Tartaglia v The Queen
[2022] SASCA 41
•5 May 2022
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
TARTAGLIA v THE QUEEN
[2022] SASCA 41
Judgment of the Court of Appeal
(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice David)
5 May 2022
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - COMPLICITY - COMMON PURPOSE OR JOINT CRIMINAL ENTERPRISE - DIRECTIONS TO JURY
STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR CLASSES OF ACT - CODIFYING ACTS
CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT-EXPORT OFFENCES
Mr Antonio Tartaglia (the appellant) and Mr Paul Blokland (‘Blokland’) were jointly charged with one count of importing a commercial quantity of a border controlled drug, contrary to ss 307.1(1) and 11.2A(1) of the Criminal Code Act 1995 (Cth) (the ‘Code’). Following a trial, the jury returned unanimous verdicts of guilty with respect to both the appellant and Blokland.
The appellant appeals against his conviction on the following grounds:
1. The verdict was unsafe or unsatisfactory in that:
a.The evidence of a text exchange on 8 August 2019 is insufficient to prove beyond a reasonable doubt that the appellant entered an agreement with Blokland, before the consignment was delivered, to commit an offence of importation of a border controlled drug; and that they both intended that a border controlled drug would be imported; or
b.The appellant did not commit an act of participation in furtherance of the agreement to import a border controlled drug.
2.The trial Judge erred in his directions in relation to s 11.2A of the Code, specifically in relation to the requirement of an act of participation by the appellant.
Held, per the Court, allowing permission to appeal on Ground 1, but dismissing the appeal against conviction:
1.As to Ground 1, there was a sufficient evidentiary basis provided by the text message exchange (viewed in the context of the other circumstantial evidence against the appellant) for the jury to find the appellant entered an agreement with Blokland to import a border controlled drug; that both intended the offence to be committed; and that the drugs were imported by Blokland pursuant to the agreement.
2.As to Ground 2, s 11.2A of the Code does not require proof that the appellant committed an act of participation in the commission of the offence in furtherance of the agreement with Blokland that the offence be committed. The trial Judge correctly directed the jury about the matters which were required to be proved for the appellant to be found guilty of the offence in accordance with s 11.2A.
The trial Judge sentenced the appellant to imprisonment for 12 years and two months, with a non-parole period of eight years and eight months, commencing on 11 March 2020. The offence carried a maximum penalty of life imprisonment or a fine of $1,575,000, or both.
The appellant appeals against his sentence on the sole ground that it is manifestly excessive.
Held, per the Court, allowing permission to appeal and dismissing the appeal against sentence:
1. The sentence imposed was not manifestly excessive.
Acts Interpretation Act 1901 (Cth) s 15AB; Crimes Act 1914 (Cth) ss 4AA, 16A; Criminal Code Act 1995 (Cth) ss 11.2, 11.2A, 11.5, 307.1, 307.6; Criminal Procedure Act 1921 (SA) s 158, referred to.
Ansari v The Queen (2010) 241 CLR 299; Australian Securities Commission v Malborough Gold Mines Limited (1993) 177 CLR 485; Brennan v The King (1936) 55 CLR 253; Clarke v Tasmania (2013) 24 Tas R 384; Coughlan v The Queen (2020) 267 CLR 654; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Fleming v The Queen (1998) 197 CLR 250; Handlen v The Queen (2011) 245 CLR 282; Hilfy v The Queen [2020] SASCFC 72; Hili v The Queen (2010) 242 CLR 520; Hill v The Queen [2021] SASCA 83; Huynh v The Queen (2013) 87 ALJR 434; Inegbedion v R [2013] NSWCCA 291; Lee v The Queen (2007) 71 NSWLR 120; Likiardopoulos v The Queen (2012) 247 CLR 265; M v The Queen (1994) 181 CLR 487; Markarian v The Queen (2005) 228 CLR 357; Masri v The Queen (2015) 225 A Crim R 1; Namoa v The Queen (2021) 95 ALJR 396; Obiekwe v R [2018] NSWCCA 55; Osland v The Queen (1998) 197 CLR 316; Peters v The Queen (1998) 192 CLR 493; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Clancy [2013] SASCFC 63; R v Franze (No 2) (2013) 37 VR 101; R v JS (2007) 230 FLR 276; R v Nozuhur [2013] SASCFC 81; R v Ruzehaji [2018] SASCFC 60; Romolo v R [2018] NSWCCA 3; Stuart v The Queen (1974) 134 CLR 426; The Governor and Company of the Bank of England v Vagliano Brothers [1891] AC 107; The Queen v Baden-Clay (2016) 258 CLR 308; The Queen v Barlow (1997) 188 CLR 1; The Queen v LK (2010) 241 CLR 177; Vallance v The Queen (1961) 108 CLR 56, considered.
