R v Tranter

Case [2013] SASCFC 61

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v TRANTER

[2013] SASCFC 61

Judgment of The Court of Criminal Appeal

(The Honourable Chief Justice Kourakis, The Honourable Justice White and The Honourable Justice Peek)

28 June 2013

CRIMINAL LAW - APPEAL AND NEW TRIAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL DISMISSED

CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER OFFENCES

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS - OTHER CASES

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - REFERENCE TO CONTEXT

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WORDS TO BE GIVEN LITERAL AND GRAMMATICAL MEANING - GENERAL PRINCIPLES

CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - ATTEMPT - GENERALLY

Appeal against conviction of attempting to import a marketable quantity of a border controlled precursor - police intercepted a crate arriving from Thailand and replaced a quantity of pseudoephedrine secreted inside with an inert substance - the crate was transported to a car wash owned by the co-accused - the appellant collected the crate - police discovered the crate and packing material in a dump site on the appellant's farm.

Whether the appellant could at law be found guilty of the offence - whether the appellant's conduct had to be anterior to the importation - whether full substitution of the inert substance for the precursor made a conviction impossible - whether the Information improperly charged a separate importation in respect of each accused - whether the appellant was prejudiced by the cross-examination of the co-accused - whether the Judge erred in admitting evidence of telephone conversations between the co-accused and others in the absence of the appellant - whether the Judge erred in directing the jury that those conversations were admissible against the appellant.

Held: Appeal dismissed - the appellant received a fair trial according to law - the conduct of the appellant did not have to be anterior to the importation of the precursor - the extended definition of "import" in the Criminal Code 1995 (Cth) permits the prosecution to rely upon an attempted dealing with the substance after the importation has been completed - the appellant's conduct constituted a perfected and completed dealing with the substituted inert substance - while the actions of police made it impossible for the appellant to gain possession of the precusor such impossibility will not preclude conviction of attempt - s 11.1(4), Criminal Code 1995 (Cth) referred to - there was only one importation and the Information validly charged different particulars for the appellant's conduct and that of the co-accused - the appellant was not prejudiced by the cross-examination of the co-accused - the Judge did not err in admitting the evidence of the telephone conversations - they were circumstantial evidence of the appellant's mental state at the time of his conduct…

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AGLC
R v Tranter [2013] SASCFC 61
Case
[2013] SASCFC 61
Decision Date

CaseChat Overview and Summary

The case of *R v Tranter* concerned an appeal against conviction for attempting to import a marketable quantity of a border controlled precursor, pseudoephedrine. The dispute arose after police intercepted a crate arriving from Thailand, replaced the secreted pseudoephedrine with an inert substance, and allowed the crate to proceed to a car wash owned by a co-accused. The appellant collected the crate, and it was later discovered on his farm. The appeal was heard by Kourakis CJ, White and Peek JJ.

The central legal issues before the court were whether the appellant could be lawfully convicted of attempting to import the precursor, particularly given that the police had substituted an inert substance for the pseudoephedrine before the appellant took possession of the crate. This raised questions about whether the appellant's conduct needed to be anterior to the importation itself, and whether the full substitution of the illicit substance precluded a conviction for attempt. Further issues included whether the Information improperly charged separate importations for each accused, and whether the appellant was prejudiced by the cross-examination of his co-accused and the admission of certain telephone conversations in his absence.

The Full Court dismissed the appeal, holding that the appellant had received a fair trial. The court reasoned that the extended definition of "import" in the *Criminal Code 1995* (Cth), which includes "deal with the substance in connection with its importation," permitted a prosecution for an attempted dealing with the substance even after the importation had technically been completed. The court found that the appellant's conduct constituted a perfected and completed dealing with the substituted inert substance, and that the impossibility of obtaining the actual precursor due to police actions did not prevent a conviction for attempt, referencing s 11.1(4) of the *Criminal Code 1995* (Cth). The court also determined that there was only one importation and the Information validly charged different particulars for each accused, that the appellant was not prejudiced by the cross-examination of his co-accused, and that the trial judge did not err in admitting evidence of telephone conversations, as they served as circumstantial evidence of the appellant's mental state and the jury was properly directed.

Orders

Orders of the court

Held: Appeal dismissed - the appellant received a fair trial according to law - the conduct of the appellant did not have to be anterior to the importation of the precursor - the extended definition of "import" in the Criminal Code 1995 (Cth) permits the prosecution to rely upon an attempted dealing with the substance after the importation has been completed - the appellant's conduct constituted a perfected and completed dealing with the substituted inert substance - while the actions of police made it impossible for the appellant to gain possession of the precusor such impossibility will not preclude conviction of attempt - s 11.1(4), Criminal Code 1995 (Cth) referred to - there was only one importation and the Information validly charged different particulars for the appellant's conduct and that of the co-accused - the appellant was not prejudiced by the cross-examination of the co-accused - the Judge did not err in admitting the evidence of the telephone conversations - they were circumstantial evidence of the appellant's mental state at the time of his conduct and the jury was appropriately directed that they could not take into account the content of the conversations but only the fact that they occurred.

