R v Ribbon
[2018] SADC 91
•27 August 2018
DISTRICT COURT OF SOUTH AUSTRALIA
(Criminal)
R v RIBBON
[2018] SADC 91
Reasons of His Honour Judge Stretton
27 August 2018
CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE - GENERALLY
TAXES AND DUTIES - CUSTOMS AND EXCISE - PENAL PROVISIONS UNDER CUSTOMS LEGISLATION - PENALTIES - DRUG OFFENCES UNDER CUSTOMS LEGISLATION - COURIER AND TRAFFICKING OFFENCES
The accused was convicted by jury of importing a border controlled precursor, namely 13,445.4 g of pseudoephedrine, from Thailand to Australia. Defence counsel’s address to the jury had the potential to convey to the jury that they had to be satisfied of every factual ‘further particular’ of the importation supplied by the prosecution by letter to the defence, to convict the accused at all. Counsel declined to retract or clarify the submission to the jury, accordingly the Court directed the jury that while the prosecution had to prove every element of the charged offence beyond reasonable doubt, and the allegations were confined to the particulars, they did not have to find every factual matter particularised by the Crown proven beyond reasonable doubt, so long as the particularised factual matters they did find proven beyond reasonable doubt, established every element of the offence.
No submission was made that a special verdict be sought of the jury, nor that any question be asked of the jury, either before or after the verdict of guilty was delivered, or at any time prior to the jury being discharged. During subsequent sentencing submissions defence counsel submitted that in the absence of a special verdict or the jury having been asked how much of the prosecution evidence it had accepted, the accused was entitled to be sentenced on the sole least serious factual particular it was possible for the jury to have returned a verdict on. Counsel submitted that the High Court decision of R v Cheung should not be followed, rather a subsequent High Court decision of R v Chiro should be applied which held in relation to a conviction of persistent sexual exploitation of a child pursuant to the former s 50 of the Criminal Law Consolidation Act ("CLCA"), the jury should be asked which underlying sexual acts they had found proven beyond reasonable doubt and in the absence of such question be sentenced on the two least serious acts.
Held:
1. The law binding this trial court is as stated by the High Court in R v Cheung, together with the principles articulated in the decision of five judges of the NSW Court of Criminal Appeal in R v Isaacs cited with approval in R v Cheung, that following a jury's verdict of guilty it is for the judge to determine the facts for the purpose of sentence, and that save in exceptional circumstances the jury should not be asked to explain the factual basis of its verdict.
2. In the absence of a specific statutory offence such as the former s 50 of the CLCA providing to the contrary as in R v Chiro, there is no requirement, obligation or need to ask a jury to explain which or how much evidence they accepted in the course of finding an element of a single drug importation charge proven. Indeed, for a range of cogent reasons including those set out in detail in R v Isaacs, as a general rule it should not be done, and that upon a verdict of guilty it is for the judge to determine the factual basis for sentence, so long as it is not inconsistent with the jury’s verdict and the finding is made beyond reasonable doubt.
3. While in R v Chiro s 50 imposed a statutory requirement of ‘extended unanimity' on the part of jurors to agree on the underlying acts supporting a conviction for the persistent sexual exploitation of a child and hence equipped the jury to be easily asked which such acts supporting a conviction for the persistent sexual exploitation of a child they found proven, in any ordinary case there is no requirement for jurors to agree on underlying facts. This provides a compelling reason why in the absence of truly exceptional circumstances juries should not be asked to explain the underlying factual basis of their verdict.
Customs Act 1901 (Cth) s 233B; Criminal Code 1995 (Cth) s 307.11(1); Criminal Law Consolidation Act 1935 (SA) ss 50(1), 277(1), referred to.
R v Cheung (2001) 209 CLR 1, applied.
R v Chiro (2017) 260 CLR 425, distinguished.
WGC v The Queen (2007) 233 CLR 66; Savvas (No 2) (1991) 58 A Crim R 174 at 186; R v Isaacs (1997) 41 NSWLR 374; R v Martinovic (1985) 122 LSJS 129, considered.
R v RIBBON
[2018] SADC 91Background
The accused Clinton Ribbon has been unanimously convicted by a jury of importing a commercial quantity of a border controlled precursor, contrary to s 307.11(1) of the Criminal Code 1995 (Cth).
The charge was particularized in the Information and phrased in straightforward terms. It alleges that the accused imported a specified quantity of a border controlled precursor, identifying the quantity and nature of the drug, how the drug was imported into Australia, and specifying the time and place of the importation.
The accused’s legal representatives, Mr Edwardson QC and Mr Handshin, variously requested that the prosecution provide a number of further details as to the evidence the prosecution would proffer at trial to prove its case against the accused. These requests included an application for the prosecution to supply details of the physical acts the accused was alleged to have performed in the commission of the charged offence. A description of that evidence, or ‘further particulars’, was then supplied by letter.
The issue
Subsequent to the verdict, an issue has arisen as to the factual basis for the sentence.
The basis upon which the prosecution case was pursued before the jury was clear to all parties.[1] In accordance with the High Court’s decision in the case of R v Cheung,[2] the degree of culpability is ordinarily for the Judge to assess, so long as it is consistent with the jury’s verdict.
[1] Unlike for example where a jury may return a manslaughter verdict upon a trial for murder and there may be a lack of clarity as to which of several entirely different bases for the alternate verdict of manslaughter may be reflected in the verdict.
[2] (2001) 209 CLR 1.
Counsel for the accused now submits to the contrary that, because the prosecution provided (at the accused’s insistence) ‘further particulars’ of the physical acts relied upon to constitute the actus reus of the importation offence, and in convicting the accused the jury might have only been satisfied of one of those acts, the accused can only be sentenced on the basis of one of those acts. Indeed, that he may only be sentenced on the basis of whichever of those acts is the least serious.
Counsel for the accused submits that R v Chiro[3] is authority for this proposition. That case held that in the context of the then, now amended, provisions relating to proof of a charge of persistent sexual exploitation of a child, a jury needed to be unanimous as to two specific and agreed instances of sexual offending, more than three days apart, to convict an accused. In light of that, the High Court held that where a case against an accused alleges more than two instances of sexual offending, the jury should be asked which instances they had agreed occurred so that the court could be satisfied of the proven conduct for the purposes of sentence.
[3] (2017) 260 CLR 425.
No direct authority has been cited for the proposition that the principles set out in R v Chiro should require a jury to report which of several particulars of a single drug importation charge they were satisfied about, for the purposes of sentence, failing which an accused is entitled to be sentenced on the single least serious of the alleged particulars.
Nonetheless the court is being invited not to follow the High Court authority of R v Cheung, on the basis of R v Chiro.
To properly consider this issue, it is necessary to examine in some detail the charge, the case the accused was to meet, the particulars, the further particulars, and aspects of how the case was run at trial.
Such examination is far beyond the ordinary scope of sentencing remarks. Hence these reasons.
The Information
The offence with which the accused is charged is expressed in the following terms:
STATEMENT OF OFFENCE
Import a commercial quantity of a border controlled precursor; contrary to Section 307.11(1) of the Criminal Code 1995 (Cth).
PARTICULARS OF OFFENCE
Between about the 3rd day of October 2013 and about the 18th day of August 2014 at Walkley Heights or elsewhere, Clinton George Ribbon imported a substance, intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity, namely 13,445.4 grams that was imported in a shipping container from Thailand and which arrived a Port Botany in the State of New South Wales on about the 18th of August 2014.
The case against the accused
The case against the accused was outlined over time, at committal, through the provision of declarations, filed and submitted documents, submissions made over time, the prosecution opening both at trial and in a prior mistrial, and detailed correspondence, including the letter comprising what the accused’s counsel describes as further particulars of the physical acts, or ‘actus reus’, of the single offence alleged against the accused.
The importation of the border controlled precursor was at all times clearly and consistently alleged to have occurred per a shipping container loaded onto a ship in Bangkok on 25 July 2014, sent by the accused’s Thailand-based company Complete Chemical Manufacturing Company Ltd (“CCM”) to a co-accused Mr Madgwick[4] in Sydney. The drug was hidden in 10 plastic five-litre bottles, secreted amongst many others within the container. The ten bottles contained nearly 50 litres of liquid, which was found to contain 13,445.4 grams of pseudoephedrine.
[4] Mr Madgwick pled guilty in NSW at an earlier time and had been convicted and sentenced some time prior to the accused Mr Ribbon facing trial. When called to give evidence in Mr Ribbon’s earlier mistrial Mr Madgwick declined to do so, and the jury was accordingly discharged. Mr Ribbon was convicted at the subsequent trial before a new jury.
