Ribbon v The Queen
[2019] SASCFC 130
•25 October 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal)
RIBBON v THE QUEEN
[2019] SASCFC 130
Judgment of The Court of Criminal Appeal
(The Honourable Justice Peek, The Honourable Justice Parker and The Honourable Justice Doyle)
25 October 2019
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - OTHER OFFENCES
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - MISDIRECTION OR NON-DIRECTION - JUDGE'S SUMMING UP
APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - PARTICULAR GROUNDS - IMPROPER ADMISSION OR REJECTION OF EVIDENCE
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES - SPECIFIC INTERPRETATIONS
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - CONSIDERATION OF EXTRINSIC MATTERS
Appeal against conviction.
In the early 2000s, Ribbon (R) started a business in Bangkok with his cousin, Harker (H), known as Complete Chemical Manufacturing (CCM). Weafer and M, associates of R and H, registered Complete Chemical Solutions (CCS), an Australian distributor of CCM products, on 25 January 2014. On 25 July 2014, a shipping container containing the subject substance was loaded onto a ship in Bangkok. The consignor was CCM and the consignee was CCS. On 17 August 2014, the subject consignment arrived in Australia. On 17 and 18 August 2014, Australian Border Force officers seized ten five-litre bottles, later found on formal analysis to contain pseudoephedrine in the total amount of 13.445 kilograms. An inert substance was substituted for the subject substance. On 20 October 2014, the AFP executed search warrants at R’s home and arrested him.
R was committed for trial in the District Court on a charge that he did import a commercial quantity of border controlled precursor, namely pseudoephedrine. The first trial commenced on 28 February 2018 but was ultimately aborted. At the second trial, the prosecution relied on three alternative Particulars to make out the element of “import”. Its case depended largely on listening device and telephone intercept material (the recordings material).
The appellant relies on the following Grounds of Appeal:
(a) the Judge failed to direct the jury that it needed to be unanimous as to proof of at least one of the three Particulars in order to convict (Ground 3).
(b) the Judge misdirected the jury as to the effect of s 300.2 of the Criminal Code Act 1995 (Cth) (the Code) (Ground 10);
(c) the Judge erred in admitting particular telephone intercepts on the basis that they were irrelevant and/or more prejudicial than probative (Ground 4);
(d) the Judge undermined the presumption of innocence (Ground 2);
(e) the verdict of the jury was unreasonable (Ground 7).
Held, per Peek J (Parker and Doyle JJ agreeing), allowing the appeal on Grounds 3, 4 and 10:
1. As to Grounds 3 and 10:
(a) The Judge’s directions permitted the jurors to convict by finding proven any one of three “Particulars” such that there might not be a unanimous verdict reached on any one Particular. An extended unanimity of verdict direction was required. Lane v The Queen (2018) 92 ALJR 689; R v Smith [1997] 1 Cr App R 14; R v Walsh (2002) 131 A Crim R 299; Fermanis v Western Australia (2007) 33 WAR 434; R v Klamo (2008) 18 VR 644; R v McCarthy (2015) 124 SASR 190; Lane v The Queen (2018) 92 ALJR 689 discussed.
(b) Paragraph (b) of the definition of “import” in s 300.2 of the Code requires that first, a dealing be a “dealing with the substance” and, secondly, such dealing be “in connection with” the importation of the subject substance. Just as an accused cannot “deal with the substance” after a full substitution for the reason that the substance is no longer there to be dealt with, so an accused cannot “deal with the substance” before he or she is in possession of it or has the disposition of it. Australian Communist Party v Commonwealth (1951) 83 CLR 1; Milicevic v Campbell (1975) 132 CLR 307; R v Campbell (2008) 73 NSWLR 272; R v Toe (2010) 106 SASR 203; R v Tranter (2013) 116 SASR 452; El-Haddad v The Queen (2015) 88 NSWLR 93 discussed.
(c) The recordings material indicated that it was not open to find that R did “deal with the substance” at any time during the first Particular period (12 December 2013 to 2 April 2014) because it was not established that the subject substance was then in existence or that he had the disposition of it. The Judge erred in failing to so direct the jury.
2. As to Ground 4:
(a) The principles concerning the correct approach to determining relevance considered. R v Christie [1914] AC 545; Smith v The Queen (2001) 206 CLR 650; R v Hillier (2007) 228 CLR 618; IMM v The Queen (2016) 257 CLR 300 discussed.
(b) The Judge erred in ruling that the question of relevance was to be determined by the jury.
(c) The consequence of admitting irrelevant evidence here was to put before the jury highly prejudicial references to illicit drug ventures of much the same type as the subject charge. Accordingly, close consideration needed to be given to whether or not particular passages should have been excluded by reference to the Christie discretion.
(d) The prosecution restricted itself to tendering the recordings material as direct proof of the subject charge and eschewed any notion that it was tendering discreditable conduct evidence. The Judge erred in purporting to apply s 34P of the Evidence Act 1929 (SA).
3. As to Ground 2: The Judge made clear that the way the jury proceeded was entirely up to them and his suggestions were logical and reasonable. Evidence in a circumstantial case such as the present is not to be looked at in a piecemeal fashion. R v Baden-Clay (2016) 258 CLR 308 considered.
4. As to Ground 7: Even if substantial deletions of the evidence referred to in Ground 4 were made, it cannot be established that the verdict is unreasonable. M v The Queen (1994) 181 CLR 487 applied.
Criminal Code Act 1995 (Cth) s 300.2, s 301.10, s 307.11(1); Criminal Code Regulations 2002 (Cth) reg 5F; Criminal Procedure Act 1921 (SA) s 136; Customs Act 1901 (Cth) s 233B(1)(ca); Evidence Act 1929 1929 (SA) s 34P, s 34R, referred to.
Adams v The King (1935) 53 CLR 563; Australian Communist Party v Commonwealth (1951) 83 CLR 1; Re Australian Federation of Construction Contractors; Ex parte Billing (1986) 68 ALR 416; R v Baden-Clay (2016) 258 CLR 308; Re Bolton; Ex parte Beane (1987) 162 CLR 514; R v Brooks [2017] NSWSC 188; R v Campbell (2008) 73 NSWLR 272; Chapman v The Queen (2013) 232 A Crim R 500; DPP v Ristevski (Ruling No 1) [2019] VSC 165; Corporate Affairs Commission (NSW) v Yuill (1991) 172 CLR 319; El-Haddad v The Queen (2015) 88 NSWLR 93; Fermanis v Western Australia (2007) 33 WAR 434; R v Hillier (2007) 228 CLR 618; IMM v The Queen (2016) 257 CLR 300; Kabushiki Kaisha Sony Computer Entertainment v Stevens (2003) 132 FCR 31; R v Klamo (2008) 18 VR 644; Lane v The Queen (2018) 92 ALJR 689; Lane v The Queen [2017] NSWCCA 46 ; R v McCarthy (2015) 123 SASR 190; Milicevic v Campbell (1975) 132 CLR 307; Re Minister for Immigration and Multicultural Affairs; Ex parte Miah (2001) 206 CLR 57; NAQF v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 456; Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529; North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 256 CLR 569; Police v Dunstall (2015) 256 CLR 403; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; R v Smith [1997] 1 Cr App R 14; The Queen v A2 [2019] HCA 35; The Queen v C, CA [2013] SASCFC 137; R v Toe (2010) 106 SASR 203; R v Walsh (2002) 131 A Crim R 299, discussed.
R v Agbim [1979] Crim LR 171; Beckwith v The Queen (1976) 135 CLR 569; R v Brown (1984) 79 Cr App R 115; R v Christie [1914] AC 545; R v Clarke and Johnstone [1986] VR 643; R v Clune (No 2) [1996] 1 VR 1; Cooper v The Queen (2012) 87 ALJR 32; Doggett v The Queen (2001) 208 CLR 343; Domican v The Queen (1992) 173 CLR 555; R v Fleming; R v Maher (2017) 129 SASR 27; Harriman v The Queen (1989) 167 CLR 590; R v Lawford (1993) 61 SASR 542; M v The Queen (1994) 181 CLR 487; Minister for Immigration and Ethnic Affairs v Tang Jia Xin (1994) 35 ALD 449; Nicholls v The Queen (2005) 219 CLR 196; R v Nikolic [2019] SASCFC 32; R v Pali; R v Buckingham [2018] SASCFC 134; Police v Rosales [2017] SASC 118; Prasad v The Queen (1994) 119 ALR 399; R v Price [1991] Crim LR 465; Sandoval v Minister for Immigration and Multicultural Affairs [2001] FCA 1237; Santos and Carrion v The Queen (1987) 75 ALR 161; Smith v The Queen (2001) 206 CLR 650; R v Soteriou [2013] SASCFC 114; R v Tassone [2016] SASCFC 146; Telstra Corporation Ltd v Australian Competition and Consumer Commission (2008) 176 FCR 153; The Queen v C, G (2013) 117 SASR 162; Walker v In Line Couriers Pty Ltd (1999) 73 ALJR 1084, 1085, considered.
RIBBON v THE QUEEN
[2019] SASCFC 130Court of Criminal Appeal: Peek, Parker and Doyle JJ
PEEK J: Appeal against conviction of importing a border controlled precursor.
The appellant, Mr Clinton Ribbon (Ribbon), was convicted by jury verdict of importing a commercial quantity of pseudoephedrine, a border controlled precursor (the subject substance), which was secreted in a consignment of legitimate goods (the subject consignment). The prescribed commercial amount for pseudoephedrine was 1.2 kilograms.[1] The charge on Information was thus:
Statement of Offence
Import a commercial quantity of a border controlled precursor; contrary to Section 307.11(1) of the Criminal Code 1995 (Cth).
Particulars of Offence
Between about the 3rd day of October 2013 and about the 18th day of August 2014 at Walkley Heights or elsewhere, Clinton George Ribbon imported a substance, intending to use, or believing that another person intended to use, any of the substance to manufacture a controlled drug, the substance being a border controlled precursor, namely pseudoephedrine, and the quantity imported being a commercial quantity, namely 13,445.4 grams that was imported in a shipping container from Thailand and which arrived at Port Botany in the State of New South Wales on about the 18th of August 2014.
[1] Criminal Code Act 1995 (Cth) ss 300.2 and 301.10 and reg 5F of the Criminal Code Regulations 2002 (Cth), as those sections were at the relevant time.
Section 307.11(1) of the Criminal Code Act 1995 (Cth) (the Code) states:
307.11 Importing and exporting commercial quantities of border controlled precursors
(1)A person commits an offence if:
(a) the person imports or exports a substance; and
(c) the substance is a border controlled precursor; and
(d) the quantity imported or exported is a commercial quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2)The fault element for paragraph (1)(c) is recklessness.
(3)Absolute liability applies to paragraph (1)(d).
PART A: INTRODUCTION
In brief overview, the prosecution case was essentially as follows. Mr Craig Harker (Harker), Mr Keith Weafer (Weafer) and M were directly and unlawfully involved in the importation.
Harker, who is Ribbon’s cousin, has long resided in Thailand and continues to do so.[2] In about the early 2000s, he started a business in Bangkok which was known, or later came to be known, as Complete Chemical Manufacturing (CCM), the premises of which were situated just out of Bangkok.[3] It manufactured or distributed a range of chemical products including cleaning and sanitising products and floor polish. CCM was the consignor of the subject consignment in which the subject substance was found to be secreted.
[2] On the prosecution case, Harker was involved in the present importation but was not prosecuted with Ribbon, presumably because of jurisdictional and/or evidentiary issues.
[3] Ribbon’s police interview.
The consignee was CCSA Pty Ltd or Complete Chemical Solutions (CCS). It is established by documentary evidence and Agreed Facts that Weafer and M together set up CCS as a Sydney distributorship for CCM, and that between 25 January 2014 and 1 May 2015 they were joint and equal shareholders of CCS.[4]
[4] Agreed Fact 22.
There were a number of Agreed facts at trial. Inter alia, they established that:
-M registered CCS on 25 January 2014 and was listed as its sole director and contact person.[5] M and Weafer were joint and equal shareholders.[6]
-Between 25 January 2014 and 1 May 2015, the principal place of business of CCS was 3/55 East Parade, Sutherland, New South Wales.
-On 2 April 2014, CCS was registered to import industrial chemicals with the National Industrial Chemicals Notification and Asset Scheme for the years 2013–2014 and 2014–2015 and it commenced to import consignments of lawful merchandise from CCM, the first being received in April 2014. There were some eight importations by CCS of merchandise from CCM prior to the subject consignment. Some were searched by ABF and found to contain no unlawful material; others were not searched at all.
