R v Tranter

[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 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.

Criminal Code Act 1995 (Cth) Sch 1, ss 11.1, 300.2, 307.2, 307.9, 307.11, 307.12, 314.6; Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) Sch 9; Customs Act 1901 (Cth) ss 233B, 233B(1)(d), 233BAA, referred to.
R v Campbell (2008) 73 NSWLR 272; R v Toe (2010) 106 SASR 203; R v Nolan (2012) 267 FLR 1; Calderwood v The Queen (2007) 172 A Crim R 208; Wilson v Chambers (1926) 38 CLR 131, discussed.
R v Warsap (2011) 111 SASR 232; R v S [1996] 1 Qd R 559; Ffrench v Sestili (2007) 98 SASR 28; Antonis P Lemos [1985] 1 AC 711; R v Polain (1989) 52 SASR 526; Efira Services Pty Ltd v Commissioner of Stamps (1990) 58 SASR 539; Taylor v Attorney-General (SA) (1991) 55 SASR 462; Claremont Petroleum NL v Cummings (1992) 110 ALR 239; Exford Pines Pty Ltd v Vlados Pty Ltd [1992] 2 VR 449; R v Orcher (1999) 48 NSWLR 273; Minister for Immigration Affairs v Singh (2000) 98 FCR 469; Nguyen v QBE Insurance Ltd (2007) 99 SASR 443; Director of Public Prosecutions (WA) v White (2010) 41 WAR 249; Chalmers v The Queen (2011) 215 A Crim R 275; Bank of Western Australia v Abdul [2012] VSC 222, considered.

WORDS AND PHRASES CONSIDERED/DEFINED

"deal", "in connection with", "import", "importation", "attempt", "merely preparatory", "full substitution", "inert substance", "impossibility"

R v TRANTER
[2013] SASCFC 61

Court of Criminal Appeal:  Kourakis CJ, White and Peek JJ

1. KOURAKIS CJ.   I would dismiss the appeal for the reasons given by Peek J in paragraphs [125]-[149].

2. WHITE J.             The circumstances giving rise to this appeal are set out in the reasons of Peek J, as are the relevant statutory provisions.  I agree that the appeal should be dismissed and agree with many of the conclusions of Peek J.  However, I would like to state my own reasons on some of the issues.

3. The amended notice of appeal raised the following issues:

   1.Whether the appellant could, as a matter of law, be found guilty of the charged attempt to import a border controlled precursor in contravention of ss 11.1 and 307.12(1) of the Criminal Code (Cth) (the Code) given that:

   (a)    the conduct of the appellant relied upon by the prosecution for the attempt had occurred after the completion of the offence of importation alleged against the co‑accused, Mr Tuohy or, as it was put in the submissions, after the importation of the precursor was complete (Amended Ground 1.1.1.);

   (b)    the prosecution case (on the appellant’s contention) was that he had formed the relevant intention to import a border controlled precursor only after the importation of the precursor had been completed by Mr Tuohy (Amended Ground 1.1.2).

   2.Whether the trial Judge had misdirected the jury in two respects (Amended Ground 1.1.3, which was enlarged upon at the hearing).

   3.Whether a miscarriage of justice arose from the appellant having been charged jointly with Mr Tuohy given that:

   (a)    the conduct said to constitute the importing in Mr Tuohy’s case had concluded on 6 May 2010, whereas in the appellant’s case the conduct said to constitute the attempt had continued to 14 May 2010 (Amended Ground 1.1.4);

   (b)    an aspect of the prosecution cross‑examination of Mr Tuohy was (in the appellant’s contention) “highly prejudicial” because it suggested that he had been involved in the importing before the commencement of the conduct said to constitute the attempt and in circumstances suggestive of a joint enterprise, after the prosecution had disavowed any reliance upon joint enterprise (Amended Ground 1.1.5).

   4.Whether the Judge had erred in admitting, and in her directions to the jury as to the use of, evidence of communications between Mr Tuohy and others which had occurred in the absence of the appellant (Amended Ground 2).

   5.Whether the Judge had erred in her directions to the jury in relation to the evidence of two defence witnesses (Amended Ground 4).

4. I agree with the reasons of Peek J on some of these issues.  My reasons on the remaining issues follow.

   Could the Appellant be Found Guilty as a Matter of Law of the Charged Offence?

5. The appellant’s principal complaint on appeal was that the importation of the pseudoephedrine had concluded on 6 May 2010, with the effect that he could not be guilty of attempting to import it thereafter.

6. The Information laid against the appellant charged the following offence:

   Attempt 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 s 11.1 of the Code).

   That offence was particularised as follows:

   Between 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.

   Pseudoephedrine is a border controlled precursor as defined in the Code.[1] The prosecution relied on the extended definition of “import” contained in s 300.2 of the Code and alleged that the appellant had committed the offence by attempting to deal with the pseudoephedrine in relation to its importation into Australia.

   [1]    Criminal Code (Cth), ss 300.2 and 314.6(1).

7. The prosecution led evidence that the pseudoephedrine in tablet form had been imported into Australia from Thailand by ship in April and May 2010.  It was in plastic bags secreted inside two marble stools which, along with a marble vase and a marble bowl, had been packed in a crate.

8. The conduct of the appellant alleged by the prosecution is summarised in the reasons of Peek J under the heading “Summary of Facts”. The prosecution alleged that that conduct, in particular the appellant’s collection of the crate from Mr Tuohy’s premises, his taking of the crate to his farm where it was opened, the marble stools broken and the substitute substance removed, was an attempt by him to deal with the pseudoephedrine in relation to its importation, sufficient to constitute the charged contravention of s 307.12(1) and s 11.1 of the Code. It relied in this respect on the definition of “import” in s 300.2 of the Code. This definition was applicable to Part 9.1 of the Code of which s 307.12 formed part. The definition is as follows:

   Import, in relation to a substance, means import the substance into Australia and includes:

   (a)     bring the substance into Australia; and

   (b)     deal with the substance in connection with its importation.

9. The definition was introduced into the Code by the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth), Sch 9, which came into operation on 20 February 2010. It replaced the former definition of the word “import” in the Code which provided simply “import includes bring into to Australia”.

10. In R v Campbell,[2] the Court of Criminal Appeal in New South Wales held that a “precise” rather than an “expansive” interpretation of the word “imports” in the former definition was appropriate in relation to s 307.11 of the Code, with the effect that importation ceases when substances are delivered to the point which results in them staying in Australia.

    [2] [2008] NSWCCA 214; (2008) 73 NSWLR 272.

11. In R v Toe[3] this Court followed the interpretation in Campbell in relation to s 307.9(1) of the Code. As a member of that Court, I considered it appropriate to do so given that there was no relevant difference between the use of the word “imports” in s 307.11 and in s 307.2(1) of the Code, and because of the principle that an intermediate appellate court of one State should follow the construction of Commonwealth legislation by the intermediate appellate court of another, unless satisfied that that interpretation is plainly wrong.[4] 

    [3] [2010] SASC 39; (2010) 106 SASR 203.

    [4] Ibid at [218]; 259. I note that in R v Nolan [2012] NSWCCA 126 at [24]; (2012) 267 FLR 1 at 7, McClellan CJ at CL said that the majority in Toe (of which I formed part) had been critical of the earlier New South Wales decision of Calderwood v The Queen [2007] NSWCCA 180; (2007) 172 A Crim R 208 and had preferred to follow the decision in Campbell.  Likewise, Rothman J considered that Bleby J and I had “disapproved” of the approach in Calderwood (at [85]; 18). With respect to both McClellan CJ at CL and Rothman J, that is not a proper understanding of my reasons in Toe.

12. In the Explanatory Memorandum accompanying the Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2009 (Cth), the Attorney‑General referred to Campbell and  said that the amendment to the definition was made to reverse “any inadvertent narrowing” of previous provisions which had occurred when drug offences were inserted into the Code.  The Attorney‑General continued:

    The definition of import has been extended to include dealing with a substance in connection with its importation.  As such, the new definition of import relates to a process that extends before and beyond the period of the goods being landed in Australia.

    The effect of this amendment is that the Commonwealth drug importation offences will capture criminal activity related to the bringing of drugs into Australia and subsequent criminal activity connected with the importation of drugs.

    The terms “deal with the substance in connection with its importation” [in] paragraph (b) of the definition are intended to be broad [in] their application.  For example, paragraph (b) would capture the following dealings with the substance:

    (a)     packaging the goods for importation into Australia;

    (b)     transporting the goods into Australia;

    (c)     recovering the imported goods after landing in Australia;

    (d)     making the imported goods available to another person;

    (e)     clearing the imported goods;

    (f)    transferring the imported goods into storage;

    (g)     unpacking the imported goods;

    (h)     arranging for payment of those involved in the importation process.

    The examples above are not exhaustive.

    (Emphasis in original)

13. It is apparent that the Commonwealth Parliament now intends that a wide meaning should be given to the word “import” in Part 9.1 of the Code.  The new definition contemplates that a person may import a substance by engaging in conduct of three broad kinds:  importing the substance into Australia; bringing the substance into Australia; and dealing with the substance in connection with its importation into Australia.

14. There may be some overlap between the forms of conduct contemplated by the definition and the one course of action may satisfy all three limbs. However, a contravention of s 307.12(1) will occur if a person engages in only one of the three alternative forms of conduct contemplated by the definition.

15. It is to be observed that the definition of “import” incorporates the word “importation”.  A person may import by conduct dealing with a substance in connection with its “importation”.  This indicates that the meaning of the two cognates of the one word is not co‑extensive. 

16. A number of the earlier authorities concerning the meaning of “imports” related to the former s 233B of the Customs Act 1901 (Cth). In that context, “importation” was described as “a process, or a venture, not a physical act which occurs or ceases at the moment of import”.[5] It seems that the Parliament intends that the word “importation” in the definition of “import” in s 300.2 should have a similar meaning. The issues on this appeal make it unnecessary to consider whether that intention has been fulfilled.

    [5]    R v Leff (1996) 86 A Crim R 212 at 214. See also R v Bull (1974) 131 CLR 203 at 223; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 at 63-4.

