R v C, S
[2018] SASCFC 125
•4 December 2018
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
R v C, S
[2018] SASCFC 125
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Vanstone and The Honourable Justice Nicholson)
4 December 2018
CRIMINAL LAW - PROCEDURE - INFORMATION, INDICTMENT OR PRESENTMENT - AVERMENTS - PARTICULARS
CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - TRAFFICKING
Prosecution appeal against an order of a District Court Judge staying three out of five counts on an information on the basis that prosecution on those counts was foredoomed to fail and were not adequately particularised.
The respondent was charged with three counts of trafficking in a large commercial quantity of cannabis and other counts. The prosecution case relied on intercepted telephone calls and in respect of counts 1 to 3, relied on the assertions of another man made to the appellant to prove the quantity of the cannabis allegedly trafficked.
Whether joint enterprise is available as a basis for liability in trafficking charges. Whether the co-conspirator’s rule was available and rendered the assertions of others as to quantity admissible as assertions to prove their truth. Whether adequate particulars were provided.
Held, per Kourakis CJ (Nicholson J agreeing), granting permission to appeal on ground 2 and allowing the appeal:
1. Section 33S of the Controlled Substances Act 1984 (SA) does not abrogate the co-conspirators rule (at [32]).
2. It was necessary to identify evidence from which it could be inferred that the persons whose statements are relied on were participants in the relevant criminal conduct with which the accused was charged, independently of the evidence, the admissibility of which was disputed (at [37]).
3. The statements of DC and AC concerned the steps that the respondent had directed them to take and were therefore made in the course of the criminal enterprise in which they had agreed to participate. The statements of DC and AC were admissible on the respondent’s trial for directing and causing steps to be taken to traffic the cannabis (at [37]).
4. In relation to the application to stay the information on the ground that the prosecution was doomed to fail, the prosecution should have been permitted to lead its evidence, and any no-case submission, should have been entertained only at the close of the prosecution case (at [38]).
Per Vanstone J, granting permission to appeal on ground 2 and dismissing the appeal:
5. The question whether a prosecution is foredoomed to fail is analogous to the question of whether a case to answer has been made out, and is a matter of law. The prosecution has an appeal as of right against the ruling.
6. Joint enterprise as a basis for liability is not available in a prosecution for trafficking under s 32 of the Controlled Substances Act 1984 (SA). The co-conspirator’s rule is not available in the absence of joint enterprise or pre-concert. The words of others were not available to prove the truth of assertions as to quantities of the substance being discussed on the telephone. There was no other evidence to prove quantity. A prima facie case for trafficking in a large commercial quantity of cannabis could not be made out.
7. The prosecution did not adequately particularise the charges. Such particulars as were provided were flawed. The Judge’s decision should be upheld.
Criminal Law (Consolidation) Act 1935 (SA) s 267, s 352(1)(b); Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA) ; Controlled Substances Act 1984 (SA) s 4, s 32(1), s 32(2), s 32(3), s 33S; Summary Procedure (Indictable Offences) Amendment Act 2017 (SA) s 41; Criminal Code Act 1995 (Cth), referred to.
Ahern v The Queen (1988) 165 CLR 87; Tripodi v The Queen (1961) 104 CLR 1; Handlen v The Queen (2011) 245 CLR 282; May v O'Sullivan (1955) 92 CLR 654; The Queen v Bilick and Starke (1984) 36 SASR 321; The Queen v Corak (1982) 30 SASR 404, applied.
R v Ernst [1984] VR 593; Walton v Gardiner (1993) 177 CLR 278; R v Handlen; R v Paddison (2010) 247 FLR 261, considered.
R v C, S
[2018] SASCFC 125Court of Criminal Appeal: Kourakis CJ, Vanstone and Nicholson JJ
KOURAKIS CJ: I gratefully adopt the summary of the evidence and litigation history appearing in the reasons for judgment of Vanstone J.
It is convenient to add the following outline of the evidential material which the prosecution foreshadowed that it would adduce if the trial were to proceed. I commence with counts 4 and 5 which charged trafficking in a large commercial quantity of cannabis and MDMA respectively between 12 and 15 November 2013 at Mile End and elsewhere.[1] The evidence proposed to be led on those counts in particular was as follows:
·At relevant times, the respondent [SC], who was on home detention bail, lived with his wife [CnC] at their home at Mile End. His mother [CaC], and his brother [AC], lived close by in the same house. His sister [AF] also lived close by in her own home. DC was an acquaintance of SC who lived in Western Australia.
·On 13 November 2013 SC was recorded saying that he had spoken to DC about making ‘two more trips’ before he would have to repay debt of $45,500.
·On 14 November 2013, another acquaintance [PM] visited SC’s house twice, leaving for the last occasion just before 1.00 pm. Whilst PM was at his home, SC phoned CaC to tell her that ‘the old man is coming’. Within 10 minutes, PM arrived at CaC’s home. At about 2.12 pm, AC phoned the respondent and asked if he wanted him to go to AF’s place. The respondent replied in the affirmative and, within 10 minutes, AC arrived at AF’s place. A little later, CnC left CaC’s home and walked to her own home and then AF’s home, carrying a multi-coloured bag. Subsequent conversations between SC and CnC indicated that she was packaging something at AF’s home.
·Later that afternoon, PM went to CaC’s home, leaving at 5.04 pm, carrying a black wheeled bag. He was followed by AC, also carrying a black wheeled bag. They drove to SC’s house, staying for only two minutes before driving to the Keswick Railway Station. PM walked to the terminal with the bags and checked into the train to travel to Perth.
·At about 6.00 pm, PM was detained and the police searched the bags. They were found to contain 13.3 kilograms of cannabis in vacuum sealed bags of approximately 349 grams to 404 grams each, and 20,079 MDMA tablets.
·At about 11.00 am on 15 November 2013, CaC spoke to the appellant about something happening to ‘someone that was going to Perth ... last night’. The respondent told her to ‘clean up everything’.
·On 15 November 2013, the police searched CaC’s home and identified remnants of cannabis. They seized a vacuum sealing machine and an industrial salad dryer. On the same day, the police searched AF’s home and seized a heat-sealing machine which was forensically linked to the sealed bags of cannabis in PM’ possession. They also seized electronic scales, numerous plastic press-seal bags and gloves which had remnants of MDMA on them.
[1] Contrary to s 32(1) of the Controlled Substances Act 1984 (SA).
In summary, the evidence established a prima facie case that on 14 November 2013 the respondent had caused and directed, through the agency of AF, AC and CaC, the trafficking of cannabis and MDMA in South Australia for the purpose of sending it to DC in Western Australia.
The proof of the case against the respondent on these counts does not rely on the truth of any assertions made by the other participants in the trafficking of the drugs. The finding of the cannabis and MDMA on PM served both as evidence of the subject matter of the earlier conversation and as evidence that commercial quantities of drugs were in fact trafficked.
In addition the evidence, if accepted, shows that AC, AF, CaC and PM were following the respondent’s instructions, and that this was not the first occasion of which cannabis had been trafficked by them. The evidence directly relevant to counts 4 and 5 was therefore also circumstantially relevant on the counts which charged earlier offending because it was evidence of an ongoing trafficking enterprise in which the respondent was engaged, against which the evidence directly relevant to counts 1, 2 and 3 could be evaluated.
Count 1 charged that between 1 and 20 November 2012 at Mile End and elsewhere, the respondent trafficked in a large commercial quantity of cannabis.[2] The foreshadowed evidence particular to count 1 was as follows:
·PM was a truck driver who drove a regular route between Adelaide and Perth between 18 May 2012 and 18 August 2013.
·On 12 November 2012, DC and SC spoke about a payment DC had made to SC through a female intermediary, and of selling ‘green’ on a monthly basis. Their conversations included the following statements: ‘only send[ing] 80’ and ‘one took [taking] the other 20’. DC also relayed a complaint to SC that the substance he had provided was mouldy.
·On 16 November, DC and SC discussed ‘sending … fifty and a hundred’.
·On 19 November, SC asked ‘How much you got there?’ and DC answered ‘I got over fifty’.
·In a conversation between SC and DC on 19 November 2012, DC repeated complaints that the substance was too wet and affected by white mould. Payment by a female intermediary was again discussed.
[2] Contrary to s 32(1) of the Controlled Substances Act 1984 (SA).
It can be inferred from the evidence of the respondent’s participation in those discussions and, circumstantially from the evidence directly relevant to count 4, that the substance referred to was cannabis and that he and DC had entered into an arrangement for the trafficking of cannabis between Adelaide and Perth. It can also be inferred that the numerals mentioned are references to the weight, in kilos, of the substance. Moreover, the respondent’s statements that he expected payment and the discussion in which he appears to accept that complaints about the quality of cannabis could properly be raised with him, impliedly admit that he gave directions for the trafficking of cannabis from South Australia to DC in Perth. However, because no cannabis was seized, proof that cannabis was in fact trafficked in that way, and its weight, depend on the admissibility of DC’s statements, as proof of what is asserted. I return to that question below.
Count 2 charged that between 1 and 6 October 2013 at Mile End and elsewhere the respondent trafficked in a large commercial quantity of cannabis.[3] The evidence foreshadowed by the prosecution particular to that charge was as follows:
·On 2 October 2013, SC spoke with AC, about the packaging of a substance and directed that the package not be sent ‘if it’s not 20’. They discussed whether the product was sufficiently dry.
·On 3 October 2013, SC spoke with PM about the purchase of tickets and the day on which PM would travel.
·Later on 3 October 2013, SC spoke with his mother, CaC, about a machine ‘drying it out too much’. In the same telephone call, SC and AC discussed how much of the substance should be packaged.
·In the same conversation, there was a discussion about how much of the substance was placed in a bag. They discussed packing ‘19’ and there being three-quarters left over.
·On the same day, PM boarded the Indian Pacific train to Perth.
