Shortland v The Queen - [2021] NTCCA 10

CITATION:Shortland v The Queen [2021] NTCCA 10

PARTIES: SHORTLAND, Harris John Kohu

v
THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY
JURISDICTION:  CRIMINAL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION
FILE NO:No. CA 15 of 2021 (21836887)
DELIVERED:  23 December 2021
HEARING DATE:  22 December 2021
JUDGMENT OF:  Brownhill J
CATCHWORDS:

CRIMINAL LAW – Appeal – Appeal Bail – Bail Act 1982 (NT), s 23A – whether special or exceptional circumstances shown – prospects of success on appeal insufficient – bail refused
Bail Act 1982 (NT), s 23A
Criminal Code Act 1983 (NT), s 43BG, s 43BF, s 407(1), s 429
Criminal Code 1995 (Cth), s 307.2, s 311.4, s 311(7)
Criminal Code Regulations 2019 (Cth), r 14
Evidence (National Uniform Legislation) Act 2011 (NT), s 165(1)(d)
Misuse of Drugs Act 1990 (NT), s 5(1), s 8(1)
Sentencing Act 1995 (NT), s 55
GBF v The Queen (2020) 94 ALJR 1037, King v The Queen (1986) 161 CLR 423, MacKenzie v The Queen (1996) 190 CLR 348, McRoberts v The Queen [2018] NTCCA 11, Tran v The Queen (2000) 105 FCR 182, Witt v The Queen [2018] NTCCA 9, referred to.
REPRESENTATION:
Counsel:
Applicant:S Robson SC
Respondent:    M Chalmers SC
Solicitors:
Applicant:Ward Keller
Respondent:    Office of the Director of Public Prosecutions
Judgment category classification:    B
Number of pages:  25

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT ALICE SPRINGS
Shortland v The Queen [2021] NTCCA 10

No. CA 15 of 2021 (21836887)
BETWEEN:

HARRIS JOHN KOHU SHORTLAND

Applicant

AND:

THE QUEEN

Respondent

CORAM: BROWNHILL J
REASONS FOR JUDGMENT
(Delivered 23 December 2021)
Background

By an indictment dated 2 December 2020, the applicant was charged with five counts, namely:
(a)between 16 October 2017 and 10 July 2018, importation of a marketable quantity of cocaine, contrary to s 307.2 of the Criminal Code 1995 (Cth) (‘Cth Code’), read with s 311.4 (count 1);
(b)between 15 December 2017 and 10 July 2018, supply of a commercial quantity of cocaine, contrary to s 5(1) of the Misuse of Drugs Act 1990 (NT) (‘MDA’), read with s 43BG of the Criminal Code Act 1983 (NT) (‘NT Code’) (count 3);
(c)between 31 July and 14 August 2018, attempting to supply a commercial quantity of cocaine, contrary to s 43BF of the NT Code, read with s 5(1) of the MDA (count 4); and
(d)between 18 May and 10 July 2018, receiving or possessing $18,000 knowing it was obtained from the supply of a dangerous drug, contrary to s 8(1) of the MDA (count 5).
On 29 October 2021, after a three week trial, the jury delivered verdicts of not guilty on counts 1 and 4 (the latter being a directed verdict) and verdicts of guilty on counts 2, 3 and 5.
On delivery of the verdicts, the trial judge granted an application for leave to appeal the verdict on count 3…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Shortland v The Queen

Details

AGLC: Shortland v The Queen [2021] NTCCA 10
Case: [2021] NTCCA 10
Decision Date: 23 December 2021

CaseChat Overview and Summary

In *Shortland v The Queen*, Brownhill J of the Supreme Court of the Northern Territory considered an application for bail pending appeal. The applicant, convicted of drug importation offences, sought bail under section 23A of the *Bail Act 1982* (NT), arguing for the existence of special or exceptional circumstances. The prosecution opposed the application, contending that the prospects of success on appeal were insufficient to warrant the grant of bail.

The legal issues before the Court were whether the applicant had demonstrated special or exceptional circumstances justifying bail, and whether the grounds of appeal raised issues of real substance concerning flaws in the trial process or the unreasonableness of the jury's verdict. Specifically, the applicant argued that the trial jury had not been adequately directed on the fault element applicable to the offence in count 2, nor on the legal bases for fixing liability for conduct committed by another person. This was argued to be a fundamental error, akin to a direction of strict liability, and potentially a miscarriage of justice.

Brownhill J held that it is incumbent upon a convicted person seeking bail pending appeal to demonstrate to the Court of Criminal Appeal that there is an issue of real substance regarding a significant flaw in the trial process or an unreasonable jury verdict. The onus rests on the applicant to establish why bail should be granted, and that the reasons for doing so are exceptional. The Court found that the grounds of appeal, including those relating to alleged latent duplicity in a count and the lack of specific directions on commission by proxy, aider, abettor, or joint criminal enterprise, did not give rise to special or exceptional circumstances justifying the grant of bail. The Court noted that the Crown's case at trial was put on a particular construction of the relevant legislative provisions, which was not challenged by the defence at the time.

Consequently, the application for bail was refused.