17. Nor is it necessary for the disposition of this appeal to discuss the reach of the expression “deal with the substance in connection with its importation”.  That is because the appellant did not contend that, if his other objections failed, the conduct on which the prosecution relied could not properly have been regarded as an attempt by him to “deal” with the precursor “in connection with” its importation into Australia.

18. Once it is understood that a person may import a substance by engaging in different forms of conduct, it is apparent that the appellant’s submission that he could not be convicted of an attempt because the conduct charged against Mr Tuohy had been completed before his own had commenced cannot succeed.  Conduct within the definition of “import” may be of various kinds and occur at different stages in the process of the importation of a substance into Australia.  One accused may complete the conduct amounting to importing for the purposes of the definition in his or her case before the conduct of another commences.  That would obviously be so if the importation involves several persons performing separate roles at different times in the importation process.  For example, a mastermind who plans and coordinates the process of importation, the person who packs a substance and then delivers it to the ship or aircraft which brings it to Australia, the courier who actually brings the substance into Australia, the person who obtains customs clearance in Australia, the person who takes delivery and transports it to the ultimate recipient, and the person who unpacks the substance may each be said to “import” the substance in the sense contemplated by the definition (providing that it is accompanied by the requisite mental element) even though the conduct of each was separate and discrete and occurring at different times in the process.

19. Accordingly, it is immaterial that the conduct on which the prosecution relied for the charge against Mr Tuohy, and the importation of the precursor itself, had concluded before the appellant embarked on the conduct said to constitute his attempt.  The case against him was that he attempted to deal with the substance in relation to its importation, not that he had attempted to aid and abet Mr Tuohy in relation to the conduct alleged against him.

20. Even if Mr Tuohy had been convicted, it would not have meant that the appellant could not be guilty of an attempt to deal with the precursor by reason of his conduct occurring wholly after that charged against Mr Tuohy.  The position in this respect is no different than it would have been in respect of a co‑accused whose conduct comprised only the packing of the precursor in the stools, and in turn in the crate, and then delivering it to the ship in Thailand for transport to Australia.

21. In my opinion, the appellant’s submissions on appeal overlooked the different ways in which, having regard to the expanded definition of “import” in s 300.2 of the Code, a contravention of s 307.12(1) may be committed. Many of his submissions were made without reference to that definition and the implications which arise naturally from it.

22. I agree with the respondent that the appellant’s submissions failed to distinguish between the process of importation, on the one hand, and the attribution of criminal liability to a person who has committed a relevant act (with the relevant state of mind) during that process, on the other.  Proof by the prosecution that one person has engaged in a relevant act during the process of importation means only that the prosecution has proved the first element of the offence charged against that person, but does not of itself mean that another person may not commit another act which, given the extended definition, also amounts to “importing”.

23. The appellant made a further submission at the hearing.  He contended that the importation of the precursor had concluded on 6 May 2010 when it had been removed from the two stools and substituted with the inert substance.  This was because the precursor had then reached the point which would result in it remaining in Australia.  In this respect, the appellant referred to the judgment of Spigelman CJ in  R v Campbell[6] in which it was held that the activity of importing contemplated by s 307.11(1)(a) of the Code ended when the drugs were delivered to a point which would result in them remaining in Australia.

    [6] [2008] NSWCCA 214; (2008) 73 NSWLR 272.

24. In R v Toe,[7] I expressed the view that a complete removal of imported drugs, without any replacement, would mean that they had arrived at the point which would result in them remaining in Australia in the sense contemplated by Spigelman CJ:

    A complete removal of drugs, without them being replaced in whole or in part, means that there can be no further delivery of those drugs.  This is so whether the removal occurs as a result of a police or customs investigation, or as a result of surreptitious activity by an opportunist.  In these circumstances, the complete removal (and non-replacement) means that the drugs have reached the point which results in no further movement of them.  The fact that this point is not the intended destination by the importer is immaterial.  A jury should be required to determine the question required by the conclusion of Spigelman CJ in Campbell by addressing the reality of the matter, and not by resort to hypothetical circumstances.

    I add that an inspection by customs or police of goods, including the temporary removal of some or all of the goods for that purpose, does not have the effect of concluding the importation.  It is an ordinary incident of the importation of goods into Australia that some customs or security surveillance and investigation will occur.  A removal of goods for the better examination and identification of their nature and contents is a well‑accepted part of such surveillance and investigation.  The position is different however when the goods, such as drugs, are wholly removed and not replaced.  In those circumstances the importing of the drugs can go no further.  It is unrealistic to speak, on the basis of the fiction that the removal has not occurred, of the importing continuing to some further point at which it can be said that the goods will remain in Australia.

    The position would of course be different if at least some part of the drugs had been returned to their packages and allowed to continue to their intended destination. [8]

    [7] [2010] SASC 39; (2010) 106 SASR 203.

    [8] Ibid at [233]-[235]; 262.

1. Relying on these paragraphs, the appellant submitted that the importation of the precursor in the present case had concluded on 6 May when the full substitution was made by police.  The effect, he submitted, was that as his conduct had occurred wholly after that date, it could not be regarded as an attempt to import the precursor. 

2. This submission should be rejected. The substitution on 6 May did not preclude the appellant from attempting after that date to deal with the precursor in relation to its importation. It meant only that his attempt would not be successful. This conclusion follows from the provisions in the Code concerning attempts. Section 11.1(1) of the Code provides that:

   A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

   In addition, s 11.1(4)(a) provides that a person may be guilty even if the commission of the offence attempted is impossible.

3. Accordingly, although the substitution with an inert substance on 6 May made it impossible for the appellant to deal with the precursor, it did not mean that he could not attempt to do so, and more particularly, could not be guilty of the offence of attempting to do so.  It was open to the jury to find that he had attempted to deal with the precursor, even though unbeknown to him, he could not succeed.  This is consistent with a number of authorities which it is unnecessary to review in these reasons.[9] 

   [9]    Britten v Alpogut [1987] VR 929; R v Mai (1992) 26 NSWLR 371; R v Onuorah [2009] NSWCCA 238, (2009) 76 NSWLR 1; R v Nolan [2012] NSWCCA 126, (2012) 267 FLR 1.

4. Accordingly, the complaints raised by the appellant in Amended Grounds 1.1.1 and 1.1.2 fail.

5. It is unnecessary, in my opinion, for the resolution of this appeal to discuss the decision of the Court of Criminal Appeal in New South Wales in R v Nolan[10] upon which the appellant placed some reliance. That decision did not concern the Code but instead a charge of aiding and abetting an importation of a precursor in contravention of s 233BAA of the Customs Act 1901 (Cth). The conclusion of the majority that the defendant could not be convicted of aiding and abetting an offence which, by reason of the substitution of an inert substance, it had not been possible for the principal offender to commit, does not bear on the issues arising under the extended definition of import in s 300.2 of the Code.

   [10] [2012] NSWCCA 126; (2012) 267 FLR 1.

   Alleged Jury Misdirections

6. Paragraph 1.1.3 of the Amended Grounds of Appeal complained that the Judge had misdirected the jury by allowing it to think that satisfaction of the physical element of the charged offence was sufficient for a conviction.

7. The impugned direction was as follows:

   You have heard evidence that the pseudoephedrine that had been in the marble stools had been removed and replaced with an inert substance on 6 May.  So the substance that it is alleged Mr Tranter did, in fact, deal with after 6 May was no longer pseudoephedrine but its replacement.  On the Crown case, he has engaged in conduct after the replacement of the pseudoephedrine.  That amounts, if you accept it, to attempting to import the substance, being pseudoephedrine.

   (Emphasis added)

   The appellant relied on the emphasised passage.

8. In my opinion, there is no substance in this complaint.  The Judge directed the jury separately in relation to each element of the offence, including the mental element.  The impugned direction occurred in the context of her directions concerning the physical element of the alleged offence of attempt.  Both before and after the impugned direction, the Judge made it plain that she was speaking of “the first element” about which the jury had to be satisfied.

9. In these circumstances, the jury would have well understood the impugned direction to relate only to the physical element of the offence and not to convey the meaning for which the appellant on appeal contended.

10. It is pertinent to observe that, although senior counsel for the appellant at trial made several requests for re‑direction, she did not raise any complaint with respect to this passage of the summing up.

11. At the hearing of the appeal the appellant raised other complaints about the Judge’s directions to the jury. However, most of those complaints were premised on the appellant’s submissions concerning Amended Grounds 1.1.1 and 1.1.2 being accepted. As those grounds fail, these complaints too should fail. I indicate my agreement with the reasons of Peek J on this topic in paragraph [126].

12. The appellant also complained that the Judge had not directed the jury appropriately as to whether the conduct charged against him could be more than merely preparatory to “the relevant importation” of the precursor. For this submission, he referred to s 11.1(2) of the Code which, in relation to the offence of attempt, provides:

    (2)For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence.  The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

    Section 11.1(2) contains a requirement that the conduct relied upon for an attempt be sufficiently proximate to the commission of the offence. It does so by requiring that the charged conduct be more than merely preparatory to the commission of the offence.

13. I confess to some difficulty in understanding the appellant’s submission based upon s 11.1(2) in this case. I think it likely that the submission overlooked that the appellant had been charged, in effect, with attempting to deal with the precursor in relation to its importation.

14. Issues about the proximity of the appellant’s conduct to dealing with the precursor did not really arise. The conduct which the prosecution alleged against him were more than acts directed towards dealing with the precursor in relation to its importation: it constituted the very attempt to deal with the precursor, and would have succeeded but for the earlier substitution of an inert substance. The appellant’s conduct was not of a merely preparatory kind, such as fuelling his utility for the journey into Naracoorte, or the equipping of the utility with ropes or straps with which to tie the crate down, or even driving from his home in Victoria into Naracoorte. He had performed all the acts by which, on the prosecution case, he had intended to deal with the precursor. That being so, it is difficult to see how s 11.1(2) gave rise to any issue in the trial. Accordingly the Judge was not obliged to direct the jury on it.