·On 5 October 2013, SC and PM spoke about how things had gone in Perth. PM said ‘Everything was good’ and that ‘The bloke ... needs ... more’. SC told PM that DC had already paid him.
[3] Ibid.
From that evidence and, circumstantially, from the evidence directly relevant to count 4 it can again be inferred that the substance referred to was cannabis, that the respondent, AC and PM had entered into an arrangement for the trafficking of cannabis within South Australia and into Western Australian between 2 and 5 October 2013. It can also be inferred that the numerals 19 and 20 are references to the weight, in kilos, of the substance. It can be inferred from the respondent’s conversations with his brother AC and his conversation with PM that the respondent gave directions for the trafficking of cannabis within South Australia for the purpose of sending it to DC in Perth through PM. That would be sufficient to make out a case to answer on the charge of trafficking by taking the step of directing others to trafficking. However, the statements of AC that cannabis was, in fact, packaged and his references to its weight, and the statement of PM that it was, in fact, delivered, can only prove that the respondent trafficked a large commercial quantity of cannabis if they are admitted as to the truth of their contents.
Count 3 charged that between 8 and 16 October 2013 at Mile End and elsewhere the respondent trafficked in a large commercial quantity of cannabis.[4] The proposed prosecution evidence particular to that count was as follows:
·On 9 October 2013, SC and AC spoke of their mother CaC receiving a delivery of seven units of an item.
·On the same day, AC telephoned PM and arranged for him to come over the next morning.
·Later on 9 October 2013, SC and AC discussed the quantity of an unspecified substance in AC’s possession. When asked how many there were, AC answered ‘28’ and that there might be about 100 grams left over. SC responded that he would send them in the morning.
·On 10 October 2013, PM boarded the Indian Pacific train from Keswick Railway Station. It arrived in Perth on 12 October 2013 at 9.10 am. A little after midday, PM called AC telling him that he had arrived. AC then telephoned SC to tell him that PM had arrived in Perth.
·Later that day, PM phoned AC to tell him ‘It’s all good’.
[4] Ibid.
On the basis of that evidence, it can be inferred that the substance referred to was cannabis and that AC, PM and the respondent had entered into an arrangement for the transportation of cannabis from South Australia and into Perth on 9 and 10 October 2013. Again, it can be inferred that the numeral 28 is a reference to the weight, in kilos, of the substance. The statements of the respondent show that he gave directions that cannabis be trafficked in South Australia for the purpose of sending it to Perth. However, proof that a large commercial quantity of cannabis was in fact trafficked depended on the admissibility of the statements of AC and PM as to proof of their contents.
To prove that cannabis was in fact trafficked and its weight, and thereby sustain the charges in counts 1, 2 and 3, the prosecution relied on the statements about the weight of the cannabis sent to Western Australia made by persons who, on the evidential material put before the Judge, were engaged with the respondent in trafficking the cannabis.
For the reasons which follow, I respectfully differ from the conclusion of Vanstone J that those statements were not admissible as to their truth.
The statements of an agent made within the scope of his or her authority are admissible against the principal in proceedings to which the principal is a party. That rule of evidence is founded on both the doctrine of agency and necessity.[5]
[5] Ahern v The Queen (1988) 165 CLR 87 at 95.
Legal agency is the means by which the law attributes responsibility to a principal for the authorised conduct of an agent which, if engaged in personally by the principal, would incur civil or criminal liability. Just as a principal’s authorisation justifies treating the agent’s conduct as that of the principal for the purposes of substantive liability, so too for the admissibility of the statements made by the agent against the principal’s interests in the course of carrying out the agency, in a trial in which the principal’s responsibility for the agent’s conduct is disputed.
In Phipson on Evidence,[6] the following principle as to the admissibility of the acts of an agent in legal proceedings involving his or her principal is stated:
Whenever a party is, by substantive law, rendered liable, civilly or criminally, for the acts, contracts or representations of third persons, these may be given in evidence for or against him as if they were his own.
The particular relationship rendering such evidence receivable must be proved, prima facie at least, to the satisfaction of the judge, and cannot, except as against themselves, be established by the declarations of such third persons.
This rule, which is properly one of substantive law and not of evidence, is based on the identity of interest subsisting between the parties.
(footnotes omitted)
[6] J Huxley Buzzard et al (eds), Phipson on Evidence (Thomson Reuters, 13th ed, 1982) 104; see also Hodge M Malek et al (eds), Phipson on Evidence (Thomson Reuters, 19th ed, 2018) 1109 – 1111, 1372.
In civil matters, the principle applies, uncontroversially, to agents, partners, and as between trustees and executors.[7]
[7] J Huxley Buzzard et al (eds), Phipson on Evidence (Thomson Reuters, 13th ed, 1982) 104-105, 107‑108; see also Hodge M Malek et al (eds), Phipson on Evidence (Thomson Reuters, 19th ed, 2018) 1372-1375.
The fact of agency overcomes the evidential weaknesses of what would otherwise be hearsay evidence. A principal who has entrusted another to act in his or her interest must accept that the agent’s statements are sufficiently reliable to be admissible against his or her interest in proceedings to determine a legal controversy over the agent’s conduct.[8]
[8] See JD Heydon, Cross on Evidence (LexisNexis Butterworths, 10th ed, 2015) [33540].
The foundation of the rule on necessity is obvious enough and may be stated briefly. Precisely because the very purpose of agency is to relieve the principal of direct involvement in the delegated work, the legal doctrine of agency would be greatly undermined, or alternatively abused, if the third party were denied recourse to the admissions of the agent when asserting or, alternatively, defending his or her interests in proceedings against the principal.
In criminal proceedings, application of the rule most commonly arises on the trial of charges of conspiracy. For that reason it is often referred to as the co‑conspirators rule. However, the rule of evidence is also applicable when criminal liability is alleged by reason of involvement in a joint enterprise, or as the counsellor or procurer of the commission of the offence. In cases of conspiracy and joint enterprise, each party, by the foundational agreement, appoints the others his or her agents. The counsellor or procurer does so by the very act of counselling and procuring.
Phipson on Evidence emphasises that the rule, in its application to criminal trials, is not limited to charges of conspiracy:[9]
Where two persons are engaged in a common enterprise, the acts and declarations of one in pursuance of that common purpose are admissible against the other. This rule applies in both civil and criminal cases and in the latter whether there is a charge of conspiracy or not, provided that the crime was committed in pursuance of a conspiracy, i.e. an agreement of two or more persons to commit it.
(footnotes omitted)
[9] Hodge M Malek et al (eds), Phipson on Evidence (Thomson Reuters, 19th ed, 2018) 1380.
The elaboration of the principle in Phipson on Evidence its application in criminal matters includes the following:[10]
·the acts and declarations of persons engaged in the common enterprise are admissible, even if those persons are not charged;
·the acts and declarations of parties to the common enterprise are admissible, even if said or done in the absence of the party charged;
·acts and declarations after the event conspired for has happened are not generally receivable because they cannot be in furtherance of the common purpose; and
·however, acts of accomplices after the arrest of a conspirator may be received if done in pursuance of a prior agreement.
[10] Hodge M Malek et al (eds), Phipson on Evidence (Thomson Reuters, 19th ed, 2018) 1381-1383.
The principle is similarly stated in Heydon’s Cross on Evidence:[11]
The acts (including declarations) of one conspirator or other participant in a common design are receivable against the other if they are done in pursuance of the original concerted plan and with reference to the common object, irrespective of whether the accused against whom the acts or declarations are tendered is proved to have been concerned in that particular action. But what one of the participants said, not in furtherance of the common design, but as a mere relation of some past transaction or as to the share which some of the others have had in the execution of it, is inadmissible against the others. The rule applies in all cases in which a common design or purpose is alleged, irrespective of whether the actual charge is of conspiracy, or of a substantive offence or a series of substantive offences committed pursuant to a conspiracy. The combination implied an authority in each to act or speak on behalf of the others. … That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. ...
(footnotes omitted)
[11] JD Heydon, Cross on Evidence (LexisNexis Butterworths, 10th ed, 2015) 1206.
An important precondition to the use of the statements of one party to a criminal arrangement against another was stated in this way by Dixon CJ, Fullagar and Windeyer JJ in Tripodi v The Queen:[12]
When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others.
[12] (1961) 104 CLR 1.
The cross-admissibility of the acts and declarations of parties to a common enterprise against each other was again considered by the High Court in Ahern v The Queen.[13] After discussing the limited way in which the separate and individual acts and statements of any one of the alleged parties to a conspiracy may be considered for the purposes of determining whether or not another person was a party to it, the Court explained the broader permissible use of those acts and statements once participation in the criminal arrangement is established:[14]
However, it is not in all cases that evidence of the separate acts or the alleged conspirators will prove both the fact of combination and their participation. Of course, if the evidence fails to prove a combination at all then that is an end of the matter. But if it proves a combination, although not the participation of an individual alleged to be a conspirator, then the question arises whether there are circumstances in which evidence of the acts and declarations of other participants, outside the presence of the individual, may be led against him, not as separate facts from which, when combined with other facts, an inference of combination may be drawn, but as evidence of his own participation. Evidence of the acts or declarations of others led for this purpose will be led to prove the truth of the assertion or implied assertion contained in those acts or declarations. It would be excluded as hearsay or its equivalent were it not admissible upon some other basis.
That basis is provided in an appropriate case by the rule which states that when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implied an authority in each to act or speak on behalf of the others. Thus anything said or done by one conspirator in pursuit of the common object may be treated as having been said or done on behalf of another conspirator. That being so, once participation in the conspiracy is established, such evidence may prove the nature and extent of the participation. The principle lying behind the rule is one of agency and the closest analogy is with partners in a partnership business. Indeed, conspirators have been described as partners in crime. The principle of agency has a particular application in cases of conspiracy where preconcert is the essence of the crime.
