R v Franco

SUPREME COURT OF VICTORIA
COURT OF APPEAL

Nos. 311 of 2005
320 of 2004
319 of 2004
250 of 2005
249 of 2005

THE QUEEN
	v.
JESSIE LUKE FRANCO, TONY ILIJA CRNAC, PAUL PRATICO, ROBERT CETRANGOLO and DAVID CIAMPOLI

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JUDGES:	MAXWELL, P., BUCHANAN and VINCENT, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	31 July 2006, 1 August 2006
DATE OF JUDGMENT:	20 December 2006
MEDIUM NEUTRAL CITATION:	[2006] VSCA 302	2^nd Revision, 31 January 2007

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CRIMINAL LAW – Possession of prohibited import, being not less than a commercial quantity of cannabis resin – Statutory defence if accused did not know of importation – Whether defence open on the evidence – Whether deliberate decision by defence counsel not to argue defence – Whether directions on possession adequate – Customs Act 1901 s.233B(1)(c), (1A).

CRIMINAL LAW – Trial – Defence of duress – Direction to jury to scrutinise carefully accused’s evidence about threats – Whether direction impugned accused as witnesses – Whether direction required jury to treat accused as “suspect witnesses” – Robinson v R (1994) 180 CLR 531 – Whether judge’s refusal to allow naming of “true targets” of police operation emasculated defence.

CRIMINAL LAW – Sentencing – Whether prior convictions relevant to failed defence of duress – Whether failure of defence relevant to sentencing – Discretion reopened – Parity – Whether culpability of one co-accused greater than that of others.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr J. Champion, S.C. with Mr M. Cahill	Ms J. McGillivray, Solicitor for the Commonwealth Director of Public Prosecutions
For the Applicant (Franco)	Mr L.C. Carter	Ms S. Cameron
For the Applicant (Crnac)	Mr M.J. Croucher	Causovski Lawyers
For the Applicant (Pratico)	Mr P.F. Tehan, Q.C.	Mr Rob Melasecca
For the Applicant (Cetrangolo)	Mr G.F. Meredith	Victoria Legal Aid
For the Applicant (Ciampoli)	Mr C.B. Boyce	Victoria Legal Aid

MAXWELL, P.:

The Court has before it applications by five men, to whom we shall refer respectively as Franco, Crnac, Pratico, Cetrangolo and Ciampoli. Each of the five was convicted by a County Court jury on 24 September 2004 of an offence under (the former) paragraph 233B(1)(c) of the Customs Act1901 (Cth),[1] that is, of having had in his possession –

“without reasonable excuse, ... prohibited imports to which s.233B of the Act applies, namely, narcotic goods consisting of not less than a commercial quantity of the narcotic substance cannabis resin which had been imported into Australia in contravention of the Act.”

[1]Corresponding provisions are now in Part 9.1 of the Criminal Code (Cth).

Franco was sentenced to nine years’ imprisonment with a non-parole period of six years. Each of the other four was sentenced to seven and a half years’ imprisonment with a non-parole period of five years.

Crnac and Pratico seek leave to appeal against both conviction and sentence. Franco, Cetrangolo and Ciampoli seek leave to appeal only in respect of sentence. Both Cetrangolo and Ciampoli originally filed notices of application for leave to appeal against conviction but those applications were subsequently abandoned. Ciampoli has now sought leave to reinstate his conviction application.

Unloading the containers

Around 4:00 am on 14 August 2001, Australian Federal Police officers arrested the five applicants in a building yard at Campbellfield. For some hours before the arrests, the AFP officers had covertly watched the men and the focus of their activity, being two shipping containers which had been delivered to the yard some hours earlier.

The containers had been shipped from the Middle East to Melbourne. According to the shipping documents, they contained 27 tonnes of black marble tiles. The importation had been effected by means of false documents which, without authority, used the name of a reputable importing company as a cover. Concealed beneath the tiles under a specially-constructed false floor in each container, was a much more valuable cargo – almost three tonnes of cannabis resin.

Crnac was the first to arrive, driving his own car. He met the truck drivers at the gates to the yard and signed the delivery receipt for the two containers. The drivers left the two containers on trailers in the yard, and departed shortly after 11:00 pm. Over the next hour, the four other applicants arrived. They were driving borrowed or hired vehicles, each of which was capable of moving a heavy load. Franco was in a hired Toyota Hilux utility; Cetrangolo in a borrowed Ford Falcon utility; and both Ciampoli and Pratico drove hired three-tonne trucks.

As the AFP officers watched, the applicants opened the containers and removed the wooden crates containing the marble tiles. It was heavy physical work and all five were involved. They stacked the crates at various points in the yard, initially by hand and later by forklift (driven by Crnac). Although the four vehicles were available, no tiles were loaded into any of those vehicles. The Crown relied on this circumstance as showing that there was no intention to remove the tiles from the yard that night. The Crown also relied on the fact that the tiles were stacked in a way which would have made reloading them into the containers more difficult. Once the second container had been unloaded, Crnac returned the forklift to its original position at the front of the yard, well away from the stacked tiles. The Crown relied on this fact as showing that Crnac did not intend to use the forklift any further that night for the moving of tiles.

By about 3:00 am, all of the tiles had been emptied from the containers. At about 3:30 am, Franco was observed inside the first container passing timber panelling – later identified as flooring from the rear of the container – to the other men on the ground at the rear of it. The truck hired by Pratico was then backed up to the open end of the first container. Crnac, holding a torch, stood inside on the edge of the container and directed the driver into position. Shortly after, Crnac was observed working on the floor of the second container, loosening bolts with a socket and ratchet and then lifting the floorboards with a crowbar.

The police officers intervened at approximately 4:00 am. As they moved through the yard, announcing their presence and arresting the applicants, the police made a number of observations, as follows. Crnac was standing inside the second container, using a crowbar to lever the floorboards. Police noticed a strong smell of cannabis in and around the container. Crnac retreated towards the rear of the container as police approached. After his arrest, police searched him and located four socket heads in his jacket pocket. In his car, they located a key to the padlock securing the front gates at the yard. Police later found Crnac’s mobile telephone amongst some tools on top of a stack of crates near the first container. The owners of the yard identified Crnac as someone they knew as a shop steward in the building and construction industry.

Cetrangolo ran from the gap between the first container and the truck which had been hired by Pratico. The police officers pursued him to the north-east corner of the yard, where they apprehended him. They found discarded work gloves along the way, which suggested that he had been wearing them prior to apprehension. They found his mobile phone in the console of the Ford utility parked at the front of the yard.

Franco was running from the same area between the container and the truck. When police apprehended him, he was wearing gloves and a beanie, and had a prepaid mobile telephone in the false name of “Tony Fontano”. Subsequent examination of call charge records for this phone showed contact not only with phones belonging to some of the other applicants but with two other false-name telephones. One of these was connected to those involved in the organisation of the importation and movement of the drugs. The second, a prepaid mobile in the name of “Paul Alasandrini”, was located on Pratico when he was arrested.

Police subsequently located the key to the white Hilux utility in Franco’s sock. Unlike the other vehicles, this utility was found outside the yard, parked in the nearby K-Mart car park. Inside the utility, police located a pair of binoculars, a mobile telephone registered in Franco’s name and a slip of paper with two mobile telephone numbers on it. One of them was the Alasandrini phone number; the other was registered in the name “Cassie Abbott.” Call charge records showed this telephone to be associated with persons involved in the importation. Franco’s fingerprints were found on this piece of paper.

Ciampoli was well-hidden between two stacks of metal adjacent to the first container. He was discovered only after the police had been in the yard for some time. They found near his hiding place the key to the truck which he had hired. His mobile telephone was in the cabin of that truck.

Pratico was lying on the roof of a shipping container near the front gates to the yard. He was the last to be found. He was wearing an orange safety vest and a blue baseball cap and had a black balaclava in his pocket. He had in his possession the Alasandrini telephone and a mobile telephone registered in his own name. The truck which he had hired was backed up to the rear of the first container. The keys were in the ignition.