    Alleged Prejudice Arising from a Joint Trial

15. The matters relied upon by the appellant for these grounds (Amended Grounds 1.1.4 and 1.1.5) turned on acceptance of his submissions in relation to Amended Grounds 1.1.1 and 1.1.2.  Because those grounds fail, these two grounds also fail.  I also agree with the reasons of Peek J in relation to Amended Ground 1.1.5.

    Amended Grounds 2 and 4

16. 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

17. For these reasons, I consider that the appeal should be dismissed.

18. Peek J.     Appeal against conviction of attempting to import a border controlled precursor.

19. 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 Prosecutions

    COUNT ONE

    JOSEPH TUOHY

    is charged with the following offence

    STATEMENT OF OFFENCE

    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) Criminal Code (Cth) 1995

    PARTICULARS OF OFFENCE

    Between 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 TWO

    JASON OAKLEY TRANTER

    is charged with the following offence

    Attempt 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) 1995

    PARTICULARS OF OFFENCE

    Between 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

20. The evidence (and agreed facts) included the following matters.

21. 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.

22. 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.

23. 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.

24. On 13 May 2010, Tuohy advised the appellant that the crate was ready for collection.  The appellant attended, loaded the crate onto his utility and then drove to a local winery where he opened the crate and looked at the items inside in the company of Mr Wilkens.  The prosecution case is that that action also evinced a personal interest in the importation and that an explanation of mere curiosity should be rejected in light of the evidence that the appellant had previously seen the shipping documents which described the contents.

25. The appellant then secured the lid and drove with Mr Wilkens around the general environs.  It was suggested by the prosecution that his manner of driving suggested a process of counter-surveillance being undertaken by him at this time.

26. The appellant later returned to his farm.  A phone call was then recorded between him and his wife during which he asked her where her scales were and she informed him of their location.  On the prosecution case his purpose was to weigh the precursor; on the defence case it was to weigh some potatoes.

27. By the time police arrived at the appellant’s premises at 8:00am the next morning, 14 May 2010, the contents of the crate had been unpacked by someone.  police found the marble bowl and vase wrapped in bubble wrap on the ground near the appellant’s residence.  The crate, packing material, and a quantity of broken marble (believed to be the remains of the marble stools) were found at a dump site on the appellant’s farm, about one kilometre from the packing shed.  The appellant gave evidence at trial that it was not he who unpacked the crate and that he had intended the crate to be left in the utility overnight, as he was concerned with tending to his potatoes.  He stated that when he noticed the crate was gone he had thought that someone had come and collected it since he believed it to contain goods for Tuffnell.  Later on 14 May 2010, the appellant and Tuohy were arrested.

28. The jury returned unanimous verdicts of not guilty in relation to Tuohy and guilty in relation to the appellant.

    The acts relied upon by the prosecution as to the two accused persons

29. A brief summary of the acts by the two accused persons relied upon by the prosecution and the factual matrix on appeal is correctly summarised by the respondent in its written submissions thus:

    9.In relation to Tuohy, the acts performed by him which were said to satisfy the first element of the offence included confirming his status as the consignee with Navia, discussing the required documentation for customs clearance with Navia, providing his PO box address to Navia in order to receive a quote for their services and receiving documents from FedEX regarding the shipment and causing them to be passed on to Navia.

    10.In relation to the appellant, the acts performed by him which were said to satisfy the first element of the offence included collecting the crate from Tuohy’s car wash, transporting the crate on his ute, opening the lid of the crate at [a winery], taking the crate home and removing the substance from the secreted locations prior to the disposal of the broken marble stools and the empty crate at the dumpsite.

    …

    13.At trial, Tuohy did not dispute committing the acts which were said to comprise the first element of the offence.  The issue at trial was his state of mind at the time he performed the acts …

    14.At trial, the appellant did not dispute that he committed some of the acts which were relied upon by the prosecution to prove the first element.  He did not dispute that he collected the crate from the car wash, transported it on his ute, opened the lid at [the winery] and took the crate home.  The issues at trial were (1) his state of mind when he performed those acts and (2) whether he removed the secreted substance from inside the stools prior to the disposal of items at the dumpsite.  …

    The grounds of appeal

30. The grounds of appeal upon which leave was granted were as follows:

    1.     The appellant did not receive a trial according to law in that:

    1.1    Having regard to the two counts on the Information (as particularised) upon which the appellant was presented for trial, the appellant could not, as a matter of law, be found guilty of an attempt to import a border controlled precursor:

    1.1.1None of the conduct alleged against the appellant was said to be anterior to the commission of the completed offence of importing a border controlled precursor by the co-accused Tuohy, which offence as particularised concluded on 6 May 2010.

    1.1.2In light of the particulars and the framing of the two counts on the Information, the appellant could never have had the relevant intention to import a border controlled precursor because the prosecution case as to his intention was that it was formed post 6 May 2010 and therefore after the point at which the offence of importing a border controlled precursor had been completed by the co-accused Tuohy.

    1.1.3Further, even if (contrary to the two charges as particularised) the importing was a continuing importing, the learned trial judge misdirected the jury that, as a matter of law, if the jury found the applicant had engaged in the conduct alleged by the prosecution “[t]hat amounts, if you accept it, to attempting to import the substance, being pseudoephedrine”.

    1.1.4On any view, the exercise of the prosecutorial discretion in charging the appellant jointly with the co-accused Tuohy resulted in a trial that was relevantly unfair to the appellant as the prosecution case necessarily involved on the one hand an assertion that the “importing” for the purposes of s 307.12 of the Criminal Code 1995 (Cth) had concluded on 6 May 2010 and on the other an assertion that it continued until 14 May 2010.

    1.1.5Moreover, the prosecution’s cross examination of the co-accused Tuohy resulted in a suggestion being made before the jury which was highly prejudicial to the appellant (namely, that the appellant was involved in the importing prior to the commencement of the count as particularised against him and in circumstances suggestive of a joint enterprise) and which was made in circumstances where the prosecution had disavowed any reliance upon joint enterprise to prove the appellant’s guilt.

    …

    2.     The learned trial judge erred:

    2.1    In admitting the evidence of conversations between the co-accused Tuohy and others in the absence of the appellant; and

    2.2    In directing the jury that in considering whether the prosecution had proved its case against the appellant, evidence of the fact and topic of conversations between the co-accused Tuohy and others in the absence of the appellant, were admissible against the appellant.

    …

    4.The learned trial judge erred in directing the jury that two witnesses (Phil Mather and Darlene Cohen) called on behalf of the appellant had sought to “…impose their views upon [the jury] when they have not had the opportunity to sit here and listen to all of the evidence that you have in relation to this matter” in circumstances when:

    4.1    The witness Mather gave evidence in cross examination that “…that’s why I know he’s innocent because he – I can remember it because I’ve thought about it thousands of times”.

    4.2    The witness Darlene Cohen had not given any evidence about her view of the appellant’s guilt or innocence.

    4.3    The effect of the learned trial judge’s direction to the jury was to impermissibly denigrate critical evidence adduced on behalf of the appellant.  Further, the learned trial judge’s statement conveyed to the jury that they would find the appellant guilty if they listened to all the evidence.

    [Footnotes omitted]

    The submissions of the appellant

31. The appellant (having been granted permission to exceed the usual ten page limit) filed 21 pages of written submissions, by far the majority of which dealt with ground 1 of appeal.  Oral submissions were made only in relation to ground 1 of appeal, it being stated that the written submissions were relied upon in relation to grounds 2 and 4 of appeal.

32. I foreshadow that I reject (for reasons that appear below) the appellant’s submissions in relation to all of the grounds of appeal.  It will be necessary to refer to a number of relevant statutory provisions and authorities in order to consider the various aspects of ground 1 of appeal.

    The Code definitions of “Import”

33. Prior to 20 February 2010, “import” was defined in the Code as “import includes bring into Australia”.  However, on 20 February 2010,[11] a new definition came into force; s 300.2 of the Code now defines “import” as follows:

    import, in relation to a substance, means import the substance into Australia and includes:

    (a)     bring the substance into Australia; and

    (b)     deal with the substance in connection with its importation.

    [11]   See Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) Sch 9.

34. It can be seen that paragraph (a) of the definition of the verb import effectively reproduces the definition previous to 20 February 2010 and I will refer to paragraph (a) as “the primary definition of import”.  Paragraph (b) provides what I will refer to as “the extended definition of import”.

35. I will return to a consideration of the extended definition but first it is necessary to make some observations as to the primary definition of “import”.

    The primary definition of “import”

36. As a matter of chronology, I first mention a line of cases which, although relating to an offence which was abolished in 2001, still play a substantial part in legal debate about the correct interpretation of the current law.

    The “knowingly concerned in an importation” cases

1. The repealed s 233B(1)(d) of the Customs Act 1901 (Cth) enacted the offence of “being knowingly concerned in the importation” of a prohibited import. In a number of decisions, it was held that the meanings of “importation” and of “being knowingly concerned in [an] importation”, were both relatively “flexible”; and sufficiently so in some circumstances as to apply to an accused’s actions subsequent both to police seizure of the substance the subject of the importation and substitution of a different substance. Such decisions include: R v Lam;[12] R v Courtney-Smith (No 2);[13] R v Leff;[14] Cheung v The Queen;[15] R v Sukkar;[16] and R v Mokbel.[17]

   [12] (1990) 46 A Crim R 402.

   [13] (1990) 48 A Crim R 49.

   [14] (1996) 132 FLR 102.

   [15]   (1997) 97 A Crim R 283.

   [16]   [2005] NSWCCA 54.

   [17] (2010) 30 VR 115. The events occurred prior to the repeal of s  233B(1)(d) of the Customs Act 1901 (Cth) in 2001.

2. However, in 2001, s 233B(1)(d) was repealed and the offence of being knowingly concerned in an importation was abolished; no comparable offence was enacted in its stead with the conspiracy and complicity provisions of the Code being made applicable to the general import offence instead.

3. In 2007, Calderwood v The Queen (Calderwood)[18] was decided by the New South Wales Court of Criminal Appeal. McClellan CJ at CL (with whom Hulme and Hislop JJ concurred) held that the “flexible approach” derived from the “being knowingly concerned in [an] importation” offence should be applied to a charge of “import” contrary to s 233B(1)(b) of the Customs Act 1901 (Cth).[19]

   [18] (2007) 172 A Crim R 208.