That case was described in detail repeatedly, and for example is conveniently set out in the usual notice from the DPP subsequent to committal. The document is commonly headed ‘Report as to Category’. The document was provided at or around the 16 January 2016 arraignment date in this court. It reads as follows:
Between June 2013 and October 2014 the Australian Federal Police (‘AFP’) conducted an investigation into the activities of the defendant and others in relation to the importation of a commercial quantity of border controlled precursor into Australia. During the investigation the AFP lawfully intercepted telephone communications involving the telephones of the defendant, the co-accused Kristian Madgwick and others. A listening and surveillance device was also lawfully installed at the defendant’s then residence at Walkley Heights, South Australia.
At all relevant times the defendant was a Director of a Thailand-based company called Complete Chemical Manufacturing Company Ltd (‘CCM’), which manufactured and distributed cleaning products in Australia.
Between 3 October and 30 December 2013 the defendant was a party to several conversations that were intercepted by the AFP. In those conversations the defendant articulated a plan to import a large quantity of a highly valuable illicit substance, disguised within a consignment of CCM cleaning products. The plan involved arranging for Kristian Madgwick, who resided in Sydney, to set up a distributorship in Sydney, to receive cleaning products imported to Sydney from CCM in Thailand. The plan articulated by the defendant was for a number of shipping containers of legitimate CCM products to be imported, to ensure Australian Custom authorities did not then examine a later consignment that would contain the illicit substance.
It is alleged the defendant travelled to Sydney on 27 December 2013 and met with Madgwick for the purpose of assisting Madgwick to set up the distributorship.
Between 21 April 2014 and 9 June 2014 six shipping containers sent from CCM in Thailand to Madgwick via Sydney arrived in Port Botany. The first three containers were examined by Customs and no prohibited items were located. The next three containers were not examined by Customs, but the contents were declared in relevant documentation as being chemicals.
On 22 June 2014 the defendant travelled from Adelaide to Singapore. On 30 June 2014 the defendant spoke with Madgwick via telephone and the defendant confirmed he was in Bangkok. On 9 July 2014 the defendant sent an email to Madgwick and others advising that he would be leaving Bangkok for the next few days, but would return to Bangkok on 16 July 2014 and would be available (to meet with Madgwick and others) on 17 July 2014. Madgwick travelled from Sydney to Bangkok on 14 July 2014. On 17 July 2014 an email was sent from one logistics company to a Bangkok-based logistics company. The email was forwarded to the defendant and Madgwick. The email advised the defendant and Madgwick wanted to see “the shipment” being prepared. It is alleged the defendant was present in Thailand when the consignment the subject of the charge was prepared and that he assisted with and supervised the preparation of the consignment.
On 24 July 2014 Madgwick returned to Sydney from Bangkok. The defendant returned to Adelaide from Singapore on 1 August 2014.
On 25 July 2014 a shipping container was loaded onto a ship in Bangkok. The listed consigner of the container was CCM and the consignee was Madgwick’s distributorship in Sydney. The waybill for the container recorded the contents of the container as being 884 items that were described as various CCM cleaning products. The container was transported by ship to Port Botany, arriving on 18 August 2014. The container was examined by Customs and the AFP. Ten 5 litre bottles, labelled as a particular CCM cleaning product, were located within the container. The ten bottles contained nearly 50 litres of liquid, which was found to contain 13,445.4 grams of pseudoephedrine. Pseudoephedrine is a solid substance that can be dissolved in liquid and can then be recovered from the liquid using various methods, including through evaporation.
The AFP substituted the liquid from the bottles with an inert liquid that consisted of a mixture of water and tea. The substituted bottles were then repacked into the container. The container was then delivered to Madgwick’s warehouse in Sydney on 21 August 2014.
Between 23 August and 30 September 2014 the defendant, Madgwick and others spoke via telephone. The conversations were lawfully intercepted. It is alleged that during these conversations the defendant, Madgwick and others discussed the imported precursor and the difficulties Madgwick was having recovering the solid precursor from the liquid.
On 20 October 2014 the AFP executed search warrants on the defendant’s residence. The defendant was present and was arrested. Various documents relating to CCM were located, as well as a laptop containing numerous emails relating to the company. A digital camera was located, which contained seven photographs of chemistry equipment being used to dissolve a white powder in a liquid. The defendant was interviewed and denied involvement in the offence.
On 21 October 2014, the AFP executed search warrants at Madgwick’s warehouse and residence in Sydney. The substituted bottles were located at Madgwick’s residence. Some of the bottles had been opened. Madgwick’s fingerprints were located on the box the substituted bottles had been delivered within. Madgwick has been prosecuted in New South Wales in relation to this matter.Further written particulars provided
As mentioned, the defence also corresponded with the prosecution, seeking particulars of the specific acts alleged against the accused concerning the importation. The prosecution responded, and the defence provided to the court the document containing the ‘further particulars’ supplied.
The further particulars included the following allegations as to the physical acts that the accused was alleged to have performed; that he imported the pseudoephedrine contained within the 10 bottles labelled 'CCS 161 Bactex SP' that arrived in Australia on about 18 August 2014, by: (1) Between about 12 December 2013 and about 2 April 2014, arranging for Kristian Madgwick to set up a Complete Chemical Solutions (“CCS”) distributorship in New South Wales for the purpose of importing the substance; and, (2), assisting in and/or supervising the preparation of the substance in Thailand between about 22 June 2014 and about 25 July 2014; and, (3), assisting in and/or providing instructions to others as to the packing of the consignment containing the substance in Thailand between about 22 June 2014 and about 25 July 2014, intending to use any of the substance to manufacture a controlled drug, or believing that another person intended to use any of the substance to manufacture a controlled drug.
It was common ground throughout the trial that the prosecution case was that the accused was an organiser/facilitator of the overall venture that resulted in the offence.
The course of trial
The real issue in the case, at least as articulated by both counsel in their respective openings to the jury at the start of the case, was whether the accused had knowledge of, and involvement in, the importation of the pseudoephedrine.
The trial proceeded over an extended period and comprised essentially two categories of evidence.
Firstly, there were extensive listening device and telephone intercept recordings which, on the prosecution case, reflected the accused’s involvement in organizing the importation, travelling to Thailand, and being involved in the supervision of the preparation and packing of the importation. The sound files allegedly included subsequent admissions as to his involvement in the three particularized physical aspects of the offence.
Secondly, there was detailed evidence as to the physical importation, detection, substitution and analysis of the pseudoephedrine.
A police interview with the accused was tendered as part of the prosecution case in which the accused admitted some involvement with the companies, the people and the importation, but denied any knowledge of the pseudoephedrine.
The accused did not give evidence on oath in his own defence, but called some other evidence directed towards establishing that he was a legitimate businessman and that he was involved in legitimate business interests and importations.
The case was consistently vigorously contested, with the defence putting the prosecution to strict proof in nearly every respect.
The defence address - and the consequent direction to the jury
In Mr Edwardson QC’s final address to the jury, he appeared to suggest that unless the prosecution proved not only each element of the offence, but every one of the further particulars provided as to all the alleged physical acts, then the accused was entitled to be acquitted.
The relevant passage occurred over several pages, however to be completely fair to the defence, the Court sets out the passage of the defence address and its context in full:
The prosecution - and I said this to you at the outset of this case and asked you to note it in my opening address - the prosecution have to prove the particulars. It is fundamental in any criminal trial that the prosecution come here to prove a particular charge. In our system, people are not called upon to defend generalised allegations of misconduct. It was for that reason that it was important for me, in my opening address, to really crystallise for you what the prosecution set out to prove.
What you will you be told by his Honour in due course is that this charge is made up of physical and false elements. The prosecution must prove every single element beyond reasonable doubt and they must prove that the elements coexisted.
Having regard to the central importance of the particulars and the responsibility of the prosecution to identify the acts that underpin the charge, you might think it was extraordinary that Mr Pirrie raced through the particulars in this case with haste and, almost as an afterthought, at the end of his address yesterday afternoon.
Ladies and gentlemen, the particulars are not an afterthought. They are critical. They must be fronted and centre, first and foremost, because they shape the case the prosecution must prove before a person can be convicted. I have no doubt that his Honour will confirm that, as a matter of law, what I just told you is correct. Just before I turn to the particulars one by one, I want to raise another fundamental matter not even adverted to by Mr Pirrie, who has the carriage and the responsibility of prosecuting this case.