Background

Background to the litigation

The appellant was charged with an offence contrary to s 307.12(1) and s 11.1 of the Criminal Code 1995 (Cth) (the Code) of attempting to import a marketable quantity of a border controlled precursor, pseudoephedrine (the precursor), between 6 May 2010 and 14 May 2010. The joint Information also charged a co-accused, Mr Tuohy (Tuohy), and appeared as follows:Information of the Commonwealth Director of Public ProsecutionsCOUNT ONEJOSEPH TUOHYis charged with the following offenceSTATEMENT OF OFFENCEImport a marketable quantity of a border controlled precursor intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug; s 307.12(1) Criminal Code (Cth) 1995PARTICULARS OF OFFENCEBetween 22 April 2010 and 6 May 2010, at Port Adelaide in the State of South Australia and elsewhere, Joseph Tuohy imported a marketable quantity of pseudoephedrine concealed within two marble stools.COUNT TWOJASON OAKLEY TRANTERis charged with the following offenceAttempt to import a marketable quantity of a border controlled precursor intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug; s 307.12(1) and 11.1 Criminal Code (Cth) 1995PARTICULARS OF OFFENCEBetween 6 May 2010 and 14 May 2010, at Naracoorte in the State of South Australia and elsewhere, Jason Tranter attempted to import a marketable quantity of pseudoephedrine concealed within two marble stools.Summary of facts The evidence (and agreed facts) included the following matters. On 15 March 2010, the appellant travelled to Thailand, on the following day to China, and on 21 March 2010 travelled back to Australia. He gave evidence explaining that this trip was to promote his wine export business. He stated that while in Thailand, a Mr Tuffnell (Tuffnell), who had previously assisted him in obtaining markets in Thailand, asked him to pick up a package that Tuffnell was going to export to a car wash in Naracoorte owned by Tuohy and the appellant agreed to do so. On 22 April 2010, Ms Briggs from Navia Logistics contacted Tuohy to inform him that a parcel was on its way to him as consignee. On 27 April 2010, a FedEx document package containing an International Air Waybill was sent from Thailand to Tuohy at Naracoorte. Tuohy signed for the FedEx documents and passed them on to the appellant. The appellant then conducted an internet search of certain details in the FedEx documents; the prosecution case is that that evinced a personal interest in the importation. On 29 April 2010, Ms Briggs again called Tuohy about the documents. On 5 May 2010, a crate with a bill of lading addressed to Tuohy arrived in Adelaide by sea from Thailand. It was inspected by Australian Federal Police and found to contain one marble bowl, one marble vase, and two marble stools in which were secreted 2,734.2g of tablets containing 557.8g of pure weight pseudoephedrine. On 6 May 2010, police substituted an inert substance for the tablets and the crate was allowed to be transported to Tuohy’s carwash where it was delivered on 13 May 2010.

Evidence

Evidence Before The Court

I reject ground 2 of appeal.GROUND 4: EVIDENCE OF DEFENCE WITNESSES Mr Mather was called as a defence witness. During cross-examination he strongly suggested that in his view the appellant was innocent. Both counsel for the prosecution and for the appellant referred to this in their final addresses. Ms Cohen was also called as a defence witness. She did not express views in the same way as Mr Mather had. The Judge gave a direction[89] about Mr Mather’s opinion which was unexceptionable. Unfortunately, her Honour when referring to Mr Mather also erroneously referred to Ms Cohen. This mistake was quickly called to her attention and she corrected it by redirecting the jury in a correct fashion prior to the completion of the summing up.[90] In the circumstances, the jurors could see for themselves that a simple error had been made and there was no residual prejudice to either the witness or to the appellant.[89] Summing up AB235.[90] Summing up AB241. I reject ground 4 of appeal.Disposition of the appeal I would dismiss the appeal

