R v Andros Steve Klobucar - [2013] ACTSC 118

R v ANDROS STEVE KLOBUCAR
[2013] ACTSC 118 (18 June 2013)

CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – judge-alone trial - procuring drug trafficking – intention to procure – conduct effective to procure – trafficking offence actually committed – verdict of guilty to be entered.

CRIMINAL LAW – GENERAL MATTERS – Ancillary liability – procuring drug trafficking – presumption of required intention or belief for trafficking offence arising from transporting of traffickable quantity not available against accused who procured the transporting – Criminal Code 2002 (ACT), s 604.

CRIMINAL LAW – PARTICULAR OFFENCES – drug trafficking – whether a person who transports drugs on behalf of another person expecting payment for the delivery “sells” the drugs to the other person – whether if a person who transports drugs on behalf of another person “sells” the drugs to the other person, the other person is protected from liability for an offence arising from procuring the transporting of the drugs by reason of an intention to “buy” the drugs – Criminal Code 2002 (ACT), ss 600, 602, 605.

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Courses of Evidence, Statements and Addresses – whether prosecution should be permitted to open on one analysis of the facts and close on another analysis – whether defence prejudiced in cross-examination.

CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – evidence of co-offender’s conviction for offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), ss 91, 178.

CRIMINAL LAW – EVIDENCE – Matters relating to Proof – ancillary liability – opinion of person about legal significance of actions not evidence based on what person saw, heard or otherwise perceived about a matter or event – evidence of co-offender’s opinion whether he committed offence not available to prove commission of offence by co-offender – Evidence Act 1995 (Cth), s 78.

Evidence Act 1995 (Cth), ss 48(1)(c), 56, 76, 78, 91, 178

Criminal Code 2002 (ACT), ss 45, 600, 602, 603, 604, 605
Supreme Court Act 1933 (ACT), s 68C

Court Procedures Rules 2006 (ACT), rr 6, 1202(2), 4000
Criminal Code Regulations 2005 (ACT), reg 8(1)(a), Sch 1

Explanatory Memorandum for the Criminal Code Bill 1994 (Cth)
Explanatory Memorandum for the Bill for the Criminal Code 2002 (ACT)
Revised Explanatory Statement for the Criminal Code (Serious Drug Offences) Amendment Bill 2004 (ACT)

Butera v Director of Public Prosecutions for the State of Victoria) (1987) 164 CLR 180
Carrv The Queen (1988) 165 CLR 314
Fleming v R (1998) 197 CLR 250
Lithgow City Council v Jackson (2011) 244 CLR 352
Robinson v The Queen (2006) 162 A Crim R 88
R v Georgiou (2002) 131 A Crim R 150
R v Hillier (2007) 228 CLR 618
R v Tran (2000) 118 A Crim R 218

No. SCC 186 of 2010

Judge: Penfold J
Supreme Court of the ACT

Date: 18 June 2013

IN THE SUPREME COURT OF THE       )
  )          No. SCC 186 of 2010
AUSTRALIAN CAPITAL TERRITORY    )

R
v
ANDROS STEVE KLOBUCAR

ORDER

Judge:  Penfold J
Date:  18 June 2013
Place:  Canberra

THE COURT ORDERS THAT:

On the charge that on 21 August 2007 Andros Steve Klobucar procured Yaresul Silkeci to traffic in a controlled drug other than cannabis, namely methylamphetamine – a verdict of guilty be entered.

Background

The accused Andros Steve Klobucar was arraigned before me on one charge, being that on 21 August 2007 he procured Yaresul Silkeci to traffic in a controlled drug other than cannabis, namely methylamphetamine.

The charge arose under ss 603 and 45 of the Criminal Code 2002 (ACT). Both provisions are set out in Appendix A to this judgment.

The accused pleaded not guilty.

Trial by judge alone

Election

The accused elected to be tried by judge alone.

Procedures for trial

Section 68C of the Supreme Court Act 1933 (ACT) specifies the procedures to be followed for a trial by judge alone. In summary:

(a)the judge can make any findings of guilt that could have been made by a jury, and those findings have the same effect as jury verdicts;
(b)the judge must provide a judgment setting out the principles of law he or she applied and the findings of fact he or she relied on (this requirement has been interpreted as requiring the judge to set out also the reasoning process linking the law and the facts, and a justification for the verdict, Fleming v R (1998) 197 CLR 250); and
(c)the judge must take into account any directions, warnings and comments that would, under a Territory law, have had to be given or made to a jury in the case.

In a judge-alone trial the judge must give herself certain directions equivalent to those that would be given to a jury. Those directions relate to the presumption of innocence, the burden of proof generally and the way evidence should be dealt with, and they are set out at Appendix B.

The evidence

Most of the facts on which this prosecution was based were not in dispute.

On Tuesday 21 August 2007, following a series of text messages received by Mr Silkeci from Mr Klobucar’s phone, and a phone call between Mr Silkeci and Mr Klobucar, Mr Klobucar delivered a package to Mr Silkeci. At Mr Klobucar’s request, Mr Silkeci drove to Sydney with the package, met a person as instructed by Mr Klobucar, and exchanged the first package for another package. Mr Silkeci was stopped by police on the Federal Highway shortly after he re-entered the ACT on his way back from Sydney. Police officers had been intercepting Mr Klobucar’s phone calls and had also observed Mr Klobucar give the first package to Mr Silkeci before Mr Silkeci went to Sydney. The package was seized from Mr Silkeci’s car and was on analysis found to contain 144.002 gm of white powder, containing methylamphetamine at “not less than 59.4% or 85.470 grams as the base”. Mr Silkeci knew that what he was collecting from Sydney and bringing back to Mr Klobucar was drugs.

The evidence that was before me included:

(a)two mobile phones that had been seized from Mr Klobucar’s home when a search warrant was executed there on 21 August 2007, one from the coffee table (the coffee table phone) which had a number ending in 364, and one from Mr Klobucar’s pocket;
(b)recordings and transcripts of telephone intercept material and text messages (including English translations of some of them from the original Croatian, provided by a Croatian interpreter who also gave evidence) – these are considered in more detail at [10] to [30] below;
(c)evidence, from a police officer qualified as an expert in, among other things, the language of the drug trade, about possible interpretations of some of the contents of the phone calls and text messages;
(d)video footage of Mr Klobucar handing over the first package to Mr Silkeci at about 4.30 pm on 21 August 2007;
(e)evidence from police involved in stopping Mr Silkeci on his return to the ACT, including photographs of the package seized from his car that showed the package both in the car and when it was opened at the ACT Government Analytical Laboratory (ACTGAL);
(f)evidence of ACTGAL analysis of the substance found in the package brought from Sydney by Mr Silkeci.

Phone calls and text messages

There was evidence relating to three telephone calls made between telephones one of which was the coffee table phone, and four text messages sent from the coffee table phone, in the several days leading up to Mr Silkeci’s arrest. The recordings of the intercepted phone calls were tendered, and Jasenka Ferinac, who had translated several of the calls from Croatian into English, gave evidence, but in the end what was exhibited, by consent, was transcripts of the various recordings, including English translations of material recorded in Croatian (Exhibit R). Under s 48(1)(c) of the Evidence Act 1995 (Cth) (still in force in the ACT when this trial took place), transcripts of intercepted telephone calls are themselves admissible as evidence rather than only as an aide memoire to the material contained in the electronic record of the telephone calls, although for obvious reasons, if there is any doubt or dispute about the accuracy of the transcript, a transcript should be received only as an aide memoire to the evidence of the actual recording (Butera v Director of Public Prosecutions for the State of Victoria) (1987) 164 CLR 180 at 188).

The significance of the calls and text messages was not disputed by the defence, but it is useful to set out the contents of those communications.

At 7.25 am on 19 August 2007, a text message (SMS 1) was sent from the coffee table phone, as follows:

Koome, boys did not like the vitamins, need cold ice, I am working, I will call you little later.