(footnotes omitted; emphasis added)
[13] (1998) 165 CLR at 87.
[14] Ahern v The Queen (1998) 165 CLR 87 at 94-95.
In The Queen v Corak, King CJ explained the position in this way:[15]
Counsel stressed that this was a charge of possession of Indian hemp for trading, not a charge of conspiracy. The rule of evidence under which the evidence was admitted is, however, the same whatever the charge. The rule is that acts done and statements made by another person in the absence of the accused are admissible against the accused if done or made in furtherance of a common criminal purpose to which both are parties. There is, however, a problem inherent in the application of the rule which arises because the evidence is admissible to prove the very common purpose whose existence provides the justification of the admission of the evidence. The efforts of the courts to minimize this problem have produced a difference in the practical application of the rule in trials of substantive charges and trials of conspiracy charges. In the former ‘some reasonable evidence of the preconcert must be adduced’ before evidence of acts or words of one of the parties in the absence of the other is admissible against that other (Tripodi v. The Queen). In the latter it is not necessary to look for evidence of common purpose other than the evidence whose admissibility is in question before admitting the latter evidence. The reason for this difference in application of the rule is to be found in the nature of the charges to be proved. Proof of a charge of conspiracy is proof of the common criminal purpose. The evidence cannot therefore be misused. If the evidence proves the conspiracy it also proves the common criminal purpose which justifies the admission of the evidence. The verdict itself justifies the admission of the evidence. If the evidence does not prove the conspiracy, the charge fails and it is immaterial that the common purpose required to justify the admission of the evidence is seen not to exist. An accused may be convicted on a charge of a substantive offence without proof of common purpose between the accused on the one hand and the maker of the statement or the doer of the act sought to be introduced into evidence on the other. There is a danger of misuse. A jury might be influenced to convict by evidence of such statement or act although it might turn out that, there being no common purpose, it ought not to be used against the accused. On trials of substantive charges, at least where proof of the charge is not inseparably linked with proof of common purpose, the evidence is not admitted unless there is some other reasonable evidence which makes the existence of a common purpose a real possibility. Once admitted, of course, the evidence is available to prove the existence of the common purpose.
Counsel argued that the evidence of the conversations could not be admitted unless there was some evidence of acts or statements indicating participation in the common design, done or uttered by the particular accused at an earlier time than the statements whose admission is under challenge. The charge is not a conspiracy charge. It is a charge of a substantive offence which could be proved against the appellants without proof of pre-concert with Waters and could be proved against Corak without proof of pre-concert with Palmer. In cases such as the present case, there must, as I have already pointed out, be evidence raising at least a real possibility of pre-concert before the challenged evidence is admitted. The real possibility of the common design or purpose which in appropriate cases is a condition precedent to admission of the evidence, may, however, be indicated by evidence of acts or statements done or made by the accused or in his presence, whether those acts or statements were done or made before or after the challenged conversations, if they tend to show the existence of a common purpose in pursuance of which the conversations under challenge took place.
(footnotes omitted)
[15] (1982) 30 SASR 404 at 405-406.
The decision of the High Court in Handlen v The Queen[16] does not detract from the explication of the principle in Tripodi, Corak, and Ahern. The appeal to the High Court in Handlen was limited to the question of the application of the proviso by the Queensland Court of Appeal. In Handlen, a joint trial of several accused on charges of drug importation had proceeded to verdict on the wrong premise that the offence could be committed by participation in a joint enterprise to import the drugs when ancillary liability under the Criminal Code Act 1995 (Cth) was limited to aiding, abetting, counselling and procuring.
[16] (2011) 245 CLR 282.
In Handlen, the majority allowed the appeal and held that the proviso should not have been applied because, absent liability on the basis of joint enterprise, the critical issue was whether each of the appellants had engaged in conduct that, in fact, had facilitated the importation. The importation in Handlen was effected by the principal offender, Mr Matthew Reed, who had imported the drugs into Australia from Canada. The majority held that the jury’s satisfaction that the appellants were involved in a joint enterprise was not sufficient to establish that each had aided, abetted, counselled or procured Mr Reed’s importation of the drugs. By way of illustration, the majority referred to the case against the appellant Mr Dennis Paul Paddison. The conduct of Mr Paddison relied upon at trial was both his assistance in packing the drugs into electronic monitors in Canada, knowing that Mr Reed was intending to import them into Australia, and in visiting the Australian warehouse in which the monitors were later stored after the arrival of the shipment in Australia. Either limb of that conduct was capable of establishing Mr Paddison’s participation in a joint enterprise but only Mr Paddison’s conduct in Canada was capable of amounting to aiding, abetting, counselling or procuring the importation. The difficulty in applying the proviso was that a finding that Mr Paddison helped pack the drugs into the monitors was dependent on the acceptance of Mr Reed’s evidence to that effect. On the other hand, even though there was stronger evidence of Mr Paddison’s participation in activities after the drugs arrived in Australia, that conduct could not constitute aiding, abetting, counselling or procuring the importation of those drugs because, by that time, the importation was complete. The majority in Handlen held that it was not possible to apply the proviso because it could not be known which conduct the jury found proved to return its verdict of guilty on the basis of joint enterprise.[17]
[17] Handlen v The Queen (2011) 245 CLR 282 at 299.
There was no objection at trial to the cross-admissibility of evidence of the acts and statements of each of the accused against the others, probably because of the misconception that criminal liability on the basis of joint enterprise was arguable. Nor did the appeals against conviction to the Queensland Court of Appeal include a ground that the evidence was wrongly admitted. Accordingly, paragraph [45] of the majority judgment simply observes that on a trial in which the only basis for liability of the appellants was aiding and abetting, a real question about the admissibility and use of the statements and acts of the other participants would have arisen. The majority rejected the unqualified proposition that the prosecution were entitled to lead evidence to prove the existence of a group exercise. Heydon J, who dissented on the question of the proper application of the proviso, observed that because the prosecution evidence did establish that the appellants were acting in preconcert, the statements of each of them was admissible against the other.[18]
[18] Handlen v The Queen (2011) 245 CLR 282 at 306.
Clearly, then, both the majority and Heydon J proceeded on the basis that the admissibility of the evidence of the conduct of each of the participants in the criminal enterprise did not depend on a charge alleging conspiracy, joint enterprise or common purpose. The co-conspirator’s rule may apply on the trial of a charge of aiding and abetting a crime if there is sufficient independent evidence of preconcert and the acts and statements are both made in the course of the arrangement and are relevant to the offence charged.
The occasions which have given rise to the application of the co-conspirator rule in the past should not be mistaken as a necessary condition for its application in all cases. The legislature may change the semantic description of the criminal liability of a principal who acts through an agent without abrogating co‑conspirator’s rule.
Section 4 of the Controlled Substances Act 1984 (SA) (the CSA) defines taking part in trafficking of a drug to include taking part in the process of sale of the drug. This is, in turn, widely defined to include directing or causing any step to be taken in the process of sale. Both of those elements necessarily entail one person, the principal, trafficking in a drug, through the conduct of another. There is no qualitative difference between offending in that way and procuring another, or agreeing with another, to traffic drugs. There is no reason, therefore, to imply from the express exclusion of s 267 of the Criminal Law Consolidation Act 1935 (SA) (the CLCA) by s 33S of the CSA the abrogation of the co-conspirators rule of evidence. Indeed, the reason for the exclusion of s 267 of the CLCA was the inclusion within the very definition of trafficking in the CSA conduct which otherwise might only have given rise to ancillary liability.
To have allowed s 267 of the CLCA to have operated on the wide definition of taking part in the CSA would have imposed a derivative liability for accessorial involvement in offending against the CSA far too remote from the trafficking itself to warrant a criminal sanction. It is for that reason that s 267 of the CLCA was excluded.
Given my holding that s 33S of the CSA does not abrogate the co‑conspirators rule, it is not strictly necessary for me to decide whether or not liability for an offence against the provisions of the CSA may be established by proof that a defendant was a participant in a joint enterprise which offended against its provisions. However, I make the following observations.
Criminal liability by reason of participation in a joint enterprise is accepted as a distinct basis for criminal liability, which differs from the bases on which an offender may have been convicted as a principal in the second degree for counselling, procuring, aiding or abetting the commission of an offence. Joint enterprise does not merely operate to extend the liability of a principal in the second degree beyond those crimes which he or she contemplates and intends to aid or procure, to such additional crimes and which he or she appreciates might be committed but does not intend to facilitate. Rather, joint enterprise operates independently to found criminal liability for possible, albeit unintended, crimes whether or not participation in the joint enterprise in itself aids, counsels or procures the crime.
Participation in a joint enterprise which falls short of procuring, counselling, aiding and abetting does not commonly arise. The circumstances in Handlen are an example in the context of a Commonwealth drug importation offence. More generally, the conduct of a receiver of illicit substances or stolen goods may support liability as a joint venturer even if it does not aid, abet, counsel or procure the particular crime. There may therefore be some practical difference between the two bases for liability.
Returning to the proposed evidence in this case, once evidence of participation in the enterprise is proved in that way, statements made by them is admissible as to the truth of the matters stated. It is first necessary, as King CJ explained in Corak, to identify evidence from which it can be inferred that the persons whose statements are relied on were participants in the relevant criminal conduct with which the accused is charged, independently of the evidence, the admissibility of which, is disputed. In this case, that evidence is most obviously the evidence directly relevant to count 4, even though that conduct was engaged in after the conduct charged in counts 1, 2 and 3. It is also found in those parts of the recorded conversations directly relevant to the earlier counts in which the respondent gives directions to, and receives reports back on the carrying out of his instructions, from DC, CaC and AC. The statements of DC and AC reporting on the condition and weight of the cannabis which was being, or had been, transported to Western Australia concerned the steps that the respondent had directed them to take. Their statements were therefore made in the course of the criminal enterprise in which they had agreed to participte. Their statements, made against the appellant’s interest on the subject of the movement of the cannabis and its weight, were therefore admissible on his trial for directing and causing steps to be taken to traffic the cannabis.