Examination of the first container revealed that part of the wooden flooring had been removed, and approximately half of the cannabis resin blocks had been loaded into the rear of Pratico’s truck. The bulk of the blocks were wrapped first in plastic and then in an outer layer of brown and gold foil. The foil wrapper had coffee label markings. A substantial number of the blocks were, however, only wrapped in clear plastic, and the dark brown cannabis resin, stamped with a distinctive gold logo, was clearly visible through the plastic. The police noticed an extremely strong smell of cannabis as they approached the container. The container still held some 742.15 kilograms of cannabis resin, 709.88 kilograms having been unloaded into the truck.

The floor of the second container, where Crnac was apprehended, was still in place, but bolts securing the wooden floor to the container sub-frame had been removed. The crowbar was wedged in the floor over a piece of wood as a fulcrum for leverage. The brown and gold packaging of the cannabis resin was visible in the gaps in the flooring where the boards had been cracked or partly raised. There was a total of 1478.45 kilograms of cannabis resin in this container.

The Crown case was that Franco was the common link between the applicants, some of whom knew each other well. It was said that Franco had organised the connection of the two false phones (in the names of Fontano and Alasandrini). Franco had the former and Pratico the latter. The Crown contended that Franco had used the Fontano phone to communicate with others – including the other applicants – involved in the operation. The call charge records for the mobile telephones belonging to the applicants showed frequent communication between the men during the days before, and the night prior to, their arrest. A chronology of relevant calls was provided to the jury to enable them to follow the telephone records.

Inside each foil coffee wrapper were two individually-packaged blocks of cannabis resin. Each block weighed approximately 500 grams. The value of the cannabis, if sold in one-kilogram blocks, was estimated to be between $3,000 and $5,000, giving a wholesale value for the 2940.48 kilograms of between $8.8 million and $14.7 million. Prices on the street were estimated at between $45 and $500 per gram, giving a total street value of between $132 and $147 million. The Crown case was that a consignment of this value would only be entrusted to a team of reliable associates.

The case for the applicants

Franco gave evidence. He said he attended the yard at Campbellfield to unload tiles. He said that he had no knowledge of the concealed narcotics and hence had no possession or control of the narcotics at any stage, and that anything he had done towards the removal of the packages of cannabis resin was involuntary. It was involuntary, Franco said, because he had been threatened.

Franco gave the following account of how the threat occurred. In addition to the five accused, two other men were (he said) present at the yard on that night, namely, Pasquale (also known as “Pat” or “Paddy”) Barbero, and a well-built man of Turkish or Lebanese appearance known to Franco only as “Tony”. Tony had first approached Crnac and, subsequently, Franco and his friend Cetrangolo, to help unload some “dodgy tiles”. As Crnac had contacts in the building and construction industry, his recruitment was to find a place to unload the marble tiles. The others were needed to help unload and, as payment, would receive a share of the shipment of tiles.

When Franco arrived at the yard, Crnac and Barbero were already there. Barbero threw him the gloves to use while unloading the tiles. Franco then went with Barbero in the Hilux truck to meet Tony in the car park of the nearby McDonalds, to get instructions in relation to how he wanted the tiles unloaded. Barbero subsequently came to the yard shortly after the five had started work on the second container. Barbero said that, if Tony arrived, he was to be told that Barbero was in the first container.

Tony arrived soon after and was directed to the first container. Tony then drew three of them – Franco, Crnac and Cetrangolo – aside, between the two containers, and produced a gun. Tony told them he was no longer interested in the tiles. He said that they could have the tiles but they should do what they were told and “would see their families in no time”. Tony told them they had to help with the floorboards and that he and Barbero were going to take the truck for a short time and come back. Franco and Cetrangolo then assisted Tony and Barbero to move the large section of floorboards in the first container. Crnac was sent to start lifting the floorboards in the second container.

Crnac also gave evidence. He denied knowledge of the presence of narcotics in the containers. He also said that anything he had done to gain access to the narcotics was done only as a result of threats by Tony, who had produced a gun. Crnac said that he did know the owners of the yard, through his work in the construction industry and his connection to the Melbourne Knights and the Croatian Club in Footscray. He was familiar with the yard and knew that they kept a spare set of keys hidden on the premises.

Crnac gave the same account as Franco had given as to the conversation with Tony during which a gun was produced, and as to what Tony had directed them to do. Crnac said that, after the gun had been produced, he just did what he was told as he believed that he could be shot. They knew who he was, where he lived and where he worked.

Pratico also gave evidence. He said he was unaware of the events at the yard beyond the unloading of the tiles. He said he had been enlisted to move tiles and was to be paid in tiles and his involvement was limited to the two days prior to his arrest. He assisted with the unloading of the tiles but, due to an injury sustained during a football game on the previous Saturday, he retired to rest in the vehicles at the front of the yard and was unaware of any activity in relation to the lifting of the floorboards or the threats made by the man Tony.

Pratico said that when police arrived, he hid on the top of a container at the front of the yard, because he felt that the tiles might have been stolen. He denied that he was acting as a look-out. He said that, if he had been, there had been plenty of time to call Franco or Cetrangolo on his own mobile phone, but he had made no such call.

Neither Cetrangolo nor Ciampoli gave evidence.

THE CONVICTION APPLICATIONS
Failure to leave defence under Customs Act s.233B(1A)

Both Pratico and Crnac rely on a ground to the following effect:

The learned trial Judge erred in failing to leave the defence, pursuant to s.233B(1A) of the Customs Act 1901, that the applicant did not know that the narcotic goods had been imported.

The provision under which the applicants were prosecuted was s.233B(1)(c), which provides as follows:

“(1) Any person who:
...
(c)without reasonable excuse (proof whereof shall lie upon him) has in his possession ... any prohibited imports to which this section applies which have been imported into Australia in contravention of this Act;

...
shall be guilty of an offence.”

Subsection (1A) of s.233B provides that, in such a prosecution –

“...[I]t is not necessary for the prosecution to prove that the person knew that the goods in his possession ... had been imported into Australia in contravention of this Act, but it is a defence if the person proves that he did not know that the goods in his possession had been imported into Australia in contravention of this Act.” (emphasis added).

Consistently with the first part of subsection (1A), the prosecutor told the jury that the –

“law does not require that each man had to know that what was possessed had, in fact, been imported.”[2]

The second (highlighted) part of subsection (1A), however, creates a positive defence of lack of knowledge of importation, proof of which rests on the defendant. For convenience I will refer to this as “the importation defence”.

[2]T 2584.

Neither Pratico nor Crnac said anything in evidence about a lack of knowledge of the fact of importation. No questions, either in chief or in cross-examination, were directed to that topic. Crnac gave evidence that he did not know what was in the floor of the containers.[3] For his part, Pratico said he knew nothing about “the true nature” of what was within the containers.[4] He had no idea that there were false floorboards.[5] Each of them said he had been told that he was to unload marble tiles.
[3]T 2216.
[4]T 2356.
[5]Ibid.

The submission now advanced on behalf of both applicants is that, by denying any knowledge of the contents of the containers (other than that they contained tiles), each was implicitly denying that he knew the contents of the containers to have been imported. That evidence having been given, albeit implicitly – so the submission goes - the defence afforded by s.233B(1A) (“the importation defence”) was available to these applicants, and accordingly the learned trial Judge erred in not directing the jury on this defence.

In her report, the learned trial Judge said of this ground:

“...[T]his was never raised as an issue. No reference was made to it in the closing address on behalf of the applicant, nor was any exception taken by any of the Accused following the charge when it was not left as a defence.”

The transcript emphatically bears out what her Honour has said. Counsel for Crnac made no mention of the importation defence in either his opening or his closing address. In his opening address, counsel told the jury that the ultimate question for them was “one of knowledge and control. That’s what possession is”.[6] He continued:
“Let me try and put it as clearly as I can at this point at the beginning point of the evidence for Mr Crnac. The onus on the prosecution is to prove that the accused Mr Crnac at the time when he had – and this is important this part – physical control or custody of the goods knew of the existence or the likely existence and nature of the narcotics.”[7]

His closing address was likewise concerned only with knowledge of the narcotics.[8]

[6]T 2170.

[7]T 2170-1.

[8]See for example T 2771-3.