At 4.07 pm on 20 August 2007, there was a phone call (Call 1) involving the coffee table phone; the conversation was as follows:

M1Hallo
M2Hallo
M1Koome?
M2Yeah Koome
M1How is it going? What are you doing?
M2I call you, I called you before from yeah, I called you before.
M1Yeah, no, no, that’s it, yeah I did not see the number, you called and turned it off.
M2Yeah I didn’t want the number in case, I don’t want it on this you know.
M1Yeah no problems Koome, yeah, yeah. How are you old man?
M2It is going slowly, not bad.
M1I tried with those but it didn’t go, it didn’t go mate. I thought they will bite, fuck, it would have been good with those for headaches, you know. But they didn’t want it.
M2Yeah, yeah
M1You know what I mean, they did not want to.
M2There are more of those anyway.
M1More
M2Anyway I will let you know, I will let you know tomorrow afternoon, all right?
M1All right, yeah, yeah for drinks is there any cold maybe hmm?
M2Yeah, there is cold, but yours are very fussy, so it is very hard for that.
M1Aha, all right than [sic], if you find some call me, hmm? Koome?
M2Yeah tomorrow afternoon I will let you know, tomorrow afternoon.
M1All right, thank you Koome.
M2yeah
M1OK no problem. Then how is everything anyway?
M2If they like it good, if not that’s all I can do.
M1Yeah, yeah that’s it, if you have it you have it, but did you find your friend, did you talk to your friend any more? Did you find him?
M2Yeah, I told him you know
M1You said you can’t find him.
M2He said it will be tomorrow. Tomorrow he will let me know.
M1For him to see is there anything?
M2Now it is very hard, you know.
M1It doesn’t matter, yeah, yeah all right.
M2Yeah
M1If he has it so we can see, you see how it goes and give a ring, and we will go there.
M2I will see first.
M1There is no pressure, if there is some OK. If there isn’t OK. You know.
M2Tomorrow afternoon. How much do you think it would be all right?
M1If it is not bad we will take 5 right away, 5.
M2Take 5 so we can see how that goes.
M1Right away 5 if it’s good.
M2That’s what I have now, yours are very fussy so I can’t tell you anything else.
M1I mean for the cold, cold
M2Yeah, yeah that is what I mean
M1Yeah, yeah, if, if, yeah....
M2If it suits then fine, if not, well then not.
M1Yeah, yeah that’s right.
M2Then tomorrow afternoon I will see, I will let you know tomorrow afternoon.
M1Good Koome, good, thank you and bye, bye.
M2OK
M1Bye

At 11.35 am on 21 August 2007, a phone call also involving the coffee table phone (Call 2) proceeded as follows:

M1Old man?
M2Yeah Koome, how is it going?
M1How is it going, all right, slowly.
M2And listen now
M1Yes
M2I took 5
M1Yeah
M2And now when does it suit you?
M1What are they like, looking all right?
M2Well that is all he has now.
M1Yeah, yeah all right
M2That’s all he has, what can I tell you. As I can see it is not mixed.
M1Looks all right?
M2It is fine, but that doesn’t have to mean anything, does it?
M1Yeah, yeah, yeah, yeah it doesn’t have to be coarse, but it doesn’t have to be like salt, you know.
M2It is not, that is fine, white.
M1Pure
M2And you can see it it’s not mixed because there is nothing left on the plastic, you know that you can see.
M1Yeah, yeah
M2Plastic is clear.
M1All right Koome, how much is that? Also 5.8
M25 8 yeah
M15 8 now, all right than
M2There is nothing better now.
M1It doesn’t matter, that’s good, it means there is more huh? Has some more? If we take this it will be more?
M2You know that goes fast.
M1Yeah it goes fast, all right, all right.
M2If you tell me earlier I may take 5 again.
M1Yeah, if mine says it is good then you can take more, you know. What did I want to say. It is hard to come early. You can’t hold it until Friday, that is too long isn’t it?
M2Can’t, can’t it is only today. If you can, if not I have to give it back to him you know that.
M1Ummh, only today, ouch, wait I will have to ring my boy and see if he can come tonight after Work, you know.
M2Aha yes
M1I will ring you back Koome, all right?
M2Yeah, all right
M1I will ring you right away after I talk to the boy, all right?
M2All right.
M1Good Koome
M2100 percent won’t be able to, you know how it goes.
M1Yeah, I know he needs money, they all do. It doesn’t matter. But listen if we take it and it is not good can we return it tomorrow right away?
M2Yes no problems, yeah.
M1Oh that’s good than Koome, it doesn’t matter. If it is not good I will come back alone to return it.
M2Aha, yeah.
M1Because if they don’t want it I can’t do anything about it.
M2Yeah, yeah
M1But I will call my boy now
M2Yeah, good, yeah is that all right? It has to be all right anyway. Thank you for doing it. I will call my boy and you wait for my telephone call, all right? I won’t be long.
M2All right, that’s like jump and that’s it.
M1Yeah, I will be fast, all right Koome. Thank you, bye, bye.
M2Bye
M1Bye

At 11.39 am on 21 August 2007, the following text message (SMS 2) was sent from the coffee table phone to a mobile phone with a number finishing with 664 (the 664 phone):

bro urgent he got food haue to get tnite

Mr Silkeci gave evidence that he thought he remembered receiving SMS 2 on his mobile phone.

One minute later, at 11.40 am, a further text message (SMS 3) was sent from the coffee table phone to the 664 phone:

bro its crucial kant wait til frday wil go kant hold tex me i get nvats ready

Mr Silkeci gave evidence that he had received SMS 3.

At 11.43 am a third text message (SMS 4) was sent from the coffee table phone to the 664 phone:

bro what time u finish work i got break at 4 till 445 kan gve t nvats then

Mr Silkeci gave evidence of receiving SMS 4 on his phone.

Finally, at 11.55 am on 21 August 2007, a call was made from the coffee table phone (Call 3) as follows:

M2Hello
M1How you going bro
M2I’m good
M1Oh good on ya you picked the phone up
M2Oh I was waiting for you to call me
M1So all right so get some credit
M2I got no credit
M1Okay I’ll get you some did you get my texes
M2Yeah
M1It’s crucial bro otherwise we’ll miss the boat for a long time you know
M2Yeah I finish at five
M1What time what time do you finish man five eh all right I’ll get you some credit and I’ll text you back all right bro
M2All right
M1Okay bye man
M2Bye
M1Bye

The audio recording of Call 3 was played to Mr Silkeci in court, and he identified himself and Mr Klobucar as the participants in the conversation.

The language of the drug trade

Superintendent Nigel Ryan (in 2007 a Detective Sergeant attached to the Woden Crime Branch), was qualified as an expert witness in relation to the drug trade. Among other things, he had:

(a)studied drug issues in a Bachelor of Social Science degree course in the 1990s;
(b)taken part in a NSW Police training program covering drug identification, drug pricing and drug intelligence in 2001; and
(c)studied at Cambridge in an expert drug witness program conducted by the National Crime Squad of England and Wales.

Until 2008, Superintendent Ryan was responsible for training AFP recruits and others in various drug-related subjects.

The prosecutor appeared to have overlooked the need for Superintendent Ryan to be treated as an expert witness under r 1202(2) of the Court Procedures Rules 2006 (ACT) as applied to criminal proceedings by r 4000. The prosecutor sought a dispensation from the r 1202 requirement to serve a written acknowledgement that Superintendent Ryan had read the code of conduct for expert witnesses and agreed to be bound by it. Instead, given defence counsel’s not unreasonable wish to have such an acknowledgement provided, I permitted Superintendent Ryan to be stood down overnight and, under r 6, dispensed with the rules to the extent necessary to allow the acknowledgment to be served on the defence before the trial resumed the next morning.

Superintendent Ryan gave evidence which does not need to be set out in detail but which, relevantly, indicated that in the drug trade:

(a)“cold” was a word sometimes used to describe methylamphetamine;
(b)“vitamins” might be used to refer to pills;
(c)the description of an item as “fine white” could be a reference to a drug, possibly heroin, cocaine or methylamphetamine, especially if used in conjunction with references to something being coarse; and
(d)money was often referred to as “paper” or “documents”, and amounts of money in abbreviated and often slightly coded terms; he gave as an example that a reference to $1,500 could be conveyed by a mention of 1.5.

Superintendent Ryan also explained a possible significance for a comment made during one of the phone calls (Call 2 at [14] above) that there was “nothing left on the plastic”; he said that adulterants sometimes added to drugs were more likely than the pure form of a drug to adhere to plastic wrapping. I interpreted this evidence to suggest that a substance none of which clung to its plastic wrapping was likely to be a purer form of the drug concerned.