My conclusion that the statements were admissible must result in the appeal being allowed on the Director’s primary ground. However, there is an antecedent ground on which I would have allowed the appeal. The application before the Judge was to stay the information on the ground that the prosecution was bound to fail. It was not appropriate to consider, on that application, the difficult question of law on the admissibility and use of the statements of the other parties to the joint enterprise, arising as it did out of a complex factual matrix on that application. On a proper exercise of the discretion, the prosecution should have been permitted to lead its evidence, and any no-case submission entertained only at the close of the prosecution case. The respondent would not have suffered any material injustice if that course had been adopted here.
The ground of appeal which complains that the Judge erred in staying the information because of the prosecution’s failure to provide particulars should also be upheld and can be dealt with briefly. By the close of submissions, the particulars of the prosecution case were clear. They are succinctly set out in Annexure R of the Judge’s reasons dated 9 February 2018.
I acknowledge that the Director should have responded more effectively and expeditiously to the requests of the respondent’s solicitors. The Director’s letters manifest some confusion between particulars on the one hand and evidence, and the inferences it supports, on the other.
Nonetheless, prosecutions are brought in the public interest. Public and statutory responsibility for the bringing of prosecutions lies with the Director. It is the duty of courts to hear and determine criminal proceedings brought before them. If the evidence is lacking, the charges will be dismissed on a no-case submission at the end of the trial. Only in rare circumstances will the courts decline to hear charges brought by the Director by staying the proceeding. The relevant criterion is the interests of justice which balances both the public interest in the trial of criminal prosecutions and the defendant’s interests in a fair trial and protection from persecution. As I have just observed, the Judge identified the particulars on which the trial could fairly proceed. No submission was made at trial, or on appeal, that the delay had resulted in incurable forensic unfairness. There being a strong prosecution case, which always was manifestly capable of particularisation, that the appellant had directed or caused steps to be taken to traffic cannabis, was the delay here cannot be characterised as persecution. There is no suggestion that the Director had embarked on a deliberately improper strategy. A stay should not be granted against the public interest as a sanction because the legal work of a particular officer or officers in the Director’s Office falls below the standard of the model litigant but has not caused a material injustice.
Conclusion
For the reasons now given, I would allow the appeal.
VANSTONE J: The Director of Public Prosecutions appeals against a decision of a Judge of the District Court on an issue antecedent to trial, namely an order staying three counts of five on an information, on the basis that prosecution of those counts was doomed to fail. This is ground 1 in the notice of appeal. The Director also seeks permission to appeal against the Judge’s further decision – effectively in the alternative – that those counts should be stayed because the particulars provided by the Director were inadequate. This is ground 2.
The right of appeal
The appeal provision upon which the Director relies is s 352(1)(b) of the Criminal Law Consolidation Act 1935 (SA) (the CLCA). Relevant definitions appeared in s 348 of the CLCA. The appeal notice was lodged on 2 March 2018. On 5 March 2018 the Summary Procedure (Indictable Offences) Amendment Act 2017 (SA) commenced. It repealed Part 11 of the CLCA (Appellate proceedings) which included s 348 and 352, which are here relevant. Those provisions are now found in the Criminal Procedure Act 1921 (SA). The transitional provision in s 41 of the Amendment Act reads as follows:
41—Transitional provision
The amendments made by this Act apply to proceedings relating to an offence that are commenced after the commencement of this Act, regardless of when the offence occurred (and the Acts amended by this Act, as in force before the commencement of this Act, continue to apply to proceedings that were commenced before the commencement of this Act).
Accordingly, the appeal proceeds pursuant to s 352 of the CLCA.
Whether the Director requires permission to appeal on ground 1 is a matter of dispute between the parties. It turns on whether ground 1 involves ‘a question of law alone’: s 352(1)(b). The question whether a prosecution is foredoomed to fail is analogous to the question of whether, at the close of a prosecution case, sufficient evidence has been adduced to give rise to a case to answer. The difference, of course, is that the first question arises before the beginning of the trial proper and is to be determined on the basis of the materials in the depositions as supplemented by the Director, whereas the question whether a case to answer is made out is to be determined at the close of the prosecution case at trial. Nonetheless, essentially the same question arises.
There is strong authority to the effect that the question whether a case to answer has been shown is a question of law. That is so notwithstanding that the answer involves an assessment of the evidence which has been led to see whether, on that evidence, the defendant could lawfully be convicted. It is sufficient to refer to two authorities. May v O’Sullivan (1955) 92 CLR 654 was an application for special leave to appeal after May was convicted before a magistrate for two counts of betting in a hotel. The matter had gone to the Supreme Court and the appeal had been dismissed. However, before the High Court, May sought to argue that the appellate Judge had misdirected himself as to where the onus of proof lay once a case to answer had been made out. It was suggested that statements by the Judge implied a view that, once a case to answer had been found, an onus shifted to the defendant to displace the prima facie case. In refuting that suggestion the High Court made this statement, at 658:
…When, at the close of the case for the prosecution, a submission is made that there is “no case to answer”, the question to be decided is not whether on the evidence as it stands the defendant ought to be convicted, but whether on the evidence as it stands he could lawfully be convicted. This is really a question of law. Unless there is some special statutory provision on the subject, a ruling that there is a “case to answer” has no effect whatever on the onus of proof, which rests on the prosecution from beginning to end.
The matter arose more directly in a case in this Court. In The Queen v Bilick and Starke (1984) 36 SASR 321 Starke argued that the trial Judge had erred in rejecting a submission of no case to answer at the close of the prosecution case. The ambit of the task facing the trial Judge at that point was a matter of contention. King CJ, with whom Mohr J agreed, described the question of whether a case to answer was made out as one of law. His Honour said at 335:
The question of law is whether on the evidence as it stands the defendant could lawfully be convicted. He could lawfully be convicted on that evidence only if it is capable of producing in the minds of a reasonable jury satisfaction beyond reasonable doubt. It seems to me therefore that implicit in the High Court’s formulation of the question of law to be answered on the submission of no case, is a rejection of the test proposed in Wilson v. Buttery.
(original emphasis; footnote omitted)
These cases are clear authority for the proposition that whether or not a case to answer is made out is a matter of law. In my opinion the test is the same when a Judge is asked to address the question whether a prosecution is foredoomed to fail. Although, as the Judge under appeal noted, the inevitability of failure of the prosecution must be manifest: Walton v Gardiner (1993) 177 CLR 278 at 393 and 411. Consequently, I find that the prosecution has an appeal as of right on this first issue, pursuant to s 352(1)(b).
I would grant permission to appeal on the second ground, that is, the question whether the Judge’s decision to stay the prosecution on the basis of inadequate particulars was correct. As will be seen, this question has direct relevance to the first issue. It assumed a particular relevance because of the diffuse nature of the prosecution case, the plainly inadequate particulars originally provided and because of the repeated requests for particulars made by the respondent’s legal advisors. The case against the respondent relied almost wholly on intercepted telephone conversations. In these conversations the respondent and his associates spoke largely in code. The prosecution contended, as well, that much was left unsaid. In these circumstances the prosecution case involved both interpreting the content of the conversations and relying on inferences which it was said flowed from them. This rendered the obligation upon the prosecution to provide particulars a more than usually onerous one. In these circumstances, and because the Judge’s decision is before us in any event, permission to appeal should be granted on ground 2.
Background
The information on which the Judge ruled is dated 12 May 2016. It contains 5 counts, the first four of those charging trafficking in a large commercial quantity of a controlled drug. That charge invokes s 32(1) of the Controlled Substances Act 1984 (SA). (Relevant provisions of the Controlled Substances Act are set out as an appendix at the end of these reasons.) The first 3 charges concern the respondent alone. The particulars of count 1 are that he ‘between 1 November 2012 and 20 November 2012, at Mile End and other places, trafficked in a large commercial quantity of a controlled drug, namely cannabis, knowing or being reckless as to the fact the substance was a controlled drug. Counts 2 and 3 are identical to count 1, except that count 2 alleges the same conduct between 1 October 2013 and 6 October 2013 and count 3 alleges conduct between 8 October 2013 and 16 October 2013. Count 4 alleges the same charge and the same particulars, except that, here, the respondent is charged jointly with his wife, Carolyn (‘Carolyn’), and the dates are between 12 November 2013 and 15 November 2013. Count 5 alleges trafficking in a large commercial quantity of MDMA (or ecstasy) and the respondent is jointly charged with Carolyn and his sister, between 12 November 2013 and 15 November 2013.
As will be appreciated, all the particulars allege conduct ‘at Mile End and other places’. A statement of agreed facts filed on 7 September 2017 records that the respondent was on electronically monitored home detention bail at his home at Mile End between 26 April 2013 and 16 November 2013. That period spans counts 2 to 5. Indeed, the prosecution does not now allege that any of the respondent’s conduct said to constitute any offence took place outside his home.
Subdivision 1 of Division 2, Part 5 of the Controlled Substances Act provides offences of trafficking in controlled drugs. As mentioned, s 32(1) provides the offence of trafficking in a large commercial quantity of a controlled drug. Section 32(2) and (3) provide the offences of trafficking in a commercial quantity of a controlled drug, and, merely, trafficking in a controlled drug, respectively. Thus it is necessary for the prosecution to select the appropriate offence depending on the quantity alleged. If there is some doubt, an offence involving a lesser quantity could be provided as an alternative.
In the present case, so far as counts 1, 2 and 3 are concerned, the drugs on which the charges were based were not intercepted by police. The only evidence of quantity to which the prosecution could point came from assertions by persons other than the respondent. The Judge remained unsatisfied that the prosecution had pointed to evidence which could justify use of these assertions as proof that a certain quantity of cannabis was trafficked: [39-40], [43].