The approach of Pratico’s counsel was exactly the same. Before calling his client, counsel told the jury that –

“at the end of the day what I will simply ask you to accept is that the Crown cannot prove that he knew anything about any cannabis.”[9]

In his closing address, counsel for Pratico referred to the five accused as –
“nothing more than the hired help to move 27 tonnes of marble tiles and to give those who were responsible for the importation access to what’s under the floorboards.”[10]

The entire closing address was directed at supporting the central submission that –
“his state of knowledge was that he was there to unload tiles and nothing more.”[11]

[9]T 2352.

[10]T 2944-5.

[11]T 2993.

The failure to raise the importation defence was not, however, an oversight. It was evidently a deliberate decision. In accordance with the Crimes (Criminal Trials) Act 1999 s.7, each defendant had filed a written response to the Summary of Crown Opening. Neither Crnac’s response nor Pratico’s response raised the importation defence. Crnac simply denied knowledge of the narcotics in question, as he later did in evidence. But both Ciampoli and Cetrangolo did specifically raise the importation defence. In each case, the defence response contained the following statement:

“The accused denies knowledge of the importation into Australia of cannabis.”

Ciampoli subsequently abandoned the defence. His amended response stated that he did not dispute –
“that there was an importation of drugs into Australia as generally alleged by the Crown.”

Put on notice by the responses of Crnac and Cetrangolo, any of the other three defendants could have raised the importation defence. But they did not. In the end, it seems, even Cetrangolo had abandoned the importation defence before the trial began. He did not give evidence and his counsel’s final address was concerned only with his (lack of) knowledge of the presence of cannabis.

As the Judge says in her report, the importation defence was simply not an issue in the trial. It was no part of the case for any of the defendants, including Crnac and Pratico. It seems clear that the failure to raise the importation defence was a decision deliberately taken. It is clear from the transcript that counsel for the respective accused were – commendably - astute to raise any point which they considered to be reasonably arguable. All were aware of the existence of the importation defence in the statute, and none pursued it.

No defence counsel responded to the reference made by the prosecutor – in passing - to the presence of shipping containers in the yard. He said:

“... [W]hat’s imported in the containers and the fact that something was hidden under the floors is supremely important in your assessment of what each accused man was thinking, what was his state of mind when each saw that shipping containers were present at night in that yard ... So each man clearly knew that there were shipping containers [in] the yard. That’s a given. Mr Crnac had actually had perhaps a little more knowledge ... in that he signed a bit of paper and ... we suggest to you at that point that he knew that something was likely to be an imported item, if I can put it that way. Shipping containers you might think at least present you with the question as to whether or not what’s in shipping containers has been the subject of shipping. Does it not expose to you the possibility immediately when in those circumstances of the yard that you would at least ask the question as to whether you were dealing with something that had been imported into this country? It’s a question you might ask.”[12]

[12]T 2562.

Counsel for Crnac and Pratico rely on two decisions of the New South Wales Court of Criminal Appeal, in R v Router[13] and R v Malas[14] respectively. (They also rely on a decision of the Western Australian Court of Criminal Appeal in Zibillari v R,[15] in which that Court followed Router and Malas, although doubting the correctness of the interpretation of the relevant provisions).
[13](1977) 14 ALR 365.
[14](1978) 21 ALR 225.
[15][1981] WAR 40.

In Router, the Court[16] held that when – as here – an accused facing a charge under paragraph 233B(1)(c) denies that he was aware that the prohibited import was in his possession, that accused –

“has open to him two defences which may be thus stated: (1) that his lack of knowledge should be treated as a reasonable excuse for his having possession of the goods, and (2) that because of his lack of knowledge he did not know that the goods – proved to be in his possession – had been imported, and ipso facto, did not know that they had been imported in contravention of the Act.”[17]

These were said to be “two distinct defences”, which might both be established by the same evidence. Of these, the Court said, the second defence (the importation defence) –
“requires only... that the jury be satisfied, on a balance of probability, that the accused did not know that the goods were in his [possession] for if he did not know this he did not know of the fact of importation at all and, pursuant to subsection (1A) is entitled to be acquitted.”[18]

[16]Lee J, with whom Street CJ and Cantor J agreed.

[17]At 371 (citation omitted).

[18]At 371.

In Zibillari, Burt CJ expressed the following view:

“Usually lack of knowledge of possession would afford a reasonable excuse for possession. It would seem to mere, therefore, that where a defendant says that he had no knowledge of his possession of the goods, that defence is properly to be regarded as falling within the ‘reasonable excuse’ defence under subsection (1)(c). A defence under subsection (1A) would not arise, I think, until the jury reached the view that it was not satisfied that he did not know of his possession, in which case it might then go on to consider whether he knew that the goods in his possession had been imported into Australia in contravention of the Act.”[19]

(As noted earlier, the Court followed Router, for reasons of comity, despite its own doubts.)

[19](1980) 31 ALR 693 at 703.

In this trial, the key issue between prosecution and defence was whether the accused knew that there was cannabis underneath the false floors in the containers. As her Honour said in the charge:

“[P]ossession... is the real issue in this case between the prosecution and each accused man. In other words, whilst it is not disputed by any accused that there was an importation of a prohibited import being cannabis resin in not less than a commercial quantity, it is disputed by each accused that when he was involved in the activities at the yard at Campbellfield he was in possession of prohibited imports in the way in which the law defines possession.
...
To prove possession the prosecution must prove two things, beyond reasonable doubt.
Firstly, that an accused had physical custody or control of the goods, or the capacity to exercise control.
Secondly, that at the time the accused knew of the existence and nature of the narcotic goods, or the likely existence and likely nature of the narcotic goods.”[20]

[20]T3104 (emphasis added).

The case for each accused was that he did not know of the presence of the cannabis and hence could not have been in possession of it. Had any of the accused invoked the importation defence, then in accordance with Router proof by that accused on the balance of probabilities that he did not know about the cannabis would, necessarily, have established that he did not know the cannabis was imported. So much may be accepted. But that is not what occurred at this trial. Instead, as the passage from her Honour’s charge shows, the issue of knowledge was treated on all sides as a matter which the prosecution needed to prove beyond reasonable doubt, not as something which the defence had to disprove. As I have said, it was knowledge of the presence of the cannabis, not knowledge of the fact of importation, which was in issue. Had the prosecution failed on the cannabis issue, the accused would have been acquitted. The verdict shows, however, that the jury were satisfied beyond reasonable doubt that each accused knew of the presence of the cannabis.

The argument for Crnac and Pratico is that the trial Judge ought to have drawn to the jury’s attention the possibility that, while they might be satisfied beyond reasonable doubt that the accused knew of the existence of the cannabis – and hence were shown to have been in possession of it – they might nevertheless be persuaded by the accused (on the balance of probabilities) that they did not know that the cannabis was imported.

In my opinion, this ground must be rejected. The argument has an air of complete unreality about it. The argument makes sense only if one assumes that a quite different trial was conducted from that which in fact took place, and that quite different defence positions were adopted from those which were actually adopted. The defence cases having been conducted in the way they were, it is artificial in the extreme to suggest that the jury might have reached a different conclusion on the importation question once having been persuaded beyond reasonable doubt – notwithstanding the denials by the accused – that they knew there was cannabis in the containers.

As Vincent JA pointed out in argument, it is unsurprising that none of the accused advanced the importation defence separately from their denials of knowledge of the presence of cannabis. It was doubtless adjudged a hopeless task to seek to differentiate the two, that is, to persuade the jury that, even if they rejected the accused’s denials that they knew the cannabis was in the containers, they should nevertheless be persuaded that the accused were ignorant of the cannabis having been imported. This may explain why no defence counsel raised the possibility of such differentiation, that being the possibility which it is now said the Judge should have raised with the jury.

I would adopt, with respect, what Street CJ said in Malas, as follows:

“I cannot myself see the reality of any prospect of justice having miscarried by reason of this matter not having been developed to the jury. The case is one, perhaps, particularly appropriate for the observations of Windeyer J in Jones v Dunkel.[21] It is not the obligation of a trial judge to canvass the whole of the wide range of issues that might conceivably be advanced in every case, regardless of the manner of conduct of their respective cases by counsel for the Crown and for the defence. I do not believe that the observations in Pemble v R,[22] should be taken to that extent. The approach enunciated by Windeyer J is realistic, and it is one which, in my view, fortifies this court in declining to give effect to the argument advanced in relation to sub-s(1A).”[23]
[21](1959) 101 CLR 298 at 314-5.
[22](1971) 124 CLR 107.
[23](1978) 21 ALR 225 at 232.