Superintendent Ryan gave evidence that the “street level amount” is about 0.1 gm of methylamphetamine, which in 2007 would have sold for about $50, with one gram of methylamphetamine selling for about $380 on the street. He also indicated that, curiously, for quantities above one gram, methylamphetamine appeared to be sold in ounces (for instance, “an eight-ball”, is one-eighth of an ounce or 3.5 gm). He said that in 2007 an ounce of methylamphetamine would have sold for between $4,500 and $7,000, but he said he could not give an accurate indication of what five ounces of methylamphetamine would have been worth in the ACT in 2007. Superintendent Ryan was not cross-examined.

Croatian word for money

Ms Ferinac, the Croatian interpreter, gave evidence that “novac” was a Croatian word for money, and said that she would read the word “nvats” used in several of the text messages as intended to refer to money. In cross-examination she said that “nvats” was not a Croatian word.

Interpretation of phone calls and text messages

On the basis of the evidence set out above, I was satisfied of the following matters:

(a)That on 19 August 2007 Mr Klobucar had contacted a person going by the name Koome, to inquire about obtaining methylamphetamine (SMS 1).

(b)That in the afternoon of 20 August, Mr Klobucar called Koome to pursue the request for methylamphetamine, and was told that Koome would call him about this the next day (Call 1), and that Mr Klobucar told Koome that if the methylamphetamine was good, he would take five ounces of it.
(c)That just after 11.00 am the next day, Tuesday 21 August, Mr Klobucar again rang Koome (Call 2), who said he had taken five ounces and asked when it would suit Mr Klobucar to collect it, and that what he had obtained did not seem to be adulterated; that Mr Klobucar asked whether the item could be held until Friday, and Koome told him the item was only available that day; that Mr Klobucar said he would contact “his boy”, Mr Silkeci, to see if he could come after work that night, and that he would ring Koome back quickly.
(d)That within the next five minutes, Mr Klobucar sent three text messages to Mr Silkeci (SMSs 2-4), indicating that something had to be collected that night and couldn’t wait until Friday, that he would get the money ready, and that he had a break between 4.00 pm and 4.45 pm at which time he could give Mr Silkeci the money.
(e)That ten minutes later, Mr Klobucar telephoned Mr Silkeci (Call 3) and told him that it was crucial, “otherwise we’ll miss the boat for a long time”, and Mr Silkeci told Mr Klobucar he would finish work at 5.00 pm.

Mr Silkeci’s evidence

As well, Yaresul Silkeci gave evidence. Given the significance of his evidence, I set it out in full:

EXAMINATION-IN-CHIEF BY MR WILLIAMSON
...
Do you know the accused?---Yes, I do.
How do you know him?---He’s my brother-in-law.
How long have you known him for?---Seventeen years.
How would you describe your relationship with him?---Good.
Sir, I’m going to take you back to 21 August 2007. Did you go up to Sydney that day?---Sorry, what was that?
Did you go up to Sydney that day?---Yes, I did.
Why’d you go up to Sydney?---To pick up some drugs.
What type of drugs were you going to pick up?---Ice.
Did you in fact pick up those drugs?---Yes, I did.
Where’d you pick them up from in Sydney?---Pyrmont.
Around about what time did that happen?---I’m not sure. Around 8.30 or so.
How did you know where to go to pick those drugs up from?---I was given instructions to go to a certain place.
Who gave you those instructions?---Andrew.
Who’s Andrew, when you say Andrew?---Andrew Klobucar.
So you pointed to the accused?---Yes.
So you refer to him as Andrew?---Yes.
Do many people refer to him as Andrew?---Andrew, Andros.
So just to be clear, it’s your evidence that the accused told you where to go to pick up those drugs, is that correct?---That’s correct.
Did you in fact pick them up?---Yes, I did.
Around about what time was that?---The drugs?
Yes, what time did you pick them up?---Around 8, 8.30, around that time. I can’t really remember.
When they were given to you, do you remember how they were packaged?---I think it was in a sandwich bag.
Did you know any of the people that you bought the drugs off, or you got from Sydney?---No.
So had you ever met them before?---No.
You ever seen them before?---No.
Why did you go up to Sydney to get those drugs?---Because I was desperate for money.
Did someone ask you to do it?---Yes.
Who asked you to go up there?---Andros.
What exactly did he ask you to do?---Asked me to go for a drive to a certain place and pick up some drugs and bring back.
Was he going to do anything for you as a result of you doing that for him?---I was going - I was going to be given $500.
When did Mr Klobucar ask you to go up there to get those drugs?---When did he?
Yes?---On the day.
On the day. Earlier in the day or when in the day, do you remember?---In the afternoon.
How did he ask you to go up there? Was it in person or by some other means?---Via text.
Did you also have a conversation with him that day about going up to Sydney, a voice - not text message conversation, an actual phone conversation?---Yes, I did.
Now, had you discussed with …(inaudible)… what you were to do with the drugs once you’d picked them up in Sydney?---No, basically I was just told to pick it up, go home and just wait ‘til you hear.
Would you have gone to Sydney if Andros had not asked you to go up there?---No.
So you wouldn’t have gone. So him asking you to go is the only reason that you went up there?---Yes.
What did you think was going to happen with the drugs that you were collecting, once they got back to Canberra?---I don’t know. I don’t ask questions when I pick up something and drop it off.
How did you get the money to pay for the drugs?---I was given a - a package that was tightly sealed with $100 on top of it for myself.
Who gave you that package?---Andros.
When did he give you that package?---The day of the arrest.
Whereabouts were you when he gave you that package?---In Tuggeranong.
Did he give it to you in person?---Yes.
Whereabouts in Tuggeranong did you get the package from?‑‑‑Somewhere near Commonwealth Motors.
Was there anyone else with him when you got that package?---No.
What did you do when you got that package?---I took the package and I drove off, put some fuel in the car and drove off.
If the court pleases, I’m just going to play to the witness one of those recordings on the discs. ...
AUDIO PLAYBACK IN COURTROOM     [12.50 pm]
MR WILLIAMSON: Do you recognise any of the voices in that conversation?---Yes, I do.
Whose voices do you recognise?---Mine and Andros.
Yes, who made the call? You say you recognised two voices?---Yes.
Who was the person that made the call, do you remember?---Not really.
Do you need to hear it again?---Can we?
AUDIO PLAYBACK IN COURTROOM     [12.51 pm]
MR WILLIAMSON: Do you remember who started the call?---Andros.
Okay. You would have heard someone say, “Good on you, you picked the phone up”?---Yes.
Who said that? Is that you or Andros?---Be Andros.
Andros, okay. Could the witness be shown MFI C please, your Honour? Your Honour, I’ll return MFI A.
You’ll see on the side there, sir, there are some tabs?---Just inside here or ‑ - -
Yes?---Yes.
If you go to the first page that’s got a tab on it?---…(inaudible)…
Perhaps if you want to pass me the document, sir, and I’ll - now, if you ‑ what’s that page that’s open before you say?---CSN 1940, 1139 hours, 21 August 2007.
Okay, so I’ll get you to turn that page. I’ll get you to turn the next page. Around about halfway to two-thirds of the way down does it say “Text message”?---Yes, the message.
What’s it say?---”Bro, it’s urgent. You got the food? Have to get tonight.”
Have you ever seen that text message before? Not in that - not that document, but a text message that says those words?---I think - I think so.
Yes, where do you think you saw it or how do you remember it, if you can?---By - by phone, on my phone.
Okay. And who do you understand to have sent you that text message?‑‑‑I don’t know.
I’ll just have that - could I have that bundle back, please?
That last text message, what did you understand that to mean?---To go and pick up drugs.
I’ll show you - look at the document that’s been opened now. What does that say?---”CSN1942 1140 hours 21 August 2007.”
Could you turn that page and the one behind it?---Yes.
And turn that page as well. At about half to two thirds of the way down the page, does it say “Text message”?---Yes.
Yes, what’s it say?---”Ray it’s critical. Can’t wait till Friday. Go, will go, can’t hold. Text me, Ikin(?) Novats ready.”
Does that text message sound familiar to you?---Yes.
Why does it sound familiar to you?---It’s the message I received.
Who do you understand that you received that message from?---I couldn’t tell you, because by phone, you can talk to, you know who it is, but by text, it could be anyone.
What did you understand that message to mean?---Basically, it’s crucial, can’t wait till Friday. It’s saying “You’ll have to go, you need to go and pick up something in Ikin(?) Novats, ready.”
And if you could go to the final blue tab in that bundle, what does that page say?---”CSN1946 1143 hours 21 August 2007.”
So the same deal as before, if you could turn that page and the one behind it?---This one?
Yes. And does it say “Text message” somewhere on that page?---”Bro, what time do you finish work? I got break at 4 till 4.45. Can give Novats then.”
What did you understand that message to mean? Sorry, I’ll stop you there. Does that look familiar? Do you recognise that?---I recognise the text.
Okay, where from?---Off my phone.
What did you understand that text message to mean?---Basically, been asked what time I finish work. I basically replied I got break till 4, 4.45. And can give me the novats then.
What did you understand by novats to mean?---Well, novats is a term that’s obviously used as money in some language.
Did you do anything as a result of receiving that message?---What do you mean by just result?
Did it - once you received that message, did you do anything later in the day because you had received it?---Yes, I just went to meet up.
And who’d you meet up?---Andros.
So you met Andros because of that text message, is that correct?---M’mm.
...
MR WILLIAMSON: In August 2007, what type of car did you drive?---I was driving a Ford Falcon EB.
Was it a sedan or a ute?---Sedan.
Do you remember the registration number?---No.
Was it registered in your name or someone else’s?---It would have been either in my name or my wife’s name. I can’t really tell. It was a while ago.
What colour was it?---Sort of maroon kind of colour.
...
Were you driving that car when you picked up the - - -?---Yes.
- - - package?---Yes.
When I say the package, I mean the package from Sydney?---That’s correct.
And when you - you said earlier in your evidence that you met Andros earlier that day?---Yes.
Did you also drive that car at that point in time?---Yes.
So that was in Tuggeranong, I believe you said?---Yes.
Near Commonwealth Motors?---That’s correct.
So you drove that same red Falcon to that meeting as well, did