Each of the particulars the prosecution have set out to prove is based entirely on circumstantial evidence. Because of this, I am duty-bound to say something about the law in this regard, but of course anything I say is subject to what his Honour says, and of course if there is any difference between the two, you of course apply the directions of his Honour. But I am confident that his Honour will confirm in due course, what I am to put to you, as a matter of law, is correct.
You didn't get any assistance at all from the prosecution on what is critical to proof and the responsibility of those who prosecute charges of this nature.
The first point is this: where the prosecution case depends upon circumstantial evidence, it is essential that you understand that firstly, to find an accused guilty, his or her guilt must not only be a reasonable inference, it must be the only reasonable inference which can be drawn from the circumstances established by the evidence.
Secondly, if you consider that there is any reasonable explanation of those circumstances which is consistent with the innocence of the accused, you must find him not guilty.
Thirdly, for an inference to be reasonable, it must rest upon something more than mere conjecture.
Fourth, it's not incumbent on the defence either to establish that some inference other than guilt should be drawn from the evidence, or to prove particular facts tending to support such an inference. That proposition, you might think, ladies and gentlemen, merely reflects the fundamental principle that the Crown must prove the charge beyond reasonable doubt.
Finally, you need not be able to infer that the events suggested by the innocent hypothesis actually occurred. It's sufficient if there is a reasonable possibility that such an event took place.
In the context of this case, and having regard to the way the prosecution have presented its case and the prosecution's interpretation of these calls, we say from the bar table you must understand that they have to exclude beyond reasonable doubt any reasonable possibility that these calls do not relate to pseudoephedrine, and specifically that floor polish is not referable to any substance other than pseudoephedrine.
I want to turn to the particulars themselves. Let me remind you that the prosecution have set out to prove three particulars, all three, to make out the charge.
The first is this: between about 12 December 2013 and 2 April 2014, arranging for Kristian Madgwick to set up a Complete Chemical Solutions distribution in New South Wales for the purpose of importing the substance; and two, assisting in or supervising the preparation of the pseudoephedrine in Thailand between about 22 June 2014 and 25 July 2014; three, assisting in and/or providing instructions to others as to the packaging of the consignment containing the pseudoephedrine in Thailand between about 22 June 2014 and 25 July 2014.
For reasons that will become obvious shortly as I progress through the address, those dates are absolutely critical: 22 June 2014 and 25 July 2014.
As you heard at the commencement of this trial and in particular during our opening remarks, the prosecution allege that Clinton Ribbon was responsible as the facilitator of the importation into Sydney of pseudoephedrine which, as you know, arrived on 18 August 2014.
The use of the description facilitator is general in the extreme and singularly unhelpful in trying to understand the physical acts the prosecution must prove to make out this charge.
It would seem that the prosecution now understand how unhelpful that description is because it wasn't taken up as a description of the alleged criminal conduct in the final address.
But, members of the jury, there is no dispute, and nor could there be, that Complete Chemical Manufacturing, or CCM for short, is a chemical manufacturing business that had been operating for many years before this alleged importation. It manufactures a variety of products including floor polish, drain cleaner, degreaser, floor cleaner and other cleaning products, as well as a disinfectant called Bactex. All of that is noncontroversial on the evidence.
Clinton Ribbon had been in the business of manufacturing these products before selling his interest in the business to Keith Weafer, or at least that is what he hoped. What seems to have occurred, by reference to the telephone intercepts, is that despite paying a deposit for Mr Ribbon's interest in the company, Mr Weafer failed to pay the final sum payable for the purchase of Mr Ribbon's interest. His failure to pay the agreed amount is, you might think, an obvious topic of some considerable discussion between Mr Ribbon and Mr Harker repeatedly throughout these calls.
So rather than these calls having some sinister overtone that the prosecution are urging upon you, as we foreshadowed in our opening, the calls undoubtedly demonstrate a number of business projects or ventures including Clinton Ribbon and others, such as Harker, Weafer and Madgwick, who you might think all wanted to invest in what could have been a very lucrative investment for all of them. Those ventures were, as you heard, meditube, the tar stripper or degreaser, shares in the phosphate mine, 1-Butyne and the purchase and sale of snail infested land, which would involve the use of chemicals to eradicate the snails and then reselling the land at a profitable price.
All of these ventures required someone with chemical expertise, which Clinton Ribbon had or had access to, such as the man Victor, Victor Vorel. You remember him, that's the name that emerged through the calls and you will see his name actually appears, as I directed your attention through the witness, in the patent that was tendered in evidence and produced by the witness John Taylor.
Whilst Mr Madgwick clearly had an appetite for making money out of the different business opportunities that he thought Clinton Ribbon could offer him, he plainly, you might think, had his own side business, no doubt in partnership with Keith Weafer, quite independent of these two men. That side business is undoubtedly the pseudoephedrine that found its way into Australia on 18 August 2014. As we have said ad nauseam, at best for the prosecution, the buck stops with Mr Madgwick and goes no further.
Before I forget, at the end of Mr Pirrie's address, in trying to pre-empt what we might say in our address, he said this at transcript p.963: 'I don't know, but I suspect there might be an attempt here to say well this is all Madgwick and Mr Weafer or whatever, but a number of these conversations involving these products did involve Mr Madgwick. Just because a person is involved in these conversations doesn't mean that he was not involved in the importation of pseudoephedrine'. You might remember him saying that at the end of his address. In other words, what Mr Pirrie was suggesting was that just because Mr Ribbon was involved in conversations with Madgwick about legitimate products, does not mean that he wasn't involved in the importation of pseudoephedrine.
There's a fundamental problem with that kind of submission. It reverses the onus of proof. I am sure his Honour will direct you accordingly.
The reason why I reminded you, ladies and gentlemen, of the way the prosecution opened its case and the way we opened our case, and the acts of Mr Ribbon that the prosecution have set out to prove, is for this very important reason. One of our primary submissions to you, members of the jury, is that there is simply no way, on the evidence that has been put before you, that you could be satisfied beyond reasonable doubt that Mr Ribbon did any of the three things alleged by the prosecution that they set out to prove, the three particulars which I have just identified, let alone with the intention to import pseudoephedrine and with knowledge that he was importing pseudoephedrine.[5]
(Emphasis added)
[5] At 997-1002.
When a break occurred, the Court raised with Mr Edwardson QC that he may be conveying to the jury that as well as finding each element of the offence proven, unless the prosecution proved all of the further particulars supplied, then the accused was entitled to an acquittal:
HIS HONOUR: Accidentally, I think you said, they should disregard a strand if it wasn't conclusive and I think that's wrong, so I bring that to your attention if you want to address that.
Just the other thing, I'm not sure if it's really an issue, but I had a slight impression that you were indicating to the jury that for the prosecution to succeed they needed to prove all three particulars, which they don't, of course. They just have to prove the elements beyond reasonable doubt.
MR EDWARDSON: That's right.
HIS HONOUR: And they have particularised their case.
MR EDWARDSON: Yes.
HIS HONOUR: I mean, I don't think you were intending necessarily to convey that, but I just mention that to you, so you don't do that if you were gearing[6] accidentally that way.
[6] 'gearing’ should read ‘veering’.
MR EDWARDSON: Can I just take up the issue that you raised for my consideration, in particular, on the point about particulars. The document that's been handed to us, which your Honour now has, which sets out explicitly and indeed is consistent with our request before the first trial and indeed the second, it identifies precisely the case that we've come to meet and obviously the essential element of the charge is one of importation, but the prosecution have identified expressly how they purport to prove importation referable to the conduct which are all three of the acts which are identified in para.11 of the document. Now, I put that to the jury and indeed exactly the same as what Mr Pirrie put ultimately in his address. In other words, the prosecution have set out to prove this importation by 1, 2 and 3, so what I put to the jury is perfectly consistent with not only what my learned friend put in his address - quite properly - on that issue, but again consistent with the case we've come to meet, so I didn't quite follow what your Honour meant.
HIS HONOUR: You may well have, I wasn't sure whether you'd said it - whether you said they had to prove all three of those particulars to achieve a conviction. You may well not have and if you didn't there is no problem.
MR EDWARDSON: I think I did, because your Honour will see that's how it is expressed in para.11 and how Mr Pirrie put it in his closing address.
HIS HONOUR: They plainly don't have to prove all three particulars. They have to prove beyond reasonable doubt each element of the offence and they don't - look, for example, if a prosecution particularises a case prior to trial of an assault that the accused kicked the defendant 27 times, if the jury are only satisfied that the person kicked the accused 16 times, you are not suggesting there would be an acquittal. That's a very simplified version of what I'm raising with you.