-On 25 July 2014, the subject consignment, being shipping container XINU1523060 was loaded onto a ship in Bangkok, Thailand. The consignor was Complete Chemical Manufacturing Co Ltd (CCM).[7]
[5] Agreed Facts 19, 23–24, 26–28.
[6] Agreed Fact 22.
[7] Agreed Facts 52, 53.
On 17 August 2014, the subject consignment was landed in Australia. On 17 and 18 August 2014, Australian Border Force officers removed its then intact seal with bolt cutters and examined the consignment. They found and seized a total of ten five-litre bottles, each containing a clear fluid with a yellowish tinge, which were secreted in boxes amongst other bottles containing legitimate chemicals (and not having that yellowish tinge). The ten bottles were all later found on formal analysis to contain pseudoephedrine, which in total amounted to some 13.445 kilograms,[8] the subject substance.[9]
[8] There is a Ground of Appeal asserting that this precise weight was not established.
[9] The term ‘the subject substance’ will also be used in discussion of other cases involving similar offences.
AFP officers substituted the ten seized bottles with ten identical bottles (being labelled “CCS 161 Bactex SP”) which contained only water (with some tea added to replicate the yellowish tinge) and otherwise left the consignment intact to await possession to be taken by CCS.
On 20 October 2014, the AFP executed search warrants at Ribbon’s home where he was arrested. The AFP seized a container of liquid labelled “floor polish sample” found in the rumpus room of the premises; upon analysis, it was found to contain water and paraffin wax and no prohibited substances.[10]
[10] Agreed Facts 56–59.
On 20 October 2014, Ribbon was interviewed by AFP officers. He maintained his innocence but made admissions of being closely connected with both the businesses of CCM and with the persons Harker, Weafer and M. He made the following statements inter alia:
-Ribbon stated that he was Harker’s cousin. In about 2009 he had invested in CCM (then solely Harker’s business), by injecting capital in order to expand its manufacturing capacity and a factory near Bangkok was accordingly purchased by CCM. In return, Ribbon became a director and received shares in CCM (Ribbon’s shares in CCM).
-Ribbon described his role at CCM and the sorts of products in which CCM dealt. He stated that it had some 220 registered products, largely cleaning chemicals and sanitisers and referred police to the company website for further details.[11]
-Ribbon described his relationships with Harker, Weafer and M, stating that all were of an innocent nature.
-As to Weafer, Ribbon said that he had originally met Weafer (aka “knackers” in recorded material) in Bangkok (the date being unclear) and that Weafer wanted to buy a business there. After discussions, Ribbon sold, or contracted to sell, his shares in CCM to Weafer for $250,000. However, this sum was not paid over since Weafer first needed to sell his business in Phuket.
-As to M, Ribbon said that he had originally been introduced to M by Keith Weafer in a bar in Bangkok; and that M had said that he had businesses in Phuket and was looking for other business ventures. This had led to further meetings which had eventually resulted in M and Weafer founding the business of CCS to act as a distributor of lawful CCM products.
[11] At trial, a professionally produced brochure that had been used by CCM, illustrating and describing its personnel, business, office and factory premises, was tendered as exhibit D9.
I will sometimes below refer compendiously to the persons Ribbon, Harker, Weafer, M and a Mr Segui[12] as “persons of interest” to the AFP.
[12] Referred to below.
On 21 October 2014, the AFP executed search warrants at M’s residence and seized: documents relating to Container 060 found in the lounge room; three bottles of liquid labelled “CCS 161 Bactex SP” found in the laundry and six bottles labelled “CCS 161 Bactex SP” found within two boxes in the garage. The nine bottles labelled “CCS 161 Bactex SP” were identified as being some of the substituted bottles that had been delivered to Unit 5, 48 Riverside Road, Chipping Norton, New South Wales on 21 August 2014. [13]
[13] Agreed Facts 63–67.
The proceedings in the District Court
The appellant was committed for trial in the District Court where two trials were held at both of which Mr Edwardson QC and Mr Handshin appeared for Ribbon. The first trial which commenced on 28 February 2018 was to be ultimately aborted (the mistrial).
The prosecution case at the mistrial was to consist of two tranches. The first tranche was the proposed evidence of M which, if believed, was sufficient in itself to convict Ribbon. M had been permitted by the prosecution to plead guilty to a charge in respect of the importation on the favourable basis that he had thought, until a very late stage, that both CCM and CCS (which he founded with Weafer), were entirely legitimate businesses, and that he had only been informed of the plan to secrete the subject substance in a consignment at the last moment. The second tranche was circumstantial evidence (including a great deal of telephone intercept and listening device material) which was said to both corroborate the evidence of M and directly prove the subject offence.
For reasons that will become apparent, it is appropriate to note the way in which the prosecutor opened to the jury at the mistrial. He opened on the basis that: “The prosecution case in a nutshell is that Mr Ribbon was the facilitator of that importation.” The prosecutor further elaborated:
(T320) … Mr Ribbon would be fairly described as a facilitator of the importation. He was a director of a Thai based company called Complete Chemical Manufacturing Company Ltd, a Thai company. Complete Chemical Manufacturing, which is usually referred to as CCM, supplied cleaning products and distributed its products into Australia under a different company called Complete Chemical Solutions, CCS. So Complete Chemical Manufacturing and Complete Chemical Solutions was the distributor in Australia.
It will become apparent to you that Mr Ribbon was a businessman who was trying to take advantage of any number of opportunities that were coming his way and seeking out opportunities that might come his way. The prosecution allege that he was opportunistic - and, again, I’m not being pejorative but you’ll pick this up in the tapes - opportunistic and he communicated, negotiated, he was opportunistic in this regard. But what we say he did in a nutshell is this: he communicated and negotiated with the people involved, with the supplier of pseudoephedrine in Thailand. So he was sort of - I don’t want to call him a middleman, he was more than a middleman, but - so you’ve got the people in Thailand, you’ve got the supplier in Thailand, he communicated and negotiated with those people who were involved in the supply of the pseudoephedrine.
You’ll hear mentions of Keith Weafer, he’s in Bangkok and he was intimately involved in the supply of this. Also connected to supply was a Derek Segui. You’ll become familiar with these names, I’m very conscious I’m throwing a lot of these names at you for the first time, but anyway the role of Mr Ribbon was also he was intimately involved in planning and arranging for the importation to get into Australia undetected, that is the importation of the pseudoephedrine, by concealing the importation within legitimate chemical importations.
He was involved in making arrangements in Thailand regarding the concealing and packaging of the pseudoephedrine within a container and you will hear about that. So when the shipment came he was involved in that process. He went over to Thailand, to Bangkok, to the factory and was there. You will hear evidence from M about that and he was involved in making arrangements for M to knowingly transport the pseudoephedrine to Australia and for M to recover the pseudoephedrine.
After the importation he was involved in assisting M and consulting in relation to M’s attempts to recover the pseudoephedrine from its diluted form. Why do I say that? Because they ran into problems because it had been substituted … and then M started trying to recover the pseudoephedrine from what he thought was the Bactex with the pseudoephedrine in it but, of course, it was just tea water.
As to the proposed evidence of “M”, the prosecutor stated:
(T310) … You will hear M pleaded guilty to the charge relating to this matter and gave an undertaking to the police, made a statement to the police about his involvement and the involvement of Mr Ribbon and gave an undertaking to the court to give evidence in accordance with that sworn statement and for that he got a discounted sentence and he will be called as part of the evidence. …
After referring to the large amount of covert telephone intercept and listening device recording materials to be tendered, the prosecutor continued:
(T316) So then, after playing all the tapes, we will call M, who is the man I told you about who was involved in this. He says he only got involved towards the end. When I say towards the end, in short his evidence was ‘Look, they asked me to become a distributor. I knew this bloke Keith Weafer and I got to know this Keith Weafer in Thailand. I became friendly with him. They asked me to get involved in the distribution of these chemicals in Sydney. I agreed and then, on the last importation - that was when I was over in Thailand - I went over to have a look at the factory and they have sprung it on me that they have got this pseudo importation coming in and they said it would be okay because it’s in amongst a couple of thousand bottles of chemicals “It will be okay”, “You’ll be right”, and “All you have to do is to receive it and to pass it on”’.
…
(T339) We then enter the phase where the legitimate shipping containers start coming in because they have got to build up credibility, and the legitimate shipping containers start coming in. You will hear evidence that on 21 April 2014, the shipping container, in effect the first shipping container, arrived at Botany Bay consigned to M. It was declared and you will hear the declarations, you know, if you send stuff over - there will be evidence about this from a ship owner - about how you’ve got to sign a declaration about what is in a container. It was declared to contain various CCS cleaning products. It was examined by Customs and no prohibited imports were in that container.
…
(T340) We then have further containers coming through, legitimising containers if I can call them that. On 5 May two further shipping containers arrived at Botany Bay, again consigned to CCS or M, examined by Customs. Again, no prohibited imports on board. …
On 9 June, three shipping containers arrive consigned to Complete Chemical Solutions and they were declared as containing chemicals. They were not examined by Customs.
Then you will hear that M was getting a bit concerned. This wasn’t working out the way he planned. He wasn’t selling the chemicals and he started feeling he was being messed around. So then we have this trip to Bangkok on 14 July. This is where M’s told what’s going to happen. They let him in, they have to, on what’s going to happen.
M travelled to Thailand on 14 July. He stayed at the Ambassador’s Hotel and he met up with Keith Weafer. He was a friend of Keith, he had met him before. Ribbon was already over there and M met up with Ribbon on this trip as well. He said ‘We had discussions about legitimate business’. You will hear things about snail clearing; they had this scheme where they were going to blitz snails and clear snails and refresh the land; they were going to buy the land cheaply, as I understand it, this snail-infested land, blitz it with the chemicals and the land would be worth a lot more, something like that.
They were trying also to get to food preserving chemicals, that sort of thing, phosphate, whatever. You will hear conversations about these sorts of things.
Anyway, M says when he went to Bangkok he had discussions with Ribbon about all of these projects, plans etc. A couple of days after that, he got a call from Ribbon and he arrived for M to go down to the sort of factory warehouse where they pack all the containers, pack the products to go into the container. …
During this process, Harker turned up and it was at this point that M was told what was going on. Ribbon told him that there were three boxes of Bactex and they were going to be put into this shipment and there were three boxes that were going to be collected. When they got to Sydney, M’s premises, someone was going to come round and collect it and Harker - it’s Harker and Ribbon and M - told him to be able to identify it - it’s ingenious really, so simple - ‘You will be able to identify these boxes in the hold, in the pallets, because they will have a (blue) dot after the word com’. …
Whilst in the presence of Ribbon, Harker told him there were 10 bottles with pseudo and they will be picked up by someone who will contact him and all he had to do is to hand these over.
He [M] said that he is told one of the people involved over in Thailand, … that his father-in-law was one of the highest ranking politicians in Thailand and M said he took that as being some sort of threat to say ‘Look, you know, his father is a high-ranking official’. M said ‘I didn’t know what to do’. He was told not to worry about it, that there are about 2,000 bottles in the container, it would be like trying to find a needle in the haystack and all he had to do was to hand the boxes/bottles on to the person who contacted him and that Ribbon would handle the rest. What he had to do was to make a purchase order for a large amount of Bactex to cover why the Bactex is coming in. So he had to put in a purchase order for Bactex ‘That will cover it and you will be protected’.
He will give evidence that he was worried, panicked and concerned about it, spent several days wondering what to do, but ultimately said ‘Yeah, do it’, and he, on 24 July 2014, returned to Australia.
The prosecution intended to lead most of their circumstantial evidence prior to calling M and that evidence was called until 21 March 2018 when it became apparent that M was refusing to give any evidence and, at about 11.30 am on that day, the Judge declared a mistrial and discharged the jury on the basis that M’s proposed evidence had been opened in detail to the jury.
The subject trial in the District Court
On 21 March 2018, immediately following the discharge of the jury, discussion and legal argument concerning the second trial commenced. It continued on 22 March 2018 (when the Judge made a ruling concerning particulars) and on 23 March 2018 (when the Judge made a ruling concerning admission of evidence). The case was then adjourned to Monday 26 March 2018 when a fresh jury was empanelled and the subject trial (the trial) commenced. It concluded on 13 April 2018 when the jury returned a unanimous guilty verdict.
At trial, the prosecution case consisted of the (edited) record of Ribbon’s AFP interview and the circumstantial evidence noted above; M did not give evidence.