you?---Yes, I did.
Do you remember what Mr Klobucar was wearing when you met him near Commonwealth Motors?---No, I don’t.
...
MR WILLIAMSON: Mr Silkeci, I asked you before about your car?---Yes.
And you said it was registered either in your name or your wife’s name?---That’s correct.
What’s your wife’s name?---Anna.
And her last name?---Klobougar.
How do you spell that?---K-l-o-b-o-u-g-a-r.
And what’s her middle name?---Maria.
I’m just going to show you some footage, sir.
VIDEO PLAYBACK IN COURTROOM     [2.23 pm]
MR WILLIAMSON: Can you just pause it there?
Do you recognise that car that’s in shot? It looks like a red

marooney-coloured car?---Yes, that’s the car.
Which car?---My car.
Do you recognise the person that’s standing at the driver’s side

window?---Yes, Andros.
Just showing you this footage, does this make you recall a particular event?---Yes.
...
VIDEO PLAYBACK IN COURT     [2.24 pm]
MR WILLIAMSON: Do you recall what happened there?---I was given a package.
Now, I asked you before about a package that was given to you?---That’s correct.
And that was, you said that was the package you used to purchase the drugs in Sydney?---The contents of that package was used to purchase the drugs.
So the package you were given there is the package in turn - - -?---I handed over.
And where was this? Where did this occur? What’s depicted in this footage?---Sorry, what was that?
At what location did the events depicted in this footage occur?---In Tuggeranong.
Tuggeranong?---Yes.
Who was in the car, sir?---Myself.
Anyone else?---No.
And just finally, sir, in relation to the drugs that you did take back from Sydney, you were charged in relation to that, is that correct?---That’s correct.
And you went to court?---That’s correct.
...
MR WILLIAMSON: Mr - so when you went up to Sydney with the package that you say the accused gave you to get the drugs, did you think that was wrong, the wrong thing to be doing?---When you’re under the influence of drugs and have been under the influence of drugs for so long, you don’t know what you’re thinking at the time.
But did you think it was wrong to go up there and get drugs?---I was desperate. I needed the money.
...
CROSS-EXAMINATION BY MR GILL     [2.54 pm]
MR GILL: Yes, Mr Silkeci, at the start of your evidence you were asked some questions about your relationship with Andros Klobucar?---Yes.
You said that you had a good relationship with him?---That’s correct.
And that he was your brother-in-law?---Yes.
Does that mean you’re married to his sister?---That’s correct.
And about the duration of your relationship, did you meet him through your wife or did you already know him?---I met my wife not through Andrew, from where she used to work with me.
All right, so you met the wife - your wife before you met him?‑‑‑Absolutely, yes.
And then came to know him?---After we - we got together and, yes, we had a child and then I was introduced to the family.
Sure?---When I moved to Canberra.
Thank you, Mr Silkeci.
MR WILLIAMSON: There’s nothing arising, your Honour.

The offences

Did Mr Klobucar commit the procuring offence

For the purposes of determining whether Mr Klobucar committed the offence with which he has been charged, I shall refer to his offence as the procuring offence and describe it as the offence of procuring Mr Silkeci to commit the offence of trafficking in methylamphetamine created by s 603(7) of the Criminal Code (the trafficking offence). In fact the effect of s 45 of the Criminal Code is that if I find that Mr Klobucar did procure Mr Silkeci to commit the trafficking offence, he will be guilty of the offence created by s 603(7), that is, trafficking in a controlled drug other than cannabis.

Although Mr Klobucar’s offence is a form of the trafficking offence rather than a separate offence, it requires the prosecution to establish a different although overlapping set of facts from those needing to be proved in a prosecution for a primary or non-ancillary form of the offence, and raises some specific evidentiary issues.

In determining whether Mr Klobucar was guilty of the offence with which he has been charged, I will consider whether the prosecution has established beyond reasonable doubt the following elements:

(a)That Mr Klobucar’s conduct in fact procured Mr Silkeci to commit the trafficking offence (Criminal Code s 45(2)(a)).
(b)That when carrying out his conduct, Mr Klobucar intended it to procure Mr Silkeci to commit the trafficking offence (Criminal Code s 45(2)(b)).
(c)That Mr Silkeci committed the trafficking offence (Criminal Code s 45(3)); although s 45(3) strictly speaking clarifies that s 45(2)(a) requires the trafficking offence to have been committed rather than identifying a third element for the procuring offence, it is convenient to deal with the two aspects of s 45(2)(a) separately given that they relate to conduct by different people.

The Explanatory Memorandum for the Bill for the Criminal Code 2002 contained the following explanation of clause 45 (which became s 45 of the Criminal Code).

Clause 45 Complicity and Common Purpose
This clause provides that a person who aids, abets, counsels or procures the commission of an offence by someone else is taken to have committed the offence and is punishable as if the person in fact committed the offence (subclauses 45(1) and (7)). The Code retains the traditional formula of “aid, abet, counsel or procure” because despite some difficulties with those terms, the meaning of the words is well understood.

The Explanatory Memorandum for the Criminal Code Bill 1994 (Cth) said of the equivalent provision to clause 45:

The Code retains the traditional formula of “aid, abet, counsel or procure”. Despite some difficulties, the meaning of the words is well understood both in Griffith Codes (except for “abet” which is not used) and common law jurisdictions. The traditional formula is preferred to the Gibbs committee formula of being “knowingly involved” in the commission of an offence because the latter would add little in substance and is more open-ended.

The “Griffith Code” meaning of “procure” was considered in R v Georgiou (2002) 131 A Crim R 150 by the Queensland Court of Appeal (McPherson and Williams JJA and Atkinson J), which said at [79] that:

The words “counselled” and “procured” [in s 7(1)(d) of the Criminal Code 1899 (Qld), relevantly equivalent to s 45 of the ACT Criminal Code] are ordinary English words having their usual meaning.

The Macquarie Dictionary gives the following relevant meaning for “procure”:

2. to effect; cause; bring about, especially by unscrupulous or indirect means: to procure a person’s death.

Defence counsel said he did not wish to address me in response to the prosecutor’s identification of the evidence that Mr Klobucar’s actions procured Mr Silkeci’s conduct in relation to the drugs. There was also no attempt made to rebut the inference that Mr Klobucar had intended to procure Mr Silkeci’s conduct.

I am satisfied beyond reasonable doubt that Mr Klobucar intended his conduct to procure the trafficking offence. I make that finding on the basis of the evidence I have referred to above, which was largely unchallenged, including in particular:

(a)the evidence of the phone calls and text messages which I have interpreted as set out at [30] above; and
(b)Mr Silkeci’s evidence that he went to Sydney to collect the drugs because Mr Klobucar asked him to do so and offered him $500, and that he wouldn’t have done so except that Mr Klobucar asked him to do so and offered to pay him to do so.

