R v Antic

Case [2019] QCA 203

SUPREME COURT OF QUEENSLAND

CITATION:

R v Antic [2019] QCA 203

PARTIES:

R
v
ANTIC, Jordan
(appellant)

FILE NO/S:

CA No 260 of 2018
SC No 1372 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Appeal against Conviction

ORIGINATING COURT:

Supreme Court at Brisbane – Date of Conviction: 21 September 2018 (Bowskill J)

DELIVERED ON:

4 October 2019

DELIVERED AT:

Brisbane

HEARING DATE:

13 May 2019

JUDGES:

Gotterson and McMurdo JJA and Mullins J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was found guilty of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely cocaine – where it was alleged that the appellant had entered an agreement to commit the offence – where the Crown case against the appellant was circumstantial and relied upon the testimony of numerous Australian Federal Police officers involved in the surveillance, arrests and searches, as well as surveillance footage, telephone records, maps and photographs – where the appellant contended on appeal that it was reasonably open to infer from the evidence that his discussions did not extend to entering an agreement to take possession of drugs – where the appellant also contended that the Crown case was deficient because there was no proof of any conduct that went beyond mere preparation to commit the offence – whether it was reasonably open to be satisfied that the appellant had agreed to commit the offence of possession of unlawfully imported border controlled drugs – whether there was conduct by either party to the agreement that was capable of being characterised as being beyond mere preparation for the commission of the possession offence

CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – PARTICULAR CASES – where the appellant was charged with an offence of attempt under s 11 Criminal Code Act 1995 (Cth) – where the appellant contended on appeal that s 11.1(2) Criminal Code Act 1995 (Cth) is a physical element of the offence of attempting to commit a substantive offence – where the appellant contended that the jury should have been directed of the need to be satisfied beyond reasonable doubt that the conduct of the person doing the acts which constituted the physical element of the offence of attempted possession was not merely preparatory to the commission of the substantive offence and that the person who did those acts intended that they would be more than merely preparatory to the commission of the substantive offence – whether s 11.1(2) Criminal Code Act 1995 (Cth) creates a separate element for the attempt offence – whether the jury were properly directed as to the elements of the attempt offence

CRIMINAL LAW – APPEAL AND NEW TRIAL – MISCARRIAGE OF JUSTICE – PARTICULAR CIRCUMSTANCES NOT AMOUNTING TO MISCARRIAGE – MISDIRECTION OR NON-DIRECTION – where the appellant was charged with an offence of attempt under s 11

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Details
AGLC
R v Antic [2019] QCA 203
Case
[2019] QCA 203
Decision Date

CaseChat Overview and Summary

In the case of R v Antic, the appellant was found guilty of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely cocaine. The appellant appealed against his conviction, contending that it was reasonably open to infer from the evidence that his discussions did not extend to entering an agreement to take possession of drugs. Additionally, the appellant argued that the Crown case was deficient because there was no proof of any conduct that went beyond mere preparation to commit the offence. The court was required to determine whether it was reasonably open to be satisfied that the appellant had agreed to commit the offence of possession of unlawfully imported border controlled drugs and whether there was conduct by either party to the agreement that was capable of being characterised as being beyond mere preparation for the commission of the possession offence.

The court held that the appeal against conviction should be dismissed. The court found that it was reasonably open to be satisfied that the appellant had agreed to commit the offence of possession of unlawfully imported border controlled drugs. The court also held that there was conduct by either party to the agreement that was capable of being characterised as being beyond mere preparation for the commission of the possession offence. The court found that the jury had been properly directed as to the elements of the attempt offence, and that the omission of express words in the summing up referring to the requirement in s 11.1(2) Criminal Code Act 1995 (Cth) did not result in a miscarriage of justice.

The court dismissed the appeal against conviction and sentence, finding that the verdict was not unreasonable or incapable of being supported by the evidence. The appellant's appeal against his conviction was dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

However, for the appellant to have committed the attempt offence, it was necessary that the conduct attributed to him have been more than merely preparatory to the commission of the offence. Whether it was or not is a question of fact: s 11.1(2).The Crown case and evidence led in it The Crown case against the appellant was a circumstantial one. It was therefore necessary for the Crown to exclude all reasonable hypotheses consistent with innocence. Whether it had done so or not was to be determined by considering and weighing all the evidence in the Crown case and then deciding whether there was an inference consistent with innocence reasonably open on it. The evidence was not to be looked at in a piecemeal fashion.[3][3]R v Baden-Clay [2016] HCA 36; (2016) 258 CLR 308 per French CJ, Kiefel, Bell, Keane and Gordon JJ at [46]-[48], [77]. In order to discharge that onus, the Crown relied on the oral testimony of numerous Australian Federal Police officers who had variously been involved in surveillance of the Solay, the arrests at the Coomera Roadhouse, and searches of the Toyota motor vehicle, the Hyundai van, the Solay and the motel premises that had been occupied by the appellant and Mr Jocic and, separately, by Mr Rivkin. Many documents were tendered including maps, photographs, surveillance footage and telephone records. A significant number of facts were the subject of formal admissions.[4] The Crown also drew upon the appellant’s version of how and why it was that he had been at the rear of the roadhouse in order to exclude any reasonable hypothesis consistent with innocence.[4]Exhibit 1 – Admissions: AB 571-578. Given that the appellant has challenged the verdict against him as unreasonable, but at the risk of some repetition, I propose to summarise significant evidence adduced in the Crown case. The Solay, skippered by Mr Rivkin, entered the Southport Seaway at the end of a voyage from Ecuador on 23 August 2015.[5] It moored at The Boat Works marina at Coomera in the early hours of 24 August 2015.[6][5]Exhibit 1 – Admissions: AB 572.[6]AB 191 Tr 1-30 ll36-37. Mr Mayers had arranged for the Solay to berth at the marina.[7] He assisted Mr Rivkin in navigating the vessel from the seaway to the mooring.[8][7]Exhibit 1 – Admissions: AB 572.[8]Exhibit 3: AB 736-753; exhibit MFI “C” – Transcripts of Telephone Surveillance. There were 94 blocks of a compressed and packaged substance concealed inside the framework structure of the Solay. In all, the substance contained 66.538 kilograms of unlawfully imported cocaine.[9][9]Exhibit 1 – Admissions: AB 573-574. Mr Mayers maintained contact with the third person during the morning and afternoon of 24 August 2015.[10][10]Exhibit 4 – Supplementary Telecommunications Schedule: AB 584-587. The appellant was a Sydney resident. He was not familiar with the Gold Coast.[11] Because he did not have a current driver’s licence, he arranged for his wife to hire a white Hyundai van on his behalf to travel to the Gold Coast. The van was due to be returned to the hire company on 25 August 2015.[12][11]Exhibit MFI “H” – Police Interview: AB 792, 812.[12]Exhibit 1 – Admissions: AB 572.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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