During both trials (and now on appeal) the defence stressed that the covert recordings evidence presented a number of dangers of false assumptions and conclusions concerning Ribbon’s actions and intentions; such dangers were said to arise largely from the potential for misinterpretation of recorded comments which were, or may have been, directed to:
-the legitimate and established business of exporting goods from CCM to Australia rather than the subject offence;
-new or potential legitimate businesses in which Ribbon was involved rather than the subject offence;
-activities which may have been unethical or in breach of civil laws (such as diluting chemical products and selling them at less than the advertised concentration) rather than the subject offence;
-activities which may have constituted other breaches of the criminal law (such as money laundering) rather than the subject offence;
-activities which may have been breaches of the criminal law concerning illicit drugs but were not concerned with the subject offence.
Defence counsel stressed that there was a great deal of covertly recorded material which quite clearly was about various legitimate ventures (as distinct from being a code for the subject importation); and that the above dangers were exacerbated by the risk of circularity of reasoning in too readily assuming that overheard conversations bore upon the subject importation and that apparent references to legitimate businesses were code for the subject importation.
These matters were recognised as problematic by the prosecutor. About 11,000 calls were recorded, involving literally thousands of hours of recordings but only a very small percentage (about 171 calls, although the figure reduced as many were not actually placed before the jury) were initially sought to be relied upon at trial. At an early stage of the mistrial, the prosecutor explained to the Judge in the absence of the jury thus:
The yellow portions in the folders that your Honour has got are where the Crown have identified the portions that are relied upon. They were relatively generous on most occasions. So they don’t identify deliberately with precision the exact words that the prosecution say are incriminatory as to portions of the conversation. Often the highlighted portion extends beyond because often and often it is done because there’s an innocent conversation, the prosecution say it is a modus operandi of this particular group that they intermingle legitimate calls with their plans to import the pseudoephedrine.
So the context of the call can change literally mid sentence with an inflection, with a coded reference, with whatever tools they had at hand to carry out the deception is the prosecution case. Now, sometimes coded conversations were about floor polish or mixing it, and sometimes the same conversation was, you’ll find, interspersed with legitimate conversations, and for these reasons the exercise here is quite difficult, they have been quite difficult to discern with precision the incriminating conversations. [Emphasis added]
Ribbon did not give evidence at the trial but he tendered documents and relied upon various aspects of the prosecution evidence to illustrate his diverse business interests in support of the contention that CCM was a legitimate business. There was cross-examination of the officer in charge of the case concerning his investigation and the recorded and unrecorded conversations he had had with Ribbon concerning his legitimate business activities. Ribbon had there referred to various ventures including: “AgriSpec”; “True Blue Chemicals”; a project concerning snail infestation of farming land; and “MediTube” / “AiroFresh” (processes for extending the shelf life of fruit and vegetables).
Further, the defence called two witnesses. The first was Mr John Taylor, Ribbon’s accountant, who gave a good deal of more specific evidence concerning various of Ribbon’s business interests. Portion of the evidence was as follows:
A. It all started off because I had an accounting client who lived on Yorke Peninsula and they had a really bad snail problem there, so I was driving to Yorke Peninsula to see Graham Hayes and noticed a massive amount of snails and they were all white. So when I drove up his driveway I mentioned this to him and apparently it had been a longstanding problem that the CSIRO had been working on for 30 years, and I just felt I had some concept of how they could get rid of them and it wasn’t a complicated thing; it was, when you look over the stubble of the crop when it’s been cut on a really hot day, the snails aestivate on top of the stubble and it’s like looking across an extremely dense cotton field. …
A. So they go to sleep or aestivate for about three months and the one thing that was obvious to me was that they were all white and it’s an extremely hot day. So I went back to Adelaide and it was just one of those occasions where it runs through your mind and I thought - well, I did a little bit of research. The difference between the surface temperature of a white car and a black car in direct sunlight on a 40 degree clear day is a 30 degree difference. Snails die at 55 degrees. So the idea I thought was, paint them. So I had some friends of mine who were - one was an engineer and knew a chemist so I had a chat to him and he seemed to think it was a jolly fine idea. So that was the first project that we got involved with AgriSpec. We ended up solving that problem. …
A. The ultimate result was a number of things. One was the colour aspect, where we could destroy the large snails on the stubble, the other one was conicals and after doing further research I found a really old book back to the 1800s and it describes how snails are dramatically and adversely affected by iron compounds. So back to the chemist and we worked out a formula, which included an iron additive and we sprayed that and we were successful in our last tests and we sprayed an area of about three hectares on Graham Hayes’s farm and that didn’t have any snails on it for over two years. So we were quite happy with those results but we soon realised the commerciality of that project was actually not there because the farmers couldn’t afford the sprays. So we looked upon that then as a property project and it went on.
Q. Property in what context.
A. Property values north of Maitland are say $11,000 an acre. Property values, farming property values south of Maitland are $1,000, for the very reason they would have good crops, good rainfall but they can’t sell them because they are snail infested. So we thought it would - rather than being an aid to the farmer, it may well just be a property project where you can find people who want to buy properties at 10 cents in the dollar and get rid of snails and make value on it. During that time we expanded our projects and our interest in a lot of things.
Mr Taylor referred to a number of other projects. One was the 1-Butyne project which he described thus:
A. 1-Butyne is an Ethylene inhibitor. Ethylene is produced by most fruit, so apples, pears, bananas, cherries pretty much all producers of ethylene gas. Ethylene gas is like our hormones, the fruit matures, gives off Ethylene, it is cumulative. The more Ethylene gas it gives off the more it matures and becomes ripe and then goes rotten. So if you can restrain or retard the Ethylene output of produce, you can make it last one heck of a lot longer. As an example, there’s a company called AGRIFresh. AGRIFresh has a product called 1-MCP. It’s a derivative of Acetylene and a very small amount of that into a fruit storage and mainly apples - you only need like 5 g of that in a 1,000 apple bin room and a bin is about half a ton; you only need about 5 g of that in a room and it binds with the copper in the Ethylene receptor, stops the fruit putting out Ethylene and therefore makes it last one heck of a lot longer. …
A. AGRIFresh had a worldwide patent on that product. Nobody else therefore could put an Ethylene inhibitor in a coolroom. 1-MCP was the best and many people wanted to find an alternative.
XN
Q. Did you look to find an alternative with Clinton Ribbon.
A. Yes, indeed. It was Clinton that first raised the concept of the 1-Butyne. …
There followed a long disquisition on the 1-Butyne project and another project concerning fruit storage (starting as “MediTube” and becoming “AiroFresh”) which culminated in the tendering as exhibit D13 of a patent which listed Ribbon as being one of two investors in relation to the 1-Butyne project. Mr Taylor also gave evidence concerning the “TarStrippa” project relating to the commercial cleaning of trucks working in Canadian tar sand mines. He then gave evidence that the company AgriSpec Pty Ltd (of which he was a director) was incorporated in 2013 for the purpose of making the various projects into a commercial enterprise and that AgriSpec personnel including Ribbon and himself used to meet every second week on Mondays at his house at Stirling. He gave evidence that in June 2014 M “visited us at one of our meetings as a potential interest in our AgriSpec snail project and also in relation to the floor polish that Clinton was using.”
The second defence witness was Mr Antonio Pisanelli who gave evidence that he knew Harker, and through him had met Ribbon. He had wanted to become the Adelaide distributor for CCM and, early in 2012, went to Bangkok with his partner Mr Derek Segui and undertook substantial training sessions with Ribbon concerning CCM products. Thereafter, he set up the company Complete Chemical Distribution (CCD) and started to import CCM products into South Australia.
The grounds of appeal against conviction
The Grounds of Appeal are as follows:[14]
[14] The single Judge granted permission to appeal on Ground 3. The Judge referred the matter of permission as to Grounds 4.1, 4.2 and 7 to this Court. The Judge refused permission on all other Grounds including Ground 2; as to Ground 2, the appellant now seeks from this Court permission to appeal on that ground in the reformulated form set out below. The appellant was granted permission to add Ground 10 during the course of the hearing of the appeal.
…
2.The trial Judge failed to give adequate directions (at pages 9 and 25 of the Summing Up) by suggesting to the jury that it could have regard to the fact that 13.4kg of pseudoephedrine was imported in the shipping container consigned to Complete Chemical Solutions Australia Pty Ltd when considering what the intercepted telephone calls mean in that:
2.1 The inadequate directions had the tendency to undermine the presumption of innocence and invert the burden of proof by inviting the jury to proceed on the basis that the applicant was in some way complicit in the importation of the pseudoephedrine, which fact could then be used by the jury to interpret the meaning of telephone calls to which the applicant was a party in the manner the prosecution asserted, and thereby infer his guilt.
3.The applicant’s trial miscarried as a result of the trial Judge’s failure to direct the jury in terms that required it to be unanimous as to the basis upon which the applicant had dealt with the substance in connection with its importation:
3.1 The prosecution case was that the applicant dealt with the substance in connection with its importation in three ways;
3.2 The applicant addressed the jury on the basis that the prosecution had to establish all three particulars beyond reasonable doubt before the jury could return a verdict of guilty;
3.3 The trial Judge directed the jury that it was not necessary for the prosecution to prove all three particulars and that it would be sufficient if the prosecution proved at least one of the particulars;
3.4 The trial Judge failed to direct the jury that it was necessary for them to be unanimous as to which one, or more, of the particulars were proved beyond reasonable doubt and whether the unanimously proved particular/s satisfied the ingredients of the charged offence.
4.The applicant’s trial miscarried as a result of the wrongful admission of the following evidence:
4.1 Conversations between the applicant and Derek Segui between July 2013 and October 2014 in that the conversations were irrelevant to the charged act and/or more prejudicial than probative;
4.2 A conversation between the applicant and Craig Harker on 30 December 2013 which was irrelevant to the charged act and/or more prejudicial than probative;
…
7.The verdict of the jury was unreasonable or cannot be supported having regard to the evidence:
7.1 The evidence was incapable of excluding the possibility that the applicant assisted M in setting up the company Complete Chemical Solutions Australia Pty Ltd for a purpose other than the importation of pseudoephedrine (the distributorship allegation).
7.2 The acts and conversations upon which the prosecution relied in support of the distributorship allegation took place between 4 and 8 months prior to the importation of pseudoephedrine on 18 August 2014 and accordingly could not constitute dealing with the substance in connection with its importation.
7.3 The evidence was incapable of establishing beyond reasonable doubt that the applicant was in Thailand between 22 June 2014 and 25 July 2014 and that, during this period, he assisted in or supervised the preparation of the pseudoephedrine with the intention of importing the pseudoephedrine to Australia or that he assisted in or provided instructions as to the packaging of the pseudoephedrine as part of the relevant consignment, with the intention of importing the pseudoephedrine to Australia (the preparation and packaging allegations).
7.4 The evidence was incapable of excluding the possibility that references to “floor polish”, and other like terms, were not references to pseudoephedrine.
7.5 There was no evidence, beyond the assertions made by the prosecutor, that the applicant and others had used a “code” to discuss pseudoephedrine and that references to “floor polish” and other like terms, were part of that code.
7.6 The evidence was incapable of proving beyond reasonable doubt that the applicant dealt with the substance in connection with its importation by M.
7.7 The evidence was incapable of establishing beyond reasonable doubt that more than 1.2kg of pseudoephedrine was imported by M.
…
10.The learned trial Judge misdirected or did not adequately direct the jury at pages 5 and 6 of the summing up as to the correct effect of section 300.2 of the Criminal Code Act 1995 (Cth).
PART B: GROUNDS 3 AND 10 OF APPEAL
Grounds 3 and 10 will be considered together for a number of reasons amongst which are the following. It is contended by the appellant that the prosecution put to the jury alternative pathways to conviction which raises two related but slightly different issues. The first issue is that if one of a number of alternative pathways to conviction is flawed (because either there is insufficient evidence to support it or the Judge’s directions to the jury are incorrect or inadequate) then a conviction must be set aside where it is impossible to know which of the pathways members of the jury took. The second issue is that even if none of the alternative pathways to conviction is flawed, a conviction may still be set aside in some circumstances where it is possible that different jurors took different pathways to conviction with there being no unanimous verdict as to any particular pathway (the extended unanimity of verdict).
The Particulars and the jury directions concerning their use
In order to consider Grounds 3 and 10, one must first have regard to the provision by the prosecution of written Particulars and the Judge’s oral and written jury directions concerning their use.
Defence counsel first requested written Particulars by letter dated 23 February 2018, to which the prosecution responded by letter dated 26 February 2018 (but in terms not acceptable to the defence). There the matter lay until the first trial was aborted. The reason why no further action was taken at that stage was later explained by defence counsel as follows:[15]
12. No formal complaint was made by the defence as to the adequacy of the particulars previously provided because the case then to be presented necessarily focused on the foreshadowed evidence of M. His evidence, if given consistently with the filed statement, had the capacity to establish the matters referred to … .