MR EDWARDSON: It is entirely different from what I am putting. I'm putting that in this particular case the as with any case the whole purpose of particulars is to identify the particular acts, the actus reus or the physical acts if you like, that the prosecution say we committed which would coexist with the requisite state of mind and establish the offence charged and they have identified three acts, if I can put it that way, which they say - coexisting with the requisite state of intent - which they say constitutes the importation, so it's on that basis that we have, from beginning to end have run our case and we are now addressing what they have put.
HIS HONOUR: The point of particulars is to confine the case so you are not having to defend yourself against unrelated other things. It's not to expand the requirements of proof to the full extent of all those particulars, that's not the function of particulars at all, because otherwise that would require more than the proof of the offence to prove the offence.
MR EDWARDSON: No, but your Honour will undoubtedly do, because the whole purpose of particulars is exactly as you put it, to confine the prosecution in a particular way as to how they say this offending was conducted and no doubt your Honour ruled on issues of admissibility as consistent with the authorities by reference to the particulars and the case that they presented and the way that they presented their case is that we did these things, particularly between the dates. Now at the end of the day the prosecution can't be satisfied for example that between those dates we assisted or supervised in the preparation, you couldn't possibly be guilty.
HIS HONOUR: Yes, you could, if the jury is satisfied that he committed another particular that has been particularised that is sufficient to satisfy the elements of the offence. I think, with respect -
MR EDWARDSON: I gave you a comprehensive list of authorities before when we were arguing about the issue of particulars. I'm simply saying for the record we have run our case from day one on the basis of the case that not only is particularised in the document, but indeed has been particularised before the commencement of the trial and consistent with their responsibility and duty, to fairly and properly, my learned friend articulated exactly what those particulars are so to suggest that it is somehow an alternative case outside of the particulars to be left to the jury, in our submission would be wrong.
HIS HONOUR: No, not for a moment, Mr Edwardson, I'm just saying that the full particulars don't have to be proven, if only some of those particulars, which you have, which you have been given, which you are on notice of, which you are aware of, which you have been able to defend yourself, are proven.
MR EDWARDSON: Your Honour would then have to identify a failure to prove one or more of those particulars could still constitute the alleged offending and that would be a very different case.
HIS HONOUR: I've passed you the draft of my directions and you will see it includes dealing with a substance in any way connected with the importation and a number of the things alleged by the prosecution could by themselves amount to that offence. Now all of those things are within the particulars, so you know about them and you have had the opportunity to defend against them, but that's as I see it. Look, I'm not trying to in any way tell you what to do, you will address as you will see fit, but I thought in fairness to you I should indicate that's my provisional view, because if that remains my view I may have to correct you in terms of my summing up to the jury.[7]
(Emphasis added)
[7] At 1013-1016.
One possible interpretation of the extract taken from the address to the jury was that the jury were being told that the prosecution had to prove all three of the further particulars in order to secure a conviction. As can be seen, defence counsel maintained that position to the court in the subsequent discussion absent the jury.
When defence counsel continued their address after the break, there was no qualification or retreat from the position put to the jury as set out above.
At the conclusion of Mr Edwardson QC’s address, after a break, the summing up was commenced.
Whilst Mr Edwardson QC was not present for the summing up, at the end of that day prior to the overnight break and in the absence of the jury, the accused’s remaining counsel, Mr Handshin, agreed with the position the court had put as to the proof of the particulars:
MR HANDSHIN: … Mr Edwardson made some submissions earlier about particulars. I will not repeat them. We say in this case they are material particulars, that if the jury are not satisfied of at least one of the three matters that are referred to in the Crown's submissions that were provided to your Honour the other day, then it would not be open to them to return a verdict of guilty because that would, in turn, of course, mean that Mr Ribbon was convicted of some generalised allegation that he has not been called upon to meet.
So in my submission even if your Honour does it in an abridged way, it is important that the jury know that they are the three physical acts, any number of which need to be proved and at the time must coexist with the relevant states of mind.
HIS HONOUR: So at least one act within the scope of the particulars.
MR HANDSHIN: Provided that act, in the jury's view, amounts to dealing with the substance in connection with its importation.
HIS HONOUR: Yes. You see this is where I agree with you, Mr Handshin and I do not agree with your learned leader. He seemed to be saying that if you have mentioned 27 particulars, if you have proved only 26, you are entitled to an acquittal.
MR HANDSHIN: Perhaps I should review the transcript of his submissions before I speak against them.
HIS HONOUR: There is always a possibility that you might be right and he might be wrong. It just makes logical sense. A punch, a kick and a knee to somebody -
MR HANDSHIN: I know what you mean, your Honour.
HIS HONOUR: - charged with assault, well you only need to prove one of those for it to be an assault. It is very straightforward.
MR HANDSHIN: Would your Honour let me qualify my position? I might have to come back tomorrow and say I step back from –
When the trial resumed the following morning, a further submission was made before the jury returned. Mr Handshin somewhat curiously put both his own and Mr Edwardson’s positions, in tandem.
MR HANDSHIN: … The other point that your Honour raised with me yesterday was the particulars. We maintain, as the primary submission, what was put to your Honour by Mr Edwardson but our alternative submission was that which was put to your Honour yesterday by me, namely that at least one of those three allegations has to be proved beyond reasonable doubt.
HIS HONOUR: That is very loyal of you Mr Handshin but I think in fact you are right on this occasion.
MR HANDSHIN: I will not comment further. But in relation to the first allegation, the first particular, we would say that if the jury were only satisfied of that particular, which is the distributorship particular, that would raise a very sharp question for them about whether that could be seen as dealing with the substance in connection with its importation given the time lapse.
HIS HONOUR: Certainly. The intention needs to accompany it, and of course the time lapse is relevant in that respect.
MR HANDSHIN: As your Honour pleases.
HIS HONOUR: Thank you, I appreciate counsel's assistance. Nothing from you Mr Pirrie?
MR PIRRIE: No.
JURY ENTERS COURT 10.25 A.M.
In light of the defence’s closing address which arguably suggested otherwise, it was important to clarify to the jury that while the further particulars provided set out a range of conduct which the prosecution variously put forward to prove the single offence with which the accused was charged, it was the elements of the offence which needed to be proven beyond reasonable doubt, rather than every single particular called in support of that prosecution case.
It was only for that reason that in the course of a lengthy summing up, brief directions concerning that issue, including the following direction, were given:
I pause to just mention a couple of very minor matters, members of the jury, and you should not regard it as in any way derogating in a general way from Mr Edwardson's submissions.
In relation to Mr Edwardson's submission, which may have inferred that you have to be satisfied of all three particulars to convict the accused, I do need to correct that, members of the jury.
The prosecution do not need to prove all of those things they have alleged the accused did to constitute intentionally dealing with the substance in connection with its importation, they only need to prove at least one thing that satisfies that test. So, members of the jury, it is important to remember that. Remember the three particulars of categories of activity. You do not need to be satisfied as to each of the three particular types of conduct alleged, you only need to be satisfied that the accused did, within the particularised alleged behaviour, do at least one thing that constitutes the offence as I have explained it to you.
At the conclusion of the summing up there was no request for any form of redirection on the topic, nor did defence counsel request that any questions be asked of the jury as to which particulars they had found proven, or that any kind of special verdict be sought.
The jury returned a verdict of guilty.
The issue was not raised by any party prior to the dismissal of the jury.
Observations as to proof
The prosecution case was that the accused did a number of physical acts in undertaking the offence. The proof of the accused’s involvement in all of the particularised acts was, however, based to a material degree on the jury accepting that the intercepted conversations he had over the course of nearly 12 months reflected a single persisting course of conduct utilising ‘coded’ or veiled conversations which both reflected an expressed intention to undertake the offence, an intention that pseudoephedrine be obtained for the purposes of the offence, discussions as to the anticipated profits from the venture, and also reflected some of the actual arrangements themselves, and, importantly, involved admissions as to his participation in each stage of the particularised conduct.
The prosecution case was that there were a number of consistent indications or codes when these incriminating phone conversations took place over time, and that several conversations detected by way of listening devices in the accused’s home, which were consequently less guarded, even more specifically revealed his participation in the offence.
These audio files were extensive, indeed taking a full week to play to the jury. I will not purport to set them out here. Suffice it to say the prosecution case was that this ‘coded’ terminology indicating that the conversations related to the illicit importation occurred in relation to all the three categories of further particularised conduct.