TARTAGLIA v THE QUEEN
[2022] SASCA 41Court of Appeal – Criminal: Livesey P, Doyle and David JJA
THE COURT:
Mr Antonio Tartaglia (the appellant) and Mr Paul Blokland (‘Blokland’) were jointly charged with one count of importing a commercial quantity of a border controlled drug, contrary to ss 307.1(1) and 11.2A(1) of the Criminal Code Act 1995 (Cth) (the ‘Code’). Following a trial, the jury returned unanimous verdicts of guilty with respect to both the appellant and Blokland.
The appellant appeals against his conviction on the following grounds:
1. The verdict was unsafe or unsatisfactory in that:
a.The evidence presented in relation to a text exchange on 8 August 2019 is insufficient to prove beyond a reasonable doubt that the appellant admitted that he had been part of an agreement, before the consignment was delivered, with Blokland to commit an offence of importation of a border controlled drug and that they both intended that a border controlled drug would be imported; or
b. The appellant did not commit an act of participation in furtherance of the agreement to import a border controlled drug; or
2. The trial Judge erred in his directions in relation to s 11.2A of the Code, specifically in relation to the requirement of an act of participation by the appellant.
Where a ground of appeal alleges that a verdict is unsafe or unsatisfactory it should be put in the language of s 158(1)(a) of the Criminal Procedure Act 1921 (SA) namely that a verdict ‘is unreasonable and cannot be supported having regard to the evidence’. The phrase ‘unsafe and unsatisfactory’ is both ‘potentially confusing’ and ‘liable to mislead’.[1]
[1] Fleming v The Queen (1998) 197 CLR 250 at [12].
Permission to appeal was granted with respect to Ground 2. The question of permission to appeal with respect to Ground 1 was referred to this Court for consideration.
The trial Judge sentenced the appellant to imprisonment for 12 years and two months, with a non-parole period of eight years and eight months, commencing on 11 March 2020. The offence carried a maximum penalty of life imprisonment or a fine of 7,500 penalty units,[2] or both. The appellant also appeals against his sentence on the sole ground that it is manifestly excessive.
[2] Pursuant to s 4AA(1) of the Crimes Act 1914 (Cth) a ‘penalty unit’ means $210. Therefore, the total maximum pecuniary penalty for an offence against s 307.1 of the Criminal Code Act 1995 (Cth) at the time of offending was $1,575,000.
The evidence at trial
The appellant and Blokland had known each other since 2014. In February 2018, Blokland became the lessee of 3 Clyde Street, Wingfield. In November 2018, Blokland took over the lease of the neighbouring property, 5 Clyde Street, Wingfield. Therefore, from November 2018, Blokland was the lessee of 3‑5 Clyde Street, Wingfield (the ‘Premises’). The properties are large iron sheds that share a common wall and a common entry from the street to a parking area.
On 30 July 2018, a consignment of four-wheel drive recovery winches was delivered to Global Trading Supplies Pty Ltd (‘Global Trading Supplies’) at 76 Hogarth Road, Elizabeth South. Between 24 October 2018 and 5 March 2019, a further 20 consignments of either roller bearings or four-wheel drive recovery winches were delivered to Global Trading Supplies at the Premises. The consignments all originated in Malaysia and arrived in Australia at Adelaide Airport by international flight.
On 18 February 2019, Blokland, his son, his son’s girlfriend, his partner, and the appellant flew to Bali. The group returned on 24 February 2019. On arrival in Australia, Blokland’s mobile telephone was viewed by Australian Border Force (‘ABF’) staff. Photographs of crystalline substances were noted to be on the telephone and it was seized.
On 28 February 2019, Sandor Machinery SDN BHN issued a commercial invoice for the purchase of 14 four-wheel drive recovery winch kits which were consigned to Global Trading Supplies at the Premises. The freight was prepaid on the consignment. The consignment was delivered into Australia on 5 March 2019. ABF officers attended Adelaide Airport and witnessed the unloading of the pallet and its transfer to a freight forwarder.
The consignment was delivered to the Premises at 1:03pm. The Premises were under Australian Federal Police surveillance. Blokland signed for the consignment and used a forklift to remove it from the delivery truck. The consignment was thereafter left untouched on the forecourt of the Premises. On the prosecution case, the appellant was also present on the Premises when the consignment was delivered.
At 4:00pm police raided the Premises. At that time, the consignment was unpacked on the forecourt. There was a tracking device on the vehicle that transported the consignment from the airport to the Premises. The consignment contained 14 sealed carboard boxes, each containing a winch. Inside each winch drum, there was a foil package containing a crystalline substance. In total, 18,110.6 grams of a crystalline substance was seized and the substance was approximately 80 per cent pure methamphetamine. There was just over 14.5 kilograms of pure methamphetamine, with a street value of between $4 and $7 million.