[15] Written Submissions to the trial Judge prior to the prosecution opening at the second trial.
It is fair to say that up until it had become apparent that M would refuse to give evidence, the particulars of the case were largely constituted by the admissible parts of the witness statement of M; and if M were wholly believed, his evidence would have proven that Ribbon was guilty of the charged offence.
However, that was a big “if”. In defence counsel’s remarks to the jury made following the prosecution opening at the mistrial, he said inter alia:[16]
(T369) Let me tell you at the outset that the reliability and credibility of M will be front and centre stage in this trial. It will be a matter for you, but you might well think that his reliability and credibility is critical to the outcome of the trial. M’s credibility will be the subject of vigorous challenge and therefore, as his evidence unfolds, you should scrutinise his evidence with great care. In fact, at the conclusion of the trial, during the judge’s summing up, his Honour will no doubt warn you about the care that you must take before deciding whether you act on the evidence of a man who had a vested interest in assisting police to secure the lowest possible sentence. …
[16] Pursuant to Criminal Procedure Act 1921 (SA) s 136.
Thus, the defence case was to be that M was pleading guilty and giving evidence against Ribbon because the evidence against M was very strong, rather than through any sense of civic duty. The evidence against M included: the clear documentation of his importing the subject container from CCM; the presence of opened substituted containers in his warehouse and at his home; his previous receipts of large amounts of cash and his links with each of the men Harker, Weafer and Ribbon. It was obviously to be contended by the defence that since Ribbon was the only person other than M being prosecuted, there was a high degree of incentive for M to offload blame from himself onto Ribbon so as to both reduce the degree of his culpability (by securing favourable agreed sentencing facts) and also to curry favour with both the authorities and the Courts for having given evidence against Ribbon. Further, while there would be a good deal of material in the defence brief relevant to M’s credibility and reliability, the precise details of which this Court is unaware, it is apparent from the content and structure of M’s statement, and the way it was compiled, that there are a number of real questions concerning some of M’s assertions concerning, at the least, matters of detail.
As defence counsel at trial stressed, I think rightly, the decision of M not to give evidence (and the decision of the Court to proceed with a new trial very soon after the abortion of the first trial) put the matter of adequate Particulars in a new light. Accordingly, defence counsel requested Particulars of the conduct element of the charge and on 21 March 2018 the prosecution provided the following Particulars of the conduct element of the charge:
R v Clinton Ribbon – further particulars
1. The elements of s 307.11(1) of the Code are:
(a) D imports/exports a substance (conduct).
Fault: Intention to use, or belief that another person intends to use, any of the substance to manufacture a controlled drug (s 307.11(1)(b)).
(b) The substance is a border controlled precursor (circumstance).
Fault: recklessness (s 307.11(1)(c) and s 5.4).
(c) The quantity imported/exported is a commercial quantity (circumstance).
Fault: absolute liability (s 307.11(3) and s 6.2).
2. Particulars for the first element:
a. The accused caused and/or arranged for the substance contained within the 10 bottles labelled “CCS 161 Bactex SP” (“the substance”) to be brought into Australia by:
i. between about 12 December 2013[17] and about 2 April 2014,[18] arranging for M to set up a Complete Chemical Solutions distributorship in New South Wales for the purpose of importing the substance; and
ii. assisting in and/or supervising the preparation of the substance in Thailand between about 22 June 2014 and about 25 July 2014; and
iii. assisting in and/or providing instructions to others as to the packing of the consignment containing the substance in Thailand between about 22 June 2014 and about 25 July 2014,
intending to use any of the substance to manufacture a controlled drug; or believing that another person intended to use any of the substance to manufacture a controlled drug.
3. Particulars for the second element:
a. The substance contained pseudoephedrine.
4. Particulars for the third element:
a. The substance contained 1.2 kilograms or more of pseudoephedrine.
[17] The significance of this date is not clear. The first recorded contact that Ribbon had with M occurred on 15 December 2013 in call 70.
[18] The significance of this date is as stated in Agreed Fact 23: On 2 April 2014 CCSA Pty Ltd was registered to import industrial chemicals with the National Industrial Chemicals Notification and Asset Scheme (‘NICNAS’) for the years 2013–2014 and 2014–2015.
The Particulars did not satisfy defence counsel who applied for the Judge to order further and better particulars prior to the prosecution opening in the second trial. In a comprehensive written submission, defence counsel referred to the previous prosecution opening at the mistrial and submitted:
8. It is apparent from this summary of what appeared to be the key ingredients of the allegations against Mr Ribbon, that the prosecution did not, in its first opening, identify with any precision the specific act or acts which Mr Ribbon is allege to have engaged in and which are said to establish the physical element of the offence. To the contrary, the prosecution case as opened resorted to generalisations that Ribbon was “involved” in the importation.
9. He went on to say that “after the importation Ribbon was involved in assisting M and consulting in relation to M’s attempts to recover the pseudoephedrine from its diluted form”. As had been earlier conceded by the prosecution in the course of the pre-trial applications, no proved conduct of Mr Ribbon’s taking place after 18 August 2014 can supply the physical act of the offence because of the effect of the substitution.
10. A further significant event opened on in the first trial was the alleged travel by M to Thailand on 14 July where it was alleged that M met up with Keith Weaffer and Clinton Ribbon. The evidence that M would give foreshadowed and set out in some detail in the prosecution opening.
11. At the conclusion of the prosecution opening, when purporting to deal with the elements of the offence, the prosecutor alleged that the accused imported a substance into Australia and he did that intentionally, that substance being a commercial quantity of pseudoephedrine. At no point in his opening, did the prosecutor identify the basis upon which it was alleged that Mr Ribbon dealt with the substance in connection with its importation.
12. No formal complaint was made by the defence as to the adequacy of the particulars previously provided because the case then to be presented necessarily focused on the foreshadowed evidence of M. …
…
24. It is important to remember that in the course of the voir dire at the first trial, it was put on behalf of Ribbon that the telephone calls between 5 July 2013 and 15 December 2013 were irrelevant or inadmissible because, amongst other things, they seemed to relate to other acts of importation. It is significant that in ruling on this issue, this Court acknowledged that there were arguments both in support of and against the defence contentions. The possibility that some of the communications relate to other events (that is to say, not the importation which concluded on 18 August 2014) makes the need for precision in the particularisation of the prosecution case acute. It is for this reason, amongst others, that the defendant contends that the prosecution must supply careful and precise particulars explaining “when, where, how and what” the defendant did (physical element). The use of descriptors such as “arranging”, “supervising”, “assisting” and “facilitating” do not discharge the prosecution’s obligation.
25. It is equally important to remember that the principle of extended unanimity will require all members of the jury to be ad idem as to the act or acts which constitutes the physical (and fault) ingredient of the offence. Thus, there would, arguably, not be unanimity if one juror thought that an act of the defendant on 3 October 2013 constituted importing the substance or dealing with the substance in connection with its importation, but eleven other jurors considered that the conduct of the defendant on that date did not suffice, but his conduct on 18 December 2013, did.[19] The point here made is that if the prosecution does not distil its case with any more clarity, each individual juror will simply be left to wade through the 100 plus telephone calls and discern for themselves whether one or more calls might be sufficient to make out the physical ingredient. Similarly, when it comes for this Court to sum up the case to the jury and to address the elements of the offence, what will the Court be directing the jury are the acts relied upon by the prosecution (with reference to the evidence) as making good the physical element?
26. Furthermore, and as Heydon J pointed out in Patel, proper particulars are important for a court to be able to rule on the admissibility of evidence, to the extent that such issues might arise in the course of a trial. [Emphasis added]
[19] [Original footnote] See, eg, the discussion on jury unanimity in Chiro v The Queen (2017) 91 ALJR 974, [19]–[24]; R v McCarthy (2015) 124 SASR 190, [253] (Peek J). See generally KBT v The Queen (1997) 191 CLR 417; R v Klamo (2008) 184 A Crim R 262, [76]–[77].
A number of the above points were well made; and in the italicised passage at paragraph 25 immediately above, the prosecutor (and the Judge) had their attention very firmly drawn to the potential necessity for an extended unanimity direction. None was later given and, unsurprisingly, the consequences of the lack thereof must now be determined (as to which, more is said below).
The decision of the Judge to refuse further and better particulars
On 22 March 2018, the Judge refused the application for further and better Particulars and later on 28 March 2018 gave detailed reasons for his decision, which concluded as follows:
It is clearly asserted that within certain defined periods of a matter of days the accused specifically involved himself in importing the alleged commercial quantity of border controlled precursor in the three ways particularised. The evidence comprises the phone calls and recorded conversations that have him allegedly participating in, discussing and admitting those actions. The accused in my view therefore does know the case he is facing and is not prejudiced by any lack of further particularity in the charge as presently supplemented by the particulars.
The accused can be under no misapprehension as to exactly what he was alleged to have done during certain limited defined periods of days. In some respects the particulars that the prosecution provide cannot descend into the exact whys and wherefores of what the accused did when attending on a certain number of days where for example the audio refers to outcomes which do not admit of the exact conduct performed by the accused to achieve that outcome. Indeed there is often an element of generality to the evidence called, which would be difficult to further particularise, as observed by the High Court in WGC v The Queen (2007) 233 CLR 66 earlier quoted.
In the final analysis, in my view the charge is adequately particularised in the sense contemplated by s.277(1) of the Criminal Law Consolidation Act and the various authorities cited.
And so the trial proceeded on the Particulars reproduced above (which will henceforth be referred to as ‘the Particulars’ or as ‘Particular One, Two or Three’).
The position taken by defence counsel in his closing address to the jury
During his closing address to the jury, Mr Edwardson submitted that the prosecution had to prove each of the three Particulars thus:
Ladies and gentlemen, the particulars are not an afterthought. They are critical. They must be front and centre, first and foremost, because they shape the case the prosecution must prove before a person can be convicted. I have no doubt that his Honour will confirm that, as a matter of law, what I just told you is correct. … I want to turn to the particulars themselves. Let me remind you that the prosecution have set out to prove three particulars, all three, to make out the charge. [Emphasis added]
This was not a correct statement of the position. Indeed, by reference to all that had been seen and done in the two trials, it should have been obvious that the Judge was likely to disagree with this proposition and that the matter should have been raised for discussion in the absence of the jury prior to closing addresses.
The correct position was that the Particulars served the important purpose of delineating the prosecution’s assertions as to the ways in which Ribbon could be said to have “imported” the subject substance as charged in the Information. An important function of such Particulars was to provided guidelines by which relevance and admissibility of proffered evidence could be judged.
However, in saying so, it is important to note that such Particulars did not shut out evidence of a host of facts which did not fall within the ambit of the Particulars (or the date periods thereof) but were nevertheless relevant for a number of reasons including proof, or elucidation, of facts that were within the Particulars or as facts tending to demonstrate the purpose of, or the intention with which, acts were performed. As a recurring example, the content of a covertly recorded conversation to which Ribbon was party[20] occurring on a date outside of the ambit of the Particulars might be very important in the process of considering matters that did occur within the ambit of the Particulars.[21]
[20] Ribbon was in fact a party to all of the covertly recorded conversations received in evidence at trial.
[21] Indeed, the defence has made extensive use of that process by seeking to construe the true meaning of a conversation within the particulars by reference to what appears to be the same or a related matter occurring in an earlier or later conversation.
The Judge’s summing up relevant to Grounds 3 and 10
The Judge strongly disagreed with counsel’s proposition concerning proof of all three Particulars (reproduced above). However, before dealing with that issue, his Honour directed upon matters of evidence, doing so for the rest of the afternoon. After the jury was excused, Mr Handshin observed to his Honour:
Again, at the outset of your Honour’s summing up when you were dealing with the prosecution case you mentioned that the prosecution was that the accused arranged for M to set up CCS. Of course, the particular is that he assisted M, or arranged for M, to set up CCS for the purpose of importing the pseudoephedrine and that is quite important, of course, because when one thinks about the definition of importation and dealing with the substance in connection with its importation, simply having M set up CCS or helping him do so would not be sufficient, in my submission, so it is important that that distinction be maintained. [Emphasis added]
A little later, on an associated point concerning proof of the Particulars. Mr Handshin observed to his Honour:
Mr Edwardson made some submissions earlier about particulars. I will not repeat them. We say in this case they are material particulars, that if the jury are not satisfied of at least one of the three matters that are referred to in the Crown’s submissions that were provided to your Honour the other day, then it would not be open to them to return a verdict of guilty because that would, in turn, of course, mean that Mr Ribbon was convicted of some generalised allegation that he has not been called upon to meet.