Indeed, the case was run by both sides on the basis that either the illicit pseudoephedrine scheme was facilitated by the accused and running as alleged, or on the other hand that the accused knew nothing about it and all the intercepted conversations related to legitimate, lawful importation activities.
As such, either the alleged ‘coded’ conversations related to this illicit importation as alleged by the prosecution, or they related to legitimate business transactions being described, albeit in vague and unspecific terms. In other words, the same ongoing conversations were led in support of the proof of all three of the particularized types of behaviour the accused was alleged to have performed as a part of his commission of the offence, as well as also being to an extent relied upon by the defence for the converse argument that he was simply conducting legitimate business.[8]
[8] At the request of the defence, the prosecution included large tracts of the intercepted conversations nominated by the defence for inclusion in the evidence played to the jury.
The role of particulars in a criminal trial
Section 277(1) of the Criminal Law Consolidation Act provides that:
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.
The adequacy of particulars will depend very much on the nature of the case charged. An accused person is entitled to know what it is alleged they did to constitute the offence with which they have been charged.
As King CJ said in R v Martinovic:[9]
I should like to add a comment concerning the importance of the particulars pleaded in the Information. It is most desirable that they should be sufficient to identify the conduct which is the subject of a charge, and to distinguish it from other similar conduct. As I have said above, the deficiencies in the particularity with which the charge is pleaded may often be remedied by the supply of particulars before trial, during the opening or even in the course of trial, but that is the least desirable procedure.
[9] (1985) 122 LSJS 129 at 133.
However, as the High Court said in WGC v The Queen:[10]
In framing the particulars of an offence the prosecution cannot be more precise than the evidence available for tender at the trial will permit. If the evidence which the prosecution can adduce at trial will not fit precisely the date or place at which an offence occurred, the prosecution cannot give particulars that pretend to such precision.
[10] (2007) 233 CLR 66.
The importance of particulars is that the physical conduct alleged by the prosecution should be reasonably, insofar as it can be, identified to an accused person prior to the commencement of trial so that they firstly know what is alleged against them and, secondly, are therefore appropriately placed to defend themselves against the factual allegations said to constitute their commission of a crime.
As discussed with counsel, the point of particulars is to confine the case so that an accused person knows the acts being alleged against him which form part of the case. It is not to expand the requirements of proof of an alleged offence to the full extent of all those particulars, because otherwise that would very often require more than proof of the offence to prove the offence.
For example, in an assault case, there may be evidence of a number of different types of blows landed over the course of a few minutes. Whilst an outline of that proposed evidence, whether provided by letter as here, or in an opening, is often described as particulars, often it goes well beyond the particulars of the primary act set out in the Information. It can also describe in some detail the factual matters that a prosecution anticipates it will be able to prove in support of the accused’s alleged involvement in the primary act constituting the offence, whether it be an assault or as here the importation of the alleged drug.
For example, in an assault case, the charge will be formally particularised in an Information usually in terms of an allegation that the accused on a certain date, time and place, assaulted a person. Further particulars of the acts alleged the accused undertook to commit that crime, such as the nature and extent of the blows delivered by the accused, are outlined in opening, and may also be, as here, set out in communications between the parties.
It has never been the law that the provision of further particulars requires the proof of every further factual particular or the accused must be acquitted.
To return to the example of an assault, whilst the jury must find that the elements of the charged offence are proven beyond reasonable doubt, they do not need to find proven every factual further particular provided by the prosecution describing all the acts about which the prosecution will lead evidence. In short, if the prosecution alleged 15 punches, six kicks and a head-butt in the course of a common assault, the accused cannot secure an acquittal if the jury are, say, only satisfied of 14 punches and two kicks. Further, it is never suggested that the jury should be asked how many of the contested blows of different types landed.
Similarly, in cases of drug trafficking, an offence which due to the breadth of the definition of that offence can be committed by conduct of many types, indeed at any stage of the trafficking process, often circumstantial evidence is led against an accused indicative of a number of different types of conduct said to prove involvement and guilt in relation to an instance of trafficking. For example, that evidence might be indicative of storage of the drug for the purposes of sale, it might be indicia of packaging for the purposes of sale such as scales and plastic bags, or it could be indicia of actual sales such as tick lists or surveillance. Each of those activities can separately establish guilt, so long as all the elements of the offence are established.
In other words, a prosecution case might be that the accused was trafficking drugs located at his house on the basis of evidence suggesting he did all three of these activities, for instance storing, packaging and selling the drug located. Any one of those activities, if undertaken with the requisite mental element, would constitute the offence. If that factual matrix is alleged, the accused cannot secure an acquittal if the jury are only satisfied he stored it for the purposes of sale and packaged it for the purposes of sale but did not actually sell it, or vice versa. Similarly, it is never suggested that the jury be asked in a case such as that which of the various conducts alleged to prove the offence they found proved when finding the offence was committed.
Consequences of the address
Accordingly, Mr Edwardson QC’s final address to the jury had the potential to be taken by the jury to suggest that the prosecution had to prove all three acts to secure a conviction. This needed to be clarified lest the jury proceed to consider their verdict on an erroneous basis, and therefore the direction concerned was given to ensure that the defence address did not otherwise leave an erroneously higher test for satisfaction of guilt with the jury.
The prosecution never ran its case on the basis that ‘all the jury needs to do is be satisfied of only one of the three acts alleged’, or suggested that if some of the evidence was not accepted then nevertheless the jury could rely on other evidence to find just one or two of the three acts proved, or that there was any difference in the nature or quality of evidence in support of the proof of all three acts. In relation to each of the three acts, the case was based on circumstantial evidence of the parties, their relationships and interaction, the actual importation, and a course of intercepted conversations involving the accused over time said to reflect arranging for the various acts to occur, taking part in them, and admitting involvement in them after they had occurred.
The law
In R v Cheung,[11] the High Court dealt with a very analogous case. Mr Cheung was charged and convicted by a jury at trial of being knowingly concerned in the importation into Australia of a quantity of heroin, being not less than a commercial quantity, contrary to s 233B of the Customs Act 1901 (Cth). As in the case at bar, Mr Cheung was accused of being involved, together with others, in the importation of the illicit material in a container ship sent from Asia to Australia.
[11] (2001) 209 CLR 1.
Gleeson CJ, Gummow and Hayne JJ outlined the core facts alleged against Mr Cheung in the following terms:
The importation of heroin, in which the appellant was found to have been knowingly concerned, occurred in May 1989. On 9 May 1989, the vessel The Nimos berthed at a container terminal in Sydney. Concealed in a freezer and a water heater were 148 blocks of high grade heroin with a total gross weight of almost 50 kilograms. The street value was about $75 million. The heroin had travelled to Australia from Hong Kong via Vanuatu, where it was re-packed and trans-shipped. The appellant was a senior Customs official in Hong Kong. He had formed an association with a man named Cheung Siu Wah. Cheung Siu Wah, who became an informer, pleaded guilty to a charge relating to his role in the matter.
There were a number of factual matters alleged as to Mr Cheung’s involvement, and subsequent to conviction the issue arose as to the basis upon which Mr Cheung should be sentenced.
Gaudron J outlined three separate degrees of involvement Mr Cheung could have had in committing the alleged offence:
It follows from the way in which the trial was conducted that there are three distinct bases on which the jury might have convicted the appellant. He might have been convicted on the basis that he was involved in organising the importation from or shortly after its inception; he might have been convicted on the basis that he was involved in the importation between April and May 1989; or he might have been convicted on the basis that he intended to and did advance the importation but did so only to protect his informants. Moreover, it is possible that different jurors decided the question of guilt on different bases.
It was not in issue that, if the appellant was involved in the importation between August 1988 and May 1989, as the evidence of the accomplice would indicate, a sentence of life imprisonment was appropriate. If he was only involved between April and May 1989, his criminality might well justify a lesser sentence. And it was conceded by the prosecution in the sentence proceedings that, if his involvement was motivated purely by his desire to protect his informants, a sentence of approximately five years was appropriate. Thus, if the appellant should have been sentenced on a different basis from that adopted by the sentencing judge, the sentence of life imprisonment should be quashed and the matter remitted for re-sentencing.[12]
[12] At [64]-[65].