The appellant and Blokland were both arrested.
During a search of the warehouse at the Premises, the following items were discovered: a money counter, ‘Amput’ digital scales, a large number of zip lock bags, $10,000 in cash,[3] $1,000 cash in $100 notes located on a countertop in the office, $2,335 in cash in a wallet that contained a bank card in Blokland’s name, a consignee note for a 22 kilogram delivery addressed to Global Trading Supplies found in a chimenea, and numerous plastic pallets with similar appearances to the consignment pallet. The appellant’s DNA was found to be present on the money counter and ‘Amput’ digital scales, the latter of which also had traces of methamphetamine.
[3] During the defence case of Blokland, evidence was led that this money belonged to his son as earnings from his work as a concreter. The prosecution placed little weight on this cash in support of their case against Blokland and the appellant.
There were 328 calls and 698 text messages between the appellant and Blokland from 19 September 2018 to 1 March 2019.
Blokland participated in a record of interview with police, the appellant did not. On 13 March 2019, Blokland and the appellant were released on home detention bail. Blokland cut off his home detention bracelet on 12 June 2019. He was not apprehended until 12 August 2019. A mobile telephone was seized from Blokland upon his arrest on 12 August 2019. This phone contained the following text messages between Blokland and the appellant dated 8 August 2019 (Trial Exhibit P28) (the ‘text message exchange’):
Time From To Content 10.56am Blokland Appellant I’m selling clubsport to buy qtr 3.25pm Appellant Blokland Serious thought you give that to your son 3.26pm Blokland Appellant Swapped him the Hilux he needed ute for work 3.26pm Appellant Blokland To coop ! Had a blank moment couldn’t remember his name 3.27pm Blokland Appellant Yeah 3.28pm Appellant Blokland So I say you would make it back and more to cover the clubby 3.28pm Appellant Blokland When u get that 3.29pm Appellant Blokland Who’s you getting to handle it for you 3.30pm Blokland Appellant Johnny not willing to help 3.30pm Blokland Appellant The girl 3.31pm Blokland Appellant I have to do something bro I’m broke 3.31pm Appellant Blokland OK, well drop in then before the girl ,come see me please 3.33pm Blokland Appellant It won’t happen til next week bro 3.33pm Appellant Blokland What a mate ,did a lot for him ,and he turns his back on us ,scum bah 3.34pm Blokland Appellant Those other cunts hung us out to dry mate 3.36pm Appellant Blokland For shore , .you know the saying ,goes around ,and not shore about the rest. 4.55pm Blokland Appellant Meanwhile I pay for lawyers cause they not 5.19pm Appellant Blokland I really appriciate that ,as soon this bracelet off ,Im going to see him. 7.05pm Blokland Appellant I reckon they will drop charges on you but not me 7.47pm Appellant Blokland Well bro , where charged of import now they need to prove it ,if they can’t then we should both go free. Because not ours and got nothing to do with us, simple as that ! They can say all they want bro , 7.53pm Appellant Blokland Wasn’t address to ,you have people in and out all the time ,workers there ,you’re not there 24/7 , so if you know that there’s nothing around to implement you ,us me , then by law we should be right bro_! You know what I mean . cause where innocent party’s 7.58pm Blokland Appellant Yeah but they will. Say they have enough to go on and any judge will give them the chance to prove it especially with me 8.17pm Appellant Blokland Bro , yeah but for different reasons. And if was guilty then u wouldn’t be coming to court at all. 8.45pm Appellant Blokland Well Ive been sole searching with the man up stairs for us ,and hopefully he will be on our side ,just long we help others in need etc,etc. 9.00pm Blokland Appellant If we do get off bro we going big so it’s worth the risk bro 9.01pm Appellant Blokland All the way ,bro 9.02pm Blokland Appellant I didn’t know if you would want to do it again with me 9.05pm Appellant Blokland Bro ,Im with you all the way , I got your back if you know what I mean ? Brothers from another mother ! The Gucci Crew 9.08pm Appellant Blokland No matter what happens , didn’t we make pack 9.08pm Blokland Appellant I know this business bro but I can’t go big alone and unfortunately I can trust very few people to have my back but you are no.1 bro 9.11pm Appellant Blokland Well I Hope you meant that ? Just look what I did for us , not once but twice ,at the shop , ? 9.12pm Blokland Appellant That’s what I mean bro 9.17pm Appellant Blokland Partners all the way , we can only rely on each other to watch each others back ? Cause look at Johnny promised that they had our backs ,the crew , brothers yeah right . 16 9.23pm
Blokland
Appellant
They’ll get theirs all shit cunts do bro
The prosecution case was that the text message exchange (when considered in the context of the other circumstantial evidence against the appellant) constituted an admission by the appellant that he and Blokland entered into an agreement to import the border controlled drug, the subject of the charge, and intended that an offence would be committed under the agreement.