Ground 1 – Were counts 1, 2 and 3 foredoomed to fail
For count 1 the prosecution relied for proof of quantity on two telephone conversations between the respondent and the man Condo who was, on the prosecution case, the person who would receive cannabis in Western Australia and sell it to persons there. In a conversation on 12 November 2012 the following interchange is said to have taken place. Male 1 is said to be the respondent; male 2 is said to be Condo.
Male 1Did you give ‘em all to him? Did you ask (unintelligible), did you give them all to him
Male 2No half half
Male 1Oh Ok,
Male 2One took 15 the other took 20
Drawing on a run of conversations the prosecution contends that Condo was speaking of two quantities totalling 35 pounds. In a subsequent conversation on 20 November 2012 there was discussion between the same men about the substance bought being unsatisfactory and some sort of compromise needing to be reached by way of atonement to the purchasers. The following interchange took place. Again, male 1 is said to be respondent:
Male 2Well, I just got a fix ‘em something, mate.
Male 1Tell me. Tell me. You tell me.
Male 2Well… you work it out. One and a half each and we’ll meet ‘em half way or something?
Male 1Alright, well one and a half by, how many was it?
Male 2Thirty-five.
The prosecution alleges it can be inferred from these and other interchanges that this was a reference to the same quantity of 35 pounds of cannabis, which, on this occasion, had been inadequately dried.
In relation to count 2 the prosecution relies on three conversations on 2 October 2013 and 3 October 2013 said to be between the respondent and his brother Antonio (‘Antonio’), which culminate in Antonio telling the respondent, ‘They’re all in the bag’ and then saying, in answer to the question, ‘How many?’, that there were 19, and three-quarters left over. Having received that advice the respondent allegedly instructs Antonio how to pack them without the benefit of a heat sealing machine, which was apparently, at that time, unavailable.
Count 3 again has the prosecution relying on assertions by Antonio, this time on 9 October 2013. An interchange between them has the respondent, asking, ‘How many are they?’ and Antonio replying, ‘28… and 100 grams left over’. Again, the prosecution contends that these whole numbers refer to pounds of cannabis.
Before the Judge, counsel then appearing for the prosecution seemed to assume that these utterances constituted proof of the facts asserted and could be used as a basis to infer that the quantity of cannabis previously directed by the respondent to be packaged and sent to Condo (in the case of count 1) and the quantities of cannabis which the respondent was directing his brother to package and provide for transport (counts 2 and 3) were the quantities nominated by those two men. Before the Judge there was no reference to how what were, on the face of it, hearsay statements, could be used assertively in this fashion. There was no mention of the co-conspirators rule, or of the fact that these utterances might be thought to be hearsay.
In his written submission before this Court Mr Press SC, for the applicant, justified reliance on the words of others in this way.
[18]It was alleged that there was a joint enterprise and that the role of the respondent in that enterprise was to organise the transactions both by dealing with Condo himself and by directing, co-ordinating and organising others to perform tasks for the purpose of conducting transactions. Whilst primarily the words spoken by the respondent were sufficient to prove his involvement, other calls not involving the respondent or other calls involving statements of fact made to the respondent were clearly made in the furtherance of that joint enterprise and were also admissible against him.
In argument Mr Press put the admissibility of these statements in two ways. First, he submitted that the co-conspirators rule was available where pre-concert was alleged, irrespective of whether liability rested on the basis of joint enterprise. He submitted that the rule was a rule of evidence and was not dependant on the prosecution relying on a joint enterprise to ground liability. In the alternative, he argued that the respondent’s seeming acceptance of the quantities nominated by the other party to the conversation amounted to adoption by the respondent of the correctness of those quantities.
I deal first with the second of those contentions. In my view while it may be that the respondent indicated an acceptance of the quantities nominated, he was in no position to do otherwise. He had no independent knowledge of the quantities arrived at after completion of the processes they had undergone. No doubt he accepted the truthfulness of what was said to him, but I can see no basis on which it could be drawn from this that the quantities might be proved beyond reasonable doubt. I turn back to the primary argument of Mr Press.
The rule which is often referred to as the co-conspirators rule is a rule of evidence which permits evidence of words and conduct by other parties to an unlawful enterprise, if said or done in furtherance of the common unlawful purpose, to be used as evidence against all parties. In Tripodi v The Queen (1961) 104 CLR 1, at 6-7 the High Court explained the rule in this way:
For upon a charge of conspiracy the proof of the crime may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment. When that is so evidence may readily be let in of what each party to the conspiracy alleged may do or say in furtherance of the common purpose.
The rule, then, is not confined to trials in which the charge is conspiracy, but extends to substantive charges as well. It is clear from this passage that the purpose of adducing such evidence is to prove against the accused person an element of the crime. Tripodi was charged with two counts of larceny. While the prisoner was implicated by direct evidence in bringing the allegedly stolen cars to a mechanic’s workshop, the prosecution was permitted to prove against him conduct of others also said to be involved in a scheme to steal, alter and dispose of cars. By that means it was sought to show the significance of the prisoner’s part and so prove the case against him.
In Ahern v The Queen (1988) 165 CLR 87 the High Court expressed the principle in this way, at 94-95:
...when two or more persons are bound together in the pursuit of an unlawful object, anything said, done or written by one in furtherance of the common purpose is admissible in evidence against the others. The combination implies an authority in each to act or speak on behalf of the others: Tripodi at p. 7.
It will be noted that the basis of the rule is expressed to be that the combination or preconcert implies an authority in the confederates to act or speak on behalf of the others. As the Court said in Ahern at 95 the principle underlying the rule is one of agency. The Court likened the situation with that of partners in a partnership business.
In R v Ernst [1984] VR 593 McGarvie J gave rulings in the course of a trial for conspiracy to import prohibited items. His Honour discussed the critical difference between the use of the rule in trials for conspiracy charges, as against substantive charges. At 601 McGarvie J said this.
[35]In cases such as Tripodi v. R. (1961) 104 C.L.R. 1, where the accused is charged with a substantive offence such as theft, the prosecution may seek to establish that the accused was a party to a conspiracy to commit the theft and seek to rely on the conduct of a co-conspirator in furtherance of that conspiracy as evidence against the accused on the charge of theft. In that situation, the prosecution seeks to travel a further step beyond establishing the conspiracy. It seeks to establish conduct by a co-conspirator which amounts to an admission made with the authority of the accused. To use the conduct of the co-conspirator as an admission tending to establish guilt on the charge of theft, the prosecution must first establish the conspiracy to the satisfaction of the jury. It is only if there is that conspiracy that the conduct of the co-conspirator can be considered by the jury as evidence of the guilt of the accused on the charge of theft. That process is explained in Tripodi v. R. (1961) 104 C.L.R. 1, at pp. 6-8.
(emphasis added)
It seems to me that this is the use to which Mr Press would put the statements of Condo and Antonio respectively. Although Mr Press’ argument did not descend to these cases, they could be seen to provide the justification for it.
Nonetheless, I do not consider that the utterances relied upon can be used in the way suggested. First, although the prosecution case clearly involves a contention that a number of persons were involved in a combination – the aim of which was to obtain cannabis, process it and ship it to Western Australia where it could be sold – the prosecution did not set out to prove such a joint enterprise as an element of the crimes, or as a basis for the respondent’s guilt. Indeed, in my view, at least since the major amendments to the Controlled Substances Act made by the Controlled Substances (Serious Drug Offences) Amendment Act 2005 (SA), Act No. 80 of 2005 (the ‘amending Act’), which came in to effect on 3 December 2007, the concept of joint enterprise has been alien to the offences created in certain sections of the Act, including s 32.
The amending Act was based to an extent on the work of the Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, which produced its report containing the Model Criminal Code (‘MCCode’) in October 1998. So much is set out by the then Attorney-General in his Second Reading Speech on the Bill (South Australia, Parliamentary Debates, House of Assembly, 21 September 2005, p 3504-5). The Attorney-General explained that the Committee had argued for a national approach to regulation of serious drug offences. He said:
The core of the proposed drug offences is a familiar and simple set of structured offences. They are trafficking in a controlled drug, trafficking in a commercial quantity of a controlled drug and trafficking in a large commercial quantity of a controlled drug. The general trafficking offences are supplemented by a similarly tiered structure of offences on manufacture (manufacturing, manufacturing a commercial quantity, manufacturing a large commercial quantity) and on cultivation of controlled plants (cultivation, cultivation of a commercial quantity, cultivation of a large commercial quantity). In each case, the concept of trafficking, cultivating and manufacturing includes taking a step in the relevant process, which is in turn defined widely to include all kinds of participation in the prohibited behaviour. All have similar reverse onus provisions about intention and belief. This kind of simple, rational and transparent structure is the principal purpose of the overhaul of serious drug offences proposed in the Bill.
(emphasis added)
However the amending Act built, not only on the Committee’s work, but also on the existing Controlled Substances Act, which was now to be drastically amended. For instance, the amending Act defined trafficking to include taking part in the process of sale of a drug. That built upon and extended what had been s 32(1)(d) of Controlled Substances Act which proscribed taking part in the sale, supply or administration of a drug. The notion of taking part was in turn expansively defined to include, for example, providing or arranging finance for any step in the process (s 32(4)(b)) and providing premises by which such a step in the process is to be taken: s 32(4)(c). That went further than the MCCode. As has already been seen, the amending Act provided that taking part in the process of sale, manufacture or cultivation of a controlled drug would be constituted by a person directing, taking or participating in any step, or causing any step to be taken, in the process of sale, manufacture or cultivation.
The definition of ‘traffic’ in s 4(1), the explanation of ‘takes part in’ in s 4(4) and the explanation of ‘a step in the process of sale’ in s 4(5) are exhaustive. The clear implication is that Parliament’s approach was now to be that criminal responsibility would rest on the acts of the defendant and not on any part played by another. Every defendant is a principal.