Orders

Orders of the court

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Background

Background to the litigation

His Honour held (at [20]) that it is incumbent upon a convicted person to show the Court of Criminal Appeal that there is an issue of real substance about whether the trial process has in some significant way been flawed or that the jury verdict was unreasonable, and the onus is on the convicted person to show why bail should be granted and that the reason for granting bail is exceptional.Facts apparently undisputed It appears that the following facts were not disputed at trial. The applicant was living in Los Angeles and travelling back and forth to Alice Springs where he had previously lived and still maintained a financial planning business. He and Roshani Byerley (‘Byerley’) had been in a relationship, which involved meeting up when the applicant visited Alice Springs, communicating with each other and Byerley having access to a storage shed rented by the applicant in Alice Springs. In December 2017, Byerley came to the notice of Alice Springs police after a mobile phone belonging to Zianna Clarke (‘Clarke’) was seized. Byerley’s name was stored in the phone as ‘Coke girl’ and text messages revealed an apparent cocaine supply by Byerley to Clarke on 16 December 2017. Police launched an investigation into Byerley. On 31 July 2018, a package addressed to Byerley’s post office box in Alice Springs was intercepted by customs officers in Sydney, sent from Los Angeles on 16 July 2018. It contained a helmet with 40.2 grams of cocaine inside it. An inert substance was substituted for the cocaine in Sydney, the package was reconstructed and forwarded to Northern Territory police, who deposited it at the Alice Springs post office for collection. At the time the package was sent from Los Angeles, the applicant was in Australia. On 13 August 2018, Byerley collected the package. She returned it to the parcel hatch a short while later after becoming suspicious that she was under police surveillance. She went home but returned to the post office and collected the package later that day. She drove to her workplace in Amoonguna and buried the inert substance and disposed of the packaging. She took the helmet and put it in the applicant’s storage shed. On 14 August 2018, Byerley was arrested. A bank card in the name of the applicant was found in her unit during a search under warrant, as were two mobile phones and a small amount of cocaine. On that day, Byerley participated in an electronic record of interview but made ‘no comment’ answers. On 21 August 2018, she participated in a second interview and made a statement.Byerley’s statements Byerley’s interview and statement implicated the applicant as the sender of the helmet package. She said that, in communications with the applicant via an encrypted communications application known as ‘wickr’, they had decided she should return to the post office, collect the package and bury its contents at Amoonguna until they decided what to do with what they thought was cocaine. Byerley also said that the applicant had sent her two previous packages containing cocaine, secreted in a clock and a toy robot. She said that when the applicant had been in Alice Springs at the end of 2017, the two of them had formed a plan to import cocaine from the United States and sell it in Alice Springs. She said the clock package contained 15 grams of cocaine, which she had sold in Alice Springs. When the applicant returned to Alice Springs, she had given him his share of the proceeds, which he hid inside the clock. The only purchaser of the cocaine Byerley identified was Clarke.

Evidence

Evidence Before The Court

Counsel for the applicant effectively conceded as much in oral argument.Not supported having regard to the evidence / latent duplicity – ground 1(iii) and count 5 There was no particularisation of the source of the cocaine said to have been supplied by Byerley and yielding the $18,000 in proceeds. The applicant was not put on notice that there was any source of cocaine other than the clock and the robot packages. In reliance on the acquittal on count 1, counsel for the applicant argued that: (a) there was no evidence of any alternative source of cocaine; and (b) count 5 had to relate to some other cocaine, giving rise to duplicity in the count by latent ambiguity. Effectively, this ground suffers the same difficulties as the grounds relating to inconsistency with count 1. The Crown did not put a case to the jury involving any other cocaine. As set out above, it submitted that the jury could find that the robot package contained 45 grams of cocaine. This ground does not give rise to special or exceptional circumstances justifying the grant of bail.Ground 2 – no direction on the elements Ground 2 alleges that there was a substantial miscarriage of justice because the jury were not directed on the fault element applicable to the offence in count 2 nor the bases in law upon which liability could be fixed on the applicant for conduct committed by another person. Counsel for the applicant argued that the jury were directed as if the applicant’s guilt depended merely upon proof that he had arranged for another person to send the helmet package from Los Angeles to Australia, which was said to effectively be a direction of strict liability. Counsel for the applicant argued that the jury should have been directed about: (i) commission by proxy; (ii) liability as an aider, abettor, etc; or (iii) joint criminal enterprise, and should have been directed about the fault element for the element of the offence as to the substance being a border controlled drug, which is recklessness (s 307.2(2), Cth Code). Counsel for the respondent argued that no direction was necessary as regards commission of the offending by proxy or otherwise because what the Crown relied on was the effect of the words ‘deal with the substance in connection with its importation’ in the definition of ‘import’ as used in s 307.2. Its case at trial was put on the basis that arranging for someone else to post a package containing cocaine fell within those words. No issue with that construction of the words was taken by the defence at trial and counsel for the applicant declined, on this application, to engage in a detailed legal argument about the scope and effect of those words in that definition and whether they capture what was put by way of the direction. The fault element applicable to the offence in s 307.2 relates to the character of the substance as a border controlled drug and comprises recklessness (s 307.2(2)). Counsel for the applicant argued that a failure to direct a jury about a fault element is a fundamental error going to the root of the proceedings. Reliance was placed on the decision in Witt v The Queen [2018] NTCCA 9. That case involved a direction being given which described the relevant fault elements as intention or foreseeability of consequences. The Court held that the latter aspect was erroneous and that the misdirection was fundamental.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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