In his evidence at trial, Blokland denied any knowledge that the consignment contained a border controlled drug. As to the text message exchange, Blokland said that he had previously been in the business of running a brothel in which the appellant was employed as a driver. Blokland said the references in the text messages to ‘going big’ were in relation to starting up a larger, and more lucrative, brothel.
The appellant, through his counsel, disputed that the text message exchange contained any admissions by him.
The prosecution relied upon the following matters to prove the case against the appellant. First, the appellant’s close relationship with Blokland; as demonstrated by the fact that they had known each other since 2014, the large number of text messages between them during the period leading up to March 2019, and the appellant’s regular attendance at the Premises in circumstances where he had no reason to be there other than through his association with Blokland. Second, the inference that the appellant knew Blokland was previously trading in methamphetamine, as demonstrated by the appellant’s DNA on the money counter and ‘Amput’ digital scales located at the Premises (the latter of which also had traces of methamphetamine). On the prosecution case, this demonstrated sufficient trust between the appellant and Blokland for them to enter an agreement to import the border controlled drug. Third, the appellant’s presence at the Premises when the consignment was delivered. Fourth, the text message exchange (as informed by the other pieces of circumstantial evidence referred to above) in which the appellant allegedly made admissions to having entered an agreement with Blokland to commit the offence.
Summing up
The trial Judge directed the jury that the case in relation to the appellant was based upon the principle of ‘joint commission’. As to Blokland, the prosecution alleged that he had committed the physical conduct necessary to import the methamphetamine and did so with the necessary state of mind pursuant to an agreement with the appellant.
In relation to the appellant, the trial Judge directed the jury as to the matters which were required to be proved to establish his guilt pursuant to s 11.2A of the Code. The trial Judge provided the jury with a written aide-mémoire in respect of the elements of the offence which reflected his oral directions. It set out the elements of the offence (as they related to the appellant) in the following terms:
1. Mr Tartaglia entered into an agreement with Mr Blokland to commit an offence of importation of a border controlled drug (“the agreement”).
At the time of entering into the agreement, Mr Tartaglia and Mr Blokland must have both intended that:
1.1.A substance would be imported; - and -
1.2.The substance imported would be a border controlled drug.
2. After the agreement was entered into, and while it was still in existence:
2.1.Mr Blokland committed at least one act in furtherance of the agreement.
The act Mr Blokland committed must have been an act of importing – and – must have been committed knowing (or believing that there was a real or significant risk) that a substance was being imported – and – knowing it was a border controlled drug (or being reckless about that); - and -
2.2 The border control drug Mr Blokland imported was methamphetamine; - and -
2.3 The amount of methamphetamine imported was at least 750g.
The trial Judge directed the jury that the appellant could only be convicted if the jury found Blokland guilty; and that even if they were satisfied of Blokland’s guilt, it did not follow that the appellant was guilty. His Honour emphasised that the case against the appellant required separate consideration from the case against Blokland as it involved different issues.
The trial Judge explained the concept of ‘joint commission’ to the jury. As to the first element, his Honour directed the jury that the prosecution must prove beyond a reasonable doubt that the appellant entered into an agreement with Blokland to commit an offence of importation of a border controlled drug. This required the prosecution to prove that at the time of entering into the agreement, the appellant and Blokland both intended that a substance would be imported and that substance would be a border controlled drug. His Honour explained that a person intends to do something if they mean for it to happen.
The trial Judge cautioned the jury that mere knowledge of what another person is intending to do, or his presence at the time of the commission of an offence alone, are not enough to establish an agreement. The trial Judge also warned the jury to be wary of guilt by association. His Honour said that ‘[k]nowing someone, knowing even what they are doing, that is not evidence of itself of entry into an agreement to do the offence’.
The trial Judge directed the jury that proof of this first element required the jury to be satisfied that in the text message exchange on 8 August 2019, the appellant admitted that he had been part of an agreement with Blokland to commit an offence of importation of a border controlled drug. His Honour said: ‘You must construe the text message in that way beyond a reasonable doubt and, if you do not, if there is a reasonable hypothesis consistent with innocence, then you must acquit.’
Accordingly, proof of the appellant’s admission in the text message exchange was left to the jury as an indispensable link which the prosecution needed to establish beyond reasonable doubt.
