr Kanawati and Ms Wellstead, attended at Ansett air cargo at Perth Airport and, by agreement with Ansett, posed as Ansett cargo staff. They worked in the cargo receipt and delivery area under instructions from Detective Sergeant Tuttle, who told them to receive the parcels when they arrived, he believing they contained a prohibited drug.
119 Detective Sergeant Tuttle had decided, prior to the arrival of Flight 85, that upon the unloading of the parcels, the police would take possession of them and that they would then be dealt with consistently with the most appropriate operational tactics. His evidence was, Tp 1281, that there had to be flexibility as to what the situation "might throw up" as it was "a dynamic environment", and continued:
"Was it decided to intercept both parcels at the point of collection?---There were a number of scenarios that we worked on. You can only plan to a certain stage and then obviously the people of interest dictate largely what happens.
What was your last instruction in relation to the parcel that had John White's name on it?---My ultimate goal would have been for the people to collect them and take them to their place of residence and then search warrants would have been executed at their place of residence. That's what I wanted but that's not what happened."
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120 In subsequent evidence, he made it clear that there was flexibility in the police plans, depending on what did occur.
121 Flight 85 duly arrived and the police officers inspected the cargo and identified and took possession of the two parcels, which were taken to a separate location, videotaped and marked with a felt pen. They remained under the exclusive control of the officers.
122 At Tp 1969, Mr Kanawati gave this evidence:
"At the back of the premises did you take control of those two packages?---Straight away, yes.
And you assumed dominion over them, if I can put it that way. Correct?---I had control of them, yes.
And that was for the purposes of controlling them to see who was going to come and collect them. Correct?---From the front of the counter, yes."
123 At Tp 1978, Mr Kanawati gave the following evidence:
"Mr Kanawati, your position behind the counter posing as an Ansett employee was a very significant part of the police work this day, wasn't it?---Yes, I'd agree with you, yes.
And the point was that this important work was not to be thrust on to the shoulders of an employee because it was so significant?---Yes.
The object of your work was two-fold. First to make sure there was no slip between cup and lip from plane into the despatch area. Correct?---I only had control in the despatch area.
And so between plane and despatch area, no police had an influence? Correct?---Correct, yes.
But from plane - once it had travelled from plane into the despatch area, it was you who had the control. Correct?---In the despatch area only, yes.
Yes, and then through to the front counter?---Yes.
So once it hit the despatch area it was under your control?---Totally.
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- Yes, and you didn't want to place that responsibility - or those in charge of you didn't want to place that responsibility on to the staff?---Correct, yes.
And your job was to negotiate it from the despatch area at the back through into the hand of the person that picked it up?---Who asked for it, yes."
124 The Crown alleged that the applicant supplied a prohibited drug to another. To supply, and thus to be guilty of having supplied, it must be proved, in my opinion, that the applicant supplied to another, to whom I shall refer as "X". That, in my opinion, is not proved, necessarily, by it being proved that the prohibited drug left the appellant's possession destined for X and ended up in X's possession.
125 The applicant may have supplied in various ways. He may simply have handed the prohibited drug to X. Or he may have left it for X in a place from which he and X had agreed that X would collect it, which X did. Or he may have employed a servant or agent (whether that servant or agent had knowledge that that which he was being asked to hand over, was a prohibited drug) to hand it over to X or his duly authorised agent. It is unnecessary, for present purposes, to determine what offence a servant or agent with knowledge that he was or reasonably suspected that he was handing over a prohibited drug may commit.
126 The difficulty posed in the present appeal, and this judgment proceeds on the basis that the applicant knew that the parcel addressed for Mr Yanko contained a prohibited drug, is what the legal effect is when the method of supply is interrupted by the intervention of a third party, ("Y"), whom neither the supplier nor the supplyee ever intended would have possession of the parcel, such that it comes under the control or dominion of Y, who then hands over the prohibited drug to X, not as the applicant's servant or agent, but for Y's own purposes. In such circumstances, the question arises whether the supply by the applicant ceased on Y's taking control or possession of the prohibited drug, and whether Y's supply becomes the supply by the applicant or by Y.