Directions on possession

Both Crnac and Pratico contend that the Judge erred in her directions on possession. The grounds advanced by Crnac contend that the Judge erred –

“(a)in failing to direct on joint possession and custody or control in accordance with authority including Moors v Burke;[24] He Kaw Teh v The Queen;[25]
(b)in directing to the effect that the mens rea of possession was established that the applicant ‘knew of... the likely existence and likely nature of the narcotic goods’.”

[24](1919) 26 CLR 265 at 274.

[25](1985) 157 CLR 523 at 599-600.

The Judge gave both written and oral directions to the jury on the elements of the offence charged, including possession. In response to the draft of the written directions, counsel for Franco submitted:

“With respect to [the written] directions on possession, ... there is no mention of the aspect of the necessity for physical custody or control to the exclusion of others.”

Her Honour declined to make any amendment of the written directions.[26]

[26]T 3048.

At the end of the charge, counsel for Pratico submitted that it was a misdirection to instruct the jury that knowledge of the likely existence of cannabis was a sufficient mens rea for possession. The relevant part of the charge was in the following terms:

“For the purposes of this case the prosecution must prove to your satisfaction beyond reasonable doubt in order to prove possession that an accused had physical custody or control of the goods or the capacity to exercise control, and, that at the time being the time of exercising control, the accused knew of the existence and nature or the likely existence and likely nature of the narcotic goods.”[27]

In response to the exception taken, the prosecutor submitted that the directions were in accordance with authority, to which he made reference. Her Honour declined to redirect on that topic.[28]

[27]T 3109.

[28]T 3244-48.

As to the question of joint possession, it is argued for the applicants that the direction sought on joint possession was in accordance with authority. Reliance is placed on Moors v Burke,[29] which in turn was cited with approval in He Kaw Teh.[30] Counsel for Crnac submitted that it was a necessary direction in the present case –

“for it pointed up the need to prove that [Crnac] was acting in concert with others in order to prove his guilt, particularly given his evidence that he did not handle the material under the floorboards.”

Counsel for Crnac also argued that, given the evidence of duress given by Crnac and Franco, there was a real issue as to whether – even if Crnac had knowledge of the cannabis at that point – it could be said that he had the requisite intention to possess it or, in any event, could be said to be acting in concert with Mr Barbero at that point.

[29]Supra.

[30]Supra.

The critical passage from Moors v Burke is in the following terms:

“Possession is proved by various acts varying with the nature of the subject-matter. But exclusiveness is essential. That, of course, does not mean that several persons may not in concert have and exercise that exclusive possession as against the rest of the world.”[31]

As counsel for the Crown argued, the case against each of these applicants was that he, with the co-accused, was involved in a joint criminal enterprise to unload the cannabis resin from the shipping containers. The Judge gave the jury clear directions on the principles of joint enterprise.[32] She told the jury that they must be satisfied, in respect of each accused, that he knew of the criminal purpose, agreed to play a part in carrying it out, and in fact did so.[33]

[31]At 271 per Isaacs J.

[32]T 3081-5.

[33]T 3083.

Her Honour instructed the jury that it was not necessary for them to be satisfied that all accused actually handled the packages of cannabis resin.

“If on a separate consideration of the case against each accused you reach the view that each was performing a task which was part of the process which had as its ultimate goal the unloading of the cannabis resin and was performing that task knowingly, then you may act on that view for the particular accused to find him guilty.”[34]

[34]T 3083-4.

When counsel for Franco raised the issue about “physical custody or control to the exclusion of others”, the Judge responded that:

“It has not much meaning in this case when it is not to the exclusion of the co-accused”.[35]

With respect, her Honour was clearly correct. Self-evidently, any of the accused found to have had knowledge of the presence of the cannabis – and hence to have been in possession of it – had such possession to the exclusion of others not involved in the unpacking. It is hardly surprising in the circumstances that counsel for Franco did not press his objection, and that no exception was taken by any other counsel to this aspect of the charge. This ground fails, in my view.

[35]T 3048.

As to the requisite mens rea for possession, counsel for Crnac acknowledged that there was considerable judicial support for the direction which her Honour gave, namely, that knowledge of the likely presence of cannabis was sufficient. Counsel submitted, however, that the directions were deficient because they allowed a form of recklessness, rather than specific intent, to constitute the mental element of a crime carrying a penalty of life imprisonment. Secondly, counsel submitted that statements of principle could be found in judgments of the High Court which required actual knowledge of, or belief in, the existence of the relevant drug rather than merely knowledge or belief that it was likely to exist. Reference was made to the statements by the High Court in Pereira v Director of Public Prosecutions,[36] that knowledge was “a necessary element of the guilty mind required” and that “the question remains one of actual knowledge”.[37]
[36](1988) 35 A Crim R 382.
[37]At 385.

In my view, these arguments must be rejected, for the reasons advanced by counsel for the respondents. First, the preponderance of High Court authority is consistent with, and supports, the directions which her Honour gave.[38] Secondly, the directions did not leave open the possibility that recklessness as to the presence of cannabis in the containers would be sufficient. Her Honour made clear that the Crown had to prove knowledge. What was said by this Court in The Queen v Nguyen[39] merely reinforces these conclusions.
[38]See Kural v R (1987) 162 CLR 502 at 504-5 per Mason CJ, Deane and Dawson JJ; Saad v R (1987) 61 ALJR 243 at 244 per Mason CJ, Deane and Dawson JJ; Pereira v DPP (1988) 35 A Crim R 382 at 385.
[39](2005) 154 A Crim R 360 at 365 [11]-[14].

Directions on complicity

Both Crnac and Pratico argued that the trial Judge erred in her directions on “common design or joint enterprise”. They contended that the Judge erred –

(a) in failing to give standard directions on concert and/or aiding and abetting; and

(b) in failing to relate the directions on complicity to the directions and issues relating to possession and duress.

In my opinion, there was no error in either respect. As I said earlier, the Judge gave the jury clear, and correct, directions on the principles of joint enterprise. She said:

“In order to be guilty as a person engaged in a joint criminal enterprise three things are necessary. First, the crime must, in fact, have been committed. Secondly, the accused must have known of the criminal purpose and agreed to play a part in carrying it out. And, thirdly, the accused must have performed an act or acts for the purpose of carrying out that crime.”[40]

No question of aiding and abetting arose. Nor was there any room for doubt that the “crime” and “criminal purpose” mentioned in these directions was possession of cannabis resin.

[40]T 3082-3.

Complaint was made about the Judge’s direction that –

“the prosecution does not have to prove that all of the accused are guilty in order to prove the case overall.”[41]

It was contended that this instruction was –
“apt to undermine the requirement that, in order to prove the applicant’s guilt by way of concert, there must be agreement between him and another or others.”

[41]T 3072.

I do not agree. The direction in question was given, as counsel acknowledged, as part of the “separate consideration” direction. The Crown case was that Crnac, and separately Pratico, acted in combination with other co-accused to remove the cannabis from the containers. It was not necessary to prove that all of the co-accused were involved. Nor can I see any necessity for the Judge to have related the directions on complicity “to similar concepts that arose on the elements of possession and duress.”

Once again, none of these matters was the subject of exception taken by any counsel. In the atmosphere of this trial, no counsel apparently had any concern that these aspects of the Judge’s charge were likely to work any prejudice against his client.

“Careful scrutiny” warning re applicant’s evidence

Crnac advanced a ground in the following terms:

“The learned trial judge erred in her directions on duress and the evidence thereof, and in particular she erred in directing or warning the jury in the following terms:
‘Duress can be an easy answer of those who can devise no other explanation for their conduct. Or of those who readily could have avoided the dominance of the threats or the pressure, or of those who allow themselves to be at the disposal of or under the sway of clever and cautious criminals. It is for this reason that you should look at the evidence relating to duress with care and careful scrutiny’”.