Furthermore, if I find that Mr Silkeci did commit the trafficking offence, I would also be satisfied beyond reasonable doubt that Mr Klobucar’s conduct in fact procured the commission of that offence.

Did Mr Silkeci commit the trafficking offence?

The real issue in this trial is whether the prosecution has proved beyond reasonable doubt that Mr Silkeci in fact committed the trafficking offence.

The offence of trafficking arises under s 603(7) of the Criminal Code, which is set out in Appendix A to this judgment. Section 602 (also set out in Appendix A) relevantly identifies trafficking in a controlled drug as committed by a person who:

(c) transports the drug—
(i) with the intention of selling any of it; or
(ii) believing that someone else intends to sell any of it;

For the purpose of s 602, “sell” is defined in s 600 as including:

(a) barter or exchange; and
(b) give to someone in the belief that the person will provide property or services in return at a later time, whether by agreement or otherwise; and
(c) agree to sell.

The prosecutor opened his case on the basis that when Mr Silkeci transported the package of drugs to Canberra as requested by Mr Klobucar, he believed that Mr Klobucar intended to sell the drugs.

In his closing address, he argued in the alternative that there was evidence supporting an intention on Mr Silkeci’s part to “sell” the drugs to Mr Klobucar, in that he intended to give the package of drugs to Mr Klobucar and expected that Mr Klobucar would then pay him the $400 outstanding from the $500 Mr Silkeci had been promised for driving to Sydney, collecting the drugs and bringing them back.

Either of these states of mind (a belief that the drugs were to be sold, or an intention to sell them), if established, together with the undisputed evidence of Mr Silkeci’s actions, would have meant that Mr Silkeci had committed the trafficking offence, and would in turn have established the outstanding element of the offence with which Mr Klobucar was charged.

Defence counsel said that the necessary state of mind on Mr Silkeci’s part had not and could not be established. He identified several grounds for his submission.

Mr Silkeci’s state of mind

As to whether Mr Silkeci himself had intended to “sell” the package to Mr Klobucar, defence counsel said:

(a)that the fact that Mr Silkeci had been given $100 and, by implication, expected to receive another $400 for the pick up and delivery of the package from Sydney did not mean that Mr Silkeci intended to “sell” the package to Mr Klobucar when he returned from Sydney; Mr Silkeci was selling transportation services, rather than drugs in which he had no proprietary interest; and

(b)that if in fact Mr Silkeci’s intention to deliver the package and receive payment for the delivery amounted to an intention to “sell” the drugs in the package to Mr Klobucar, then s 605 of the Criminal Code negated the commission of the procuring offence by Mr Klobucar.

Counsel also argued that the prosecutor should not be permitted to open on one version of the facts and close on another, because the defence would thereby have been prejudiced in its conduct of the case.

As to whether Mr Silkeci believed the drugs were intended for sale, counsel said Mr Silkeci had given direct evidence that he did not know what was to happen to the drugs, and that in the absence of evidence that Mr Silkeci knew what quantity of drugs was in the package, there was no basis on which I could be satisfied that Mr Silkeci believed that Mr Klobucar intended to sell any of the drugs (as distinct from, for instance, intending to keep them entirely for personal use).

It is convenient to deal first with the issues arising from the prosecutor’s late suggestion that Mr Silkeci intended to sell the drugs to Mr Klobucar.

Was Mr Silkeci intending to “sell” the package of drugs to Mr Klobucar?

The prosecutor submitted:

(a)that Mr Silkeci transported the package of drugs from Sydney to the ACT with the intention of selling it, in that Mr Silkeci believed that when the package was delivered in Canberra, Mr Klobucar would provide him with property, being the $400 outstanding of the $500 he had been promised for going to Sydney and bringing back the package; and
(b)that this brought Mr Silkeci’s actions within paragraph (b) of the definition of “sell” in s 602 of the Criminal Code (at [44] above).

The definition of “sell” in s 602 is intended to expand the meaning of the word beyond the simple meaning of giving someone something in return for money, to ensure that a person cannot avoid liability for drug-trafficking simply by, for instance, accepting payment for drugs in valuable property or services rather than cash. It would however do unacceptable violence to the very concept of selling to suggest that anyone who happens to be involved in the transportation or delivery of an item and “gives” the item to another person in the expectation of money in return for the transportation or delivery is “selling” the item, despite having no real or purported proprietorial or other interest that would enable them to transfer any kind of proprietorial or similar interest to the recipient. Such an approach would extend “selling” to cover, for instance, an Australia Post courier who delivers a parcel sent through the post, or a concierge who carries a suitcase out to a taxi in the expectation of a tip from the suitcase’s owner, and would make nonsense of the concept. The prosecutor did not offer any support in the authorities for the interpretation he proposed.

The Revised Explanatory Statement for the Criminal Code (Serious Drug Offences) Amendment Bill 2004 (ACT) contained the following explanation of the definition of “sell” in proposed section 600 to be inserted in the Criminal Code:

Sell – This is one of the more important definitions in the Bill because of the extensive use of the term “sell” (or sale etc) throughout the Bill. In addition to the usual meaning of sell, the term also covers barter or exchange (whether for goods or services); an agreement to sell and giving controlled drugs etc to another believing that he or she will provide property or services in return at a later time, whether by agreement or otherwise. An agreement to sell (paragraph (c) of the definition) can encompass a simple handshake to clinch the deal, even if no drugs are present at the point of sale and no particular parcel of drugs has been designated or appropriated to the sale or agreement to sell. Also liability will be incurred even though the accused is mistaken about the nature of the substance sold, or mistaken in the expectation that supplies could be obtained and the transaction will amount to a sale even though the vendor cannot satisfy the buyer’s expectations.

There is nothing in this explanation that supports the prosecutor’s extended meaning of “sell”.

I also note that Mr Silkeci had come into possession of the package of drugs by handing over money (or possibly some other consideration) provided by Mr Klobucar; it would be nonsensical to suggest that Mr Silkeci could “sell” the package to the person on whose behalf he had already “bought” it.

If Mr Silkeci was selling anything in his dealings with Mr Klobucar, he was, as defence counsel submitted, selling courier services, not drugs.

If Mr Silkeci intended to “sell” the drugs to Mr Klobucar, did s 605 protect Mr Klobucar?

Defence counsel argued that, if I found that Mr Silkeci had intended to “sell” the package of drugs to Mr Klobucar, then Mr Klobucar could not in any case be found guilty on the current charge because of the operation of s 605 of the Criminal Code.

Section 605 of the Criminal Code as in force on 21 August 2007 is set out in Appendix A. Relevantly it provided that:

A person does not commit any of the following offences only because the person bought or intended to buy a controlled drug from someone else:
(a)an offence under section 45 (Complicity and common purpose);

That is, a person who buys drugs from a supplier is not liable for having procured the supplier to commit the offence of selling the drugs simply because the customer sought to buy the drugs.

Even if Mr Silkeci’s state of mind could be described as intending to “sell” the package of drugs to Mr Klobucar because of the extended definition of “sell”, there is no matching extended definition of “buy” in this context, and no basis for finding that Mr Klobucar intended to “buy” the drugs from Mr Silkeci or that he would have recognised any capacity in Mr Silkeci to “sell” them to him.

If Mr Silkeci’s trafficking in drugs could only be made out by relying on an intention on Mr Silkeci’s part to “sell” the drugs to Mr Klobucar, then under s 605, Mr Silkeci’s intended sale to Mr Klobucar might have to be excluded in considering whether there was evidence establishing as required by s 45(2)(a) that Mr Klobucar’s conduct had procured the conduct involved in the commission of the trafficking offence.

However, establishing Mr Silkeci’s commission of the trafficking offence (as required by s 45(3)) by reference to an intention by Mr Silkeci to “sell” the drugs would not in my view, in the absence of an extended definition of “buy”, require the inferring of a matching intention by Mr Klobucar to “buy” them for the purposes of s 605; accordingly, in the absence of any evidence of an actual intention of that kind on Mr Klobucar’s part, s 605 would not necessarily protect Mr Klobucar against liability for a procuring charge if the actual procuring could be established, for instance, by reference to Mr Klobucar’s involvement in arranging the transportation of the drugs by Mr Silkeci.