So in my submission even if your Honour does it in an abridged way, it is important that the jury know that they are the three physical acts, any number of which need to be proved and at the time must coexist with the relevant states of mind.
HIS HONOUR: So at least one act within the scope of the particulars.
MR HANDSHIN: Provided that act, in the jury’s view, amounts to dealing with the substance in connection with its importation. [Emphasis added]
The Court was later adjourned. The following morning there was further dialogue before the jury entered the Court, amongst which was the following:
MR HANDSHIN: … The other point that your Honour raised with me yesterday was the particulars. We maintain, as the primary submission, what was put to your Honour by Mr Edwardson but our alternative submission was that which was put to your Honour yesterday by me, namely that at least one of those three allegations has to be proved beyond reasonable doubt.
HIS HONOUR: That is very loyal of you Mr Handshin but I think in fact you are right on this occasion.
MR HANDSHIN: I will not comment further. But in relation to the first allegation, the first particular, we would say that if the jury were only satisfied of that particular, which is the distributorship particular, that would raise a very sharp question for them about whether that could be seen as dealing with the substance in connection with its importation given the time lapse. [Emphasis added]
The Judge later resumed his summing up. Inter alia his Honour directed:
The second aspect of the prosecution’s case is the evidence of what the accused said and did as reflected in the intercepted calls and conversations together with the agreed facts as to the parties’ movements, the companies concerned and other things as set out in, for example, P28 the agreed facts document. That evidence essentially, as it relates to the accused, spans more than a 12-month period during the latter part of which the evidence is that the container containing the 13.5 kg of pseudoephedrine was sent from Thailand by CCM imported into Australia and delivered to CCS per M.
On the one hand, Mr Pirrie has argued for the reasons he gave that you should interpret much of those recorded calls as the accused taking part in every stage of this pseudoephedrine importation, in particular, the three particularised phases that everyone has focused their attention on and which represent the particularised conduct that it is alleged the accused performed.
The prosecution argue that the calls represent the accused playing an active role in trying to locate, and eventually locating, a source of pseudoephedrine for the purpose of the importation, actively engaging in and organising and setting up M in New South Wales for the purpose of ultimately importing the pseudoephedrine, organising a Thai director to be in charge of CCM so that if the deal went bad the blame would fall on him, travelling to Thailand to play a part in mixing up and testing the pseudoephedrine that was then packaged into the container, and monitoring and interacting with M during the ensuing time as the container found its way to Australia, and then, after interception by AFP, the prosecution argues that the calls reflect the accused constantly liaising with Mr Harker and M and, to some degree, Mr Weafer, when efforts to extract the pseudoephedrine from what was now, in fact, tea proved impossible.
That subsequent conduct, members of the jury, subsequent to the seizure, is led not as actual acts that constitute the offence, but as evidence of the accused, the prosecution says, admitting his conduct in relation to the earlier acts and having a knowledge of the pseudoephedrine-related aspect of the importation.
On the other hand, Mr Edwardson has emphasised throughout his cross-examinations and in his address the legitimate business projects that the accused was involved in, whether it be snail eradication, fruit and vegetable preservation or other projects and has argued and submitted to you that you should put a wholly innocent interpretation on the very same range of intercepted telephone calls and taped meetings that are in evidence before you.
It was during that passage that the Judge, for the first time in the summing up, referred to the Particulars. His Honour stated:
Mr Pirrie has argued for the reasons he gave that you should interpret much of those recorded calls as the accused taking part in every stage of this pseudoephedrine importation, in particular, the three particularised phases that everyone has focused their attention on and which represent the particularised conduct that it is alleged the accused performed.
…
The tapes, on the prosecution case, support their case that the accused, as particularised in Mr Pirrie’s opening, committed the charged offending. I will not go through them again, members of the jury, you will be pleased to hear. Mr Pirrie set out in detail both in his opening and in his address two days ago now how he submits to you they reveal the accused’s active involvement in those three broad ways particularised. I have the particulars here, members of the jury.
The particulars are the allegation that the accused imported the substance contained within the 10 bottles labelled ‘CCS 161 Bactex SP’ that arrived in Australia on about 18 August 2014, known as the substance, by: (1) Between about 12 December 2013 and about 2 April 2014, arranging for M to set up a Complete Chemical Solutions distributorship in New South Wales for the purpose of importing the substance; and, (2), assisting in and/or supervising the preparation of the substance in Thailand between about 22 June 2014 and about 25 July 2014; and, (3), assisting in and/or providing instructions to others as to the packing of the consignment containing the substance in Thailand between about 22 June 2014 and about 25 July 2014 intending to use any of the substance to manufacture a controlled drug, or believing that another person intended to use any of the substance to manufacture a controlled drug.
So, members of the jury, the calls are very important evidence because they are led to, on the prosecution case, prove that the accused was involved in at least some conduct within those three categories of alleged conduct that constitutes the charged offence, which I set out the elements of earlier in my summing up. [Emphasis added]
Ground 3 - Extended Unanimity of Verdict
It is at this point that the doctrine of extended jury unanimity arises. The Judge proceeded to direct the jury that it was not necessary for the prosecution to prove each of the three Particulars and that proof of any one of them would suffice for a conviction. His Honour stated:
In relation to Mr Edwardson’s submission, which may have inferred that you have to be satisfied of all three particulars to convict the accused, I do need to correct that, members of the jury.
The prosecution do not need to prove all of those things they have alleged the accused did to constitute intentionally dealing with the substance in connection with its importation, they only need to prove at least one thing that satisfies that test. So, members of the jury, it is important to remember that. Remember the three particulars of categories of activity. You do not need to be satisfied as to each of the three particular types of conduct alleged, you only need to be satisfied that the accused did, within the particularised alleged behaviour, do at least one thing that constitutes the offence as I have explained it to you. [Emphasis added]
The appellant contends that since the Judge had directed the jury that they could convict on the basis of satisfaction of any one of the three Particulars, his Honour should also have directed that it was necessary for there to be (at least) one Particular as to which all of the jurors were satisfied. Thus the appellant on appeal submits in writing:
14. Ground 3 raises an issue recently addressed by the High Court in R v Lane (2018) 92 ALJR 689; [2018] HCA 28. The decision in Lane emphasises the importance of an "extended unanimity" direction in cases where alternative factual pathways to guilt are left to a jury, as was the case here. The trial Judge did not direct the jury as to the need for them to be unanimous as to the act or acts they found proved and that such act or acts amounted to dealing with the substance in connection with its importation.[22]
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47. The trial Judge’s approach created the risk that certain jurors may have been satisfied of, for example, the preparation allegation but not the packaging or distributorship allegation. Those jurors would have had to examine whether the appellant knew of and intended to import the pseudoephedrine the subject of the charge in a manner different to jurors who were satisfied of the distributorship allegation. Moreover, the trial Judge’s directions gave rise to the prospect that some jurors may have positively concluded that the distributorship allegation was either not made out or did not amount to dealing with the substance in connection with its importation, whilst others may have thought it did. Although the verdict carries an implication that all jurors were satisfied of something, it cannot be known whether they were unanimously agreed as to the basis upon which the appellant was found guilty. Yet the appellant could only have been lawfully convicted by the jury if it was agreed as to the act or acts taken by the appellant that constituted dealing with the substance in connection with its importation.
…
65. Although the indictment here asserted that between October 2013 and August 2014, the appellant imported pseudoephedrine, the prosecution articulated its case against the appellant much more precisely and in a way that identified three discrete acts, occurring within two discrete time periods, said to be individually capable of establishing the appellant’s guilt. In R v Walsh (2002) 131 A Crim R 299 at [57], the Court of Appeal of Victoria spoke relevantly about a second category of case in which extended unanimity may arise, namely:
...where one offence is charged, such as obtaining property by deception, but a number of discrete acts is relied upon as proof and any of them would entitle the jury to convict. If those discrete acts go to the proof of an essential ingredient of the crime charged, then the jury cannot convict unless they are agreed upon that act which, in their opinion, does constitute that essential ingredient. In this type of case, much will depend ‘upon the precise nature of the charge, the nature of the prosecution’s case and the defence and what are the live issues at the conclusion of the evidence.
66. The prosecution particularised its case against the appellant as involving three discrete transactions, occurring at different times, different places and in different circumstances. The distributorship allegation focused on the period between December 2013 and April 2014 and alleged that the appellant had, effectively, facilitated the incorporation of CCS with a view to it being used as a vehicle to import pseudoephedrine at a later, unidentified, time. For liability to be made out on this basis, the jury would have had to accept beyond reasonable doubt that the appellant’s conduct was done with the intention to import the pseudoephedrine the subject of the charge when, on the prosecution case, the pseudoephedrine had not even been acquired (or at the very least, there was no evidence it had been acquired). The evidence relied upon in support of this limb of the prosecution case was different to that relied upon in support of the preparation and packaging allegations. The character of the acts said to have been undertaken by the appellant were also fundamentally different.
67. Accordingly, an extended unanimity direction was required. None was given. The appellant’s trial miscarried. Lane stands against any contention that the proviso can be applied to an irregularity or error of this kind should this Court form a view in respect to the cogency of the evidence in respect to any of the three routes to guilt furnished by the Crown. [Original emphasis]
[22] R v Brown (1984) 79 Cr App R 115, 119; R v Walsh (2002) 131 A Crim R 299.
Turning to the position of the respondent, it must be said, with respect, that the respondent has not adequately faced up to the decision of the High Court in Lane v The Queen[23] (Lane) and its obvious implications for the present case. The only mention of Lane in the respondent’s submissions in writing was as follows:
29. In this case, the prosecution’s particulars were a grouping of categories of evidence and so, as with any other evidence, it was open to the jurors to approach in their own way, the question as to whether any of the evidence established the importation of the substance by the appellant. It follows that any such individual approach did not have to be universal amongst the jury members in the circumstances of this case, let alone that any one fact (or group of facts) found to be established by any one juror would have to be accepted by all of the other jurors. His Honour’s direction at page 43 of the summing-up (AB 275) was appropriate.
30. The appellant relies on cases which concern fraudulent statements (Brown[24]) or murder/manslaughter (such as R v Boreman[25], Lane v The Queen[26]) where there were more than one act which would have established the actus reus of the charges in question. Such cases are very different factually from the subject case where the object of the particulars was to describe and/or limit the ambit of the prosecution case in relation to the appellant’s involvement in the importation of the substance.
[23] (2018) 92 ALJR 689.
[24] (1983) 79 Cr App R 115.
[25] [2000] 2 Cr App R 17.
[26] (2018) 92 ALJR 689.
Consideration
Lane involved a charge of homicide arising over a death which may have been caused by either of two identifiable physical interactions between the defendant and the deceased. This general scenario has been considered by various Courts on a number of occasions.[27] In such cases, success on appeal has usually been associated with a cogent argument that different considerations may arise in relation to each of the respective different occasions such as potentially to bear upon an element of, or a defence to, the charge. It is notable that in such cases the period of time between the two physical contacts may differ greatly; to take what might be thought of as two ends of a spectrum, in Klamo[28] the period was about a week whereas in Lane the period was very short indeed. While a longer period (such as in Klamo) may sometimes serve to frame the problem more clearly, it by no means follows that a case involving a very short period of time will not be the subject of a successful appeal, as Lane itself demonstrates.
[27] R v McCarthy (2015) 124 SASR 190 was one. Others are referred to therein.
[28] R v Klamo (2008) 18 VR 644. Referred to by the plurality in Lane at 695, footnote 26.
In Lane, the plurality in the High Court summarised the relevant facts thus:[29]
[29] (2018) 92 ALJR 689.
6. The appellant and the deceased had been drinking at the Commercial Hotel in Casino. Each was in his mid‑50s, intoxicated to some degree, and previously unknown to the other. Each left the hotel with a companion, the deceased with Mr Schwager and the appellant with his son.[30]
7. After the men left the hotel, there was an altercation between them occurring on the footpath and roadway outside a dental surgery near the hotel. Much of the altercation was captured by a CCTV security camera located nearby.[31]
8. The CCTV footage captured four events. In the first, the deceased turned the appellant around and forced him against the shopfront of the dental surgery. In the second, the deceased retreated towards the roadway with the appellant in pursuit. The deceased fell backwards on the roadway and struck his head (“the first fall”). In the third, Mr Schwager approached the appellant, who then punched Mr Schwager, causing him to fall to the ground near a telegraph pole. In the meantime, the deceased had risen to his feet and faced the appellant. In the fourth, the deceased could be seen to fall to the road a second time (“the second fall”). At that point he lost consciousness.[32] He died while in care at the Southport Hospital nine days later.[33]
9. The CCTV footage did not clearly depict the appellant punching the deceased before either fall. Although the CCTV footage did not show an actual striking of the deceased by the appellant, the CCTV footage was capable of sustaining a finding that the appellant delivered a powerful punch to the head of the deceased, causing him to fall and strike his head on the ground the second time.