(Subsequently, Ciampoli sought leave to reopen his conviction application to argue this ground and others. Pratico also sought, by a supplementary submission, to derive indirect support from this ground).

I referred earlier[42] to that part of Crnac’s evidence in which he said that Tony had produced a gun. This was his account:

“As I approached the back-end of the containers Tony was there and [Franco] and [Cetrangolo] were walking towards us. As we gathered around Tony he said – I don’t know exactly what he said, but the words were like ‘The tiles are yours now, we don’t want the tiles’. I am not sure if I commented, I think I might have said ‘What do you mean?’... and he said ‘There is something else we want’ and he pulled [a hand gun] out of his arm. Out of somewhere in the front of his body.”[43]

[42]Paragraphs 23-24.

[43]T 2213.

Crnac recalled that Tony was holding the gun in his right hand.

“[He] didn’t point it directly at me anyway, but it was just like a waving motion, making sure we actually saw it. ... I shit myself. ... He told [Franco] and [Cetrangolo] to give him a hand to pull the floorboard out of [one of the containers], and I was to go into the other container and start ripping the floor up. ... [He said] ‘Do what you are told and everything will be sweet’, something to that effect.
...
He said ‘Things have changed, you are doing this now, and just do what we say.’”[44]

[44]T 2214.

Crnac was filmed standing at the back of one of the containers, guiding a van which was reversing towards the container. The van was subsequently loaded with cannabis. Crnac said that he had been told to do this by Paddy or Tony.

“They asked me to come and give them a hand, which I did”.[45]

When asked in cross-examination why he had not told them to do it themselves, he answered:
“Because before that happened a gun was pulled out.”

Crnac confirmed that fear was the only reason he had agreed to guide the van back.[46] He gave the same explanation when shown film of himself undoing one of the bolts holding down the false floorboards, namely, that the only reason he was doing that was that he had been threatened with a gun by Tony.[47]

[45]T 2328.

[46]T 2328-9.

[47]T 2329-30.

Franco gave evidence to the same effect. The first he knew about needing to lift the floor and remove cannabis was –

“when Tony pulled us aside and showed us the gun and said ‘There is a change now. You can have the tiles. We want what’s under there and give us a hand. Lifting the floorboards’, that’s when I became aware. When we went in there and assisted taking that big floorboard out.”[48]

[48]T 2090.

According to Franco, Tony “had a serious look.”[49] He judged that it would be silly to “test the waters” when someone had a gun.[50] Franco maintained that Tony had threatened him with the gun, although the gun had not been pointed at him.[51]

“The instructions were very clear. ‘Do what you are told, going to take this truck for half an hour, we’ll be back in no time and you will be seeing your families in no time.’ Once I heard the words ‘families’ that suggested to me that if we don’t co-operate – this was a threat and I had no intentions of doing anything but co-operate from that point on ... It was possible that he knew a lot about us. That’s my whole point.”[52]

[49]T 2095.

[50]T 2095.

[51]T 2095.

[52]T 2096.

The Crown prosecutor, in his final address, was scathing about the claims by Crnac and Franco that they had acted under duress. He described these claims as “a complete fabrication and opportunistic construction”.[53] He described as “farcical” and “just a piece of nonsense” the notion that the two additional men claimed to have been present – Tony and Barbero – were by themselves going to lift three tonnes of cannabis resin from the containers into the trucks, while the five able-bodied men available to them were sent away, after having been “terrorised into lifting up a floorboard”.[54]
[53]T 2530.
[54]T 2544-6.

The prosecutor argued that –

“... [T]he assertion of Tony compelling the accused to commit the offence is a construction and a fabrication which is designed to do nothing more than simply manufacture a defence to what otherwise are strong cases of possession made against each of the accused men.”[55]

The prosecutor argued that Crnac and Franco -
“want things both ways. In the first place neither will concede the commission of the crime of possession and then seek to excuse it by way of a legal defence. Rather, the cases will be put on the basis of laying an each-way bet. They will argue that they were not in possession and argue, well, if you don’t accept that, then what about our argument based on duress. Well, how cynical is that?”[56]

The prosecutor argued that both Crnac and Franco had had opportunities to leave if they had wanted to.[57] He drew particular attention to film of Crnac, taken shortly before the police emerged from their hiding places, which showed him standing at the edge of a container “casually smoking [a] cigarette”.[58]

[55]T 2594.

[56]T 2595.

[57]T 2581, 2700-1.

[58]T 2701.

Counsel for Franco argued that his client’s evidence had “a ring of truth”.[59] If Franco was going to lie about the threat, he could easily have invented a more dramatic story, such as that Tony had –

“pulled out the gun and clicked it back and pointed it directly at me and with a few swear words and in a raised voice told me to do what I was told.”[60]

As to the “each-way bet” argument of the prosecutor, counsel for Franco said:
“... [I]n the context of what occurred that particular night with the production of the gun, it was a threatening situation. But Mr Franco doesn’t say to you in [his] evidence that he did anything other than go in and help shift that particular board as a result of a threat made against him, that that was really the only thing that he turned his mind to as to what he felt he had no choice in, but shifting that board... didn’t make him in possession of the cannabis.”[61]

[59]T 2867.

[60]T 2867.

[61]T 2934-5 (emphasis added).

For his part, counsel for Crnac said his client’s knowledge –

“evolved in the yard. It is not knowledge that he had from before, it is knowledge evolved in the yard ... Where is the proof he got the definitive required knowledge, or even if he had the knowledge, that he possessed the narcotic in the required sense?
...
Unlike what the prosecutor told you this defence is, it is not one that says ‘Have it both ways; we were in possession, but please excuse me because I was under duress.’ It is not that at all.”

Counsel argued that, because of the production of the firearm, the jury could not draw the inference against Crnac that whatever knowledge he had was “desired” by him.
“It is a state of mind, that knowledge, brought about by the constraints of the firearm, which is outside his own will ... The presence of the gun affects the knowledge element, and it affects the possession element, because the physical act ... is also undesired. It is not a real exercise of control and dominion because someone connected to those goods has produced a firearm and effected a threat.”[62]

Counsel for Cetrangolo took the same approach.[63]

[62]T 2774.

[63]T 2828.

The passage from the charge about which complaint is made formed part of a comprehensive and careful direction on the defence of duress. The trial judge explained the various elements, summarised the respective cases of prosecution and defence, and made clear that the prosecutor bore the onus of disproving duress. Immediately before the impugned passage, her Honour said, quite properly:

“When it comes to determining the facts relating to this issue of duress, ... you will bring to bear your commonsense upon the issue. You will also bring to bear on the evidence your combined knowledge of the world. You should consider the facts relating to the duress issue with care and discernment.”[64]

[64]T 3119.

The passage complained of is in these terms:

“Duress can be an easy answer of those who can devise no other explanation for their conduct. Or of those who readily could have avoided the dominance of the threats or the pressure, or of those who allow themselves to be at the disposal of or under the sway of clever and cautious criminals. It is for this reason that you should look at the evidence relating to duress with care and careful scrutiny.”[65]

(Apparently, a direction in these terms appears in the charge book compiled by his Honour Judge Kelly, which has been widely used by trial judges over the years. The language of the direction appears to have its origin in remarks made by Lord Morris in DPP v Lynch.[66])

[65]T 3119.

[66][1975] AC 653 at 670D-F; see also per Lord Edmund-Davies at 712D-F.

No exception was taken to this part of the charge by counsel for any of the three accused who raised the duress defence (Crnac, Franco and Cetrangelo). Nevertheless, it is submitted for Crnac that the direction was “fundamentally wrong and apt to give rise to a miscarriage of justice”, because it had the effect of treating Crnac and Franco “as suspect witnesses in their own cases”. Counsel argued that the direction had “an added potency” given the Crown’s submission that the defence of duress was fabricated.

Reliance is placed on what was said by the High Court in Robinson v The Queen.[67] For reasons which follow, I have concluded that the direction did not contravene the prohibition established by Robinson (and reinforced by later decisions). But it is important, before dealing with the arguments, to emphasise the context. Viewed objectively, the duress defence lacked any firm foundation. The evidence of Crnac and Franco apart, there was an almost complete absence of material capable of establishing that either Tony or Barbero was even present in the yard that night, let alone that any threats were made. Indeed, the critical surveillance evidence, which consisted of both human observation and video recording, was a powerful indicator that they had not been present.
[67](1994) 180 CLR 531.