The seriousness of his involvement depended on how much of the evidence the jury accepted, and in addition, what the accused’s motivation was for his involvement. As Gleeson CJ, Gummow and Hayne JJ outlined at para 6 of the judgment:
The appellant was charged with being knowingly concerned in a large importation of heroin. Obviously, there were others involved as well. The nature and extent of the appellant's involvement, including the period of his participation in the enterprise, his relationship with the other participants, his contribution to the success of the scheme, the financial reward he might have expected, and the reasons for his involvement, were all matters which, if capable of being ascertained, were of possible relevance to an assessment of his culpability. The jury heard evidence bearing upon some or all of those matters. Such evidence might or might not have been of significance to some or all of the jurors, in the process by which they reasoned as to the guilt of the appellant. But they were not matters on which issue was joined, and which the jury, by verdict, decided. That does not mean that the jury's verdict was "ambiguous". It simply means that, on those subjects, the jury's verdict was silent. What the jury had to decide was whether, between two specified dates, the appellant was knowingly concerned in the importation of heroin that occurred on 9 May 1989. A variety of questions of potential relevance to the duration and extent of his involvement were raised by the evidence; but some of them, although potentially significant for sentencing purposes, were not questions which the jury had to decide in order to reach a conclusion that the appellant was guilty of the offence charged.
Gleeson CJ, Gummow and Hayne JJ further described the evidence relevant to the degree of seriousness of Mr Cheung’s conduct in the following way:[13]
… it is necessary to refer to certain features of the case against the appellant.
That a major importation of heroin, originating from Hong Kong, and trans-shipped in Vanuatu, occurred on 9 May 1989, was not in serious question. That the appellant engaged in some activity in connection with that importation was clearly established by irrefutable evidence. But there was an issue as to whether the appellant was knowingly concerned in the importation, and in particular, whether he acted with an intention to advance the purposes of others who were acting in Vanuatu and Sydney.
In this case, as frequently happens, the evidence relied upon by the prosecution was at different levels of contestability. There were three telephone conversations, in early May 1989, between the appellant and his associate, Cheung Siu Wah. They were in the Cantonese language. They involved discussions which the jury were entitled to conclude related to the heroin importation. The jury were also entitled to infer that they revealed the appellant giving information, advice and encouragement to Cheung Siu Wah, and acting as a principal participant in the enterprise involving the importation. The primary evidence was barely contestable. The inferences to be drawn from it were open to debate. The Crown called Cheung Siu Wah as a witness. He was an accomplice, but the Crown relied upon the recorded conversations, and other evidence, as corroboration. Another alleged co-offender was Ng Yun Choi, who pleaded guilty. He was not called as a witness for reasons that were explained to, and accepted by, Badgery-Parker J. The appellant made an unsworn statement at the trial. He did not give evidence in the sentencing proceedings. The appellant, confronted with some potentially incriminating evidence which he could not deny, gave an account of the facts which admitted what he was forced to admit, denied what was contestable, and attempted to advance an exculpatory explanation. Badgery-Parker J, for reasons which he explained, concluded that the appellant's explanation was false.
(Emphasis added)
[13] At [21]-[24].
Gleeson CJ, Gummow and Hayne JJ addressed the role of the court in such instance:
When an accused person is tried upon indictment before a judge and jury, the role of the jury is to decide whether the accused is guilty or not guilty of the charge or charges laid in the indictment. That involves determining the issue or issues joined between the prosecution and the accused. Such issue or issues are defined by the terms of the indictment, and by the plea. If the accused is found guilty, then it is the responsibility of the judge to determine the appropriate sentence. That will normally involve a discretionary decision, subject to any statutory constraints such as a specified maximum penalty.
The decision as to guilt of an offence is for the jury. The decision as to the degree of culpability of the offender's conduct, save to the extent to which it constitutes an element of the offence charged, is for the sentencing judge. If, and insofar as, the degree of culpability is itself an element of the offence charged, that will be reflected in an issue presented to the jury for decision by verdict. In such an event, the sentencing judge will be bound by the manner in which the jury, by verdict, expressly or by necessary implication, decided that issue. But the issues resolved by the jury's verdict may not include some matters of potential importance to an assessment of the offender's culpability. That is not unusual. It is commonplace.
(Citations omitted)
After setting out the earlier quoted factual matters that were relevant to sentence but which were not addressed by the jury’s verdict, Gleeson CJ, Gummow and Hayne JJ continued:
A variety of questions of potential relevance to the duration and extent of his involvement were raised by the evidence; but some of them, although potentially significant for sentencing purposes, were not questions which the jury had to decide in order to reach a conclusion that the appellant was guilty of the offence charged. They were questions which, if capable of resolution at all, were to be resolved by the sentencing judge.
It is necessary to distinguish, not only between questions of guilt and questions of degree of culpability, but also between issues, facts relevant to issues, and evidence. The jury's verdict decided the issues joined by the plea to the indictment. It did not decide, either expressly or by implication, all facts of possible relevance to sentencing. And although it is possible to infer that, at the least, certain parts of the evidence must have been accepted by the jury, it is impossible to know whether some or all of the jurors accepted all of the evidence relied upon by the prosecution. Jurors are normally instructed that they are entitled to choose between parts of the evidence. In order to convict they must find, beyond reasonable doubt, the constituent elements of the offence charged, but, provided they reason to such a conclusion in a manner consistent with properly framed judicial directions, their process of reasoning does not necessarily have to be unanimous. Unless a particular piece of evidence is logically crucial to the prosecution case, they do not have to accept, beyond reasonable doubt, any particular witness, or any particular evidence. These are familiar aspects of what is sometimes described as the inscrutability of a jury verdict.
On occasion, this may mean that a jury's verdict on the black and white issue of guilt may leave to a sentencing judge a difficult task of deciding questions of degree involved in assessing an offender's culpability, and the proper measure of punishment. There are many cases involving either a plea of guilty, or a conviction following a plea of not guilty, where the task of assessing an offender's culpability is more difficult than that of determining his or her guilt.
(Citations omitted)
The court went on to give examples in cases of murder and manslaughter which illustrated that it is not unusual in such categories of offending for a jury’s verdict to leave open questions of motive for the killing, and indeed degree of involvement in such killing, both of which are highly relevant for sentencing purposes.
The Court observed that there is an abundance of authority, both in the High Court and in other Australian courts in relation both to State and Commonwealth offences, for the proposition that subject to certain constraints, it is the duty of the judge to determine the facts relevant to sentencing. Further, that there is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender.
The court rejected the proposition that if a jury’s verdict is consistent with two views of the facts and the information could have been drawn to elicit the jury’s view as to which it accepted, then the court is bound to accept the least serious for the purpose of sentence:
Counsel for the appellant claimed support for his submission from two decisions of the English Court of Appeal: Stosiek (1982) 4 Cr App R (S) 205 and Efionayi (1994) 16 Cr App R (S) 380. Those cases were said to establish the proposition that, if a jury's verdict is consistent with two views of the facts, and it would have been possible to amend the indictment to obtain the jury's view, then a sentencing judge is obliged to sentence upon the basis of the view more favourable to the offender. That proposition does not represent the law in Australia.
While Gaudron J, in dissent, opined that the prosecution could have segmented the alleged conduct into two offences and sought verdicts on those, Kirby J set out the long accepted position:
According to … orthodoxy, the sentencing judge decides the facts relevant to sentencing for himself or herself. This is done subject to four relevant constraints:
• The sentence must be within, and in accordance with, any applicable statutory provision;
• The prisoner must not be sentenced for an offence different from that of which he or she has been convicted or for circumstances of aggravation that could have been the subject of a distinct charge, different from that founding the conviction;
• The findings of fact relevant to sentencing may not be incompatible with the jury's verdict although, unconstrained by the verdict, the judge might have reached a different conclusion; and
• Any disputed questions of fact upon which the prosecution relies must be proved beyond reasonable doubt.[14]
(Citations omitted)
[14] At [99].
Kirby J went on to say that whilst he had previously expressed contrary views in dissent, he now saw the force of, and the correctness of, the orthodox position:
… the points canvassed in this appeal are so unpromising. If it is for the sentencing judge in federal as well as State offences to find the facts relevant to sentencing, subject to one consideration that I will mention immediately, the possibility must necessarily be faced, as inherent in the procedure, that the judge may take a more serious view of the facts than the prisoner urges. Indeed, he or she may take a more serious view of the facts than the jury might have accepted and (for all the court knows) than the jury or a majority of the jury or even all members of the jury, accepted in returning their verdict.
Sentencing on facts favourable to the accused
The qualification to the preceding expansive view as to the entitlement, and duty, of the sentencing judge to give effect to his or her own view of the facts appears in judicial dicta in this country. Authority exists to the effect that any difference as to the facts relevant to sentencing, not otherwise resolved during the trial or during the sentencing proceedings (eg by any special verdict or by answers to questions administered by the judge to the jury where that course is permissible) should be resolved “upon a basis which gives the accused person the benefit of the most favourable view of the facts where two available versions compete for acceptance”.