The trial Judge did not direct the jury that the prosecution was required to establish that the appellant committed an act of participation in furtherance of the agreement to import a border controlled drug. No complaint as to the directions given by the trial Judge was made by counsel for the appellant during, or at the end of, the summing up. Earlier, during the voir dire, the prosecution submitted that proof of a specific act of participation by the appellant in furtherance of the agreement was not required to establish his liability pursuant to s 11.2A of the Code. No submission was made to the contrary on behalf of the appellant.
On appeal, the respondent accepted that the evidence before the jury was incapable of proving that the appellant committed an act of participation in furtherance of the agreement to import a border controlled drug.
As to Ground 1, the appellant contends that the verdict was unreasonable or cannot be supported having regard to the evidence. The first complaint in relation to this ground of appeal is as to the sufficiency of the evidence adduced to prove the agreement. For the second complaint to succeed (that is, the verdict is unreasonable or cannot be supported having regard to the lack of evidence of an act of participation by the appellant), the alleged error of law complained of in Ground 2 (as to the failure of the trial Judge to direct that an act of participation was required) must be established. If the error of law complained of in Ground 2 is not established, the second complaint in Ground 1 will necessarily fail. Accordingly, the success or failure of the second complaint in Ground 1 depends entirely upon the conclusion reached with respect to Ground 2.
For that reason, it is convenient to consider Ground 2 first.
Ground 2 – Joint commission of the offence
The appellant’s second ground of appeal complains that the trial Judge erred at law in his directions to the jury concerning the effect of s 11.2A of the Code. The appellant contends this error arose as the trial Judge did not include, as a matter which had to be proven, that the appellant committed an act of participation in the commission of the offence in furtherance of his agreement with Blokland that the offence be committed. The appellant contends that the absence of this direction resulted in a miscarriage of justice.
The statutory framework
As outlined earlier, the appellant was jointly charged with Blokland with the offence of importing a commercial quantity of a border controlled drug, contrary to ss 307.1(1) and 11.2A(1) of the Code. In proving the case against the appellant, the prosecution relied upon the extension of criminal responsibility provided for by s 11.2A of the Code. This provision extends criminal liability for a federal offence where the offence is committed in accordance with an agreement between a person and at least one other party. It provides:
11.2A Joint commission
Joint commission
(1) If:
(a)
a person and at least one other party enter into an agreement to commit an offence;
and
(b)either:
(i)an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or
(ii)an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3));
the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.
Offence committed in accordance with the agreement
(2) An offence is committed in accordance with the agreement if:
(a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and
(b) to the extent that a physical element of the joint offence consists of a result of conduct—that result arises from the conduct engaged in; and
(c) to the extent that a physical element of the joint offence consists of a circumstance—the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance.
Offence committed in the course of carrying out the agreement
(3) An offence is committed in the course of carrying out the agreement if the person is reckless about the commission of an offence (the joint offence) that another party in fact commits in the course of carrying out the agreement.
Intention to commit an offence
(4) For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement.
Agreement may be non‑verbal etc.
(5) The agreement:
(a) may consist of a non‑verbal understanding; and
(b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in.
Termination of involvement etc.
(6) A person cannot be found guilty of an offence because of the operation of this section if, before the conduct constituting any of the physical elements of the joint offence concerned was engaged in, the person:
(a) terminated his or her involvement; and
(b) took all reasonable steps to prevent that conduct from being engaged in.
Person may be found guilty even if another party not prosecuted etc.
(7) A person may be found guilty of an offence because of the operation of this section even if:
(a) another party to the agreement has not been prosecuted or has not been found guilty; or
(b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in.
Special liability provisions apply
(8) Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.
Section 11.2A does not create an offence and therefore does not contain the elements of an offence. Rather, it provides a way by which a person is taken to have committed an offence, and, the ‘epexegetical requirements’ that must be proved beyond reasonable doubt to establish an offence.[4]
[4] The Queen v LK (2010) 241 CLR 177 at [131]-[133] per Gummow, Hayne, Crennan, Kiefel and Bell JJ. Although in The Queen v LK the Court was considering s 11.5 of the Code, the terminology used to describe the additional requirements to be proved in that section is equally apt.
Importing a commercial quantity of a border controlled drug is an offence under s 307.1 of the Code. That section provides:
307.1 Importing and exporting commercial quantities of border controlled drugs or border controlled plants
(1) A person commits an offence if:
(a)the person imports or exports a substance; and
(b)the substance is a border controlled drug or border controlled plant; and
(c)the quantity imported or exported is a commercial quantity.
Penalty: Imprisonment for life or 7,500 penalty units, or both.
(2)The fault element for paragraph (1)(b) is recklessness.
(3)Absolute liability applies to paragraph (1)(c).