As the prosecutor told the jury more than once –

“[D]espite professional and experienced surveillance police officers watching this yard, they never saw ... a 6^th or a 7^th man coming into the gate or going over the fence. There is no evidence any other vehicles than one of the five that arrived between 11 and shortly after 12 o’clock actually left the yard ...”[68]

There were aspects of the evidence relied on by the defence to establish the possibility that others might have been present – such as that there were holes in the perimeter fence through which additional persons might have entered and left.[69] But, at best for the defence, these points might have raised a doubt about the surveillance evidence, which remained a formidable obstacle.

[68]T 2549; see also 2555-60.

[69]T 2556-8; T 2887-2905; T 3150-3150.

In Robinson, the appellant had been charged with rape. The complainant had given evidence that she consented as a result of the accused’s threats. The accused gave evidence that her consent had been freely given. In the course of directing the jury about assessing the credibility of witnesses, the trial Judge said that they should take into account any interest which a witness might have in the outcome of the case. Specifically, the Judge said:

“If you thought a witness had a large interest in the outcome you, as the judges of the facts, might well conclude that you should scrutinise that witness’s evidence closely. You might think – it is a matter solely for you – that the accused had the greatest interest of all the witnesses you saw and heard and that, therefore, you should scrutinise his evidence closely.”

The High Court unanimously allowed the appeal and set aside the appellant’s conviction. The Court[70] said:

“... [H]is Honour’s directions had the effect that the evidence of the appellant had to be scrutinised more carefully than the evidence of any other witness, including the complainant, for no reason other than that he was the accused. The unfairness of such a direction is manifest, particularly when the outcome of the trial inevitably turned upon the jury’s preference for the evidence of the complainant against that of the accused. Moreover, the directions virtually had the effect that the appellant was to be treated as a ‘suspect witness’ in the same way as an accomplice, a complainant in the sexual case and a young child have been treated as ‘suspect witnesses’, that is, as witnesses whose evidence is to be accepted only after the most careful scrutiny.”[71]

[70]Mason CJ, Brennan, Deane, Toohey and McHugh JJ.

[71]At 535 (emphasis added).

In the present case, there is a superficial similarity with Robinson, in that the learned Judge did direct the jury to scrutinise with particular care certain evidence given by certain of the accused. But the direction given by her Honour was in fact quite different from that given in Robinson, both in its content and in its effect.

First, as to content, what the decision in Robinson prohibits was enunciated very clearly in the High Court’s subsequent judgment in Stafford v The Queen.[72] The trial Judge must not give –

“any direction which directly or indirectly requires or invites an assessment of the reliability of the evidence of the accused or the relative reliability of the evidence of the accused and other witnesses by reference to interest or lack of interest in the outcome of the trial...”[73]

As restated in Ramey v The Queen,[74] it is a prohibition against –
“the giving of a direction to evaluate the evidence of an accused on the basis of the accused’s interest in the outcome of the case.”[75]

[72](1993) 67 ALJR 510 per Deane, Dawson and Toohey, JJ.

[73]At 510.

[74](1994) 68 ALJR 917 per Brennan, Dawson and McHugh JJ.

[75]At 917.

In Haggag,[76] this Court (Callaway JA, with whom Phillips CJ and Kenny JA agreed) identified three points as emerging from these successive judgments of the High Court:

“The first is that, when one speaks of evaluating the evidence of an accused person ‘on the basis of’ his or her interest in the outcome of the case, as in Robinson itself at 536; 321 and in Ramey in the judgment set out above, that does not mean solely or even mainly on that basis. A trial judge should not direct the jury that the interest of the accused in the outcome of the trial is even a factor to be taken into account in assessing his or her evidence. The second is that the prohibition is not confined to directions in the sense of injunctions to the jury that they must, or must not, do something. It extends to an invitation by the judge to assess the reliability of the evidence of the accused, or the relative reliability of his or her evidence and that of other witnesses, by reference to interest or lack of interest in the outcome of the trial. The third is that Robinson does not depend on its unusual facts but stands for a rigorous principle to be faithfully applied.”[77]

[76](1998) 101 A Crim R 593.

[77]At 598 (emphasis added).

This passage was cited by the Western Australian Court of Appeal in Etherton v Western Australia.[78] Steytler P expressly endorsed the first proposition, that –

“ordinarily at least, a trial judge should not direct the jury that the interest of the accused and the outcome of the trial is even a factor to be taken into account in assessing his or her evidence.”[79]

In the same case, Roberts-Smith JA said:
“Thus, even if such a direction were expressed generally and not specifically by reference to an accused, it would still carry unfair prejudice because inevitably it would be the accused who was seen to have the greatest interest in the outcome of the case. The mischief is to speak in terms, not of particular interests which may be had by particular witnesses, including the accused, but to speak of an interest in the outcome of the case.”[80]

[78](2005) 153 A Crim R 64.

[79]At 72 [35]. Roberts-Smith and McClure JJA agreed with Steytler P on this issue at [103] and [160].

[80]At 84 [101] – emphasis in original.

In De Rosa v Western Australia,[81] the Western Australian Court of Appeal again cited the passage from Haggag set out above. Roberts-Smith JA (with whom McLure and Buss JJA agreed) summarised the propositions to be extracted from the authorities, of which the first two were the following:

“(1)Where an accused gives evidence, even a direction that a jury might take into account the interest of witnesses generally, in the outcome of the case, will infringe the principle, because the accused will always be seen as having the greatest interest in the outcome of the case.
(2)The unfairness lies in the notion that the evidence of an accused may have to be given particular scrutiny because he or she is the accused. That approach undermines the presumption of the innocence.”[82]

[81](2006) 32 WAR 136.

[82]At 147 [44] (emphasis added).

The impugned direction in the present case made no mention of, nor any implied reference to, the interest of the relevant accused in the outcome of the case. The direction was dealing with a different subject-matter altogether, namely, that a duress defence may supply an “easy” explanation for criminal conduct which cannot otherwise be explained. It was a statement about the nature of the defence which was such, her Honour said, that “careful scrutiny” was required.

Nor do I consider that the direction could have had the proscribed effect. In Robinson, the critical issue in the case – whether the complainant had consented – turned on a direct conflict of evidence between the complainant and the accused. What the Judge said to the jury undermined the entirety of the accused’s evidence and, in particular, his evidence going to that critical issue. The direction meant that everything the accused had said was to be viewed with scepticism. In the present case, by contrast, the central issue – as agreed on all sides – was possession of the cannabis. Her Honour fully and fairly summarised the evidence which the accused had given on that subject, and said nothing to suggest that the evidence required special scrutiny. The defence of duress was a separate and secondary issue. The question of whether the three accused had acted under duress did not arise unless the jury were satisfied beyond reasonable doubt that they had had possession of the cannabis.

Her Honour had earlier given the jury the conventional direction about how to approach the giving of evidence by an accused. It is a scrupulously fair direction, which required the accused’s evidence to be treated no differently from that of any other witness:

“There are two things to bear in mind about evidence given by an accused.
Firstly, a person who is in fact guilty might decide to attempt to brazen it out in the witness box in the hope that he will be more likely to be believed by you. More likely to be believed by you if he takes the risks of cross-examination than if he dodges it.

The second thing to bear in mind, however, is that a person who is in fact innocent can really do no more than choose the course of giving evidence because by doing so each has said in effect this is what I say happened. I pledge my oath to it, and you can cross-examine me about it.
You should weigh both of those comments in considering what weight you should give to the evidence of these three accused.
In the long run, perhaps, it is best to regard the evidence in the same way as you would any other witness’s evidence, but remembering that an accused may be under more strain than any other witness because he is accused of the crime. You must also remember that by going into the witness box an accused does not assume any burden of proof, and that burden of proof always rests on the prosecution.”[83]

[83]T 3096-7 (emphasis added)

Reading the impugned passage in the context of the charge as a whole, I am not persuaded that it cast any doubt in the Robinson sense on the evidence of the (relevant) accused. The direction did not, in my view, require or invite the jury to treat those accused as “suspect witnesses”. It did not require (or invite) the jury to scrutinise their evidence more carefully than the evidence of other witnesses “for no reason other than that they were the accused”.