While Chapter 2, Appendix 7 of the MCCode explicitly provided that it was a codification of the general principles of criminal responsibility, and therefore joint enterprise was no longer a basis for responsibility, the same applies by implication to the amending Act. It is noteworthy that, in the MCCode, aiding, abetting, counselling and procuring the commission of an offence were to remain as offences: Part 2.4 Division 11.2. However, in the South Australian amending Act, the new s 33S specifically provided that there should be no accessorial liability for offences created by s 32 (trafficking), 33 (manufacture of controlled drugs for sale), 33B (cultivation of controlled plants for sale) and 33LD (intentional manufacture of controlled drug alternative). It is in these terms:
33S—No accessorial liability for certain offences
Section 267 of the Criminal Law Consolidation Act 1935 does not apply—
(a)in relation to an offence against section 32, 33, 33B or 33LD; or
(b)in circumstances prescribed by regulation.
Thus the amending Act went further than the MCCode in abolishing derivative responsibility. It was necessary to specifically provide that aiding and abetting would not apply because, while joint enterprise was part of the common law of South Australia, accessorial liability had been codified in s 267 of the CLCA. (That was done at the time that the distinction between felonies and misdemeanours was abolished.). In my mind this is another clear indication that the South Australian Parliament intended to go further than the MCCode and to eliminate all derivative responsibility, whether by joint enterprise or aiding and abetting.
In a supplementary submission to the Court in relation to the applicability of the co-conspirators rule, Mr Press referred to the enactment of s 33S and sought to explain how it sat with his argument that joint enterprise was still available to the prosecution for certain charges, including trafficking charges. As Mr Press submitted, the removal of liability on the basis of aiding, abetting, counselling and procuring does not, in principle, directly touch liability on the basis of a joint enterprise. However, as Mr Press further noted, such are the widths of the definitions of ‘trafficking’, ‘manufacturing’, and ‘cultivating’ – including as they do, the concept of taking part in each process – that acts which would have attracted accessorial liability ‘now satisfy the actus reus for a principal offender’: appellant’s submission [13]. In my view this is plainly correct; but the same argument necessarily applies in relation to joint enterprise as a basis for liability. By necessary implication it is ousted by the very width of the legislation.
I pause to say that this does not imply that the conduct of another could not be proved as part of the case against a defendant. For example, if there was evidence that D instructed X, perhaps in a veiled manner, to collect a parcel from a location and transport it elsewhere, the fact that X did so and that the parcel contained cannabis could be led against D. It would be relevant to interpret D’s instruction and to show the significance of it, including that it was serious. However D’s liability would rest on his conduct in issuing the instruction, just as X’s liability would rest on his own conduct in transporting the cannabis.
The next question is whether, on my finding that pre-concert or joint enterprise is not available in prosecuting an offence against s 32 of the Controlled Substances Act, the co-conspirators rule is available to the prosecution. The decision in Handlen v The Queen (2011) 245 CLR 282 is instructive. That authority arose from a prosecution conducted in Queensland in which Handlen and two others, including Paddison, were jointly charged with two counts of importing a commercial quantity of border controlled drugs and attempted possession of a commercial quantity of unlawfully imported drugs, all contrary to the Criminal Code Act 1995 (Cth). The Criminal Code, in its then form, was based on the MCCode and retained aiding and abetting, counselling and procuring as a basis for liability.
The case was put to the jury on the basis that the men were involved in a ‘joint criminal enterprise’. The person who imported the drugs was one Reed, who gave evidence for the prosecution implicating the others in the scheme. Handlen and Paddison were alleged to have done various things both before and after the importations by way of facilitation. Before the Court of Appeal of Queensland it was accepted that joint enterprise was ‘a form of criminal liability not known under the Criminal Code’: R v Handlen and Another [2010] 247 FLR 261 at [3]. However, the Court of Appeal applied the proviso, dismissing the appeal on the basis that the evidence called by and relied upon by the prosecution was the same, irrespective of whether the prosecution relied on joint enterprise or on aiding and abetting, counselling and procuring. The Court found that Handlen was a procurer of the importing offences. Holmes JA, with whom Fraser and White JJA agreed, said this:
[72]The appellants are correct, in my view, when they say that the case was advanced and left to the jury in terms alien to the forms of criminal responsibility then recognised by the Criminal Code. The question then is as to what follows from that conclusion. The evidentiary content of the Crown case is unaffected: the prosecutor was entitled to lead evidence of the acts and statements of all accused in furtherance of the common purpose of importation on the Tripodi principle, whatever basis of criminal liability was advanced. The case was extremely strong: Reed’s account of the appellants’ involvement in the importations was amply supported by the evidence of travel arrangements and transfer of moneys, the recordings of telephone conversations, the surveillance evidence, particularly of Paddison at the warehouse, and the fingerprint evidence against Paddison. In my view, the guilt of each appellant was established beyond reasonable doubt: one could not regard either as having lost “a real chance of acquittal” by reason of the failure to frame the question of criminal responsibility in terms of aiding under s 11.2. That conclusion, however, is a necessary but not sufficient condition for the application of the proviso.
On appeal by Handlen and Paddison to the High Court the convictions were quashed by a majority, Heydon J dissenting. The majority referred to the directions given to the jury in relation to each count. Those included directions that the jury could use the acts and statements of other parties to the plan against Handlen and Paddison, provided the jury were satisfied of an ‘agreed common purpose’ and satisfied that the acts and statements were done and said in furtherance of that purpose: [35].
The High Court identified the vice in the trial as prosecuting the case as one of joint criminal enterprise and framing the issue for determination in terms of proof of the appellants being part of a ‘group exercise’: [42]. The Court of Appeal was wrong to say that, because of the availability of the Tripodi principle, the evidential content of the case was unaffected by this error. The majority itemised the only evidence which could be used against the appellants, saying:
[44]The evidence that the Crown Prosecutor was entitled to lead in the case against each appellant was evidence tending to establish (i) the commission of the importation offences by Reed; (ii) the conduct of the appellant that aided, abetted, counselled or procured the commission of the offences; and (iii) any fact or circumstance from which it was open to infer that the appellant had the intention, in engaging in the conduct, to assist Reed in the commission of offences of this type.
The Court went on to observe that the way in which the case was left focused on the need for proof of the ‘group exercise’, rather than what each appellant himself did to facilitate the importation: [46].
In my view this case stands as clear authority for the proposition that, in the absence of availability of the common law notions of pre-concert or common purpose or joint enterprise (as it is called in this state), the co-conspirators rule of evidence will not apply. The prosecution will not be able to prove a defendant’s guilt of trafficking by first proving he was part of a joint enterprise to commit the crime and then proving that the enterprise was accomplished by the acts of the others who joined with him. Consequently, in the present case, the words of Condo and Antonio were not available to prove the truth of assertions as to quantities of the substances with which they were dealing. There was no other evidence to prove quantity.
I would add to my earlier general observation that this does not mean that evidence of the acts of others may not be admitted and used to explain and provide context for the defendant’s own acts. For example, here, the arrival of Peter Mindis (‘Mindis’) at Antonio’s house within a day or so of the respondent advising Antonio that the ‘old man’ would be coming, was relevant to interpreting the respondent’s words and intentions, without any reliance on the co-conspirators rule.
Therefore, on the state of the evidence presented, the prosecution could not make out a prima facie case of trafficking in a large commercial quantity of cannabis. However, I consider it could have made out a case of trafficking in cannabis. There is evidence which constitutes a prima facie case of trafficking which is not dependant on the words or actions of persons apart from the respondent. In the court below there was no discussion of how matters stood if the utterances of Condo and Antonio going to quantity were to be ruled inadmissible.
I agree with the Judge that the prosecution of the respondent for counts 1, 2 and 3, as charged, was foredoomed to fail. However, the prosecution on these counts for simple trafficking should not have been stayed on this basis.
I respectfully disagree with the Chief Justice in relation to the appropriate stage at which the question of admissibility should have been considered. Even if there had been no stay application, the defendant was permitted to seek a ruling on admissibility prior to the trial proper: s 131 Criminal Procedure Act 1921 (SA). The judge would not have been obliged to rule at that stage. However, in my opinion, he would have been obliged to rule at the time the evidence was tendered. Hearing evidence de bene esse in a criminal trial is rarely desirable, unless it is done to enable a better informed decision on admissibility.
Ground 2 – Were the particulars inadequate
I now turn to the ground concerning the particulars of the charges. As seen, the Judge stayed the prosecution of counts 1, 2 and 3 both on the basis that the prosecution was foredoomed to fail and also ‘for want of particulars requested’. That latter decision plainly rested on a number of bases.
In his reasons the Judge noted the complexity of the prosecution case and that the prosecution relied heavily upon ‘voluminous telephone transcripts’. The Judge noted that he had indicated to counsel for the prosecution over a long period that it was required to indicate which conversations carried an implication of guilt and what inferences it said arose from the relevant conversations. He said it was not his job, nor that of the defence, to read through large amounts of material and draw his own conclusions. The Judge referred to the fact that there was no objective proof as to the existence of the drugs, the subject of counts 1, 2 and 3. The particulars in the information had not specified the nature of the drugs and, indeed, that had not been done until 30 October 2017. The most relevant telephone calls and the specific utterances relied upon in them were not identified until 11 May 2017. The Judge said that if the co-conspirators rule was being relied upon as a justification for the use of utterances by persons other than the accused to prove the nature of the drugs and their quantities, then the prosecution was required to provide particulars of the joint enterprise and to specify which telephone conversations were relied upon and what inferences flowed from them. The Judge also referred to the matter of discreditable conduct evidence. He had been told that the prosecution proposed to lead evidence of a general nature of the involvement of the respondent in trading in drugs on occasions other than those charged. No notice had been given. This made it difficult for the defence to object to that evidence in advance of trial, as required.