   [19]   Calderwood v The Queen (2007) 172 A Crim R 208, 211-212 [10]-[11].

   The primary definition of “import” – the decision in R v Campbell

4. In the later decision of the New South Wales Court of Criminal Appeal in R v Campbell (Campbell),[20] the charge was “import” contrary to s 307.11 of the Code. In essence, the appellant there submitted that the word “import” connotes the necessity of termination at, or at least by, a particular time[21] and that accordingly conduct by a person after that time could not constitute the action of “import” by that person.  The prosecution submitted that, to the contrary, “import” is a more general process and that the decision in Calderwood[22] should be followed.

   [20] (2008) 73 NSWLR 272.

   [21]   Sometimes termination of importation will be fixed by reference to the occurrence of an event irrespective of exactly when that event occurred (as to which there may be uncertainty).  An obvious example is the event of arrival at a particular destination.

   [22] (2007) 172 A Crim R 208.

5. The Court in Campbell[23] subjected the previous cases to close scrutiny and concluded that, at least in the context of a charge of “import”, the narrow meaning contended for by the appellant was correct.  Spigelman CJ considered[24] that the approach of Isaacs J in Wilson v Chambers[25] (the Isaacs J approach) should be applied, noting that it had been adopted by the High Court in R v Bull.[26]  After considering the matter in some detail,[27] his Honour succinctly summarised his conclusion as to the meaning of the verb “imports” thus:[28]

   [23] (2008) 73 NSWLR 272.

   [24]   R v Campbell (2008) 73 NSWLR 272, 287-288 [72]-[81].

   [25] (1926) 38 CLR 131, 139 (Isaacs J).

   [26] (1974) 131 CLR 203.

   [27]   R v Campbell (2008) 73 NSWLR 272, 283-294 [43]-[124].

   [28]   R v Campbell (2008) 73 NSWLR 272, 294.

   The meaning of “imports”

   [125]I have found it difficult to balance these disparate considerations.  Nevertheless, the reasoning in The Queen v Bull, albeit with respect to a different statutory context, is more closely applicable than any other case law.  I refer particularly to the adoption of the reasoning of Isaacs J in Wilson v Chambers.

   [126]The new statutory context of a criminal code dealing with a wide range of drug offences suggests that a precise, rather than expansive, sense of the word “imports” has been adopted.

   [127]Generally, that is how one would approach the interpretation of any criminal statute.

   [128]In my opinion, the purpose of the Act requires the border controlled drugs and precursors “to arrive in Australia from abroad” and to be delivered at a point which, in the words of Isaacs J in Wilson v Chambers, would “result in the goods remaining in Australia”.  That occurred when the goods were picked up by the appellant’s agent or, at the latest, when the container arrived at her premises and before it was unpacked.

   [129]The Crown’s alternative case permitted the jury to convict the appellant on the basis that she formed the intention, constituting the fault element, after the physical element had been completed.  This was impermissible.

   [130]Since writing the above I have read the judgment of Weinberg AJA in draft.  I agree with his Honour’s reasons.   (Emphasis in original)

6. It is instructive to note that both Spigelman CJ and Weinberg AJA considered that the different context of an offence of being knowingly concerned in an importation largely explained the approach taken in decisions such as R v Lam;[29] R v Courtney-Smith (No 2);[30] R v Leff;[31] R v Cheung;[32] and R v Sukkar[33] referred to above.  Thus, Spigelman CJ observed:[34]

   [101] The authorities on the word “importation”, on which the respondent primarily relied in the present proceedings, are of little assistance for the purpose of interpreting the word “imports” in s  307.11(1)(a) of the Code.  This is particularly so because the immediate context of s  233B(1)(d) incorporates the expansive concept of “knowingly concerned”: see R v Lam (1990) 46 A Crim R 402 at 405; R v Cheung (1997) 97 A Crim R 283 especially at 288–292.

   [102] Indeed, although the judgments do contain references to the meaning of “importation” as something that occurs over a period before and after an act referred to by the word “import”, it appears to me that the word “importation” may have received that expansive interpretation because of its immediate textual context.  The expansive intention of the formulation “aids, abets, counsels, or procures, or is in any way knowingly concerned in” gives the word “importation” a colour it may not receive in a different context.

   [29] (1990) 46 A Crim R 402.

   [30] (1990) 48 A Crim R 49.

   [31] (1996) 132 FLR 102.

   [32]   (1997) 97 A Crim R 283.

   [33]   [2005] NSWCCA 54.

   [34] (2008) 73 NSWLR 272, 290.

7. Weinberg AJA noted in further detail the significance of the changes of legislation which resulted in the abolition of the offence of being knowingly concerned in an importation:[35]

   [35]   R v Campbell (2008) 73 NSWLR 272, 297-300.

   [152]This brings me to the significance of the fact that the offence of being knowingly concerned in the importation of prohibited imports no longer exists under the Code.

   [153]The Chief Justice, in his reasons for judgment, has summarised the history behind the decision to omit “knowingly concerned” from the provisions dealing with the importation of narcotic substances.  As his Honour notes, s  233B(1)(d) of the Customs Act 1901 (Cth) was repealed in 2001 when the Code was first applied to drug offences.

   …

   [173]The decision to omit the phrase “knowingly concerned” from the various forms of complicity available under federal criminal law, and the extension of that decision to the offences now contained in the Code dealing with drugs, appears to me to have left a lacuna in the law that was certainly never intended.

   [174]As previously indicated, the Gibbs Committee foresaw the need to retain this variant of accessorial liability.  In its report, it noted that Commonwealth prosecutors had frequently found the phrase a more apposite and convenient description of the offence to be charged than the remaining words of s 5 of the Crimes Act (Cth).  The convenience lay in the fact that charging “knowingly concerned” avoided any possible question whether the offender was a principal in the second degree or an accessory before the fact, a matter that assumed importance in common law jurisdictions, though never really at the Common­wealth level.  That was because s 5 had, from the time of its first enactment, applied to all Commonwealth offences, the distinction between felonies and misdemeanours never having been recognised under the Crimes Act (Cth) itself.

   [175]All this goes some way towards explaining why the phrase “knowingly concerned” no longer applies to offences involving the importation of drugs.  It also puts the issues raised in this appeal into context.

   [176]The authorities upon which the Crown relied, in support of its submission that the word “import” has the extended meaning for which it contended, are all cases that were decided under the rubric of “knowingly concerned”.  That phrase was always attached to the term “importation”.

   [177]The Code now shifts from the noun “importation” to the verb “imports”.  A change of that kind can have consequences.  They may be unintended.  To be “knowingly concerned” in an importation is to be involved in an activity that is necessarily ambulatory.  To import, or to aid and abet an importer, is to engage in a more finite activity, which is part of a broader process properly characterised as the process of importation.

   …

   [180]In the instant case, there was ample evidence upon which the jury could have convicted the appellant of importing these precursor drugs or, at the very least, aiding and abetting their importation.  The jury could only have done so, however, if satisfied that the Crown had established the relevant fault element on her part prior to the act of importing having been concluded.  As previously indicated, the physical and fault elements had to coincide in time.

   [181]The difficulty lies in knowing whether the jury convicted on the basis of the evidence that pointed to the appellant’s involvement in the importation while it was still ongoing, or whether they relied solely upon the Crown’s alternative case, first put forward in the prosecutor’s closing address, that she was guilty even if she only learned about the drugs when she first saw the boxes in the van.  Whatever flexibility there may be built in to the verb “imports” in s  307.11, having regard to the test laid down in Wilson v Chambers, the act of importing (as distinct from the broader venture which centred upon the importation) had, in my view, well and truly concluded by the Saturday when the appellant actually saw those boxes.  To use the language of Isaacs J, by that stage, the carriage had ended or, at the very least, its continuity had been broken.  That makes it impossible to allow this conviction to stand.  There should be a new trial.                   (Emphasis added)

8. Simpson J agreed with both Spigelman CJ and Weinberg AJA.

   The primary meaning of “import” – the decision in R v Toe

9. In the later decision of the South Australian Court of Criminal Appeal in R v Toe (Toe)[36] the appellant was charged on Information with “import a marketable quantity of a border controlled drug”,[37] contrary to s 307.2(1) of the Code thus:

   Statement of Offence

   Import a marketable quantity of a border controlled drug, contrary to s 307.2(1) of the Criminal Code (Cth) Act 1995

   Particulars of Offence

   Between 12 May 2007 and 31 May 2007, at Brooklyn Park in the State of South Australia and elsewhere, Joseph Toe imported a substance, the substance being a border controlled drug, namely heroin, and the quantity being imported being a marketable quantity.

   [36] (2010) 106 SASR 203.

   [37] There was an alternative charge of attempt to possess a marketable quantity of border controlled drug, contrary to ss 11.1 and 307.9(1) of the Criminal Code Act 1995 (Cth) but the Court declined to substitute a conviction of that alternative offence for reasons that are not presently relevant.

10. It is important to note that the date of the alleged offending was prior to 20 February 2010 (when the extended definition of “import” was added) and accordingly it was the primary definition of “import” in the Code that applied: “import includes bring into Australia”.

11. The facts in Toe[38] were briefly that on 12 and 13 May 2007, Australian Federal Police at Sydney Airport intercepted some packages from overseas which were addressed to a house in South Australia.  These were examined over the period to 23 May 2007 and were found to contain heroin and cocaine.  Police on about 30 May 2007 lawfully intercepted a telephone call by the appellant to a courier in which he arranged for the packages to be collected by the courier and delivered to him.  On 31 May 2007, the appellant took possession of the packages in this way and was arrested at his home later that day. 

    [38] (2010) 106 SASR 203.

12. The principal issue was whether the appellant had “imported” the drugs on those facts.  The trial Judge directed the jury that they could find that the appellant had imported drugs if they were satisfied that he had done “acts that are part of the import of drugs” and directed the jury that they should regard the process of the importation of the drugs as continuing until they were delivered to a point resulting in them remaining in Australia.[39]

    [39]   R v Toe (2010) 106 SASR 203, 211-213 [33]-[37] (Bleby J); 234-235 [136] (Gray J); 253-260 [191], [223] (White J).