A person commits an offence contrary to s 307.1 of the Code if the person (i) intentionally imports a substance; (ii) the substance is a border controlled drug and the person is reckless as to that circumstance; and (iii) the quantity of the substance imported is a commercial quantity.
The respondent submits that the prosecution was obliged to prove beyond reasonable doubt the following epexegetical requirements set out in s 11.2A of the Code:
(i) that the appellant entered into an agreement with Blokland to commit the offence of importing a commercial quantity of a border controlled drug: s 11.2A(1)(a);
(ii) that the appellant and at least one other party to the agreement intended that an offence would be committed under the agreement: s 11.2A(4); and
(iii) that an offence was committed in accordance with the agreement:
s 11.2A(1)(b)(i) together with s 11.2A(2).
The respondent submits that on the facts of the present case, in establishing the appellant’s guilt in accordance with s 11.2A, the prosecution was required to establish:
1.That the appellant and Blokland entered into an agreement to commit an offence, under which each intended that: [5]
a. a substance would be imported into Australia; and
b. the substance would be a border controlled drug.
2. In accordance with that agreement:
a. between the appellant and Blokland, one or more of them performed the conduct of importing the substance; and
b. the substance imported was a border controlled drug; and
c. the quantity of the substance imported was a commercial quantity.
[5] In proof of intention, the prosecution was required to establish that the appellant and Blokland had knowledge of, or belief in, the facts that made the proposed conduct they were entering into an agreement to commit an offence: Criminal Code Act 1995 (Cth) s 11.2A(4); The Queen v LK (2010) 241 CLR 177 at [72] per French CJ, at [117] per Gummow, Hayne, Crennan, Kiefel and Bell JJ; Ansari v The Queen (2010) 241 CLR 299 at [59] per Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ.
The trial Judge directed the jury as to s 11.2A in accordance with the position advanced by the respondent.
The respondent contends that if the above matters were proved, the appellant was taken to have committed the joint offence. The respondent submits that as there is no reference in s 11.2A of the Code to an act of participation in the commission of a joint offence being a precondition for liability, the prosecution did not have to prove that the appellant committed an act of participation in the commission of the offence in furtherance of his agreement with Blokland that the offence be committed.
As outlined earlier, the prosecution case at trial was that Blokland had engaged in the conduct to import the substance, namely by agreeing to take delivery of the consignment and providing a delivery address for it and/or receiving delivery of the consignment on 5 March 2019 by signing for it and unloading it. It was alleged that this conduct was carried out in accordance with an agreement with the appellant.
The respondent concedes that the evidence before the jury was incapable of proving that the appellant committed an act of participation in furtherance of an agreement with Blokland to import the border controlled drug.
Does liability for the joint commission of an offence require proof of an act of participation by an accused in the commission of an offence?
The appellant contends that the trial Judge erred at law in his directions to the jury concerning the effect of s 11.2A of the Code by not including, as a matter which had to be proven, that the appellant committed an act of participation in the commission of the offence in furtherance of the agreement with Blokland that the offence be committed. The appellant submits that this requirement is implied in
s 11.2A of the Code because that provision is intended to be a codification of the common law principles of joint enterprise, subject to any contrary express statutory modification of the principles in s 11.2A. The appellant contends that there is no contrary expression of those principles in s 11.2A of the Code.
The appellant also relies on obiter dicta from other intermediate appellate courts which support his construction of s 11.2A of the Code.
Common law principles on joint enterprise
At common law, it is well-established that in order to prove the guilt of an accused person by reliance on the principles of joint enterprise, the prosecution must prove an act of participation by the accused in the commission of that crime. Liability attaches to all parties to an agreement who participate in some way in furthering its execution.[6]
[6] Huynh v The Queen (2013) 87 ALJR 434 at [37]-[38].
Two or more persons may be jointly criminally responsible for the commission of an offence which they tacitly or expressly agreed to commit and which was committed while that agreement was on foot. The prosecution is obliged to prove that whilst the agreement was on foot, the offender participated in the commission of the crime with those who were party to the agreement that it be committed. The existence of the common understanding or arrangement that a crime should be committed may be inferred from all the circumstances, including the commission of the offence itself or the acts of those participating in its commission.[7]
[7] Handlen v The Queen (2011) 245 CLR 282 at [4] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ citing Osland v The Queen (1998) 197 CLR 316 at [73] per McHugh J.
At common law, a person’s participation may be established by their mere presence at the time when the crime is committed.[8] More particularly, it is not necessary to prove that a person committed any or all of the relevant physical acts which are required to constitute the offence.[9] Participation can also consist of conduct which does not involve the person being present at the time of the commission of the crime. For example, participation can include giving assistance before or away from the location of the offence.[10]
[8] Huynh v The Queen (2013) 87 ALJR 434 at [38].