The Judge further said that it fell to the prosecution to establish what acts the accused was alleged to have performed that demonstrated involvement in trafficking. More than broad allegations were required. He referred to the fact that some four years after alleging offences involving possession, the prosecution had now eschewed that allegation and were relying on other acts amounting to trafficking, which had not been specified. Against those circumstances the Judge ruled that the prosecution’s failure to provide adequate particulars meant that the respondent was not enabled to properly defend the charges.
As is plain, the prosecution has a long and unhappy history. In his reasons for decision, the Judge set out a chronology of relevant stages and developments in the prosecution. I propose to do the same, largely borrowing from the Judge’s work.
18.11.13 First information filed in the Magistrates Court.
Defendants are the respondent, Antonio and Carolyn. Counts 1 and 2 charge them jointly with trafficking in a large commercial quantity of a controlled drug at Keswick on 14 November 2013. Count 3 charges them with participating in a criminal organisation, contrary to s 83E(1)(a) & (b) of the CLCA.31.03.14 The respondent’s solicitors write to the Director of Public Prosecutions (‘the Director’) seeking ‘further and better particulars’ of each count.
The Director does not reply.
08.04.14 The respondent’s solicitors again write to the Director noting that there has been neither response to the letter of 31.03.14 nor any additional declarations or other information received.
28.04.14 Second information filed in the Magistrates Court.
The information contains 7 counts. Apart from the respondent, Antonio, Carolyn, Mindis, Leah Tilley and three others are charged. Count 1 alleges participating in a criminal organisation against all defendants. Counts 2 and 3 alleges trafficking against the respondent and others, that conduct said to have occurred in March and April 2013. Those counts do not appear to be relevant to present information. Counts 4 and 5 do not concern the respondent. Counts 6 and 7 both charge the respondent, Antonio, Carolyn and Mindis with trafficking in a large commercial quantity of cannabis, and MDMA, respectively, both on 14 November 2013.11.09.14 The respondent’s solicitor writes to the Director regarding counts 2, 3, 6 and 7 requesting particulars of the facts and circumstances relied upon to prove those charges. He asserts that his client is entitled ‘to be apprised not only of the legal nature of the offence that has been charged but also on the particular act, manner of thing alleged as the foundation of the charge’, referring to Johnson v Miller (1937) 59 CLR 467 at 489 and 497-498.
The Director does not reply.
14.10.14 A Magistrate rules there is no case to answer in respect of counts 2, 6 and 7 of the information of 28 April 2014.
Thus the only count upon which the respondent is committed for trial is count 1, participating in a criminal organisation.01.12.14 Information of the Director, charging Antonio and Carolyn with trafficking in a large commercial quantity of cannabis and trafficking in a large commercial quantity of MDMA.
The information is not proceeded with.02.03.15 Information of the Director (an ex-officio information).
This information charges the respondent, Antonio and Carolyn, jointly, with trafficking in a large commercial quantity of cannabis at Mile End, Keswick and other places on 14 November 2013 and, count 2, trafficking in a large commercial quantity of MDMA on the same date and places.29.06.15 Information of the Director (an ex-officio information).
The charges and particulars are the same as for the previous information except that the respondent’s sister has replaced Antonio. Again, all three are charged with both counts.06.04.16 The respondent’s solicitor writes to the Director asking which statements he will rely upon to prove the charges, what is the basis for criminal liability alleged against all three defendants and what are the ‘particular alleged matters, facts and circumstances which the Director will seek to rely upon to prove the charges’. Further particulars are sought, including the nature and scope of the joint enterprise and the acts said to have been committed in furtherance of the agreement.
The Director does not reply.
11.05.16 Mr Hill, on behalf of the Director, writes to the respondent’s solicitor providing particulars. He states:
Count 1 relates to what the prosecution alleges to be thirty-five pounds of cannabis, as referred to in a telephone call at 12:29 pm on 20 November 2012…
The prosecution alleges that [the respondent] sold the cannabis the subject of count 1. In the alternative, the prosecution alleges that [the respondent] took part in the process of sale by directing the storing and/or packaging and/or carrying and/or transporting of that cannabis.
Count 2 relates to what the prosecution alleges to be at least nineteen and three quarter (19¾) pounds of cannabis, as referred to in a telephone call at 3:18pm on 3 October 2013…
[Mr Hill then repeats the allegation as to the respondent’s role.]
Count 3 relates to what the prosecution alleges to be at least twenty-eight (28) pounds of cannabis, referred to in a telephone call at 9:07pm on 9 October 2013…
[Mr Hill then repeats the allegation as to the respondent’s role.]
Count 4 relates to the cannabis seized from Mindis’ luggage at Keswick on 14 November 2013.
[Mr Hill then repeats the allegation as to the respondent’s role.]
Count 5 relates to the ecstasy seized from Mindis’ luggage at Keswick on 14 November 2013.
[Mr Hill then repeats the allegation as to the respondent’s role.]
11.05.16 The Director provides the respondent’s solicitor with a list of 53 witnesses and 120 specific telephone calls relied upon.
12.05.16 Information of the Director (an ex-officio information).
This is the current information.10.08.17 The respondent’s solicitor writes to the Director requesting further particulars. In the letter specific reference is made to s 32(4), (5)&(6) of the Controlled Substances Act and particulars are sought of what action of the respondent is alleged in terms of the wording of the section in relation to counts 1, 2 and 3. Specific requests are also made in relation to counts 4 and 5.
18.08.17 Mr Walker, on behalf of the Director, advises by email that ‘the Director relies on the particulars as set out in Mr Hill’s letter of 11 May 2016.’
20.08.17 The respondent’s solicitor files an application for directions seeking orders including:
1. That the prosecution be stayed pending the provision to the defendant of particulars of the offences charged on the information;
2. In the alternative to 1, that in the event further particulars of the information are not provided:
a. That this information be quashed; or
b. As concerns counts 1 to 3 that the prosecution be stayed, permanently, because the prosecution of those offences is bound to fail;
It is this application which led to the Judge’s rulings now under appeal.
04.09.17 First hearing in the District Court before the Judge.
The Solicitor-General appears to intervene relevant to a constitutional matter raised by the defence.
Towards the end of the hearing counsel for the prosecution, Mr Walker, abandons any allegation that the respondent was in possession of drugs at the Keswick Railway Station. Mr Walker agrees to provide a document which contains a detailed summary of the case including reference to the conversations relied on and setting out what evidence shows that the respondent took part in the process of sale.
06.09.17 Document headed ‘Telephone Intercept Summary’ is provided to the Court and the defence.
08.09.17 Second hearing before the Judge.
His Honour indicates that the document provided does not contain particulars and that he requires particulars in terms of the relevant provisions of the Act, as well as identification of the evidence and inferences arising from the evidence, linked to each count.
12.09.17 The respondent’s solicitor writes to the Director asserting that it is not open to the prosecution to ‘plead a case that the accused is either guilty because he sold the relevant drug… or, in the alternative, seek to rely on an allegation that the accused also took part in the sale of same’.
The Director does not reply.18.09.17 Third hearing before the Judge.
Document headed ‘Particulars and References to Evidence’ handed to defence and to the Judge.
At the outset of this hearing counsel for the prosecution abandons the allegation of selling (in relation to all counts) and advises that the allegation now relied on is taking part in sales.
Adjourned for further argument on various matters.
30.10.17 Document headed ‘Summary of Prosecution Case’ provided to defence and the Judge.
31.10.17 Fourth hearing before the Judge.
Argument on application to stay and particulars, not completed.
15.12.17 Fifth hearing before the Judge.
Decision reserved.
09.02.18 Rulings by the Judge, together with reasons.
The obligation to give particulars
Section 277 of the CLCA, as it stood at the time of trial, dealt with informations in these terms. (An equivalent provision is now found in s 100 (Criminal Procedure Act 1921 (SA)) It provided:
277—General provisions as to informations
(1)Every information shall contain, and shall be sufficient if it contains, a statement of the specific offence or offences with which the accused person is charged, together with such particulars as are necessary for giving reasonable information as to the nature of the charge.
(2)Notwithstanding any rule of law or practice, an information shall, subject to the provisions of this Act, not be open to objection in respect of its form or contents if it is framed in accordance with the rules under this Part.
Rules 21 and 22 of the Supreme Court Criminal Rules 2014 (SA) regulate the form of the information and the counts it contains.
In addition to statutory requirements the common law regulates the area. The information must specify the legal nature of the offence and also of ‘the particular act, matter or thing alleged as the foundation of the charge’: Johnson v Miller (1937) 59 CLR 467 at 489. In an oft-quoted passage in that case Dixon J said, at 489-490.
In my opinion [the prosecutor] should be required to identify the transaction on which he relies and he should be so required as soon as it appears that his complaint, in spite of its apparent particularity, is equally capable of referring to a number of occurrences each of which constitutes the offence the legal nature of which is described in the complaint. For a defendant is entitled to be apprised not only of the legal nature of the offence with which he is charged but also of the particular act, matter or thing alleged as the foundation of the charge. The court hearing a complaint or information for an offence must have before it a means of identifying with the matter or transaction alleged in the document the matter or transaction appearing in evidence.
Although that case concerned a complaint charging an offence against the Licensing Act 1932 (SA) there is no reason to doubt its application to informations.
In John L Pty Ltd v the Attorney-General (NSW) (1987) 163 CLR 508 the majority made the following statement of principle, at 519.
The traditional function of an information was to found jurisdiction to deal with an alleged offence. Disregarding the effect of statutory provisions curing or precluding reliance upon a defect, the old authorities established that an information should be quashed as insufficient in law and invalid if it failed to inform the justices before whom it was laid of the nature of the offence and the manner in which it had been committed. The rationale of that requirement has, in more recent times, commonly been seen as lying both in the necessity of informing the court of the identity of the offence with which it is required to deal and in providing the accused with the substance of the charge which he is called upon to meet: “an accused person could not be required to defend the charge if the information did not supply the particulars necessary to enable him to prepare his defence”: Ex parte Lovell; Re Buckley (1938) 38 SR (NSW) 153 at p 166.