13. The majority Judges (Bleby J and White J) considered that the case disclosed an inconsistency between the decisions of the New South Wales Court of Criminal Appeal in Calderwood[40] and Campbell.[41]

    [40] (2007) 172 A Crim R 208.

    [41] (2008) 73 NSWLR 272.

14. Bleby J noted that all of the authorities relied upon in Calderwood had involved charges of being knowingly concerned in an importation[42] and was of the view that their Honours in Campbell were correct in stressing this fact.  His Honour preferred the decision in Campbell to that in Calderwood and stated:[43]

    [72]Campbell requires that the word “import” be given its ordinary and natural meaning in the context of the provisions of the Code.  That is consistent with recent High Court authority which requires that the word be given its ordinary grammatical meaning, having regard to the context and legislative purpose of the statute.  As the reasoning in Campbell indicates, the meaning of “import” in the Code is a narrower meaning than the concept of “importation” as it was used in s 233B(1)(d) of the Customs Act, and which was, in my view, incorrectly applied by the court in Calderwood.

    [42] (2010) 106 SASR 203, 218 [51].

    [43]   R v Toe (2010) 106 SASR 203, 224.

15. White J took a similar approach.  After referring to the cases determined in the context of charges of “being knowingly concerned in the importation”, his Honour stated:[44]

    [212]However, in Campbell, after an extensive review of the context and purpose of s 307.11 of the Code and of the authorities, Spigelman CJ, with whom Weinberg AJA (although providing separate reasons) and Simpson JA agreed, rejected a submission that the concept of “importation” discussed in the cases concerning the offence of “knowingly concerned in [an] importation” was identical with the concept of “imports” in s 307.11(1)(a) of the Code. His Honour concluded that the word “imports” in s 307.11(1)(a) of the Code is used in a precise, rather than expansive, sense. That conclusion is important for present purposes because s 307.2(1)(a) and s 307.11(1)(a) each use the same words to specify the physical element of the offence they create, that is, “the person imports or exports a substance” and, in my opinion, they can be taken to be used with the same meaning.

    [44]   R v Toe (2010) 106 SASR 203, 257-258.

16. His Honour later concluded:[45]

    [221]In my opinion, both the language of Div 307 of the Code, its context and purpose, and the authorities, indicate that a person imports drugs within the meaning of s 307.2(1)(a) if the person introduces the drugs into Australia from abroad. That conduct occurs most obviously when the person brings the drugs into Australia or, alternatively, causes them to be brought into Australia but the activity of importing drugs is not confined to conduct of these kinds. It may also occur when a consignee engages in the conduct, or masterminds the conduct, of collecting or retrieving drugs which have been landed in Australia. Campbell indicates that the activity of importing for the purposes of s 307.2(1)(a) of the kinds just discussed is completed when the drugs, having been landed in Australia, are delivered at a point which will result in them remaining in Australia.

    [45]   R v Toe (2010) 106 SASR 203, 260.

    The primary meaning of “import” – the effect of substitution of a substance 

17. An important question in the present case is as to the effect of police operations on subsequent proof of criminal charges.  As already observed, the present case will be governed by the new extended definition of “import” but analysis is facilitated by first referring to the approach that was previously taken to “substitution” in the context of the primary meaning of “import”.

18. Speaking generally, police may become aware that an unlawful importation has happened, is in progress, or is about to happen, in many different ways.  This diversity combined with the various measures that may be taken in response to such intelligence, gives rise to numerous permutations of circumstances in which an unlawful importation might proceed or indeed terminate.  While it is clear enough that mere police surveillance will not prevent an importation retaining its original status to completion, questions will arise as to the effect that more active police measures may have in particular circumstances. 

19. There was a time when some police forces ran controlled deliveries “live”, trusting in surveillance and the proximity of officers to provide the necessary security.  On various occasions, some well known and some less so, this modus operandi ended in tears for various reasons that are unnecessary to consider here.  A transition therefore occurred to partial substitutions of seized drugs with a small amount of the original drug remaining in a very greatly diluted state.[46]  The theory was that the use of this technique retained the ability to charge a full offence by relying upon the remaining small amount of illicit drug.

    [46]   Usually an amount of diluting agent was substituted for the bulk of the original substance in such a way that the original mass or weight of the substance remained constant but the purity after the substitution approached (but did not reach) zero.  The use of this technique did introduce some complications but it is not necessary to comment on them here.

20. In the present case, the method of full substitution of a new inert substance was adopted; this is the most safe and clean method but does raise in stark form the effect of such a substitution on subsequent criminal charges.  Indeed, the effect of a full substitution of a substance by police on the subsequent status of actions of an accused person has been the subject of a good deal of judicial debate.

21. There are various statements to be found in the “knowingly concerned in [an] importation” cases which suggest that acts occurring after a police substitution can, standing alone, constitute the actus reus of that offence.  As an example, in R v Leff,[47] the appellant was convicted of two counts of being knowingly concerned in the importation of cocaine and the New South Wales Court of Criminal Appeal addressed the possibility that the appellant may have been convicted on the basis that all of her acts were performed after the courier had been apprehended by police and the drugs seized.  Gleeson CJ stated:[48]

    The principal argument for the appellant comes down to the proposition that at that stage it was impossible for her to become knowingly concerned in the importation; the importation was over.  I am unable to accept that argument.  The concepts of importation, and of being concerned in an importation, are both sufficiently flexible to cover a case such as the present.  As the authorities referred to by James J show, importation is a process, or a venture, not a physical act which occurs or ceases at the moment of import.  Furthermore, concern in an importation can commence at a time when it has apparently broken down, and where efforts are being made to bring it to fruition.

    [47] (1996) 132 FLR 102.

    [48]   R v Leff (1996) 132 FLR 102, 103-104.

1. However, at least in the present context of a charge of “import”, it seems to me that the necessary effect of the decision in Campbell[49] and its adoption of the narrow meaning of importation (and particularly of “the Isaacs J approach”) is that a full substitution would bring an importation to an end because such police action necessarily results in the imported substance remaining in Australia.

   [49] (2008) 73 NSWLR 272.

2. This was the view taken by White J in R v Toe,[50] with which view I respectfully agree.  His Honour there said:[51]

   [232]It is the conclusion in Campbell which gave rise to the debate on the present appeal. It will be recalled that Spigelman CJ concluded that s 307.11 of the Code required the border controlled drugs to arrive in Australia from abroad and to be delivered at a point which would result in them remaining in Australia.

   [233]A complete removal of drugs, without them being replaced in whole or in part, means that there can be no further delivery of those drugs.  This is so whether the removal occurs as a result of a police or customs investigation, or as a result of surreptitious activity by an opportunist.  In these circumstances, the complete removal (and non-replacement) means that the drugs have reached the point which results in no further movement of them.  The fact that this point is not the intended destination by the importer is immaterial.  A jury should be required to determine the question required by the conclusion of Spigelman CJ in Campbell by addressing the reality of the matter, and not by resort to hypothetical circumstances.

   [234]I add that an inspection by customs or police of goods, including the temporary removal of some or all of the goods for that purpose, does not have the effect of concluding the importation.  It is an ordinary incident of the importation of goods into Australia that some customs or security surveillance and investigation will occur.  A removal of goods for the better examination an identification of their nature and contents is a well-accepted part of such surveillance and investigation.  The position is different, however, when the goods, such as drugs, are wholly removed and not replaced.  In those circumstances the importing of the drugs can go no further.  It is unrealistic to speak, on the basis of the fiction that the removal has not occurred, of the importing continuing to some further point at which it can be said that the goods will remain in Australia.

   [50] (2010) 106 SASR 203.

   [51]   R v Toe (2010) 106 SASR 203, 262.

3. In similar vein, Bleby J stated:[52]

   [71]… If it were necessary to do so in this case I would be constrained to hold that the importing of the border controlled drugs ceased at the time when they were removed in their entirety by the police.  They had arrived in Australia from abroad.  They had reached the point which would “result in the goods remaining in Australia”, albeit that, without the intervention of the police, the importing may have continued until delivery to the person who claimed to be the consignee.  However, in the circumstances of this case it is not necessary so to decide.

   [52]   R v Toe (2010) 106 SASR 203, 224.

   The extended definition of “import” in paragraph (b) of the Code

4. However, further theoretical debate as to the effect of a full police substitution of the substance is now somewhat redundant, at least in the present circumstances; the answer to the question here lies in a close analysis of the whole of the new definition of “import” in the Code.

5. The appellant is charged with attempt to “import” and the prosecution relies solely on acts alleged to have been performed after a full police substitution.  In such circumstances, paragraph (a) cannot be pressed into use because, on the limited acts relied upon by the prosecution here, it cannot be said that the appellant did “bring [or send] the substance into Australia” and nor did he attempt to do so.  If the appellant is to be convicted, it must be via paragraph (b) and that is exactly what the prosecution submitted here.[53] 

   The first requirement of the extended definition in paragraph (b): the accused must “deal with the substance”

   [53]   I suppose it might be sought to argue that the effect of the “knowingly concerned in [an] importation” cases, together with the decision in Calderwood v The Queen (2007) 172 A Crim R 208, is that the words in paragraph (a) taken alone should have “flexibility” and accordingly there is no need to resort to paragraph (b). If that argument were to be accepted in a full “substitution” case, the advantage for the prosecution would be that they would not face the impossible task of proving a “dealing” with an imported substance under paragraph (b).

   However, that would be a wrong approach and I hasten to add that the prosecution in the present case have not attempted to argue their case in that way.  It would be a wrong approach because the definition section must be read as a whole.  The “flexibility” argument was always somewhat vague as to precisely whence the flexibility came but the new definition does not suffer from such a defect.  Any flexibility is to be attributed to the breadth of the words “dealing” and “in connection with” in paragraph (b).  Paragraph (a) on the other hand is quite specific and its meaning is the meaning attributed to the same phrase, in the same Act, in R vCampbell (2008) 73 NSWLR 272.