10. A number of witnesses gave evidence about these interactions. Each was, to some extent, intoxicated. Each gave a somewhat different account of what he or she saw and heard.
11. Mr Perkins testified that his attention was first drawn by “a noise like of someone being hit”. He turned around and the first thing he saw was a person getting hit and landing on the street. He could not recall where the hit landed, which hand was used, or whether he saw the person actually fall. He saw the appellant punch another man in the face, who fell backwards against the telegraph pole, albeit he could not remember if that occurred before or after the other punch.
12. Mr Armstrong was in the company of Mr Perkins. Mr Armstrong said that he saw the deceased and another man (who must have been Mr Schwager) sitting on the gutter. As the two men were starting to stand, Mr Armstrong claimed, he saw the appellant punch the deceased. He could not recall where the punch landed, and, under cross‑examination, could not remember whether the deceased fell on this occasion. He then saw the appellant punch Mr Schwager’s right cheek, and thought Mr Schwager went to the ground. Although his view was obstructed, he then heard sounds consistent with the appellant punching the deceased and the deceased hitting his head. The deceased fell to the ground.
13. The trial judge told the jury that the CCTV footage was “directly contradictory” of how Mr Armstrong described the events. The trial judge told the jury that “the only punch [Mr Armstrong] clearly describes is one on Mr Schwager.”
14. Of the other witnesses, Mr Cupitt and Ms Livingstone said that they saw the appellant punch the deceased. Mr Marsh saw the appellant swing his arm at the deceased and then saw the deceased fall backwards and hit his head on the roadway, but he did not see the punch connect[34]. [Emphasis added]
[30] Lane v The Queen [2017] NSWCCA 46 at [6].
[31] Lane v The Queen [2017] NSWCCA 46 at [7].
[32] Lane v The Queen [2017] NSWCCA 46 at [51]–[52].
[33] Lane v The Queen [2017] NSWCCA 46 at [8].
[34] Lane v The Queen [2017] NSWCCA 46 at [53].
As their Honours went on to explain, the prosecution case changed somewhat during the course of the case. By the end of the case, what I have referred to above in general analysis as “physical interactions” equated in Lane to “the first fall” and “the second fall”. Thus their Honours observed:[35]
18. After Dr Little gave her evidence, the case for the Crown changed. In the course of the Crown’s final address, it was put to the jury that the actions of the appellant before each fall could found his liability for murder or manslaughter.[36] It was said in relation to the first fall by reference to the CCTV footage that there was a “blow” from the appellant. In relation to the second fall it was said that the CCTV footage and the eyewitness accounts established that the appellant landed a punch that caused the deceased to fall again.[37] The trial judge directed the jury that it was open to it to find that a deliberate act by the appellant had caused the death of the deceased if it found that either fall was caused by the appellant.[38]
19. By the conclusion of the trial it was accepted by both sides that each of the falls suffered by the deceased was sufficient to have caused his death. …[39] [Emphasis added]
[35] (2018) 92 ALJR 689.
[36] Lane v The Queen [2017] NSWCCA 46 at [41], [125].
[37] Lane v The Queen [2017] NSWCCA 46 at [30].
[38] Lane v The Queen [2017] NSWCCA 46 at [37].
[39] Lane v The Queen [2017] NSWCCA 46 at [8].
The jury convicted of manslaughter (but for present purposes it is the conviction of homicide that is relevant).
The decision of the NSW Court of Criminal Appeal in Lane
In the NSW Court of Criminal Appeal, the relevant Ground of Appeal was:
1. The trial judge erred in failing to direct the jury that in their consideration of the charge of manslaughter they were to be unanimous in their deliberations as to the factual basis on which they might convict [the appellant] of manslaughter.
All members of the Court of Criminal Appeal decided that that Ground was made out. In the High Court, the plurality summarised the majority holding thus:
23. The majority (Meagher JA and Davies J) held that “the jury could not convict of murder or manslaughter unless they were agreed as to whether one or both of [the acts said to cause the deceased to fall] was a criminal act of the appellant.”[40] Their Honours explained that:[41]
“in the absence of any direction to that effect it remained possible that some jurors might reason to a verdict of guilty of murder or manslaughter by being satisfied that the appellant’s voluntary act caused the first fall while others might reason to the same conclusion by reference to his voluntary act having caused the second fall.”
24. The majority accepted[42] that the failure of the trial judge to give a unanimity direction:
“raised at least as a theoretical possibility that some members of the jury might determine [the appellant’s] guilt by reference to the first fall, and others by reason of his having caused the second. Where there were two separate allegedly criminal acts left to the jury, the appellant was entitled to have the jury determine unanimously whether he was guilty in relation to one or other or both of those acts.” [Emphasis added]
[40] Lane v The Queen [2017] NSWCCA 46 at [42].
[41] Lane v The Queen [2017] NSWCCA 46 at [43].
[42] Lane v The Queen [2017] NSWCCA 46 at [57].
It is interesting to note that the Court of Criminal Appeal held that the Ground of Appeal was made out simply by reference to the broad principle of extended unanimity italicised immediately above. It was only after this decision that the Court first turned to a question of miscarriage of justice, but in the context of the proviso rather than as an ingredient of the Ground of Appeal itself.
The members of the Court of Criminal Appeal differed as to the application of the proviso, as summarised by the plurality in the High Court thus:
26. The majority applied the proviso, concluding that no substantial miscarriage of justice actually occurred.[43] The majority rejected the “theoretical possibility” which they had identified on the basis that it:[44]
[43] Lane v The Queen [2017] NSWCCA 46 at [61].
[44] Lane v The Queen [2017] NSWCCA 46 at [58].
“did not give rise to any miscarriage in this case because the evidence was not capable of supporting a finding beyond reasonable doubt that a deliberate act of the appellant caused the first fall.”
27. The majority reasoned that “the jury necessarily should have entertained a doubt as to whether the deceased’s first fall was caused by any voluntary act of the appellant.”[45] In that regard, their Honours said that the only evidence of that incident was “the CCTV footage and, perhaps, the evidence of Mr Armstrong”,[46] and their Honours’ view was that the evidence of Mr Armstrong was “not at all consistent with the CCTV footage”.[47]
[45] Lane v The Queen [2017] NSWCCA 46 at [50] (emphasis in original).
[46] Lane v The Queen [2017] NSWCCA 46 at [50].
[47] Lane v The Queen [2017] NSWCCA 46 at [51].
28. In relation to the second fall, the majority concluded that:[48]
“the CCTV footage, the evidence of the eyewitnesses … and the evidence of Dr Little … establishes beyond reasonable doubt that it was caused by a punch thrown by the appellant. We do not consider that it was open to the jury to have any reasonable doubt about that.”
29. Their Honours went on to say that they were also satisfied beyond reasonable doubt that the appellant’s punch was dangerous, and that the appellant did not act in self‑defence.[49]
30. The majority concluded that:[50]
“[t]he absence of any specific unanimity direction did not prevent the jury from considering the appellant’s guilt on the basis that his deliberate act caused the deceased’s second fall; and acting reasonably and properly they should have done so, having necessarily entertained a doubt about the appellant's guilt with respect to the first.”
31. The third member of the Court of Criminal Appeal, Fagan J, concluded that a substantial miscarriage of justice had actually occurred; his Honour would have allowed the appeal on the basis that the error as to the absence of a specific unanimity direction “denied the appellant a trial by jury according to law of the charge against him.”[51] That was so whether or not an appellate court might be satisfied of the appellant’s guilt on its review of the evidence.
[48] Lane v The Queen [2017] NSWCCA 46 at [52].
[49] Lane v The Queen [2017] NSWCCA 46 at [55].
[50] Lane v The Queen [2017] NSWCCA 46 at [60].
[51] Lane v The Queen [2017] NSWCCA 46 at [194].
The Judgment of the plurality in the High Court in Lane
However, the Judge persisted in suggesting from time to time that s 34P had a role to play. Thus, during resumed submissions at the re-trial his Honour raised the matter again and inter alia some fairly robust dialogue ensued:
MR EDWARDSON: … we were at pains to say to your Honour right at the beginning when we had all of this argument - and your Honour even raised the question of 34P not only with Mr Handshin but indeed with my learned friend. They have expressly disavowed seeking to introduce this evidence as discreditable conduct and, accordingly, we have put no effort or submission into that complex and difficult area and it would require a complete review of all of the telephone intercepts if one was looking at it through the prism of 34P.
So we have just put that to one side because we have been told unequivocally they don’t rely on it on that basis.
…
HIS HONOUR: Do either counsel have any authorities in relation to similar matters? Because it is in some way a fine distinction between whether it is discreditable conduct, indicating through other attempted criminal offences, or conduct that is discreditable in a literal way, on one hand, informing a later intention or negativing innocent explanation etc., on one hand, which is evidence that can be admissible per 34P, and preliminary steps towards committing the actual charged offence. Indeed, one can readily see how it could be relevant in both ways and that’s why we’re having the discussion we’re having now.
MR EDWARDSON: …
The next thing is, I have dealt with discreditable conduct. They are not seeking to adduce evidence in that respect and we have tailored all of the calls according to the way in which the Crown said they would seek to apply this evidence.
HIS HONOUR: It’s probative value, if it is discreditable conduct, is exactly the same - has exactly the same probative direction if it isn’t, surely.
MR EDWARDSON: Anyway, I’m not going to deal with that issue. We haven’t been served with a notice. It has not been put. We spent three weeks in court with the Crown actually expressly disavowing any application of 34P, putting it forward on a particular footing, which we have endeavoured to assist your Honour with over many, many days, with as many authorities and outlines in writing in detail that we can.
…
HIS HONOUR: What if I were to find that the evidence is probative in the direct way submitted by Mr Pirrie, but that it also is discreditable conduct in that it may indicate a previous attempt to source pseudoephedrine and therefore it falls under both rubrics. What does that mean? Can I direct the jury to disregard any discreditable conduct use? Or does the evidence then come within the parameters of 34P, whether anyone likes it or not, and has to satisfy those tests.
MR EDWARDSON: … I have no idea how they would justify 34P and I don’t intend to advise them as to how they do it, and I have no doubt that the court wouldn’t either. That is a matter for the prosecutor to undertake and it is up to the prosecution to determine how they run their case and how they present it and how they argue the case in admissible form.
…
I again reiterate, no more and no less, than our objection that was put to your Honour on day one, and is now repeated, we say even more acutely so now M has gone, but I have put all of those submissions. At the end of the day the Segui conversations or the Segui reference to pseudoephedrine cannot relate to this importation. It therefore is not admissible on the basis put forward by my learned friend. That is the end of it. And your Honour certainly couldn’t at the end of the trial suddenly, as it were, pick up 34P and somehow seek to invoke it.
HIS HONOUR: Of course not, that’s why I am raising it now.
MR EDWARDSON: No, no, your Honour, no, no -
HIS HONOUR: Can I just finish and then you will have the benefit of rejecting my wider proposition rather than the first part of it.
…
If it were admitted for a specific propensity effect, ie because somebody was attempting to import pseudoephedrine earlier, then that of itself indicates a propensity to import pseudoephedrine which the Crown hypothetically might submit was admissible in the case of someone who is alleged to have imported pseudoephedrine. If it’s admitted for that propensity purpose, of course it has to have strong probative value having regard to the particular issue or issues, so there is that extra hurdle. But as I have said, I mean even if it’s advanced for the direct purpose as Mr Pirrie has indicated, if it has a discreditable conduct characterisation as well, then I’ll need to consider the tests 34P, otherwise the evidence can’t be called. Is that the case?
MR EDWARDSON: Can I direct your Honour’s attention to p.77 of the transcript through to p.79, in fact over to p.80. Mr Handshin dealt expressly with exactly the issue that your Honour has just addressed and he succinctly, and better than I, made plain two things. Firstly, the Crown don’t seek to get it in under 34P, in any event, 34P won’t help them and it wouldn’t get in under 34P.