[9] Clarke v Tasmania (2013) 24 Tas R 384 at [135]-[136] per Estcourt J.
[10] See, eg, Likiardopoulos v The Queen (2012) 247 CLR 265 at [21] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
Interpretation of the Code
The general approach to the interpretation of a code is well-established.[11] As the High Court explained in Namoa v The Queen (‘Namoa’):[12]
A code is to be construed according to its natural meaning and without any presumption that its language was intended to do no more than restate the common law. The common law cannot be used to supply the meaning of a word used in a code except where the word has a well-established technical meaning under the pre-existing law and the code uses that word without definition, or it appears that the relevant provision in a code is ambiguous. The common law cannot be invoked in the interpretation of a code for the purpose of creating an ambiguity.
(citations omitted)
[11] The Governor and Company of the Bank of England v Vagliano Brothers [1891] AC 107 at 144–5 per Lord Herschell; Brennan v The King (1936) 55 CLR 253 at 263 per Dixon and Evatt JJ; Vallance v The Queen (1961) 108 CLR 56 at 74–6 per Windeyer J; The Queen v Barlow (1997) 188 CLR 1 at 18–9 per McHugh J, at 31–3 per Kirby J.
[12] (2021) 95 ALJR 396 at [11] per Gleeson J (with whom Kiefel CJ, Gageler, Keane, Gordon, Edelman and Steward JJ agreed).
An example of where the Court has referred to the common law meaning of a legal term used in the Code without definition is The Queen v LK (‘LK’).[13] In LK, the High Court held that the words ‘conspires’ and ‘conspiracy’ in s 11.5(1) of the Code (which are not defined in s 11.5) are fixed by their common law meaning, subject to express statutory modification. However, in Namoa, the High Court held that the proper interpretation of s 11.5(1) is not affected by any common law rule that spouses alone cannot conspire, and that on the clear language of the Code, a husband and a wife are each a ‘person’ within the meaning of s 11.5(1) of the Code and can be found guilty of conspiring with each other pursuant to
s 11.5(1) of the Code.
[13] (2010) 241 CLR 177.
When interpreting a code, all the orthodox principles of statutory interpretation are applicable. The Court must give effect to the text, context and evident purpose of the section. The language of s 11.2A of the Code must be given its plain and ordinary meaning construed in its context in the first instance,[14] and not merely after some ambiguity is discerned in its words.
Consideration of s 11.2A
[14] Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69] per McHugh, Gummow, Kirby and Hayne JJ.
The insertion of s 11.2A in the Code provides for criminal responsibility in circumstances involving the ‘joint commission’ of a substantive offence. Prior to the insertion of s 11.2A, the common law doctrine of joint enterprise had no analogue in the Code.[15] Complicity under the Code was limited to the equivalent of common law aiding and abetting (s 11.2) or conspiracy (s 11.5).
[15] Handlenv The Queen (2011) 245 CLR 282 at [1], [5]-[6] and [39] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
As explained in Namoa, a code, and accordingly, s 11.2A of the Code, should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the common law.[16] Further, a federal offence to which the Code applies should, by reason of the nature of the Code, be approached on the basis that it comprehensively states each of the elements of a criminal offence,[17] and by analogy, the epexegetical requirements that must be proved beyond reasonable doubt in proof of an offence. That is the central purpose of adopting a code.
[16] Brennan v The King (1936) 55 CLR 253 at 263 per Dixon and Evatt JJ.
[17] R v JS (2007) 230 FLR 276 at [129] per Spigelman CJ (with whom McClellan CJ at CL, Hidden and Howie JJ agreed).
The provision in s 11.2A has been variously described as ‘[e]ssentially’ a ‘statutory adoption of the common law doctrine of joint criminal enterprise’[18] and ‘a codification (with some differences) of the common law relating to what is described as a joint criminal enterprise’.[19]
[18] Masri v The Queen (2015) 225 A Crim R 1 at [1] per Simpson J (with whom RA Hulme and Bellew JJ agreed) cited in Romolo v R [2018] NSWCCA 3 at [51] per Fullerton J (with whom Button J agreed).
[19] R v Franze (No 2) (2013) 37 VR 101 at [20] per Kaye J.
There are obvious differences between the common law on joint enterprise and joint commission under s 11.2A of the Code. One such difference is that there is no reference in s 11.2A to the term ‘joint criminal enterprise’ or any of its common law synonyms. Rather, the section speaks in terms of the ‘joint commission’ of an offence and an agreement to commit a ‘joint offence’.
Further, the requirement found in s 11.2A(4) of the Code that a person and at least one other party to the agreement must have intended that an offence would be committed under the agreement is subject to the operation of s 11.2A(8). Section 11.2A(8) contains a special liability provision for the substantive offence. There is no equivalent rule at common law.