In the present case, there was not an objection to the form of the information itself, but requests for further particulars of the charges.
An accused person is entitled to particulars of the charge sufficient to enable him to prepare his defence: Ex parte Ryan; re Johnson 1943 61 WN (NSW) 17 at 20. Legislative provisions stipulating what is an adequate description of an offence in a charge are one thing; they do not deprive the accused of his right to reasonable particulars. The degree of particularity required is that which is reasonable having regard to the nature of the charge: O’Sullivan v De Young [1949] SASR 159, at 167.
Just as the ‘degree of detail and specification’ to be required in the charge must necessarily depend on ‘the nature of the charge’ and the means by which the prosecution is entitled to discharge the burden of proof: O’Sullivan v De Young at 167 per Napier J, so it seems to me to follow that the extent of further particulars which might be ordered will depend upon the nature of the charge and the mode of proof. In Lafitte v Samuels (1972) 3 SASR 1, at 6 Bray CJ discussed the extent of particulars which should have been given in support of the charge of behaving in a disorderly or offensive manner in a public place. His Honour said, at 6-7:
I think that in a case like this the precise incident in question should be pinpointed. It should be made clear whether the defendant is charged with one piece of behaviour only or several pieces of behaviour. In the latter case there should preferably be separate counts. The incident or incidents should be described with sufficient detail. If words are alleged, the words should be given; if conduct is in question the conduct should be specified. It should be specified what behaviour is alleged to have been disorderly and what offensive. If it is an essential ingredient of offensive behaviour that someone should have been actually offended, his identity should be revealed.
I have referred to the particulars on the various informations filed. It can perhaps be said without fear of contradiction that the particulars given in them were entirely unhelpful. The first occasion when anything informative in terms of particulars was provided was in the Hill letter of 11 May 2016. There, for the first time, the quantity of cannabis said to be involved in each of counts 1, 2 and 3 was specified and an intercepted telephone call relevant to proof of that quantity was nominated. (Even so, at that point the prosecution was maintaining that the respondent sold the cannabis in each instance or, in the alternative, took part in the process of sale, the first position being later abandoned.) Helpfully, too, the author specified for each of those counts one of the ways provided in s 32(4) of the Controlled Substances Act in which a person might take part in the process of sale, namely by directing. Mr Hill advised: ‘In the alternative the prosecution alleges that [the respondent] took part in the process of sale by directing the storing and/or packaging and/or carrying, and/or transporting of that cannabis.’ No doubt the disjunctive mode of expressing these possibilities would have been best not employed. However, as Mr Abbott QC for the respondent acknowledged on the appeal, the prosecution is entitled to allege trafficking by way of a number of discrete steps directed or taken in a process of sale, without fear of a suggestion of duplicity. Of course, all those steps would need to be directed to the same process of sale, manufacture or cultivation, as the case might be.
Notwithstanding that the Hill letter contained useful material, it did not satisfactorily particularise the charges, not only because trafficking in the form of both selling and taking part in the process of sale was alleged, but also because there was no explanation of how the telephone calls referred to could prove the case.
What was described on the appeal hearing as the ‘high watermark’ of the particulars provided was the document entitled ‘Particulars and References to Evidence’ which was given to the defence and the District Court on 18 September 2017. The form of this document, in terms of the provision of particulars, is unusual. It begins with what is called an ‘Overview’. There, what is alleged to be the respondent’s ‘leadership, management and/or organisational role in relation to each of the offences’ is described. Particular aspects of the respondent’s role are identified, including, for example, ‘providing support to others when problems occur’, ‘ordering or arranging for others to undertake tasks’ and ‘organising or arranging others’ travel’. Reference to these activities is linked to specific telephone calls. Then, particulars are given of each count. These follow a format, and so it is sufficient to set out one example:
Count One - Between 1 November 2012 and 20 November 2012 from Mile End and/or other unknown places in South Australia10
i organised, authorised, encouraged, directed or caused the collection and/or packaging of 35 pounds of cannabis; and/or
ii organised, authorised, encouraged, directed or caused the transportation of 35 pounds of cannabis from South Australia to Western Australia.
10 See CSN [Call Sign Number] 1144; CSN 1196; CSN 1096; CSN 2; CSN 3; CSN 100001 from which the prosecution submits it can be inferred that: some time prior to 12 November 2012 the accused has taken part in the shipment of 35 pounds of cannabis to Domenic Condo in Western Australia; Condo has on-sold 15 pounds to one purchaser and 20 pounds to another purchaser; Condo owed and, later, paid the accused money for the shipment; Condo’s purchasers complained that the cannabis was too moist and had developed mould; the accused was to source his next shipment of cannabis from a different supplier; and the accused and Condo agreed that they would compensate Condo’s purchasers with an extra pound of cannabis each in their next purchase of cannabis which was calculated by multiplying a moisture loss of 1.5oz per pound of cannabis by 35 pounds.
In my view, as provision of particulars of count 1, this is flawed. I leave aside, again, the fact that the places at which conduct occurred and indeed the conduct is pleaded disjunctively. More importantly, of the verbs used against i and ii, only ‘directed’ and ‘caused’ are words which appear in s 32(4) as modes of taking part in the process of, relevantly, sale. The other words used – ‘organised, authorised, encouraged’ – appear neither in s 32(4) nor in s 32(5). (See the appendix at the end of these reasons.) These words are typically used in cases where joint enterprise or aiding and abetting form the basis of criminal responsibility. As seen, on my analysis derivative responsibility is not available here. Were the tribunal of fact minded to find one or more counts proved on the basis of, for example, ‘authorised’ or ‘encouraged’, the finding would not, of itself, amount to an offence against s 32. In other words, these particulars did not, or might not, disclose an offence.
Additionally, even this document was furnished almost four years after the original charge was laid. It came after repeated attempts by the trial Judge, in each of the hearings which preceded its provision, to elicit information about the prosecution case. It also arrived long after the many requests by the respondent’s solicitors for the provision of particulars, which I earlier set out.
In the usual run of cases, even drug cases, reference to one of more call numbers might be sufficient in answer to an order for further and better particulars. However, here, not only were large tracts of the recorded conversations in a crude code, but other parts were in Italian; and then the prosecution depended on inferences from the words spoken. These features made this case unusual and rendered the need for adequate particulars especially acute. The suggested interpretation of the words was loosely provided by Mr Walker orally before the Judge. In the face of the orders made, it should have been provided in a document.
By the end of the last hearing the prosecution case was tolerably clear. The Judge plainly understood it. However, as already outlined, the way in which the facts alleged were linked to the legislative provisions was flawed and the time taken to reach even that point was excessively long.
In Lafitte v Samuels Chief Justice Bray (at 6) gave the following advice to those undertaking the drafting of complaints or informations:
I still think it is bad pleading, even if pleading valid by statute, to plead disjunctively in the manner adopted here. If it is intended to contend that the act was both disorderly and offensive, the adjectives should be connected by "and" and not by "or": if it is only intended to contend that one adjective applies, the other should not be included in the complaint. Prosecutors should make up their minds what they want to charge and then boldly charge it, if necessary in two counts in the alternative; they should not, in my view, strive to be as vague as possible in the hope that out of several ambiguities in the complaint one will ultimately be found to fit the evidence after it is all in.
(emphasis added)
That advice is as relevant today as it was in 1972.
As I have said, this was an unusual case. In my view the Judge was entitled, indeed correct, to take the view that the case had not been adequately particularised and that it should be stayed as an abuse of process. I have further concluded that the particulars provided were flawed.
Conclusion
I would grant permission to appeal on ground 2. It raises an important issue of principle.
I would uphold the Judge’s decision on the basis both that the prosecution of counts 1, 2 and 3 was foredoomed to fail insofar as those counts charged a large commercial quantity, and on the basis that the further and better particulars provided in response to the Judge’s orders took an excessively long time, and were flawed. For these reasons the prosecution on these counts amounted to an abuse of process.
I would dismiss the appeal.
NICHOLSON J: I agree that the appeal should be allowed for the reasons given by the Chief Justice.
Appendix
Relevant sections of the Controlled Substances Act 1984 (SA)
32—Trafficking
(1)A person who traffics in a large commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty: $500 000 or imprisonment for life, or both.
(2)A person who traffics in a commercial quantity of a controlled drug is guilty of an offence.
Maximum penalty:
(a) for a basic offence—$200 000 or imprisonment for 25 years, or both;
(b) for an aggravated offence—$500 000 or imprisonment for life, or both.
(2a)…
(3)A person who traffics in a controlled drug is guilty of an offence.
Maximum penalty:
(a) for a basic offence—$50 000 or imprisonment for 10 years, or both;
(b) for an aggravated offence—$75 000 or imprisonment for 15 years, or both.
4—Interpretation
(1)…
traffic in a controlled drug means—
(a) sell the drug; or
(b) have possession of the drug intending to sell it; or
(c) take part in the process of sale of the drug;
…
(4)For the purposes of this Act, a person takes part in the process of sale, manufacture or cultivation of a controlled drug or controlled plant if the person directs, takes or participates in any step, or causes any step to be taken, in the process of sale, manufacture or cultivation of the drug or plant.
(5)For the purposes of this Act, a step in the process of sale of a controlled drug includes, without limitation, any of the following when done for the purpose of sale of the drug:
(a) storing the drug;
(b) carrying, transporting, loading or unloading the drug;
(c) packaging the drug, separating the drug into discrete units or otherwise preparing the drug;
(d) guarding or concealing the drug;
(e) providing or arranging finance (including finance for the acquisition of the drug);
(f) providing or allowing the use of premises or jointly occupying premises
10
1