6. It is very important to appreciate that there are two distinct requirements in paragraph (b) that must be satisfied.

7. The first requirement is that the accused must “deal with the substance”.  It is quite plain that the substance being referred to here is the original illicit substance the subject of the importation (and not the fully substituted substance).  That being so, the effect of a full substitution of a different substance by police is very clear: after such a substitution, it is not possible for the person to “deal with the substance” at all.  Accordingly, if his criminal liability is solely referable to acts performed after the substitution, an accused may be guilty of an attempt to import but he cannot be guilty of a full offence of import. [54]

   [54]   It is worth noting that this result of the use of the phrase “deals with the substance” in the new definition demonstrates that some of the more general statements that have been made as to the effect of this new extended definition being to “restore” the position as it applied in charges of “being knowingly concerned in [an] importation” are too broad if they proceed on the basis that that offence could be established solely by actions of the accused occurring after a full police substitution.  Statements made in cases involving charges of “being knowingly concerned in [an] importation”, such as that by Gleeson CJ of the NSW Court of Criminal Appeal (as he then was) in R v Leff (1996) 132 FLR 102, did suggest that this was so, but the point being made here is that that offence did not have a requirement that the accused actually deals with the original imported substance which cannot be established if all of the acts of the accused occur after a full police substitution. 

8. The Commonwealth Director of Public Prosecutions (the Commonwealth DPP) in its written submissions correctly accepts that this is so:

   11.The appellant personally committed those acts after the substitution of an inert substance for the pseudoephedrine on 6 May 2010.  The legal effect of the substitution was that it was “impossible” for him to “deal with the substance in connection with its importation”.  Unknown to the appellant, the substance had been substituted for inert tablets during the course of its importation.

   12.A person may be found guilty of attempting to commit an offence even if [sic] committed the offence attempted is impossible. Because of the substitution, it was impossible for the appellant to complete the import offence. Accordingly, the appellant was charged with attempt to commit the s 307.12 offence.

   (Emphasis in original)

   The second requirement of the extended definition: the dealing with the substance must be “in connection with its importation”

9. The second requirement of the extended definition is that the dealing with the substance must be “in connection with its importation”.

10. Obviously, consideration of this second requirement will not be reached where a completed offence of “import” is charged and the alleged “dealing” is with a substituted substance; in those circumstances, a substantive offence of “import” cannot be established no matter how close the nexus is between the dealing and the importation for the reasons immediately above.

11. However, the Commonwealth DPP, correctly appreciating that that is so, charged an offence of attempt to import and it is in that context that the second requirement is to be examined in this case.[55]  I will therefore address this second requirement when considering attempt charges below.

    [55]   I note for completeness (although it is not a matter of dispute) that wherever the term “the substance” appears in the present Information, it means the precursor (as distinct from the substituted inert substance) and the term “its importation” in paragraph (b) refers to the delivery of that precursor to a point in Australia that would result in it remaining in Australia.

12. For completeness, I should mention here that where (unlike the present case) the full offence of “import” is charged (say in circumstances where there is no substitution and there is a dealing with the original substance), this second requirement that such dealing must be “in connection with its importation” does have an important function.  This is to place a practical limit on how far such dealing may be separated from the importation itself.  As is to be noted below, the words “in connection with” are of wide meaning, but there will come a time when a “dealing” with a substance is so far removed from its importation (by reference to say effluxion of time, geography and other like matters) that such dealing no longer comes within the purview of the Commonwealth offence.  There may be some interesting constitutional issues involved here,[56] but such matters may await another day.

    [56]   Thus, see the remarks of Spigelman CJ in R vCampbell (2008) 73 NSWLR 272, 291-292 [107]-[114]. See also Milicevic v Campbell (1975) 132 CLR 307, 314-315 (Gibbs J) and Beckwith v The Queen (1976) 135 CLR 569, 576 (Gibbs J).

    The offence of “attempt to import”

13. Section 11.1 of the Code relevantly provides:

    11.1─Attempt

    (1)A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

    (2)For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence.  The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

    (3)For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

    Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.

    (3A)  Subsection (3) has effect subject to subsection (6A).

    (4)     A person may be found guilty even if:

    (a)     committing the offence attempted is impossible; or

    (b)     the person actually committed the offence attempted.

    Application of the extended definition of “import” to attempt charges generally

14. A principle of importance in this case is that when an accused is charged with attempting to import, the prosecution may rely upon an attempt to commit an act which, if successfully performed, would constitute “import” by virtue of paragraph (b) of the definition of “import”.

15. That being so, although the charge of attempt is quite adequately pleaded in the present Information, the effect of paragraph (b) of the definition of “import” is that the particulars are to be understood as the appellant “attempted to deal with the substance in connection with its importation”.

    Application of the extended definition of “import” to attempt charges involving police substitution

16. The full substitution of substances is, of course, a complicating factor.  I consider the application of the extended meaning of “import” to attempt charges in the context of a full police substitution may be shortly formulated thus:

    If a person by his conduct endeavours to “deal” with a substituted substance in connection with the importation of the original substance, he may be guilty of “attempting to import” the original substance provided:

    first, that at the time of his conduct he is intending to deal with the original substance (wrongly believing that he is doing so); and

    second, that his conduct is sufficiently proximate to a completed “dealing” with the substituted substance so as to constitute an attempt rather than mere preparation.

17. This formulation is intended to briefly state the law; it is hardly jury friendly and is not suggested as a “stand alone” jury direction.

18. In this area of the criminal law, substantive consequences may flow from quite subtle grammatical distinctions between verbs and nouns; and here literally as between the various words “import”, “imports”, “importing”, “imported” and “importation”.  We are laying a further potentially complicating layer of the law of attempt upon that somewhat controversial foundation, and it may be helpful to expand the formulation in the context of the present case by saying a little more about the propositions upon which the above formulation is based.[57]

    [57]   Putting aside for the moment questions relating to directions by the trial Judge and factual proof.

    A “live” controlled delivery (without a substitution)

19. If the police had run a controlled delivery “live” (without a substitution for the original precursor) the question would have been whether what the appellant did constituted a dealing with that precursor in connection with its importation.  If the jury found that the appellant knew that the package contained the precursor and took delivery of the package intending to take delivery of the precursor in connection with its importation,[58] then the appellant would have committed the substantive offence of “import” by virtue of the application of the extended definition in paragraph (b).

    [58]   The other allegations of unwrapping the package, discarding the marble ornaments and seeking to weigh the precursor would all be relevant to the question of whether he had that knowledge and intention at the time of taking delivery.

    “Deal” and “in connection with” both have a broad meaning

20. It is to be noted that the extended definition in paragraph (b) commences with, or builds upon, the noun “importation”.  Only the verb “import” is defined; the noun “importation” is not.  In some contexts, this approach might be of no consequence because the meaning of one is to be extrapolated from the other but here a difference of meaning between the two is to be perceived from the structure of the definition section itself.

21. While the noun importation should be understood according to the Isaacs J approach,[59] the verb “import” is to be given a wider meaning than might be merely derived from, and confined to, the noun “importation”.  This is because paragraph (b) provides that the meaning of import is wider than this.  It is to include deal with the substance in connection with its importation.

    [59]   Meaning, in short form, the arrival in Australia of the substance and delivery to a point that would result in it remaining in Australia (as distinct from merely being in transit to another country of destination).  See Wilson v Chambers (1926) 38 CLR 131, 139 (Isaacs J) and consideration of that judgment in later authorities such as R v Bull (1974) 131 CLR 203; R v Campbell (2008) 73 NSWLR 272, 294 [128] (Spigelman CJ); and R v Toe (2010) 106 SASR 203, 260 [221], 261 [226] (White J). In the present case the trial Judge correctly so directed the jury in summing up (AB191).

22. The word “deal” is not defined by the legislation but it is a word of relatively broad meaning.[60]  The phrase “in connection with” is also of wide ambit.  Thus, in Ffrench v Sestili, Debelle J (with whom Sulan and Layton JJ concurred) stated:[61]

    [60]   R v Warsap (2011) 111 SASR 232, 238 [11] (Gray J); R v S [1996] 1 Qd R 559, 561 (McPherson and Helman J).

    [61] (2007) 98 SASR 28, 54. See also: Antonis P Lemos [1985] 1 AC 711, 727 (Lord Branson); R v Polain (1989) 52 SASR 526, 531-532 (Cox J); Efira Services Pty Ltd v Commissioner of Stamps (1990) 58 SASR 539, 541 (Prior J); Taylor v Attorney-General (SA) (1991) 55 SASR 462, 466 (Millhouse J), 472 (Debelle J); Claremont Petroleum NL v Cummings (1992) 110 ALR 239, 280 (Wilcox J); Exford Pines Pty Ltd v Vlados Pty Ltd [1992] 2 VR 449, 453 (Tagell J); R v Orcher (1999) 48 NSWLR 273, 278 [28] (Spigelman CJ); Minister for Immigration and Multicultural Affairs v Singh (2000) 98 FCR 469, 477 (Black CJ, Sundberg, Katz and Hely JJ); Nguyen v QBE Insurance Ltd (2007) 99 SASR 443, 452-453 [68] (Duggan J); Director of Public  Prosecutions (WA) v White (2010) 41 WAR 249, 258 (McLure P) [32]; Chalmers v The Queen (2011) 215 A Crim R 275, 290 [77] (Maxwell P, Redlich JA and Kyrou AJA); Bank of Western Australia v Abdul [2012] VSC 222 [23] (Croft J).

    [85]… The expression “in connection with” whether used in a statute or a contract must depend on its context: Burswood Management Ltd v Attorney-General (Cth) (1990) 23 FCR 144 at 146; Drayton v Martin (1996) 67 FCR 1. Nevertheless, the expression has a wide import as Wilcox J noted in Our Town FM Pty Ltd v Australian Broadcasting Tribunal (1987) 16 FCR 465 at 479-480:

    The words “in connection with” have a wide connotation, requiring merely a relationship between one thing and another.  They do not necessarily require a causal relationship between the two things: see Commissioner for Superannuation v Miller (1985) 8 FCR 153 at 154, 160, 163. They may be used to describe a relationship with a contemplated future even: see Koppen v Commissioner for Community Relations (1986) 11 FCR 360 at 364; Johnson v Johnson [1952] p 47 at 50-51.  In the latter case the United Kingdom Court of Appeal applied a decision of the British Columbia Court of Appeal, Re Nanaimo Community Hotel Ltd [1945] 3 DLR 225, in which the question was whether a particular court, which was given “jurisdiction to hear and determine all questions that may arise in connection with any assessment made under this Act”, had jurisdiction to deal with a matter which preceded the issue of an assessment. The trial judge held that it did, that the phrase “in connection with” covered matters leading up to, or which might lead up to, an assessment. He said (at 639):

    One of the very generally accepted meanings of “connection” is “relation between things one of which is bound up with or involved in another”; or, again “having to do with”.  The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing.  The phrase “having to do with” perhaps gives as good a suggestion of the meaning as could be had.