There is a parallel with the decision of the Northern Territory Court of Criminal Appeal in Rowbottom v The Queen.[84] In that case, the accused had not given evidence but the jury had before it a handwritten statement which he had given to the police. The statement contained certain exculpatory material. Having said to the jury that the weight to be given to the statement was a matter for them, the trial Judge said:

“In considering what weight if any to give that statement you will bear in mind your own commonsense and experience of life that people often try to make excuses for what they have done in order to avoid or diminish blame for what they have done.”

It was argued on the appeal that this statement breached the Robinson prohibition. The Court of Criminal Appeal rejected this argument, holding that what the Judge had said:
“would have been understood as a comment directed to the nature of the statement itself, and the tendency of persons generally making such statements, not to the fact that it was a statement by the accused and to be regarded more critically, because of that fact alone, than other evidence before the jury.”[85]

[84](2003) 142 A Crim R 513.

[85]At 526 [56] (emphasis added).

I turn finally to the failure to take exception. As Mr Croucher pointed out, failure to take exception did not prevent the appellant from succeeding on appeal to the High Court in Robinson. (Indeed, the point had not even been taken in the Court of Criminal Appeal.) But, as has often been said, the failure to take exception is a matter to be accorded appropriate weight in the appellate court’s assessment of whether there was a miscarriage of justice.

The duress defence was relied on by three accused, although only two of them gave evidence. Each of three was separately represented. It seems to me to be most improbable that all three defence counsel would have remained silent had the impugned direction been likely – in the atmosphere of the trial – to have the prejudicial Robinson effect. Put another way, the fact that none of the three defence counsel made any complaint about this direction seems to me to render virtually untenable the proposition now advanced, that the effect of the direction was to have this jury, in this trial, treat each of these accused as “a suspect witness” in his own case. This ground does not concern some technical point of law which might have been overlooked in the pressure of the trial. Rather, it concerns what is said to have been prejudice of the most fundamental kind. Had there been any real risk that the direction would have that effect, I do not see how any of the three defence counsel could possibly have remained silent.

Emasculation of defence

Crnac advances a further ground, expressed in these terms:

“The trial Judge’s ruling, of her own motion, ... precluded the applicant from fully and properly arguing his defence of duress by being prevented from naming those involved in the importation and being prevented from fully exploring the circumstances of the defence.”

During cross-examination of one of the AFP witnesses by counsel for Franco, the prosecutor objected to a question which asked whether one Tony Mokbel was among the potential targets of the police operation.[86] In the absence of the jury, the prosecutor objected to any question being asked “about the Mokbels or the Morans”, on the basis that evidence about the possible involvement of members of those families was irrelevant to the case, and would bring into play –

“an atmosphere that’s been created by the press in this State in relation to both the Moran and the Mokbel family and the development [in] this whole Melbourne underworld criminal syndicate scene that figured significantly in the previous trial. ...
[T]here is no admissible evidence that... is going to be before this Court that, in fact, Tony Mokbel or for that matter the Morans are dangerous people.”[87]

[86]T 247-8. Before the objection was taken the witness had already answered in the affirmative.

[87]T 250.

Counsel for all accused submitted that the evidence was relevant to whether the accused were “pawns” and to whether the police operation was compromised by corruption. It was said to be particularly relevant – in relation to the defence claim that a firearm was produced – for the jury to know that there were people involved in the importation –

“who are by notoriety involved in acts of violence or dangerous of themselves because they not only take the law into their own hands [but] do it violently through violent means.”[88]

[88]T 266.

The Judge’s ruling was in these terms:

“It is clear that someone would have been very interested in the successful importation of three tonnes of cannabis resin. It is also clear that that someone, whoever they may be, is not on trial before this jury. Is the evidence of who that someone might be relevant to the issues before this jury? In the end I think not.
That is not the end of the matter, however. I am of the view that if the defence, or any of them, seek to rely later on the defence of duress for which they will have to call evidence, they are entitled to rely on some basic facts to put their defence in context. These basic facts are as follows: Firstly, that these accused were not targets of the Australian Federal Police operation. Secondly, the Australian Federal Police did have a number of other people as targets of this operation. Thirdly, that some of these targets have criminal records including, if indeed this be the case, for drug trafficking and/or for violence. Fourthly, that target addresses in the operation included Dawson Street, Brunswick and Gaffney Street, Coburg.
I will not allow in this trial the elicitation of evidence which seeks to name specific targets, nor evidence of bad character by reputation of targets, or anyone else, nor speculative evidence or suggestion that any member of the Victoria Police had any corrupt involvement in this operation or the importation. I consider that this is the fairest way to deal with the issue from the perspective of those accused who may seek to rely on the defence of duress, from the perspective of the accused Pratico who specifically will not, and the perspective of the prosecution which seeks to prove the case overall. Further, I consider it keeps the trial free from the atmosphere which I believe was inappropriately created and fuelled in the first trial, but which occurred in the context of my not having been made fully aware of the basis for asking the questions which elicited the evidence now objected to.”[89]

[89]T 291-2.

In my opinion, there is nothing in this ruling which is suggestive of error. On the contrary, the decision which her Honour made was, in my respectful view, well open to her in the exercise of a sound discretion, for the reasons she gave. As appears from the ruling itself, the Judge was peculiarly well placed to evaluate the competing arguments, having presided at the earlier trial where these very issues had emerged.

I reject the submission that this ruling “emasculated” the defence of duress. Her Honour’s ruling ensured that the accused would be able to draw such assistance as they might from the fact – if it could be established – that the targets of the operation had convictions for drug trafficking and/or for violence. At the same time, the ruling avoided the risk that the jury might be distracted from its task by the making of reference to notorious organised crime figures. In the event, none of the counsel acting for the accused who relied on the defence of duress made any reference in final address to the “true” targets of the AFP operation.

Aggregate of errors

Crnac further argued that, even if none of the other grounds individually amounted to a miscarriage of justice, taken in combination they did amount to a miscarriage.[90] Counsel argued that the errors or deficiencies –

“were numerous and so important to the issues in the case that it cannot be said that the applicant received a trial according to law.”

[90]R v Kotzmann [1999] 2 VR 123 at [114]-[115].

It follows from the conclusions I have arrived at on the individual grounds that this “aggregate” ground must also fail. I am satisfied that the applicants did receive a trial according to law.

Application by Ciampoli to reinstate appeal

After the hearing of the appeal, the solicitor for Ciampoli filed an application pursuant to r.2.09.3(4) of the Supreme Court (Criminal Procedure) Rules 1998, seeking to have his appeal against conviction reinstated. Ciampoli wishes to rely on the grounds advanced on behalf of Crnac. Since, on the view I have formed, none of those grounds succeeds, it is unnecessary to consider further the application for reinstatement, or the associated application to amend the grounds of appeal.

Sentence appeals

Each of the five applicants sought leave to appeal against sentence. For reasons which follow, it is unnecessary to deal exhaustively with the grounds advanced on behalf of each applicant.

As noted earlier, Franco was sentenced to nine years’ imprisonment, with a non-parole period of six years. Each of the other four was sentenced to seven and a half years’ imprisonment, with a non-parole period of five years. Counsel for Franco argued that there was no legitimate basis for imposing a heavier sentence on his client than that imposed on the co-accused. He argued that it was not open to the trial Judge to be satisfied beyond reasonable doubt that Franco’s role was greater than that of the co-accused. In the alternative, he argued that the differences did not justify any different sentencing treatment. I will return to this question of parity.

Counsel for Franco argued that the learned Judge erred in treating as “a matter of particular relevance” Franco’s prior conviction for possession of an unregistered handgun and ammunition. Franco admitted that, in 1990, he had been convicted and fined for possessing an unregistered firearm and ammunition whilst unlicensed. On the plea, his counsel said he was instructed that:

“... the ammunition and the handgun related to a .22 calibre handgun, a small handgun, that the ammunition was found in his girlfriend’s handbag, and that my client... accepts the responsibility for it but does indicate that he was taking the blame for someone else. But putting that to one side, a significant aspect is that in all the circumstances it was felt that a fine was appropriate...”[91]

[91]T 3360.