127 Several simple examples may show situations in which the supply could not, in my opinion, be that of the applicant. Assume a person in the drug scene is aware that X will be receiving a quantity of prohibited drug from the appellant in the manner in which this consignment was transported. This person is aware that X has a pressing need for the drug to be supplied to him and manages to intercept the delivery at
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- Perth Airport and take possession and control of the drug. He then presses X for a supply from that which he knew X was to receive, but has not because of his interception. X states that the parcel has not been delivered. Y then offers to sell X an approximately equivalent amount, which he says he has obtained from elsewhere, being the drugs in the parcel sent by the applicant to X and intercepted by Y, and he does so. That, I do not think, could be suggested was a supply by the applicant to X. The same result would follow, in my opinion, if Y had stolen the parcel from the applicant in Sydney, brought it to Perth and furnished (ie, supplied) it to X.
128 The reason may be either because the applicant never had the intention that any such thing should happen or because there was a break in the causal chain brought about by the interception. Both the intention and the causal chain provided for delivery by the applicant, either personally or by his servants or agents, to X, either personally or by his servants or agents.
129 In the present case, there was intervention by the police at Perth Airport. What the police did was more than a passing perusal of the relevant parcel to confirm it was the same one that had left Sydney and, perhaps, the making of some form of identification on it. The police took the parcel into their possession and control and thus intercepted it. Consequently, they took it out of the possession and control of the applicant's servant or agent for delivery to Mr Yanko. They did so not merely so that they could hand it over to Mr Yanko or the person who came to collect it on his behalf. As the police evidence disclosed, they had not formulated a final plan as to how they would deal with the parcel. That was to be the subject of decision as operational manoeuvres unfolded and as the situation was fluid. But, be that as it may, the police had effective possession and control of the parcel containing the prohibited drug.
130 The Act does not provide any immunity to the police. Nor does it provide that "supply" by them shall not be "supply" within the meaning of s 6(1)(c).
131 But for present purposes, it seems to me that the reason they took control of the parcel does not matter. The fact is they did, acting neither as servant nor agent of the applicant or Mr Yanko. Just as the unauthorised intervener in the first example did so for his own benefit and not as a servant or agent of either the applicant or Mr Yanko, so also did the police. Their intention was to use the parcel in the way which best
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- assisted their operation. That may have involved handing it on to Mr Yanko, but, in my respectful opinion, that handing over was not in and/or in the course of the intended supply by the applicant. It was for an entirely ulterior motive related to the police operation. The effect of what the police did was, in my opinion, to bring an end to the attempted supply by the applicant to Mr Yanko. It was the police who, apparently in the fulfilment of the operational activity, supplied the package to Mr Yanko, over which, at all relevantly material times, they had control and possession.
132 The question of supply was considered by the authors of Narcotic Offences (1991) commencing at page 90. After dealing with various statutory meanings attributed to the word "supply", the authors said, pages 91 to 92:
"To explicate the key concept a trial Judge is therefore given free rein to examine the numerous modes of supply listed in dictionaries and to adopt in the case before him that particular mode which covers the facts of the case. The effect of the statutory definitions is to extend the ordinary meaning to include such activities as administration of drugs to another or their transport in the course of supply and to include certain preparatory activity. The inclusion of 'agreement to supply' (where 'supply' is understood in its ordinary rather than statutory meaning) within the New South Wales definition of 'supply' seems to complicate the relation between that mode of 'supply' and the offence of conspiring to supply: section 26."
133 The authors then dealt with agreements to supply, saying:
"Agreements to supply (or sell) which are deemed sufficient to prove the offence of supply are probably restricted to those where two or more people agree that one or more should, on behalf of them all, supply to a third party and do not extend to situations where there is an agreement that one will be supplied by another and that person should in turn supply to others: Trudgeon (1988) 39 A. Crim. R 252 at 255 per Gleeson CJ; Zorad (1990) 19 NSWLR 91." (my emphasis)
134 This shows that there may be a clear breach in the supply chain, which I have sought to illustrate in the examples I have given.