Significance of prosecution opening and closing with different cases

As already noted, the case put by the prosecutor in opening was that Mr Silkeci had transported the package of drugs believing that someone else intended to sell any of the drugs (s 602(c)(ii) of the Criminal Code). Having run into difficulties in establishing such a belief from direct evidence, the prosecutor closed his case with a reference to an alternative basis for finding that Mr Silkeci had trafficked in the drugs, being that Mr Silkeci had transported the drugs intending to sell them himself (by handing them over to Mr Klobucar in the expectation of receiving $400).

If I found that an offence by Mr Klobucar could be established in reliance on Mr Silkeci’s intention to “sell” the package of drugs to Mr Klobucar for the outstanding $400 of the $500 he had been promised, then I would have had to consider whether the prosecutor should have been allowed to close his case in reliance on alternative versions of the trafficking offence despite having opened on one version of the offence only.

In support of the submission that the prosecutor should not be permitted to raise alternative ground for making out the offence, defence counsel referred to R v Tran (2000) 118 A Crim R 218 (Tran) in which the Federal Court (Black CJ, Weinberg and Kenny JJ) said at [148]:

Where the prosecutor has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: Carr (1988) 165 CLR 314; 35 A Crim R 387.

I note that Carr, relied on in support of this statement, was a case about the dangers of convicting on an uncorroborated confession, and as far as I can see contains only the following vaguely relevant comment, made by Brennan J at 329 and not referred to by any other member of the High Court:

That concern [about the weight accorded to the uncorroborated confession] is heightened by something which occurred during the Crown Prosecutor’s opening of the case. As the summing up reveals, the Crown Prosecutor had said that “he was going to call a witness who would say that the accused said something to him some three or four weeks prior to the day of the robbery indicating an intention to rob these very premises”. The learned trial judge directed the jury that they “must totally disregard that ... There was no such witness called. The suggestion is quite unsubstantiated”. Nevertheless, the opening of the evidence must have enhanced the possibility that the jury would find that the alleged confession was made: the opening statement furnished, however inadmissibly, a suggestion that there was something independent of the police evidence to connect the applicant with the robbery.

However, despite its somewhat shaky provenance, the proposition put in Tran was adopted by the NSW Court of Criminal Appeal in Robinson v The Queen (2006) 162 A Crim R 88 at [142] (Johnson J, with whom Spigelman CJ and Simpson J agreed); the preceding paragraph is also useful:

141.Thirdly, the obligation of the Crown Prosecutor in opening the Crown case is not merely to outline the facts which the Crown proposes to establish in evidence, but to indicate, in conceptual terms, the nature of the Crown case to assist the trial judge, counsel for the accused and the jury: R v Tangye (1997) 92 A Crim R 545 at 556. Although there are no formal pleadings as such in criminal trials, the Crown is required to formulate the basis upon which it puts its case against the accused and essentially to adhere to that case: Tran v The Queen (2000) 105 FCR 182; 118 A Crim R 218 at [133].
142.If there is to be any change in the nature of the Crown case after the case was opened, it is vital that it be identified with some precision in the absence of the jury before counsel commence their final addresses: Tangye at 556. Where the prosecutor has nailed the Crown’s colours to one version of events in opening, and has been permitted to depart from that position during the course of the case, the prejudice may, depending on the particular circumstances of the case, be so great as to warrant the conviction being quashed: Tran at [148].

As already mentioned, Mr Silkeci’s commission of the trafficking offence was the only issue in dispute in this trial.

There was nothing in Mr Silkeci’s evidence in chief that indicated any specific intention by Mr Silkeci to “sell” the drugs to Mr Klobucar, and there was no hint to this effect from the DPP until his closing remarks. As matters stood at the end of Mr Silkeci’s evidence in chief, there would have been no need for defence counsel to try to address in cross-examination the possibility that Mr Silkeci intended to “sell” the drugs to Mr Klobucar. By submitting that his cross-examination of Mr Silkeci had in fact been constrained by what was relevant having regard to the terms of the DPP opening (being that Mr Silkeci believed that the drugs he was transporting were intended for sale), defence counsel implied that he would or could have cross-examined differently if the prosecutor had opened differently.

The prosecutor argued in support of being permitted to rely on the alternative case that the factual matrix on which he relied had not changed, and that the change in his case was only minor. The prosecutor may have been correct in submitting that, if s 602(c)(i) (an intention to sell) could have been made out in the factual circumstances of this case, then it would have been made out by the evidence he had in fact presented (that is, he would not have sought to provide further evidence if he had raised his alternative case at an earlier stage). However, that does not mean that the only cross-examination necessary or possible on the alternative case was the same as would have been required to meet the DPP’s opening case. To the extent that defence counsel might have cross-examined Mr Silkeci differently or more extensively if he had been trying to meet the DPP’s alternative case, Mr Klobucar could have been disadvantaged by the late identification of that case.

If I had considered that the s 602(c)(i) meaning of trafficking could be applicable in this case, I would have felt the need to inquire more closely into the prejudice claimed by defence counsel from the extension and re-framing of the prosecution case at the last minute, and how that prejudice might have been addressed.

Defence counsel submitted that I should deal with any prejudice arising from the extension of the prosecution case by simply ignoring the prosecutor’s alternative basis for a finding of guilt and deciding the case solely on the basis of the DPP’s opening and any evidence supporting the case on which the DPP opened. In the event, this is what I have done, although I have done that because I have concluded that there is no evidence of any intention on Mr Silkeci’s part to “sell” the package of drugs to Mr Klobucar, not because I have been convinced by defence counsel’s general claims of prejudice.

Did Mr Silkeci believe the drugs were intended for sale?

The prosecutor made several unsuccessful attempts to put into evidence material arising from, or relating to, proceedings concerning Mr Silkeci’s own involvement in the collection and transportation of the drugs. The DPP’s intention to bolster the case that Mr Silkeci had committed the trafficking offence by leading evidence of what had happened in separate court proceedings against Mr Silkeci arising out of the transporting of the drugs from Sydney may have explained why the other evidence led from Mr Silkeci in relation to the trafficking offence was less comprehensive than it might have been.

Evidence of conviction

Section 178 of the Evidence Act permits evidence of a conviction for an offence, and of the particular offence in respect of which the conviction was recorded, to be given by certificate signed by an appropriate officer of the court concerned. However, s 91 of that Act (referred to in a note to s 178) is as follows:

91 Exclusion of evidence of judgments and convictions
(1)Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in that proceeding.
(2)Evidence that, under this Part, is not admissible to prove the existence of a fact may not be used to prove that fact even if it is relevant for another purpose.

Note: Section 178 (Convictions, acquittals and other judicial proceedings) provides for certificate evidence of decisions.

Section 45(6) of the Criminal Code says:

A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the person who committed the offence is not prosecuted or found guilty.

Section 45(6) makes it clear that whether a person has committed an offence for the purposes of s 45 is not dependent on whether he or she has been found guilty of, or even charged with, the offence. That fact, together with the exclusion of evidence of a conviction for the offence concerned, suggests that the commission of the offence said to have been procured must be established by evidence directed to the commission of that offence, not by evidence of events in or outcomes of other court proceedings.

The fundamental fact in issue in any prosecution of Mr Silkeci for the trafficking offence would have been whether Mr Silkeci had in fact committed the trafficking offence (that is, whether he had engaged in the necessary conduct with the necessary state of mind). That was also the key fact in issue in this trial. What was not in issue in this trial was whether Mr Silkeci had been charged with, or found guilty or convicted of, trafficking. Thus, evidence that Mr Silkeci had in earlier proceedings been convicted of the trafficking offence was under s 91 of the Evidence Act not admissible to prove whether Mr Silkeci had in fact committed the trafficking offence.

The exclusion of evidence of a conviction for the primary offence in a trial for a “complicity and common purpose” offence under s 45 of the Criminal Code may look like a curious outcome at first glance. However, it needs to be remembered that:

(a)Mr Klobucar would not have been represented at any trial of Mr Silkeci, and would have had no opportunity to cross-examine any of the witnesses or challenge any other aspect of the proceedings; and
(b)Mr Klobucar would equally have had no opportunity to challenge any plea of guilty entered by Mr Silkeci or to explore the reasons for the entry of that plea.