    This statement was upheld on appeal.

    These observations have been consistently applied since: see, for example, Drayton v Martin (at 32). (Emphasis added)

    The explanatory memorandum

23. Finally, I consider that it is permissible to have regard to the explanatory memorandum to the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth), which stated in part:[62]

    The definition of import has been extended to include dealing with a substance in connection with its importation.  As such, the new definition of import relates to a process that extends before and beyond the period of the goods being landed in Australia.

    The effect of this amendment is that the Commonwealth drug importation offences will capture criminal activity related to the bringing of drugs into Australia and subsequent criminal activity connected with the importation of drugs.

    [62]   Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Bill (No 2) 2010 (Cth) 188.

1. For all of the above reasons, provided that the dealing is in connection with the importation, it does not matter whether the dealing occurs before an importation is commenced, during the importation, or after an importation is concluded.[63]

   [63]   As explained above, there will be a practical limit to the permissible separation of an accused’s acts from the importation but in the present case there is no doubt that, provided all other required matters were proven, the actions of the appellant in taking delivery were “in connection with” the importation for the purposes of the present charge.

   A controlled delivery (with full substitution)

2. In the present circumstances where police did substitute an inert substance, the slightly more complicated question became whether what the appellant did constituted an attempt to deal with the precursor in connection with its importation.  If the jury found that the appellant, incorrectly believing that the package contained the precursor, took delivery of the package intending to take delivery of the precursor in connection with the importation (the other allegations of unwrapping the package, discarding the marble ornaments and seeking to weigh the precursor all being relevant to the holding of that intention), then the appellant would have committed the offence of attempting to “import” by virtue of the application of the extended definition in paragraph (b).

   The proximity requirement

3. I will deal with the proximity requirement as it applies to the present facts in more detail below.  However, in general terms, the offence of attempt was committed in the present case because the actions of the appellant were “more than merely preparatory”[64] to his intended dealing and in fact proceeded as far as he could have taken them; he was unsuccessful only because of the police substitution of the precursor and not because he had stopped short of carrying out acts which (if the substituted substance had been the actual precursor as he believed) would have constituted “dealing” with the precursor.

   The decision of the New South Wales Court of Criminal Appeal in R v Nolan

   [64]   Criminal Code Act 1995 (Cth) Sch, s 11.1(2).

4. It only remains to refer to the recent decision of the New South Wales Court of Criminal Appeal in R v Nolan.[65]

   [65] (2012) 267 FLR 1.

5. In R v Nolan,[66] the charge was laid pursuant to s 233BAA of the Customs Act 1901 (Cth) (which provided that a person is guilty of an offence if the person intentionally imports certain goods declared to be “tier one goods”) and s 11.2(1) of the Code in the Schedule to the Criminal Code Act 1995 (Cth) (a generic provision providing that a person who aids or abets the commission of an offence by another person is taken to have committed that offence). The relevant part of the Information charged that the respondent:

   On about 5 May 2010 at Sydney, in the State of New South Wales, did without requisite approval being obtained, intentionally import goods, being tier 1 goods comprising pseudoephedrine, being reckless as to the fact that the goods were tier 1 goods, and being goods the importation of which is prohibited under the Customs Act 1901 (Cth), in that he did aid, abet, counsel or procure the commission of that offence by Brent Luke Simpson.

   [66] (2012) 267 FLR 1.

6. The facts were that Mr Simpson had arranged for the shipment to Ms Peters’ home in Australia of three marble stools inside of which was a quantity of pseudoephedrine, a prohibited import.  On arrival in Australia, and before clearing customs, the shipment was intercepted by the Australian authorities and flour was substituted for the pseudoephedrine.  The parcel was then allowed to clear customs and was delivered by a shipping agent to Ms Peters’ home.  The prosecution case was that the respondent assisted Mr Simpson to take delivery of the pseudoephedrine.  It was common ground that the respondent did not play any role in aiding and abetting Mr Simpson in the enterprise until after the flour had been substituted.

7. The trial Judge directed the jury to acquit the respondent because, having regard to the fact that the respondent only became involved in the enterprise after the flour had been substituted for the pseudoephedrine, he could not be convicted of aiding and abetting a completed offence  that he did “import”.  In this regard, McClellan CJ at CL noted:[67]

   [12]The trial judge recorded the Crown’s concession that this was not a case where evidence of an accused’s later actions supported an inference that he had had some earlier involvement in arranging for the goods to be imported.  As his Honour put the matter: “the Crown case is simply that the accused became involved from the afternoon of 3 May and that the venture or process of importing by Simpson, on the Crown’s case, was still on foot and remained so until his arrest.”

   [67]   R v Nolan (2012) 267 FLR 1, 5.

8. The Commonwealth DPP appealed, contending that the trial judge erred in failing properly to apply the decision in Calderwood[68] and in determining that the importation had ended upon the substitution of the flour.  The appeal was dismissed but on different bases as between McClellan CJ at CL (with whom Davies J concurred) and Rothman J.

   [68] (2007) 172 A Crim R 208.

   The judgment of McClellan CJ at CL

9. In my view it is unnecessary for present purposes to examine the views of McClellan CJ at CL as to the correctness of the decision in Campbell and the decision of the majority in Toe.

10. I agree with the result reached by McClellan CJ at CL in R v Nolan.  His Honour stated:[69]

    [33]The more significant issue in the present case is whether the respondent could be convicted of aiding and abetting an offence contrary to s 233BAA(4)(a), when, by the time he became involved in the activity said to be the importation, the drugs had been confiscated and substituted with flour.

    [69]   R v Nolan (2012) 267 FLR 1, 9.

11. As to this matter, his Honour concluded:[70]

    [35]In this State the issue was considered in R v Mai (1992) 26 NSWLR 371. This Court applied the approach of the Victorian Full Court, concluding that in circumstances where it was physically impossible for an accused to commit a particular crime, an attempt to commit that crime has nevertheless been established if the conclusion is available:

    1.   That the accused intended to do the acts with the relevant state of mind which together would comprise the intended crime (that is, if the facts and circumstances had been as he believed them to be, he would have committed that crime), and

    2.   That, with that intention, he did some act towards the commission of that crime which went beyond mere preparation and which cannot reasonably be regarded as having any purpose other than the commission of that crime.

    [36]Mai was followed by this Court in Onuorah v The Queen (2009) 76 NSWLR 1, 234 FLR 377.

    [37]To my mind the conclusion of the trial judge in the present case was correct.  Although the acts of Simpson, including his retrieval of the furniture items, were acts in furtherance of the primary offence, by the time the respondent became involved it was impossible for the respondent to do any act which could “aid, abet, counsel or procure” the commission of that offence.  Although I would conclude that the respondent intended by his actions to assist Simpson to take possession of the drugs, this was made impossible by their substitution with flour (Simpson, of course, was implicated in the primary offence because of his role as the importer before the drugs were substituted with flour).  It may be, as the trial judge identified, that the respondent could have been successfully charged with an attempt to commit an offence, probably the offence of attempting to possess.  But his actions could not constitute the offence of aiding and abetting the importation of the drugs.

    [70]   R v Nolan (2012) 267 FLR 1, 9.

12. Thus, effectively, his Honour found that from the time of the “flour substitution”, the process of importation was at an end.  This did not affect the liability of Mr Simpson, but only because he “was implicated in the primary offence because of his role as the importer before the drugs were substituted with flour”.  However, it did affect the liability of the respondent who was only charged in relation to the period after the “substitution”.

13. I would add that I have thought that this could only be because any act by the accused after that time was not capable of aiding and abetting an importation because such importation had already ceased due to the police substitution, which is the same approach that White J took in Toe.[71]

    [71] (2010) 106 SASR 203.

14. In any event, McClellan CJ at CL concluded that in such circumstances a charge of attempt could succeed.  The problem for the prosecution in R v Nolan, of course, was that no such charge had been considered by the jury – a completely different situation than in the present case.  Finally, I note that his Honour also said:[72]

    [37]… It may be, as the trial judge identified, that the respondent could have been successfully charged with an attempt to commit an offence, probably the offence of attempting to possess.  But his actions could not constitute the offence of aiding and abetting the importation of the drugs.   (Emphasis added)

    [72]   R v Nolan (2012) 267 FLR 1, 9.

15. Clearly, this was an aside unnecessary to the decision and does not represent a considered view as to the range of attempt offences that could be successfully charged in such circumstances.  In the present case, having considered this specific matter, I have come to the positive conclusion that a charge of attempt to import could properly be charged. 

16. I note that Davies J concurred with the judgment of McClellan CJ at CL.

    The judgment of Rothman J

17. Finally, I note that Rothman J agreed that the appeal should be dismissed but came to that decision by a quite different route.[73]  As to the matter presently under discussion, his Honour formulated the critical question thus:[74]

    [51]Whether there is a case against Mr Nolan for aiding and abetting Mr Simpson, depends upon whether Mr Simpson was still engaged in the principal offence at the time that the assistance was rendered.  It also depends on Mr Nolan’s state of knowledge of the principal offence.

    [73]   His Honour was of the view that the respondent had to be acquitted because there was no sufficient evidence of the required fault element.

    [74]   R v Nolan (2012) 267 FLR 1, 11.

18. After a consideration of authority, his Honour stated:[75]

    [89]As a consequence of the foregoing analysis, binding authority is to the effect that the term “imports”, where used in the Customs Act, includes conduct beyond the landing of the goods and, in the words of Wood CJ at CL in Sukkar at [121], “includes recovery of the goods after landing and anything ... done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process, that is suppliers, shippers, customs agents, freight forwarders, and so on”.