In the New South Wales Court of Criminal Appeal in Savvas (No 2) (1991) 58 A Crim R 174 at 186, I explained this approach, in dissent, as one arguably derived from:
“[a] basic rule of fair procedure in a criminal matter … from the primacy of the jury's role in deciding disputed facts; the limited role of the judge in fact-finding in the criminal trial [which trial continues during the sentencing phase]; the obligation of the judge to impose a sentence consistent with the jury's findings; and the impossibility of the sentencing judge, the accused, the prosecutor, the appellate court or anyone else of knowing precisely how the jury determined particular facts in the absence of a special verdict.”
The crimes charged in Savvas (No 2) involved both State and federal offences. Although the differential requirements of State and federal legislation governing sentencing were mentioned in that decision, the requirements, if any, for sentencing, inherent in s 80 of the Constitution, were not raised. They were not dealt with explicitly either in the Court of Criminal Appeal of New South Wales or in this Court. Certainly, this Court did not accept as applicable a principle that sentencing must proceed on a view of the facts open to the jury, consistent with their verdict, most favourable to the prisoner. So far at least as the common law is expressed, that controversy must therefore be taken as settled by the decision of this Court in Savvas (1995) 183 CLR 1. The common law of Australia knows no such principle.
Leaving the Constitution to one side for the moment, I have to concede that the arguments against the suggested principle of leniency, as a rule of the common law, seem stronger to me now than they did earlier. Put shortly, those arguments rest on the basic proposition that the jury perform their function (relevantly that of determining the guilt of the accused of the offence(s) charged) and the judge performs, separately, the judicial function (relevantly that of imposing the sentence within the limits (if any) fixed by the law and in accordance with relevant sentencing principles).
This conclusion suggests that the course adopted by Badgery-Parker J in sentencing the appellant was conformable with the established Australian law as it stood at the time of sentencing. It may have been a disappointment to the appellant that his Honour did not give him the benefit of the doubt upon any of the arguments he advanced as to the view that should be taken of the evidence. But his Honour explained why he reached his conclusion. Clearly, on the evidence, that conclusion was open to him. If the procedures observed were not flawed for constitutional or other reasons, they were not flawed for any reasons of the common law. Indeed, they followed punctiliously the understanding of the sentencing judge's functions hitherto established in this country, as in England from where those functions were copied. It was not suggested that they failed to conform with applicable statutory provisions governing the sentences of federal offences or any other rule …
(Citations omitted)
Kirby J, in rejecting the further argument that with federal offences (such as the one before the court in both that case and this), s 80 of the Constitution’s guarantee of trial by jury mandated that factual issues relevant to the seriousness of the offence for the purpose of penalty be determined by the jury, recognized the complexities and difficulties that would arise were that to be the case, citing for example the case of the crime of manslaughter:
If it is the province of the Parliament to define the “offence” and that of the courts to conduct the trial of the person charged with such “offence”, it is not part of the function of the courts to reject the “offence” in a case such as the present as insufficiently differentiated for the purpose of tendering factual decisions for determination by the jury. That logic would run into insuperable practical problems for criminal procedure. Such problems would arise, most obviously, in the standard count of an indictment changing murder or manslaughter which (as the joint reasons point out) can cover an enormous range of culpability and give rise to the possibility of punishment ranging from the trivial to the condign.[15]
(Citations omitted)
[15] At [128].
Kirby J also upheld the sentencing judge’s approach, whilst indicating in dicta that it would not be prohibited for a court to seek answers from a jury in an appropriate case where that could clearly and practicably be done, particularly if that would make a very dramatic difference to the applicable sentence.
Callinan J agreed as to the applicability and correctness of the orthodox approach:
In R v Isaacs,[16] to which I will refer in detail later, the Court of Criminal Appeal of New South Wales, constituted by five judges (Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ), held that the power and responsibility for determining the punishment to be inflicted upon an offender, convicted by a jury, rests with the judge and not with the jury.
It is the duty of the judge to determine the facts relevant to sentencing not found by the jury. Some of these facts will have emerged in evidence at the trial: others may only emerge in the course of the sentencing process. It is upon the basis of the offence proved, the factual elements of it necessarily found by the jury in reaching its verdict, and other relevant facts found by the trial judge that the trial judge will exercise his or her sentencing discretion.
The principal constraint upon the power and duty of a sentencing judge to find the “sentencing facts” is that the view of the facts taken by the judge cannot be inconsistent with the verdict of the jury. This may mean that the view of the facts which the judge is obliged to take on sentence might be different from the view which the judge would have taken if unconstrained by the verdict. The fact that a judge may not agree with a jury's verdict and may be required to sentence on a basis different from his or her strongly held view of the case simply follows from the division of functions in a trial by jury.
A second constraint is that findings of fact made against an offender by a sentencing judge must be arrived at beyond reasonable doubt.
There is no general requirement that a sentencing judge must sentence an offender upon the basis of the view of the facts, consistent with the verdict, which is most favourable to the offender. However, the practical effect of the matters to which I have referred may be that because the judge is required to resolve any reasonable doubt in favour of the accused, the judge will in practical terms often sentence an offender upon a view of the facts which is most favourable to that offender. When that occurs, it will be because of the application of principle to the facts of the particular case, and not because of any principle requiring sentencing on the basis of leniency.
These principles, which permit the trial judge to form his or her own view of the facts for the purpose of sentencing, and deny that a trial judge must accept the version of the facts most favourable to the accused, have been applied and approved generally consistently by other Australian courts.[17]
(Citations omitted)
[16] (1997) 41 NSWLR 374
[17] At [161]-[166].
Accordingly it is plain, at least from the decision in R v Cheung, that the law in Australia is that whilst there is no absolute prohibition on asking juries questions upon the delivery of their verdict, the longstanding principle is that ordinarily it should not occur and that it is for the judge to determine the facts upon which the accused is to be sentenced, so long as those facts are open on the case presented, are not inconsistent with the jury’s verdict, and are found beyond reasonable doubt.
Application of the decision in R v Chiro
The defence, however, submits that the High Court’s judgement in the matter of R v Chiro stands for the proposition that where the prosecution particularizes the evidence of the actions it will allege the accused undertook in the course of performing a charged offence, and where only part or some of that evidence would need to be accepted for the jury to be satisfied of the particular element of the offence to which the evidence is directed, and the jury is so directed, the jury should be asked to specify how much of the evidence it accepted in coming to their view that the particular element of the offence has been proven. Otherwise, the defence submits the accused must be sentenced on the least serious possible factual scenario open to the jury consistent with guilt.
The short answer to that proposition is that R v Chiro concerned a unique statutory offence which required the jury to specifically agree on exactly which defined underlying sexual offences it found proven. As such, the range of problems, concerns and objections normally applicable to delving into the machinery of a jury’s reasoning did not apply, as all the jury would be asked to do is report what they had already been required to have found proven. R v Chiro did not purport to overturn R v Cheung, nor have a more general application such that it would apply in the case at bar.
R v Chiro dealt with a statutory offence pursuant to s 50(1) of the Criminal Law Consolidation Act 1935 (SA) which provided that an adult person who, over a period of not less than three days, committed more than one act of sexual exploitation of a particular child under the prescribed age was guilty of an offence of persistent sexual exploitation of a child.
A series of decisions over time had established that to convict a person of such an offence, the jury needed to unanimously agree upon which specific acts of sexual exploitation they found proven. This concept is known as a requirement for “extended unanimity”. As the majority explained:
As the South Australian Court of Criminal Appeal held in R v Little , applying this Court's decision in KBT v The Queen, because s 50(1) defines the offence of persistent sexual exploitation of a child to be constituted of underlying acts of sexual exploitation, in order to convict an accused of an offence against s 50(1) a jury must reach unanimous agreement (or, after four hours, must reach agreement by a requisite statutory majority) that the Crown has proved beyond reasonable doubt that the accused committed the same two or more underlying acts of sexual exploitation separated by not less than three days. That requirement was appropriately described by the Court in Little as a requirement for extended unanimity.