…
In this case, the only basis that’s been put forward by the prosecution is that the pseudoephedrine referable to the Segui communications relates to this importation. That’s what was put from day one. We have challenged that, we have challenged that, we have put it in every different way we possibly could. Finally, when one went to the opening, and indeed my learned friend acknowledges now that there was no successful pseudoephedrine obtaining by Mr Segui, it’s not said that Mr Segui was a party to this importation, the case is not put forward on the basis of joint enterprise, they have expressly disavowed that, they haven’t sought to invoke 34P, had they chosen to that would have to give notice in the form that is prescribed by the Act and we would have to go through the massive exercise in having to reargue and having to reconsider the position.
So we have simply come along to respond and put again before this trial why we say the Segui communications are inadmissible on the basis put forward by the prosecution and that, in our submission, should be the end of the matter. I can’t put it any other way. …
Conclusions as to Ground 4 of Appeal
A reading of the passages admitted over objection by the Judge does suggest that some of them may relate to past or contemplated offending other than the present charge.[218] A stark situation is therefore presented in relation to such passages in that if the jury did not accept that they referred to the importation charged, then the almost binary alternative was that they did refer to unlawful conduct in relation to illicit drugs. This, of course, was a much more serious consequence of irrelevant evidence being tendered than the usual situation where evidence found to be irrelevant may be discarded with little damage to the defendant; by contrast here, the very decision that an item of evidence is irrelevant to the particular offence charged simultaneously produces seriously prejudicial evidence of criminal misconduct of a not dissimilar kind to the offence charged.
[218] There is also some merit in the further defence contention that an attempt to demonstrate the irrelevancy of some passages before the jury would have required highly prejudicial reference to other associated conversations which were clearly about offending other than that charged (and which were not to be led for that very reason).
Accordingly, such passages should not have been admitted if they were irrelevant (having regard to the way in which the prosecution put its case) and/or should have been excluded in the correct exercise of the Christie discretion.
As to s 34P of the Evidence Act 1929, some of the Judge’s language in Covert Recordings Ruling Three tended to indicate that he considered that that provision was a form of pathway to admission (or an “inclusionary” provision perhaps). However, the correct position is that its status is exclusionary; it precludes admission of certain evidence that would otherwise be relevant (and hence prima facie admissible) unless it satisfies certain criteria.
I consider that it was necessary for the Judge to accept the prosecution position of not seeking to lead any evidence of misconduct by Ribbon other than misconduct directly related to the offence charged. This required judicial abstinence concerning common law routes of admissibility that the prosecution might have sought to adopt, but did not[219] and also s 34P which was eschewed by the prosecution, but was nevertheless referred to repeatedly by the Judge.[220] Section 34P requires the prosecution to delineate very clearly the precise purpose for which the evidence of discreditable conduct is to be led (first in a Notice[221] and then in submissions before the Judge if the evidence is objected to); further, the prosecution must justify its admission having regard to s 34P(1), (2) and (3). Here the prosecution positively declined to go down this path at all and accordingly s 34P simply did not arise for consideration.
[219]See for example the facts and discussions in Harriman v The Queen (1989) 167 CLR 590.
[220] The present situation may be compared, and found to be congruent, with the admittedly different situation where the prosecution tenders evidence the reception of which would be governed by s 34P and the defendant does not object to its reception. As to that situation, Kourakis CJ (with whom Anderson J concurred) stated in The Queen v C, CA [2013] SASCFC 137: “54. Notwithstanding the obiter observations of White J in R v C, CN, in my view s 34P of the Evidence Act 1929 (SA) does not require a trial judge to intervene in the course of evidence beyond that which is appropriate in an adversarial trial. Section 34P(2) of the Evidence Act must be construed in the context of the common law adversarial trial process and the accepted common law proviso to the application of evidential rules that their application may be waived by the party who is entitled to object to the admission of the evidence. …” See also The Queenv C, G (2013) 117 SASR 162, 177–178 [50]–[53].
[221] Evidence Act 1929 (SA) s 34P(4).
Finally, although the Judge in Covert Recordings Ruling Three purported to admit evidence by dint of s 34P, stressing that it “is highly probative and substantially outweighs the prejudicial effect if any”, his Honour does not appear to identify what the permissible use was suggested to be. He certainly never gave the jury any directions at all concerning permissible uses or impermissible uses, or any other direction as required to be given under s 34R; and nor did he address s 34P(3) which would have a high degree of relevance in such circumstances. I hasten to add that these observations are not the subject of independent Grounds of Appeal; rather, they are confirmatory of the fact that, in the circumstances of the trial as it unfolded, s 34P simply had no part to play.[222]
[222]Thus I conclude that, in a number of serious respects, the Judge erred in his approach to the questions of admissibility and discretionary exclusion of objected to passages of conversation. For the reasons referred to above, the rulings required by the parties at the new trial as to particular passages of conversation, if any, will be a matter for the new trial Judge.
PART D: GROUND 2 OF APPEAL - THE JUDGE’S SUGGESTIONS TO THE JURY
The appellant summarised its argument in relation to Ground 2 thus:
As to Ground 2, was it an error for the trial Judge to invite the jury to first consider that the pseudoephedrine was imported “by CCS per CCM” and then to review the telephone calls in light of that fact? In the appellant’s submission, even acknowledging the correct manner in which a circumstantial case is to be approached, it was impermissible for the jury to be invited to have regard to the importation of pseudoephedrine when interpreting the telephone calls in the way they were invited to by the trial Judge. That must be so because the fact of the importation was only relevant to the interpretation of the calls if it were assumed that the appellant was complicit in the importation. Put another way, the manner in which the trial Judge directed the jury encouraged them to abnegate the presumption of innocence and disregard the burden of proof.
The Judge made clear in summing up to the jury that the way they proceeded was entirely up to them but he suggested that one option was to first consider the objective evidence relating to the alleged importation. His Honour stated:
By that I mean the evidence that the container was sent from Thailand by CCM by ship to M and his newly established distribution company CCS in Sydney, and that in turn it was searched, the pseudoephedrine was allegedly found, and tested, resulting in 13.4 kg of pure pseudoephedrine.
That evidence, by way of very brief overview, is that after several containers with legitimate content had been sent to M in Australia, a further two containers were sent, arriving in Australia on 17 August 2014. The evidence is that those containers were subject to very close inspection by Customs, and then the AFP at the direction of Officer Holmes, the investigating officer in this matter.
He did that, he says, on the basis of his monitoring the various calls that were being intercepted by police, some indeed may have been the ones that you have heard at this trial.
In one of those two containers, the prosecution evidence is that Customs and the AFP located nearly 50 litres of fluid containing over 13 kg of pure pseudoephedrine.
So, members of the jury, your first step might be to consider that evidence and determine whether that is proven, because without that, of course, there is no importation to be concerned with.
The Judge then turned to the position of the appellant and stated:
Then, if you are satisfied that the pseudoephedrine was indeed imported as reflected by the prosecution evidence and as alleged by the prosecution, perhaps then turn to closely scrutinising the remaining evidence in the case, including all the agreed facts, and the telephone intercepts, and the listening devices concerning Mr Ribbon and form a view as to whether Mr Ribbon played a part in it. In other words, that he knowingly played a part in facilitating that importation in terms of my earlier directions to you as to the elements of the offence.
The Judge then, over the course of some ten pages, summarised the evidence, and the respective positions of the parties, as to the objective importation. His Honour concluded this part of the summing up thus:
That is a brief outline of the evidence concerning the actual importation of pseudoephedrine.
It is a matter for you. However, you might think that the evidence seemed very straightforward and unexceptional in terms of how everything was dealt with by the authorities concerned. You will, of course, have regard to all the arguments put, everything raised in cross-examination, but you might think none of those witnesses conceded or agreed that anything at all went wrong with the process of examining that container, or, indeed, the integrity of exhibits, the process that occurred, or anything of that nature. It is a matter for you, of course, to consider that, members of the jury, entirely for you.
Having considered everything, members of the jury, if you agree, as argued by Mr Pirrie, that there is no doubt whatsoever that over 13 kg of pure pseudoephedrine was imported by way of the container concerned having been consigned by CCM, been packed and sent from Phuket by ship to M and CCS at his address in Sydney, having full regard, of course, to everything argued to the contrary, you will find that proven.
The Judge then turned to what he called the second aspect of the prosecution’s case, namely the evidence of what the accused said and did. His Honour initially gave the following overview:
The second aspect of the prosecution’s case is the evidence of what the accused said and did as reflected in the intercepted calls and conversations together with the agreed facts as to the parties’ movements, the companies concerned and other things as set out in, for example, P28 the agreed facts document. That evidence essentially, as it relates to the accused, spans more than a 12-month period during the latter part of which the evidence is that the container containing the 13.5 kg of pseudoephedrine was sent from Thailand by CCM imported into Australia and delivered to CCS per M.
On the one hand, Mr Pirrie has argued for the reasons he gave that you should interpret much of those recorded calls as the accused taking part in every stage of this pseudoephedrine importation, in particular, the three particularised phases that everyone has focused their attention on and which represent the particularised conduct that it is alleged the accused performed.
The prosecution argue that the calls represent the accused playing an active role in trying to locate, and eventually locating, a source of pseudoephedrine for the purpose of the importation, actively engaging in and organising and setting up M in New South Wales for the purpose of ultimately importing the pseudoephedrine, organising a Thai director to be in charge of CCM so that if the deal went bad the blame would fall on him, travelling to Thailand to play a part in mixing up and testing the pseudoephedrine that was then packaged into the container, and monitoring and interacting with M during the ensuing time as the container found its way to Australia, and then, after interception by AFP, the prosecution argues that the calls reflect the accused constantly liaising with Mr Harker and M and, to some degree, Mr Weafer, when efforts to extract the pseudoephedrine from what was now, in fact, tea proved impossible.
That subsequent conduct, members of the jury, subsequent to the seizure, is led not as actual acts that constitute the offence, but as evidence of the accused, the prosecution says, admitting his conduct in relation to the earlier acts and having a knowledge of the pseudoephedrine-related aspect of the importation.
On the other hand, Mr Edwardson has emphasised throughout his cross-examinations and in his address the legitimate business projects that the accused was involved in, whether it be snail eradication, fruit and vegetable preservation or other projects and has argued and submitted to you that you should put a wholly innocent interpretation on the very same range of intercepted telephone calls and taped meetings that are in evidence before you.
I have not got to the defence case yet, but I have been trying to be fair by reminding you in brief terms as we have gone through the prosecution case that, of course, there is a defence case and you need to be fair and consider the defence case equally.
I consider that the appellant has established no traction for this ground at all. In a circumstantial case such as the present, the evidence is not to be looked at in a piecemeal fashion (at trial or on appeal).[223] Rather, all of the circumstances established by the evidence are to be weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence. The Judge did not require the jury to proceed in any particular way and the suggestion that his Honour did make (referred to above) was logical and reasonable.
[223] R v Baden-Clay (2016) 258 CLR 308, 324 [47] (French CJ, Kiefel, Bells, Keane and Gordon JJ), referring to R v Hillier (2007) 228 CLR 618, 637 [46] (Gummow, Hayne and Crennan JJ).
The single Judge refused permission on the original proposed Ground 2 of appeal and the appellant now seeks from this Court permission to appeal on that ground (in the reformulated form set out above). I would refuse permission to appeal on this proposed ground.
PART E: GROUND 7 OF APPEAL - UNREASONABLE VERDICT
All of the other grounds of appeal (apart from Ground 7) are such that, if made out, a discretion arises as to whether the consequential order should be for a re-trial or entry of judgment of acquittal and, in the present circumstances, the appropriate exercise of discretion is to order a re-trial. The nature of Ground 7 of appeal is different in that if either of the assertions that “the verdict of the jury was unreasonable” or “cannot be supported having regard to the evidence” is made out, the appropriate order would be for entry of judgment of acquittal.
Of course, in order to determine a ground such as Ground 7 it is usually necessary to review the whole of the evidence.[224] However, Ground 7 was here dealt with only briefly in the appellant’s written and oral submissions and on the hearing of the appeal, senior counsel for the appellant said:
The only remaining ground of appeal in respect of conviction is the unreasonable verdict ground which is ground 7. We rely upon the written outline and I do not wish to add any further oral submission to them, other than to say that a consideration of this ground would obviously follow only if one or more of the other grounds were not successful in convincing the court that the conviction should be quashed.
The way in which the unreasonable verdict may be examined may change if there is a ruling from this court that, for example, the telephone evidence of Segui and Harker should have been excluded, so a consideration of what was the strength of the case against the defendant absent that evidence, and whether the jury ought to have had a doubt about the strength of the case absent that evidence, would be a matter for consideration. No doubt there is a body of evidence that is pointed to as being sufficient by my learned friends, but it is subject to the other grounds, of course.