    [90]It would seem, following the amendment to definitions of “import” in the Code, that an offence involving “importing”, even under the Code, would have the same degree of flexibility.  It is unnecessary to decide that issue in these proceedings.

    [91]It is sufficient to find that the natural meaning of “imported” in the Customs Act includes the owner or importer taking delivery of the goods.  Whether it would include another person, not otherwise involved in the importation, taking delivery will depend upon a range of factors.  The term is a flexible one, but not infinitely variable.

    [92]As a consequence of my view of the law and of the proper construction of “imported” in s 233BAA of the Customs Act, Mr Simpson was, subject to the issue of the substitution of flour for the substance, still engaging in the conduct that was part of the process by which the substance was “imported” and thus he was engaged in committing the offence.

    [93]Once that proposition is accepted, the substitution of flour for the substance has no effect on the criminality of the conduct in which Mr Simpson was engaged when he took delivery of the furniture in which the substance was originally secreted.  It is sufficient to refer to the passage from the judgment of Gleeson CJ, recited above, in Leff, in which the Court was dealing with precisely those circumstances.

    [94]“The concept of importation” is “sufficiently flexible to cover a case such as the present”.  While the Court, in this case, is not dealing with “knowing concern” which, according to Gleeson CJ, may commence after the importation has apparently broken down, the Court, in examining the principal offence, is dealing with a principal offender who, in fact, imported the substance into Australia and was still acting to effect (ie take delivery of) that importation.

    [75]   R v Nolan (2012) 267 FLR 1, 18-19.

19. His Honour’s approach appears to reject both the decisions in Campbell and Toe and to apply (and possibly extend) the “knowingly concerned in [an] importation” cases in circumstances where McClellan CJ at CL himself considered (in his judgment in R v Nolan) that this could not be done.  I respectfully disagree with Rothman J’s approach but it is unnecessary to say more.

20. I now consider the appellant’s specific grounds of appeal in the light of the above discussion.

    Consideration of ground 1 of appeal

21. 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.

22. 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.

23. In the light of the above observations, I turn to the individual sub-grounds of appeal. 

    Ground 1.1.1

24. This ground fails because the conduct of the appellant did not have to be anterior to the importation of the precursor for the reasons stated above.  The fact that the conduct relied upon in relation to Tuohy was particularised as concluding on 6 May 2010 is none to the point.  That particularisation appears in the context of the Information defining in count 1 what the prosecution alleged that Tuohy did to “import”.  It did not purport to define or particularise the nature or extent of the importation itself.

    Ground 1.1.2

25. This ground closely follows ground 1.1.1 but fastens upon intention rather than conduct.  It fails for the same reason as does ground 1.1.1; it was quite possible to have the relevant conduct occurring after the importation had ceased and it was equally possible for the appellant to have the required contemporaneous intention (fault element) at that same time.

    Ground 1.1.3

26. It is true that s 11.1(2) of the Code states that “[t]he question whether conduct is more than merely preparatory to the commission of the offence is one of fact”.  However, it is important to be clear as to what the “conduct” referred to actually is for the purposes of the proximity requirement in a given case.  As explained above, in the circumstances of the present case the relevant conduct is that of the appellant in relation to the substituted inert substance.

27. On the way that the case was presented to the jury, the proximity issue was subsumed within, and necessarily determined by, the guilty verdict of the jury.  The Judge directed the jury that they could only convict the appellant if they found beyond reasonable doubt that:

    ·the appellant dealt with the substituted inert substance (at least) by taking the package from the carwash in his utility vehicle (a dealing undisputed by the appellant);[77] and

    ·the appellant at the time of that dealing believed that he was actually dealing with the precursor concealed inside and intended to do so.[78]

    [77]   Summing up AB220-221, 241-242, 244, 250-251, 256.

    [78]   Summing up AB182, 190, 220, 222-223, 232-234, 237-238, 244-245, 250-251, 256.

28. On the facts here, there was no question of the proximity requirement not being established.  It must be stressed that the appellant agreed that he actually went so far as to pick up the package and take it into his possession and the jury’s verdict shows that he believed that he was actually dealing with the precursor concealed inside and intending to do so.

29. Thus, there can be no doubt that the appellant’s conduct satisfied the proximity test; it was indisputably “more than merely preparatory”[79] to an intended dealing with the substituted inert substance and in fact constituted a perfected and completed dealing with the substituted inert substance.  In other words, the appellant in fact proceeded as far as he possibly could towards getting possession of the actual precursor and was unsuccessful only because of the police substitution of the precursor.

    [79]   Criminal Code Act 1995 (Cth) Sch, s 11.1(2).

1. This “proximity test” is not particularly complicated.  To take a different factual example, if all that the appellant had done was to go to a motor vehicle with a view to picking up the package from the car wash and then filled up the almost empty vehicle with petrol for that purpose but after doing so decided to abandon the enterprise entirely, his conduct up to that time would have been merely preparatory to picking up the package (and this would be so even though he believed that the package contained the precursor and intended to deal with that precursor).  However, on the prosecution case, that was not what occurred here; the appellant in fact did go so far as to pick up the package.  If it is proven on all of the evidence that he did so intending to deal with the actual precursor, there can be no doubt that the appellant’s conduct was more than merely preparatory and satisfied the proximity test.

2. Perhaps the one outstanding question might be: was it necessary for the Judge to direct the jury that it was for them to determine whether the actions of the police in performing the full substitution deprived the actions of the appellant of sufficient proximity to constitute an attempt? In my view, her Honour was not required to so direct the jury and in fact would have erred had she done so. The actions of the police made it impossible for the appellant to gain possession of the precursor but s 11.1(4)(a) of the Code specifically enacts that such impossibility will not preclude a conviction of attempt.[80]  It would be radical error to suggest that the discarded doctrine of impossibility of attempt is to be replaced in another guise by a theory that police substitution may preclude proximity of attempt!

   [80]   See generally Britten v Alpolgut [1987] VR 929 and R v Mai (1992) 26 NSWLR 371.

   Ground 1.1.4

3. The assertion here is fundamentally misguided for the reasons that have already been given.  There was only one importation.  It was not inappropriate to charge the different co-accused with different particulars of their respective “importing” and the fact that such particulars related to different dates is none to the point.

   Ground 1.1.5

4. The cross-examination of Mr Tuohy referred to in this ground was directed to establishing the guilt of Tuohy himself by suggesting that he knew from the outset that the appellant and others were to play a role in relation to the crate and, hence, that he had more knowledge of the planned import than he was suggesting to the Court in evidence.  In fact Mr Tuohy denied the suggestions and was acquitted.  No prejudice to the appellant has been established.

5. The prosecution did not rely upon the doctrines of complicity and common purpose or joint commission to establish the criminal liability of either accused; indeed, the prosecution only relied upon conduct of the appellant occurring after 6 May 2010.  However, that is not to say that the prosecution was precluded from submitting that in considering the belief and intent that accompanied the appellant’s acts after 6 May 2010 the jury could take into account the acts of the appellant that the jury found proven prior to that date.  The appellant was well aware of that position throughout the trial and the Judge directed that the jury could proceed in that manner on a number of occasions.[81]

   [81]   Summing up AB233, 237-238.

   Conclusion as to ground 1 of appeal

6. The argument on ground 1 of appeal asserted that the summing up was defective largely on the basis of theories of the law that were themselves erroneous.  It remains to say that I consider that the directions that were given correctly addressed the matters that were necessary to be decided by the jury having regard to the way that the trial was conducted.

7. Her Honour correctly directed as to the matters of: the element of “import”;[82] the requirement that a dealing within the extended meaning of import be in connection with an importation;[83] and the requirements of an intention to import and the necessity of its concurrence with the act of importing.[84]  Further, her Honour correctly directed that in determining whether the appellant did have the required intention, one can look at the appellant’s actions before and after the relevant acts of the appellant between 6 May 2010 and 14 May 2010.[85]  Finally, although I have expressed the view above that this was a case where proximity was clearly satisfied, her Honour gave a correct direction as to proximity.[86]

   [82]   Summing up AB221.

   [83]   Summing up AB221.

   [84]   Summing up AB222-223, 231-232, 234.

   [85]   Summing up AB222, 237-238.

   [86]   Summing up AB221.

8. I reject ground 1 of appeal.

   GROUND 2:  COMMUNICATIONS IN THE APPELLANT’S ABSENCE

9. The prosecution case was factually detailed involving numerous telephonic communications between the four persons alleged by the prosecution to have been involved in the importation (Tuohy, Compton, McDonough and the appellant).  The fact of the occurrence of various of those communications (including their time and date) was circumstantial evidence relevant in various ways to a consideration of the knowledge, belief and intent later held by the appellant at the time of his actions after 6 May 2010.  On the appeal, Senior Counsel for the prosecution gave a number of specific and cogent examples as to how the time and occurrence of a number of the communications did so bear upon this issue.  The jury were directed that they could not take into account the content of the conversations but only the fact that they occurred.[87]

   [87]   Summing up AB235, 239.

10. It would take a good deal of time to summarise exhaustively the whole of the evidence, there being numerous exhibits and the transcript itself exceeded 1600 pages.  However, it is not necessary to do so, particularly having regard to the fact that the appellant has, understandably, preferred to pitch his grounds of appeal at a fairly high level of principle with little descent to a detailed examination of the quite strong matrix of evidence against him.  There is certainly nothing akin to a complaint that the verdict is unreasonable.

11. Having considered the evidence and the directions in detail, I am of the view that the appellant has not demonstrated that the Judge erred in admitting this evidence or in directing the jury as to its use.[88]

    [88]   As noted on the hearing of the appeal, some of the directions were in fact too favourable to the appellant but it is unnecessary to further discuss that matter.

12. I reject ground 2 of appeal.

    GROUND 4:  EVIDENCE OF DEFENCE WITNESSES

13. 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.

14. 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.

15. I reject ground 4 of appeal.

    Disposition of the appeal

16. I would dismiss the appeal