In KBT, this Court was concerned with an offence against s 229B(1) of the Criminal Code (Qld) of maintaining “an unlawful relationship of a sexual nature with a child under the age of 16 years”. Section 229B(1A) provided that a person was not to be convicted of an offence against s 229B(1) unless it was shown that the offender had, during the period in which the relationship was said to have been maintained, “done an act defined to constitute an offence of a sexual nature in relation to the child … on 3 or more occasions” and evidence of the doing of any such act was “admissible and probative of the maintenance of the relationship notwithstanding that the evidence [did] not disclose the dates or the exact circumstances of those occasions”. Hence, Brennan CJ, Toohey, Gaudron and Gummow JJ concluded:
The offence created by s 229B(1) is described in that subsection in terms of a course of conduct and, to that extent, may be compared with offences like trafficking in drugs or keeping a disorderly house. In the case of each of those latter offences, the actus reus is the course of conduct which the offence describes. However, an examination of sub-s (1A) makes it plain that that is not the case with the offence created by s 229B(1). Rather, it is clear from the terms of sub-s (1A) that the actus reus of that offence is the doing, as an adult, of an act which constitutes an offence of a sexual nature in relation to the child concerned on three or more occasions. Once it is appreciated that the actus reus of the offence is as specified in sub-s (1A) rather than maintaining an unlawful sexual relationship, it follows, as was held by the Court of Appeal, that a person cannot be convicted under s 229B(1) unless the jury is agreed as to the commission of the same three or more illegal acts.
(Citations omitted)
As can be seen, the High Court specifically contrasted the R v Chiro type of sexual offence with R v Cheung-style drug trafficking, as the R v Chiro offence required specific jury unanimity and agreement on specific proven underlying sexual offences, whereas a suite of conduct led at trial to prove that an accused was involved in a single trafficking offence (as in the case of both Mr Cheung and Mr Ribbon) has absolutely no similar requirement of extended underlying jury unanimity.
The majority went on to discuss historical instances where it had been thought appropriate to ask the jury to provide more information upon verdict, in particular where upon charges of murder, a jury return the alternative verdict of manslaughter. Often in such cases, manslaughter may have been potentially open to the jury on widely divergent alternate bases, for example a lesser intention than an intention to kill, excessive self-defence, an unlawful and dangerous act, to name a few. Depending on the circumstances of the case, the basis upon which the manslaughter verdict may have been returned might call for very different sentences. The majority point out that for this reason, manslaughter as an alternative to murder verdicts had historically been regarded in some jurisdictions as uniquely ones that might justify the court questioning the jury to seek the basis of their verdict.
The majority in R v Chiro went on the observe that even in that instance, the preponderance of recent authority in Australia, notably the decision of the NSW Court of Appeal comprising five judges, including Gleeson CJ, in R v Isaacs,[18] was that even in the case of manslaughter such a course is attended with a range of difficulties which render the seeking of such information problematic and undesirable:
[18] (1997) 41 NSWLR 374.
… The New South Wales Court of Criminal Appeal, comprised of Gleeson CJ, Mason P, Hunt CJ at CL, Simpson and Hidden JJ, stated, contrary to what had been held in Petroff and Low, that the following considerations should lead trial judges to refrain from questioning a jury as to the basis of a verdict of manslaughter save in exceptional circumstances:
First, to inform the jury, in the course of a summing-up, that they will later be invited to answer a question, or questions, as to the basis of the verdict, may distract them from their task of seeking unanimity on a general verdict, and provoke unnecessary confusion and disagreement as to the basis of the verdict.
Secondly, the jury's response to any such question may be unclear. A response that indicated two grounds of decision might, depending upon the circumstances, indicate that the jury were unanimous on both grounds, or that some jurors adopted one ground, and the remainder adopted another. The response may create more uncertainty than previously existed.
Thirdly, there may be various possible views of the evidence in a case; different jurors may adopt different views and yet, consistently with their directions, reach a common verdict. To invite them to refine their verdict may be productive of mischief.
Fourthly, there is a substantial risk that the jury will be invited to make a decision upon which they have not been properly addressed by counsel. The present case provides a good example. Trial counsel never addressed the jury on provocation. Rarely would defence counsel's address to a jury be expressed in terms appropriate to a plea in mitigation.
Fifthly, where there are two or more accused the jury might choose to answer the question with respect to one or more and not with respect to another or others. This would be invidious.
Sixthly, the judge may be embarrassed if he or she does not agree with the jury's answer to the question.
Seventhly, where two or more partial defences are advanced, if the jury were to come to a conclusion favourable to an accused on the first defence they considered, they might not consider the other or others; if that occurred, an answer to the question might convey a false impression of having considered and rejected the other or others.
(Citations omitted)
The majority in R v Chiro did not dispute the applicability of these general principles, rather they held that these principles did not apply in the unique circumstances of a charge of persistent sexual exploitation of a child. This is because in the case of a jury that returns a verdict of guilty of an offence of persistent sexual exploitation of a child, the actus reus of the offence is comprised of discrete underlying acts of sexual exploitation that are defined by reference to sexual offences found in the CLCA, and the requirement of extended jury unanimity applies to each of those underlying acts of sexual exploitation.
Bell J saw the issue in very clear terms, emphasising that in general cases not constrained by the R v Chiro statutory test, the very fact that different jurors may have been satisfied as to differing, yet in each case adequate for conviction, factual matters in finding the accused guilty, was a compelling reason as to why jurors should not be asked for the factual basis of their verdict:
Difficulties of the kind that Stephen J identified in Veen informed the analysis in Isaacs. The reasons given for the conclusion that, save in an exceptional case, a trial judge should refrain from questioning the basis of a verdict of manslaughter stem from the absence of a requirement for unanimity as to the ground on which the verdict is returned. So understood, in my view the reasons are compelling and apply with equal force to the sentencing for any offence in which individual jurors may have reasoned to the conclusion of guilt upon differing bases.
On a close reading of R v Chiro, there is simply no doubt that the High Court’s decision that, for the purpose of sentence, the jury can be asked which proven acts of sexual exploitation lay behind their verdict of guilty of persistent sexual exploitation of a child, and in the absence of being asked the accused is entitled to be sentenced on the minimum and least serious version of events, is based entirely on, and is required only by, the specific statutory offence in question. As the majority explained:
By the adoption of the form of the offence prescribed in s 50(1), Parliament has signified that the actus reus of the offence of persistent sexual exploitation of a child is comprised of discrete underlying acts of sexual exploitation and that an accused is not to be convicted or sentenced on any basis other than having committed only those acts of sexual exploitation which the jury are agreed have been proved.
The majority in R v Chiro reiterated the correctness and applicability of R v Cheung, and emphasized that the situation in R v Chiro was distinct due only to the unique nature of the statutory offence in question, which made it an exception to the generally, and still applicable, principles expressed in R v Cheung. As the majority in R v Chiro concluded:
Since Cheung, this Court has taken the view that, generally speaking, a judge is not required to sentence on a view of the facts most favourable to an offender, but should make his or her own findings as to the aggravating and mitigating circumstances of the offence of which the offender has been convicted. But in the case of an offence under s 50(1) of the CLCA, the position is different. Where an accused stands trial before a jury for an offence of a continuing nature, such as, for example, trafficking a prohibited drug over a period of time, the jury need not be unanimous (or agreed by statutory majority) as to each of the particular acts which are alleged to have comprised the actus reus of the offence. But, as already stated, in the case of an offence under s 50(1) of the CLCA the underlying acts of sexual exploitation are the actus reus of the offence and it is for the jury to find the acts which comprise the actus reus. Otherwise, it would not be a trial by jury. Of course, as has been observed, a jury cannot be compelled to explain the basis of its verdict. Consequently, where a jury returns a verdict of guilty of a charge of persistent sexual exploitation of a child contrary to s 50(1) and the judge does not or cannot get the jury then to identify which of the alleged acts of sexual exploitation the jury found to be proved, the offender will have to be sentenced on the basis most favourable to the offender.
(Citations omitted)
Conclusion
Accordingly, it is clear that the law binding this trial court is as stated by the High Court in R v Cheung, and by principles espoused in the decision of five judges of the NSW Court of Criminal Appeal in R v Isaacs.
That law is that, in the absence of a specific statutory offence such as the former s 50 of the CLCA providing to the contrary, there is no requirement, obligation or need to ask a jury to explain which or how much evidence they accepted in the course of finding an element of a single drug trafficking charge proven. Indeed, for a range of cogent reasons, including those set out in detail in R v Isaacs, as a general rule it should not be done, and that upon a verdict of guilty it is for the judge to determine the factual basis for sentence, so long as it is not inconsistent with the jury’s verdict and the finding is made beyond reasonable doubt.
This court is bound by the High Court’s decision in R v Cheung, and accordingly it is for the judge to determine the facts for the purpose of sentence. The court proceeded in accordance with these principles.
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