In those circumstances, it would be unfair to admit evidence of such a conviction against a third party such as Mr Klobucar.

The fact that a statutory presumption as to intent is only available against a defendant and not against a third party (at [91] to [94] below) is another good reason for excluding evidence of convictions in other proceedings.

“Opinion” evidence of whether offence committed

The prosecutor also tried in reliance on s 78 of the Evidence Act to establish Mr Silkeci’s commission of the trafficking offence by leading evidence of Mr Silkeci’s opinion about whether he had committed the offence of drug trafficking. Section 78 provides an exception to the opinion rule (which is set out in s 76 of the Evidence Act and excludes the use of opinion evidence to prove the existence of a fact whose existence is the subject of the opinion), and is as follows:

78       Exception: lay opinions
The opinion rule does not apply to evidence of an opinion expressed by a person if:
(a)    the opinion is based on what the person saw, heard or otherwise perceived about a matter or event; and
(b)    evidence of the opinion is necessary to obtain an adequate account or understanding of the person’s perception of the matter or event.

That is, the prosecutor wanted Mr Silkeci’s opinion that he had committed the offence of drug trafficking, if such had been offered, admitted as evidence that he had in fact committed that offence.

In Lithgow City Council v Jackson (2011) 244 CLR 352 at [43], French CJ, Heydon and Bell JJ said of s 78 of the Evidence Act 1995 (NSW):

Ordinary meaning of “perceived”. The approach of Kirby J corresponds with one of the ordinary meanings of “perceive” – to observe by one of the five senses of sight, hearing, smell, taste or touch. That is the first of the two meanings which the Macquarie Dictionary gives for “perceive”:
“1. to gain knowledge of through one of the senses; discover by seeing, hearing, etc. 2. to apprehend with the mind; understand.”

It is also the third meaning of “perceive” given by the Oxford English Dictionary:
“To apprehend (an external object) through one of the senses (esp sight); to become aware of by sight, hearing, or other sense; to observe; ‘to discover by some sensible effects’.”

The view that “perceived” is used in s 78(a) in the first Macquarie and the third Oxford meanings is supported by the use of the words “saw, heard or otherwise” before “perceived”. Kirby J’s approach is also supported by the fact that the expression “saw, heard or otherwise perceived” appears in s 69(5), as part of a definition of “personal knowledge of a fact”: the meaning there plainly corresponds with the first Macquarie and the third Oxford meanings. For what it is worth, that construction of s 78(a) appears to correspond with the intention of the Australian Law Reform Commission, which spoke of “the witness’ personal perception of a matter or event” and frequently used words to that effect. (citations omitted)

The other members of the High Court in that case (Gummow and Crennan JJ) agreed with that construction of s 78.

That is, “perception” and “perceived” are used in s 78 to refer to matters “perceived” using one’s senses, rather than one’s capacity for rational thought or legal analysis (s 78(a)).

If the “matter or event” was Mr Silkeci’s actions in driving to Sydney, exchanging a package with unknown contents for a package containing drugs, bringing the drug package back to Canberra and expecting recompense in the amount of a total of $500 for doing so, I did not need Mr Silkeci’s expression of any “opinion” about the legal significance of what he observed or perceived using his various senses in order to obtain an adequate understanding of the evidence he gave of his perceptions of that matter or event (s 78(b)).

Furthermore, in my view there would have been no basis for accepting Mr Silkeci’s opinion about whether he had committed an offence as an alternative to Mr Silkeci’s direct evidence about whether he had the state of mind necessary to establish the offence.

Accordingly, I was satisfied that s 78 of the Evidence Act did not permit Mr Silkeci to give evidence of his opinion about whether he had committed the trafficking offence, and disallowed counsel’s questions.

Mr Silkeci’s beliefs about the transaction

Presumption arising from traffickable quantity not applicable

Section 604 of the Criminal Code is set out at Appendix A. Relevantly, it provides that:

(1) If, in a prosecution for an offence against section 603, it is proved that the defendant—
...
(b) transported a trafficable quantity of a controlled drug; or
...

it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.

As at 21 August 2007, the traffickable quantity of methylamphetamine was 2 gm (Criminal Code Regulations 2005 (ACT), reg 8(1)(a) and Schedule 1).

Under s 604, in a prosecution of Mr Silkeci, the evidence that Mr Silkeci had transported the drugs from Sydney, and that the quantity of drugs was well in excess of the trafficable quantity, would be sufficient in the absence of proof to the contrary to establish also that Mr Silkeci had the intention or belief about the sale of the drugs required to make out the offence of trafficking.

However, the current trial is not a prosecution of Mr Silkeci, and Mr Silkeci is not the defendant. Section s 604 does not in my view permit reliance in this trial on any presumption about Mr Silkeci’s intention or belief arising from the quantity of drugs he transported. Mr Silkeci’s intention or belief needs to be established by the evidence before me without the help of s 604.

Evidence of Mr Silkeci’s knowledge about the drugs

The package found by police in Mr Silkeci’s car on his return to the ACT, as shown in a photograph included in Exhibit D and as reported by Detective Sergeant Scott Curtis, was tightly wrapped in newspaper. Exhibit D also included photographs of the package when it was opened at ACTGAL, which showed that inside several layers of newspaper was a clear plastic bag (described in the ACTGAL certificate as a snap lock bag) roughly 15 cm square; there was no scale provided in the photographs, but I have estimated the size of the bag by reference to the size of the presumably adult hands shown holding it in some of the photographs. That bag was more than half full of a white powdery or crystalline substance.

The ACTGAL certificate indicated that the bag contained just over 144 gm (around five ounces) of the white powder being 85.47 gm pure weight of methylamphetamine; Superintendent Ryan’s evidence at [28] above indicates that the white powder could have been sold as over 850 individual sales worth around $50 each.

Mr Silkeci’s evidence was that he was given the money to be exchanged for the drugs in a “tightly sealed” package with $100 on top of it for himself. There was no basis in the evidence for a finding that Mr Silkeci knew, even roughly, how much money was in the package given to him by Mr Klobucar.

Mr Silkeci gave the following answers to the prosecutor’s questions about whether he thought he was acting wrongly in going to Sydney to get the drugs:

MR WILLIAMSON: Mr - so when you went up to Sydney with the package that you say the accused gave you to get the drugs, did you think that was wrong, the wrong thing to be doing?---When you’re under the influence of drugs and have been under the influence of drugs for so long, you don’t know what you’re thinking at the time.

By that evidence Mr Silkeci identified himself as a long-term drug user, although without indicating which particular drugs he had used. Mr Silkeci also gave the following evidence:

What did you think was going to happen with the drugs that you were collecting, once they got back to Canberra?---I don’t know. I don’t ask questions when I pick up something and drop it off.

Mr Silkeci was asked about the package he was given in Sydney:

When they were given to you, do you remember how they were packaged?---I think it was in a sandwich bag.

The drugs when seized by police were, as already noted, wrapped in several layers of newspaper. The bag shown in the Exhibit D photographs that was inside the newspaper (described at [95] above) would have been of a size suitable for individual sandwiches made of what might be described as supermarket sliced bread, and might well have been described as a sandwich bag.

Mr Silkeci’s memory that the drugs were packaged in a sandwich bag satisfies me that at some stage before the package was seized by police, Mr Silkeci had become aware that inside the newspaper wrapping was a clear plastic “sandwich bag”. Given that the bag was a clear plastic one, and that it would not have been identifiable as a “sandwich bag” unless Mr Silkeci had seen enough of the bag to estimate its size, I am also satisfied that he was aware that the bag contained a substantial quantity of white powder. Furthermore, Mr Silkeci understood that his actions in collecting the drugs in Sydney and driving them straight back to Canberra were worth $500 to Mr Klobucar.

Despite Mr Silkeci’s evidence that he didn’t know what was going to happen to the drugs once they got back to Canberra and that he didn’t ask questions when he picked things up and dropped them off, I am satisfied beyond reasonable doubt that Mr Silkeci believed that at least some part of the substantial quantity of drugs he was transporting was intended for sale rather than for Mr Klobucar’s own personal use. I am satisfied of that because I consider that it is the only rational inference from the evidence I have outlined about Mr Silkeci’s long-term drug use and what he knew about what was in the package he was bringing to Canberra. Indeed defence counsel conceded in closing submissions that if Mr Silkeci had known how much money he had handed over or what quantity of drugs he had received in return, an inference could have been drawn that Mr Silkeci believed the drugs were intended for sale.