135 The authors then considered the ordinary meaning of supply and, at page 92, said:
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- "A normal bailment such as transfer of physical control to the keeper of a cloakroom would not ordinarily be seen as 'supplying' narcotics to the keeper (Dempsey & Dempsey (1986) 82 Cr. App. R. 291), but where a person knowing that a parcel contains narcotics receives it from another and retains it in custody to be collected by a third person, his possession, when the quantity exceeds a prescribed quantity amounts to possession for the purpose of supply: Urbano (1983) 9 A. Crim. R. 170." (my emphasis)
136 This, in my opinion, is precisely what the police did. The passage indicates that it is necessary for a person to have possession, in order to supply. In this present case, as I have attempted to show, possession passed from the applicant's agents to the police. The police retained full control over the parcel thereafter until its delivery and, accordingly, in my opinion, "supplied".
137 In Urbano, Burt CJ said, at page 177:
"The complaint is that the trial Judge did not by that direction adequately point out and explain to the jury the distinction between possession and 'mere control' see Warner (1969) 2 AC 256 at 310 - 311, per Lord Wilberforce, recently cited with approval by Lord Scarman in Boyeson (1982) AC 768 at 774. And it is the case that he did not in terms direct the jury that in deciding whether the appellant was in possession of the heroin they should consider all the circumstances including:
'the manner and circumstances in which the substance or something which contains it, has been received, what knowledge or means of knowledge or guilty knowledge as to the presence of the substance, or as to the nature of what has been received, the accused had at the time of receipt or thereafter up to the moment when he is found with it; his legal relation to the substance or package (including his right of access to it)': Warner's case, per Lord Wilberforce.
But if that be accepted as a valid criticism of his Honour's direction and if in addition it be the case that the direction was in other respects somewhat unsatisfactory, no possible miscarriage of justice was caused by it. However, the notion of possession be expounded there could, on the facts of this case as
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- sworn to by the appellant, be but one answer to the question. The appellant was in possession and to find otherwise would on the admitted facts be a perverse finding:
'He had it as factually under his control or his de facto possession as if he had locked it in a box in the bathroom, a box to which he and he alone had the key, or if you like, he and an accomplice alone had the keys': Williams v Douglas (1949) 78 CLR 521 at 528 per Rich J."
139 A magistrate had dismissed a complaint against the defendant on the ground that, at the material time, he did not have actual possession of the gold or exclusive possession of the place where it was found. The Full Court took the view that the magistrate drew the wrong deductions from the fact before him, being of the opinion that the only possible inference on the facts was that the applicant was in possession of the parcel of gold hidden under the bath. The case, of course, was one concerned with the meaning of "possession".
140 Latham CJ, Dixon and McTiernan JJ said, at pages 526 to 527:
"The result is much the same as if the word 'actual' had been written before the word 'possession', but de facto possession is a conception which is itself much more extensive than that of physical custody. It is wide enough to include any case where the person alleged to be in possession has hidden the thing effectively so that he can take it into his physical custody when he wishes and where others are unlikely to discover it except by accident."
141 I have already quoted the relevant passage from the judgment of Rich J in citing the passage from the judgment of Burt CJ.
142 The relevance is that the police, on the facts of this case, had possession of the parcel at all material times and parted with possession by handing the package to Mr Yanko. In these circumstances, and for the reasons I have sought to explain, it seems to me that that passing of possession amounted to supply. Thus it was not a supply by the applicant
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- but by the police and, as I think Mr Shirrefs conceded, the most with which the applicant could have been charged, in all the circumstances, was an attempt to supply. In my opinion, this submission, on the facts of this case, is correct.
143 Ultimately, the question to be answered is one of fact, viz by whom the supply was made. The supply can only be made, in my opinion, by the person who has the possession and control of the prohibited drug either personally or by his servant or agent. The intervention of the police changed that control from the servant or agent of the applicant to them. At the time of handing over the prohibited drug (ie, supplying), the police were doing so pursuant to their control and possession. They, therefore, were the suppliers.
144 The applicant should be granted leave to appeal against his conviction on the first count, if that be necessary, the appeal allowed and his conviction on that count should be quashed.
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