Decision

Reasons for decision

KOURAKIS CJ (dissent) WHITE J (dissent)
I agree with the reasons of Peek J in relation to the issues arising in relation to Amended Grounds 2 and 4, as identified earlier in these reasons.Conclusion For these reasons, I consider that the appeal should be dismissed. Peek J. Appeal against conviction of attempting to import a border controlled precursor. The appellant was charged with an offence contrary to s 307.12(1) and s 11.1 of the Criminal Code 1995 (Cth) (the Code) of attempting to import a marketable quantity of a border controlled precursor, pseudoephedrine (the precursor), between 6 May 2010 and 14 May 2010. The joint Information also charged a co-accused, Mr Tuohy (Tuohy), and appeared as follows:Information of the Commonwealth Director of Public ProsecutionsCOUNT ONEJOSEPH TUOHYis charged with the following offenceSTATEMENT OF OFFENCEImport a marketable quantity of a border controlled precursor intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug; s 307.12(1) Criminal Code (Cth) 1995PARTICULARS OF OFFENCEBetween 22 April 2010 and 6 May 2010, at Port Adelaide in the State of South Australia and elsewhere, Joseph Tuohy imported a marketable quantity of pseudoephedrine concealed within two marble stools.COUNT TWOJASON OAKLEY TRANTERis charged with the following offenceAttempt to import a marketable quantity of a border controlled precursor intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug; s 307.12(1) and 11.1 Criminal Code (Cth) 1995PARTICULARS OF OFFENCEBetween 6 May 2010 and 14 May 2010, at Naracoorte in the State of South Australia and elsewhere, Jason Tranter attempted to import a marketable quantity of pseudoephedrine concealed within two marble stools.Summary of facts The evidence (and agreed facts) included the following matters. On 15 March 2010, the appellant travelled to Thailand, on the following day to China, and on 21 March 2010 travelled back to Australia. He gave evidence explaining that this trip was to promote his wine export business. He stated that while in Thailand, a Mr Tuffnell (Tuffnell), who had previously assisted him in obtaining markets in Thailand, asked him to pick up a package that Tuffnell was going to export to a car wash in Naracoorte owned by Tuohy and the appellant agreed to do so. On 22 April 2010, Ms Briggs from Navia Logistics contacted Tuohy to inform him that a parcel was on its way to him as consignee. On 27 April 2010, a FedEx document package containing an International Air Waybill was sent from Thailand to Tuohy at Naracoorte. Tuohy signed for the FedEx documents and passed them on to the appellant. The appellant then conducted an internet search of certain details in the FedEx documents; the prosecution case is that that evinced a personal interest in the importation. On 29 April 2010, Ms Briggs again called Tuohy about the documents. On 5 May 2010, a crate with a bill of lading addressed to Tuohy arrived in Adelaide by sea from Thailand. It was inspected by Australian Federal Police and found to contain one marble bowl, one marble vase, and two marble stools in which were secreted 2,734.2g of tablets containing 557.8g of pure weight pseudoephedrine. On 6 May 2010, police substituted an inert substance for the tablets and the crate was allowed to be transported to Tuohy’s carwash where it was delivered on 13 May 2010.

Ratio Decidendi

Legal Principle Established

Established by:

I now consider the appellant’s specific grounds of appeal in the light of the above discussion.Consideration of ground 1 of appeal The gist of most of the appellant’s argument on ground 1 appears from an early passage in the written submissions, which was later restated in various ways, in both the written submissions and in oral argument:4.The mis-directions and non-directions were the result of a fundamental misapprehension on the part of the learned trial judge that Tranter could be guilty of attempting to import a substance when that substance had been imported and substituted for an inert powder on 6 May 2010: ie. prior to the conduct relied upon by the prosecution to establish Tranter’s guilt of the attempt. If the jury accepted that the relevant importation finished on 6 May, Tranter could not be guilty of attempting to import thereafter. On that scenario, nothing Tranter did was preparatory to that importation.5.On any view however the complex legal and factual matrix required careful and special directions. Because the prosecution conceded that Tranter could not be guilty of the completed offence of importing and because any act constituting an attempt to import had to be prior to an importation, the jury had to be carefully directed as to whether any steps Tranter had taken were a. antecedent to an importation and if so which importation; and b. more than merely preparatory to attempting to import the substance non constat that the drug had been substituted for an inert powder. I reject these submissions for the following reasons:·Contrary to paragraph [4], the appellant could indeed be found guilty of attempting to import a substance when that substance had been imported prior to the acts relied upon by the prosecution in relation to the appellant. That is because the extended meaning of “import” in the definition section (“deal with the substance in connection with its importation”) does permit the prosecution to rely upon an attempted dealing with the substance after the importation has been completed.·Contrary to paragraph [4], and for reasons stated above, the police substitution of an inert powder for the original illicit substance did not preclude the appellant being convicted of an attempt to import the original illicit substance. ·Contrary to paragraph [4], it was not a matter of the prosecution proving that the appellant did something “preparatory to that importation”.[76] Rather, the inquiry is as to whether he attempted to import. In the present factual context, it is necessary to consider whether the conduct he actually performed in relation to the substituted substance was sufficiently proximate to a completed “dealing” with the substituted substance so as to constitute an attempt rather than mere preparation. (Obviously, in mistakenly dealing with the substituted substance, the appellant must be intending to deal with the original illicit substance in connection with its importation.)·Contrary to paragraph [5], it was incorrect to say that “any act constituting an attempt to import had to be prior to an importation”. Clearly, such an act may be after the importation, having regard to the extended definition.·Contrary to paragraph [5], it was incorrect to say that the jury had to be directed in terms of “which importation”. There was only ever one importation and the jury were correctly so directed.[76] Paragraph [4] of appellant’s written submissions, last line.