I note in relation to this finding that during closing submissions, the prosecutor conceded that Mr Silkeci had not given evidence of having opened the package of drugs. However, the evidence I have relied on was not evidence of Mr Silkeci opening the package but evidence of Mr Silkeci’s knowledge of how the drugs were packaged, which Mr Silkeci could have obtained from opening the package during his trip from Sydney or alternatively, for instance, from having witnessed the package being wrapped before it was handed over to him.

Conclusion – Mr Silkeci committed the trafficking offence

At Appendix B are set out directions I have given myself about circumstantial evidence and inferences. I supplement them at this point with the following comments made by Gummow, Hayne and Crennan JJ in R v Hillier (2007) 228 CLR 618 at [46]:

The case against Mr Hillier was a circumstantial case. It has often been said that a jury cannot be satisfied beyond reasonable doubt on circumstantial evidence unless no other explanation than guilt is reasonably compatible with the circumstances. It is of critical importance to recognise, however, that in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.

I cannot see that the evidence admitted in this trial and unchallenged in cross-examination by defence counsel leaves reasonably open an inference consistent with Mr Silkeci’s innocence.

The undisputed evidence that Mr Silkeci had knowingly transported the package of drugs from Sydney to the ACT with the intention of handing it over to Mr Klobucar, together with the inference I have drawn that Mr Silkeci knew roughly the volume of drugs he was transporting and therefore believed that at least some of the drugs were intended for sale rather than for Mr Klobucar’s personal use, satisfies me beyond reasonable doubt that Mr Silkeci committed the trafficking offence as defined in s 602(c)(ii) of the Criminal Code.

Conclusion – Mr Klobucar committed the procuring offence

Having concluded that Mr Silkeci committed the trafficking offence, I cannot see that the evidence admitted in this trial and unchallenged in cross-examination by defence counsel leaves reasonably open an inference consistent with Mr Klobucar’s innocence.

Accordingly, I am satisfied beyond reasonable doubt that:

(a)Mr Klobucar intended his conduct to procure the commission of the trafficking offence by Mr Silkeci (at [40] above); and
(b)Mr Silkeci committed the trafficking offence (at [107] above); and
(c)Mr Klobucar’s conduct did in fact procure the commission of the trafficking offence by Mr Silkeci (at [41] above).

Orders

There will be a verdict of guilty on the charge against Mr Klobucar of procuring Mr Silkeci to traffic in methylamphetamine.

I certify that the preceding one hundred and ten (110) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate: Sameena Ahmad
Date: 18 June 2013

Counsel for the Crown:	Mr A Williamson
Solicitor for the Crown:	ACT Director of Public Prosecutions
Counsel for the Defendant:	Mr S Gill
Solicitor for the Defendant:	Kamy Saeedi Lawyers
Date of hearing:	30, 31 January 2012, 1 February 2012
Date of judgment:	18 June 2013

Appendix A – Relevant legislation as in force 21 August 2007

Criminal Code 2002 (ACT)

Complicity and common purpose
(1)A person is taken to have committed an offence if the person aids, abets, counsels or procures the commission of the offence by someone else.
(2)However, the person commits the offence because of this section only if—
(a)the person’s conduct in fact aids, abets, counsels or procures the commission of the offence by the other person; and
(b)when carrying out the conduct, the person either—
(i)intends the conduct to aid, abet, counsel or procure the commission of any offence (including its fault elements) of the type committed by the other person; or
(ii)intends the conduct to aid, abet, counsel or procure the commission of an offence by the other person and is reckless about the commission of the offence (including its fault elements) in fact committed by the other person.
(3)To remove any doubt, the person is taken to have committed the offence only if the other person commits the offence.
(4)Despite subsection (2), any special liability provisions that apply to an offence apply also to the offence of aiding, abetting, counselling or procuring the commission of the offence.
(5)A person must not be found guilty of aiding, abetting, counselling or procuring the commission of an offence if, before the offence was committed, the person—
(a)ended his or her involvement; and
(b)took all reasonable steps to prevent the commission of the offence.
(6)A person may be found guilty of aiding, abetting, counselling or procuring the commission of an offence even if the person who committed the offence is not prosecuted or found guilty.
(7)To remove any doubt, if a person is taken to have committed an offence because of this section, the offence is punishable as if, apart from the operation of this section, the person had committed the offence.
(8) If the trier of fact is satisfied beyond reasonable doubt that a defendant committed an offence because of this section or otherwise than because of this section but cannot decide which, the trier of fact may nevertheless find the defendant guilty of the offence.

Meaning of trafficking
For this chapter, a person traffics in a controlled drug if the person—
(a) sells the drug; or
(b) prepares the drug for supply—
(i) with the intention of selling any of it; or
(ii) believing that someone else intends to sell any of it; or
(c) transports the drug—
(i) with the intention of selling any of it; or
(ii) believing that someone else intends to sell any of it; or
(d) guards or conceals the drug with the intention of—
(i) selling any of it; or
(ii) helping someone else to sell any of it; or
(e) possesses the drug with the intention of selling any of it.
Trafficking in controlled drug
...
(7)A person commits an offence if the person traffics in a controlled drug other than cannabis.
Maximum penalty: 1 000 penalty units, imprisonment for 10 years or both.
Trafficking offence—presumption if trafficable quantity possessed etc
(1) If, in a prosecution for an offence against section 603, it is proved that the defendant—
(a) prepared a trafficable quantity of a controlled drug for supply; or
(b) transported a trafficable quantity of a controlled drug; or
(c) guarded or concealed a trafficable quantity of a controlled drug; or
(d) possessed a trafficable quantity of a controlled drug;
it is presumed, unless the contrary is proved, that the defendant had the intention or belief about the sale of the drug required for the offence.
Note A defendant bears a legal burden of proving that the defendant did not have the intention or belief mentioned in this subsection (see s 59(c)).
Complicity, incitement and conspiracy offences do not apply to buyers of drugs
A person does not commit any of the following offences only because the person bought or intended to buy a controlled drug from someone else:
(a) an offence under section 45 (Complicity and common purpose);
(b) an offence against section 47 (Incitement);
(c) an offence against section 48 (Conspiracy).
Note For an additional offence relating to possessing controlled drugs, see the Drugs of Dependence Act 1989, pt 10.

Appendix B – Directions

Part 1—General directions for judge-alone trial

The general directions that I gave myself for the purposes of Mr Klobucar’s trial are set out below.
The prosecution has brought this charge and the prosecution bears the burden of proving it. Guilt must be proven. The accused does not have to prove innocence. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish his innocence. He is entitled to be presumed innocent of any charge until his guilt has been proven to the standard of proof that the law requires, namely beyond reasonable doubt. To prove guilt, the burden of proof rests upon the prosecution to prove each and every element or ingredient of the offence charged beyond reasonable doubt.
It is not enough for the prosecution to persuade me that the accused is probably guilty or even that he is very likely guilty. On the other hand, it is virtually impossible to prove anything to an absolute certainty when dealing with the reconstruction of past events, and the prosecution does not have to do so.
If the accused offers or suggests an explanation which is consistent with his innocence, he is not required to prove that explanation. It is for the prosecution to disprove the explanation, or show that it is irrelevant; if the prosecution does not do so, the prosecution has not proved its case to the required standard of proof.
In deciding what evidence I accept and what evidence I reject, I may take account of all manner of things, including what a witness had to say; the manner in which the witness said it; and the general impression which the witness made upon me when giving evidence. I am not obliged to accept the whole of a witness’s evidence. I may, if I think fit, accept part and reject part of the same witness’s evidence.

Part 2 – Specific directions: circumstantial cases and inferences

The prosecution’s case relies upon evidence of basic facts from which I am asked to infer or conclude that further facts exist, specifically in relation to the states of mind of the accused and Mr Silkeci.
Because the onus of proof is on the prosecution to prove its case beyond reasonable doubt as to every essential element or ingredient of the charge, any such inference or conclusion from basic facts relied on by the prosecution must be a conclusion reached by me beyond reasonable doubt, having taken into consideration all the evidence before me and the submissions of counsel.
Furthermore, I must not draw any inference from the direct evidence unless it is the only rational inference in the circumstances, and I must not find the accused guilty unless the circumstances exclude any reasonable hypothesis consistent with the accused’s innocence.