The prosecutor did not take issue with this account of the circumstances. In the reasons for sentence, however, the trial Judge said:

“... I do not accept the submission made without evidence that the prior conviction in respect of possession of an unregistered handgun and ammunition whilst unlicensed, was as a result of you accepting responsibility for a girlfriend’s offence. I find that prior conviction to be a matter of particular relevance, given your evidence before the jury that you were intimidated by a man with a gun, which evidence I, like the jury, do not accept.”[92]

[92]T 3565 [28] (emphasis added).

Franco argues that he was denied procedural fairness in that, if her Honour had indicated that she was not going to accept what was said by counsel about the circumstances of the prior conviction, further submissions could have been made or evidence called.[93] Alternatively, he argues, the 1990 prior conviction did not have the significance attributed to it by her Honour. This prior conviction did not “illuminate his moral culpability or show his dangerous propensity”,[94] and hence was irrelevant.
[93]See R v Wise (2000) 2 VR 287 at 291 [12]; R v Grillo [2003] VSCA 143 at [15]-[17].
[94]cf. Veen v The Queen [No.2] (1988) 164 CLR 465 at 477 per Mason CJ, Brennan, Dawson and Toohey JJ.

With great respect to her Honour, I consider that this ground must be upheld. Even assuming that there was a relevant connection between the firearm offence and the (failed) defence of duress, I am unable to see how such a connection could have had any relevance to sentencing. Franco was being sentenced for the offence of possessing cannabis, not for having unsuccessfully (or implausibly) advanced a defence of duress.

A similar ground was advanced on behalf of Crnac, and I would uphold that ground for similar reasons. Crnac admitted prior convictions in 1985, 1986 and 1989, for offences of riotous behaviour, offensive behaviour, resist arrest and assault. As her Honour noted, these offences occurred in the context of demonstrations relating to the Yugoslav National Day. There was a further conviction for assault in 2000, for which Crnac had been fined a total of $1200.

The trial Judge accepted that there was a long-standing history of cultural clashes, both in the former Yugoslavia and in Australia, but continued:

“The matters still have relevance to your character, and to the likelihood of the evidence you gave before the jury of being compelled to act at the request of another, a man with a gun, which evidence I, like the jury, reject.”

Even assuming that the prior convictions had relevance to the question whether Crnac was truly frightened when confronted with a gun, as he claimed to have been, the plausibility of his duress defence had no relevance to the sentence to be imposed on him.

Specific error having been established in relation to Franco and Crnac, and Crnac’s sentence having been the same as for each of the other co-accused, considerations of parity require that the sentencing discretion be reopened in relation to all five.[95] Accordingly, it is unnecessary to consider the grounds advanced by Pratico, Cetrangolo, and Ciampoli in support of their respective applications for leave to appeal against sentence.
[95]cf. R v Guthrie and Nuttal [2006] VSCA 192 at [87].

Re-sentencing

Undoubtedly, as the trial Judge said, this was an extremely serious example of possession of a prohibited import. As noted earlier, there was in the containers almost 3,000 kilograms of cannabis resin. Each of the applicants was found guilty of possessing not less than a commercial quantity of a prohibited import, the commercial quantity for cannabis resin being 50 kilograms. Each was therefore in possession of approximately 60 times the commercial quantity. In 2001, the estimated total value of this quantity of cannabis resin, at the street level deal of one ounce, was in the range $132-147 million. The estimated wholesale value was in the range $9-15 million. The maximum penalty for the offence is life imprisonment.[96]
[96]Customs Act s.235(2).

As her Honour also pointed out, general deterrence is an important factor in relation to offences such as this. Her Honour said:

“Organisers of criminal operations on a scale like this cannot succeed without underlings like you to perform their dirty work. A sentence for possession of a prohibited import needs to deter others like you from agreeing to take on the menial tasks which are still an important part of such an operation, and also to deter those criminal organisers who seek to recruit people to assist in meeting the overall objective of getting illicit drugs into the community for profit.”[97]

[97]Reasons [23].

In the course of discussion with counsel on both sides, in relation to the ground of manifest excess relied on by each applicant, the Court asked for detailed submissions on sentencing in comparable cases. The Office of Public Prosecutions provided a table (with supporting documents) – which had also been provided to the trial Judge – setting out the relevant circumstances, and the sentence imposed, in 46 separate cases where the offender was convicted of offences related to the importation of a large amount of cannabis resin. As counsel for the Crown acknowledged in an accompanying written submission, however, in each one of those cases the offender had participated in the importation itself, either as the importer, as a conspirator to import, or as a person knowingly concerned in the importation. None of the cases identified concerned the sentencing of persons whose involvement – like the involvement of the present applicants - was limited to the possession of the imported cannabis following its importation, and whose role could be described as that of “knowing labourers” and no more.

Certainly, the part played by the applicants was indispensable to the implementation of the entire importation enterprise. Obviously enough, without the unpacking and removal of the cannabis resin, the intended profitable trafficking could never take place. And the jury were satisfied beyond reasonable doubt that each of the accused well knew what he was involved in, that is, unpacking a vast quantity of cannabis resin for removal.

Equally, however, their participation was at the lowest level of the enterprise. As her Honour said, this was not the applicants’ operation. It was not alleged that they had played any part in the importation. There was nothing to suggest that any of them had sought out the opportunity to be involved. Rather, each had responded to an invitation to participate. In my opinion, the objectives of general deterrence and denunciation can be fully met by a head sentence somewhat less than that imposed by her Honour.

The prior question is the one raised by Franco as a ground of appeal, namely, whether it was correct to treat his involvement as relevantly greater. The reasons which her Honour gave for differentiating between Franco and the others were as follows:

“I am satisfied beyond reasonable doubt that you were the one to arrange the connection of the Fontano mobile telephone, and of the Alasndrini mobile telephone and were the user of the Fontano phone at the relevant times. It follows that you were in contact with some person or people who were themselves in contact with people arranging clearance through Customs and the changes of address for delivery of the imported goods. I am satisfied beyond reasonable doubt that you were the link between the workforce at the yard that night and those higher up the chain of organisation of the importation. In these respects, your role overall was greater than the roles played by your co-offenders. I find that you arranged for the other prisoners to become involved. You were aware as to where you and your co-offenders fitted into the process. I accept that you are not at the higher level of those who actually organised the importation.”[98]

[98]Reasons [26].

Having reviewed the transcript of the trial, I am satisfied that these conclusions were well open to her Honour. And I respectfully agree with her Honour that Franco’s culpability is materially different as a result. Although, as I have said, he was the recipient of an invitation to participate, he recruited others to participate. Had he refused the invitation altogether or, alternatively, agreed to participate but taken no steps to involve anyone else, it is entirely possible that none of the others would have become involved.

In re-sentencing, I would maintain the same differential between Franco and the four others. I have considered the submissions made on behalf of each applicant regarding his individual circumstances and prospects of rehabilitation, but I do not regard any of those matters as warranting any further differentiation in sentence.

In my opinion, the appropriate sentence to be imposed is as follows:

·Franco: seven years’ imprisonment, with a non-parole period of

four years;
·Cranc: five and a half years’ imprisonment, with a non-parole period of three years;
·Pratico: five and a half years’ imprisonment, with a non-parole period of three years;
·Cetrangolo: five and a half years’ imprisonment, with a non-parole period of three years;
·Ciampoli: five and a half years’ imprisonment, with a non-parole period of three years.

I would therefore dismiss each of the applications for leave to appeal against conviction. I would grant leave to each of the applicants to appeal against sentence, would order that the appeals be treated as having been instituted and heard instanter and allowed, and would re-sentence each of the applicants as proposed.

BUCHANAN, J.A.:

I agree with the President.

VINCENT, J.A.:

I agree in the disposition of this matter proposed by Maxwell P and I do so for the reasons advanced by him in his judgment.

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R v Franco [2006] VSCA 302

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[2006] VSCA 302

20 December 2006