So I do not wish to ventilate or argue at length the unreasonably verdict decision, other than to rely on our written submissions and to indicate that it may be strengthened depending on decisions of this court in respect of some of our other grounds.
PEEK J: I think I understand what you are saying there, Mr Griffin, but I may just need to ask you a question. Are you saying, in effect, this: if you were to succeed on one of the other grounds which would lead to a retrial, you do not wish this court to then go to the unreasonable verdict ground which would, of course, require this court to set out in a very comprehensive way all of the evidence that seems to point to guilt, if I can be so blunt, and then analyse it and see whether the jury should have held a doubt, on the basis, perhaps, in your mind that you there are sort of shooting yourself in the foot, as it might be thought, for the retrial?
MR GRIFFIN: It’s not a matter of shooting myself in the foot but in terms of utility and looking at the strength of the particular ground I’d be content to proceed the way your Honour has articulated. So if any of the other grounds would lead to a determination by the court that there was a miscarriage and that there ought to be a quashing of the conviction and order for retrial then there would be no need to ventilate ground 7.
[224] M v The Queen (1994) 181 CLR 487.
The above is a realistic and helpful approach to take in circumstances where, as in the present case, it is highly unlikely that the Court will conclude that the verdict is unreasonable having regard to the evidence. It has an added benefit for the defence in that a detailed analysis of the strengths of the prosecution case is unlikely to assist the cause of the appellant who still faces a re-trial by reason of a different Ground of Appeal having been made out.
As it happens, I have read and reviewed all of the evidence in the course of grappling with the other Grounds of Appeal. Without further summarising that evidence, and applying the precepts in M v The Queen[225] and relevant subsequent decisions of the High Court, I find that even if substantial deletions of the evidence referred to in Ground 4 of Appeal were made in accordance with the arguments of the appellant under that ground, it cannot be established that the verdict is unreasonable. I will refer only briefly to the arguments advanced by the appellant’s written submissions relating to paragraphs 7.1 to 7.7 inclusive.
[225] (1994) 181 CLR 487.
Ground 7 of Appeal: Paragraphs 7.1, 7.2, 7.3 and 7.6
In effect, the group of paragraphs 7.1, 7.2, 7.3 and 7.6 advances two alternative arguments. The first is that all three Particulars had to be proven (as was submitted by senior counsel at trial) and that if any one particular failed, the whole case failed. This is wrong as a matter of law (see paragraphs [42] to [45] above).
The second alternative argument is to the effect that when one examines seriatim Particular One, Particular Two and Particular Three, all fail and there is nothing left; therefore “the verdict of the jury was unreasonable or cannot be supported having regard to the evidence”. This is also wrong in that, upon analysis, the evidence referable to Particulars Two and Three is clearly sufficient to support a guilty verdict by a properly directed jury.
Ground 7 of Appeal: Paragraphs 7.4 and 7.5
Paragraphs 7.4 and 7.5 are very close in meaning. In relation to both, I consider that it was open to the jury to find, on the basis of all of the evidence, that in some parts of some of the recorded conversations, pseudoephedrine was referred to in a coded form such as the term “floor polish”. Further, there is no Ground of Appeal asserting that the Judge failed to direct the jury appropriately in this regard.
Ground 7 of Appeal: Paragraph 7.7
As to paragraph 7.7, the prosecution was put to proof as to the requirement that a “commercial quantity” (at least 1.2 kilograms of pseudoephedrine) was imported. Thus defence counsel stated to the Judge during his Honour’s summing up (and in the absence of the jury):
… at the conclusion of our address, we put to the jury that they need to consider whether they are satisfied of the commercial quantity ingredient of the offence, so it is not a case where that can be put to the jury as a matter that is not in dispute. … It is in dispute in the sense it is an ingredient of the offence and we have made submissions. … We simply raised, for the jury’s consideration, when they come to consider whether that has been proved beyond reasonable doubt, how it was that the prosecution proposed to prove that more than 1.2 kg was in the bottles. That is the point I was trying to make to your Honour.
In fact, detailed evidence was given concerning the basis upon which the prosecution asserted that a great deal more than 1.2 kilograms of pseudoephedrine was found. The evidence was cogent and no opposing evidence was called by the defence. The Judge directed the jury as to that evidence in great detail in the summing up and no Ground of Appeal asserts that the Judge failed adequately to direct the jury in this regard. I would refuse permission to appeal on Ground 7.
PART F: DISPOSITION
I would make the following orders:
1Grant permission to appeal (if necessary) on Grounds 3, 4 and 10.
2Refuse permission to appeal on Grounds 2 and 7.
3Allow the appeal on Grounds 3, 4 and 10.
4Set aside the conviction and sentence.
5Order that there be a re-trial on the Information.
PARKER J: I agree with the reasons of Peek J and the orders that he proposes. I also agree with the observations made by Doyle J.
DOYLE J: I agree with the reasons of Peek J, and with the orders he has proposed. There is nothing I wish to add in relation to grounds of appeal 2, 4, 7 and 10.
In relation to ground of appeal 3, I would merely emphasise that the conclusion I have reached, namely that the trial judge erred in failing to give an extended unanimity direction, is one that turns very much on the particular circumstances of the present case.
In considering the issue of extended unanimity in the context of the present case, I have drawn particular assistance from the passages from the reasons of Phillips and Buchanan JJA (with whom Ormiston JA agreed) in R v Walsh[226] and Steytler P (with whom Roberts-Smith and McLure JJA agreed) in Fermanis v Western Australia[227], both of which were cited with approval by the High Court in Lane v The Queen[228] and have been extracted in the reasons of Peek J.
[226] R v Walsh (2002) 131 A Crim R 299 at [57].
[227] Fermanis v Western Australia (2007) 33 WAR 434 at [68]-[69].
[228] Lane v The Queen (2018) 92 ALJR 689.
In my view, the two categories of case referred to by Phillips and Buchanan JJA in the passage from their reasons to which I have referred raise quite different considerations. I consider that the present case falls within the second category of case identified by their Honours; that is, where one offence is charged but the prosecution relies upon more than one discrete act as independently capable of proving an essential ingredient of the charged offence.
In determining whether it is necessary to give an extended unanimity direction in that second type of case, a distinction may be drawn between cases in which the discrete acts are relied upon as independently capable of proving an essential ingredient of the crime charged, and cases in which the discrete acts are relied upon merely as facts that might be found in considering the evidence led in support of an essential ingredient. As the jury must be unanimous as to their conclusion that an essential ingredient of an offence has been established, but need not be unanimous as to the evidentiary route or pathway by which they reach that conclusion, an extended unanimity direction will be required in the former situation, but not in the latter situation.
In drawing this distinction, it will be relevant to have regard to not only the nature of the charge, but also the way the prosecution case is formulated and conducted, and the nature of the acts relied upon and the issues to which they give rise. If the offence charged, and the substance of the prosecution case, is one involving a continuous course of conduct or is reliant upon the cumulative effect of all of the evidence led in respect of the relevant ingredient, then it is unlikely that an extended unanimity direction will be required. However, where the prosecution case relies upon more than one act said to be independently sufficient to establish the relevant ingredient, and those acts are quite separate or different in nature (for example, by reason of their timing, location or circumstance, or by reason of the issues to which they give rise), then such a direction may well be required. The distinction will sometimes be a difficult one to draw, and involve questions of degree.
Here the prosecution, quite appropriately in the circumstances, particularised its case in relation to the physical element of “imports a substance” by reference to three allegations, referred to as the distributorship, preparation and packaging allegations respectively. On appeal the prosecution at times sought to characterise its case at trial as one involving an allegation of a continuous course of conduct establishing that the appellant imported (or was involved throughout the importation of) the relevant substance, with the three particulars being merely convenient groupings of the evidence relied upon in support of that course of conduct. While some importation cases might be accurately characterised in this way, it is my view that this is to characterise the prosecution case in the present matter at a level of abstraction or generality that does not reflect the reality of the way in which the case was formulated, presented and conducted at trial; and in a way that understates the significance of the manner in which the prosecution particularised its case as to the physical element of “imports a substance”.
The case at trial in this matter was formulated, presented and conducted on the basis that the particulars were not merely convenient groupings of the evidence led in support of some wider case as to the physical element. Rather, the particulars were a relatively precise and exhaustive articulation, and confinement, of the prosecution case in relation to that element. The particulars were treated as three separate categories of conduct, each of which was said to be independently sufficient to establish the physical element of the charged offence. The case was presented on the basis that these were alternative allegations as to the existence of that physical element, rather than merely alternative evidential pathways to a single allegation as to the physical element (whether constituted by a course of conduct or otherwise).
Further, and equally importantly for present purposes, the three particulars were quite separate and different in nature.
The differences between the second and third particulars (that is, the preparation and packaging allegations) were not so significant. While conceptually distinct, there was some potential for overlap in terms of the timing, location and circumstance of the conduct and evidence the subject of these two particulars, and they gave rise to similar issues. Had they been the only particulars, a different conclusion may have ensued.
However, the first particular (that is, the distributorship allegation) was quite separate and different in nature from the second and third particulars. The conduct the subject of the distributorship allegation was temporally and geographically remote from the conduct the subject of the preparation and packaging allegations, and was very different in its nature and circumstances. Both inherently, and in the way the case was presented, there was a clear separation between this first particular, and the second and third particulars, in terms of the conduct alleged and the evidence relied upon to establish that conduct.
In determining whether an extended unanimity direction was required, it is also significant, as Peek J’s reasons in relation to ground of appeal 10 demonstrate, that the early timing of the conduct the subject of the first particular meant that it gave rise to different legal issues, or at least gave rise to the need for a different emphasis in the application of the relevant legal principles.
Bearing in mind all of these considerations, I consider it was appropriate and necessary that the trial judge direct the jury that they must be unanimously agreed as to at least one of the three particulars of the physical element of “imports the substance” relied upon by the prosecution before convicting the appellant. In failing to give an extended unanimity direction along these lines, the trial judge fell into error
109. A “dealing” with tangible property may occur by a physical process (such as concealing it in another chattel so as to avoid detection, assembling it in a palette or container, physically conveying it from origin to destination, or physically delivering it to a purchaser). In the context of the Code, and the immediate textual context of “bring the substance into Australia”, the word should be regarded as including physical acts. For example, removing the substance from a bond warehouse would, in my view, be a dealing, and still remain sufficiently connected with the importation to satisfy the definition. It was said in Tranter that unpacking the package after it had been taken to premises outside the freight forwarder’s warehouse was still a dealing with sufficient connection with the importation to satisfy the definition. But there was no physical dealing with the container proven at the appellant’s trial.
110. It is also natural to describe a legal process (such as a sale or mortgage over the property) as a dealing. Indeed, to my mind, that is the most natural meaning the word bears in many legal contexts. I see no reason to confine the word “deal” in the definition to physical processes, as opposed to legal processes. For one thing, one of the examples given in the Explanatory Memorandum was arranging for payment. For another, very capricious results would follow if “dealing” were confined to physical dealings. …
111. However, relying on the broad dictionary definitions reproduced above, the trial judge appears to have considered that a price inquiry by itself could fulfil the definition of dealing. With that I must respectfully disagree.
112. A price inquiry is not a physical dealing with a thing. Nor does it readily fall within any accepted meaning of a legal dealing with the thing. Moreover, even after the 2010 amendment, the legal meaning of “import” is necessarily informed by other provisions in the Code: it is axiomatic that the Code must still be read as a whole: see Environment Protection Authority v Condon as liquidator for Orchard Holdings (NSW) Pty Ltd (in liq) [2014] NSWCA 149 at [43]. Section 11.1 of the Code includes a separate offence of attempt, and s 11.1(2) provides that in order to be guilty of attempt:
“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.”
113. If the extended definition of “import” applied when a person merely made an inquiry about what was required to release a package from a bond warehouse, then although the inquiry would be “in connection with its importation”, there would be little room for (a) the distinct offence of attempting to import a border controlled substance and (b) conduct which is “merely preparatory” which falls short of an attempt. The distinction between conduct which is merely preparatory and conduct which is sufficiently proximate to the intended commission of a crime such as to give rise to an attempt (see R v Onuorah [2009] NSWCCA 238; 76 NSWLR 1 at [30]), ought not be swallowed up by an overly broad approach to “import”.
See generally: R v Soteriou [2013] SASCFC 114; Police v Rosales [2017] SASC 118 [22]–[30]; R v Fleming; R v Maher (2017) 129 SASR 27,[56]–[57]; R v Jones [2018] SASCFC 96, [25]. These authorities are gathered together and explained in R v Pali; R v Buckingham [2018] SASCFC 134,
[76]–[80].
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