There is no presumption that the insertion of s 11.2A was intended to do no more than restate the common law and, in our view, it is not evident from its text that the legislature intended to do no more than incorporate common law principles on joint enterprise. Given the differences between s 11.2A of the Code and the common law on joint enterprise, s 11.2A cannot be construed as simply a restatement of the common law on joint enterprise.
Further, the language used in s 11.2A is clear and unambiguous. The wording of ss 11.2A(1) and (2)(a) provides that where at least two persons enter an agreement to commit an offence, intending that that offence be committed, and an offence is committed through the conduct of one or more parties in the requisite circumstances, all parties to the agreement are taken to have committed the offence. As there can plainly be agreements involving only two parties, the reference to the conduct of only one party being sufficient expressly excludes the requirement for all parties to have engaged in an act of participation that constitutes a physical element of the offence.
The appellant is clearly correct in his submission that ss 11.2A(1) and (2)(a) do not expressly exclude the requirement of an act of participation. Rather, it is silent on the common law requirement that there be an act of participation in the commission of a joint offence. At common law, an offender can participate in the commission of an offence in ways other than by committing ‘the physical elements consisting of conduct of an offence’. For example, by providing assistance before, or away from, the location of an offence.
However, it remains that there is no presumption that s 11.2A is simply a restatement of the common law. There is nothing in the text of the provision to support that construction. There is no basis to have recourse to the common law on joint enterprise when interpreting s 11.2A. There is no need to give a fixed meaning to a technical legal term not defined in the Code, nor do the requirements in s 11.2A involve any patent ambiguity.[20] If the legislature had intended that the prosecution was required to prove an act of participation in proof of the requirements of the joint commission of an offence, it could easily have said so. There is no foundation in the language of s 11.2A to read in the requirement of an act of participation in the commission of a joint offence as a precondition for joint commission liability under the Code.
[20] Stuart v The Queen (1974) 134 CLR 426 at 437 per Gibbs J; See, eg, Lee v The Queen (2007) 71 NSWLR 120 at [19]-[26] per Spigelman CJ (with whom Bell, Howie and Buddin JJ agreed).
We are fortified in our construction of s 11.2A after considering the conspiracy provisions in the Code. The offence of conspiracy to commit an offence is created by s 11.5(1) of the Code, which imports the common law concept of conspiracy. At common law, the offence of conspiracy is defined by reference to the agreement as the actus reus and the intention to do an unlawful act pursuant to the agreement is defined as the mens rea.[21] In s 11.5(2) of the Code, there are epexegetical requirements that must be proved beyond reasonable doubt rather than elements of an offence.[22] Pursuant to s 11.5(2)(c), those requirements include that ‘the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement’. As French CJ explained in LK:[23]
Moreover, the commission of an overt act was never an element of the offence of conspiracy at common law. It was a basis from which the criminal agreement could be inferred. Here it is included, in effect, as a screening device to exclude from “the attention of the criminal law” conspiracies not manifested by any implementing conduct.
(citations omitted)
[21] See Peters v The Queen (1998) 192 CLR 493 at [55] per McHugh J.
[22] The Queen v LK (2010) 241 CLR 177 at [133]-[135] per Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[23] The Queen v LK (2010) 241 CLR 177 at [57].
In s 11.5(2)(c) of the Code, the legislature expressly stated a requirement that the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement. Had the legislature intended that there be a similar requirement in s 11.2A of the Code that a person commit an act of participation in furtherance of an agreement, it could have achieved this by inserting an express provision to that effect. Given there is no presumption that the language of s 11.2A was intended to do no more than restate the common law, and there is nothing on the face of the provision to indicate that this was the legislature’s intention, we are of the view that any requirement of participation would need to be express and clear on the face of the provision.
Extrinsic reading materials
The appellant sought to rely on extrinsic materials in support of his construction of s 11.2A of the Code. Pursuant to s 15AB of the Acts Interpretation Act 1901 (Cth), a court may have regard to extrinsic material, including a second reading speech,[24] to interpret a provision of an Act. However, a court is only permitted to have regard to extrinsic material to either: confirm that the meaning of a provision is the ordinary meaning conveyed by the text of the provision in light of its context in the Act and the purpose or object underlying the Act; or determine the meaning of a provision, if the provision is ambiguous or obscure or if the ordinary meaning of the text of the provision leads to a result that is manifestly absurd or unreasonable.[25]
[24] Acts Interpretation Act 1901 (Cth) s 15AB(2)(f).
[25] Acts Interpretation Act 1901 (Cth) s 15AB(1)(b).
In this matter, the relevant extrinsic materials include the second reading speech of the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 (Cth).[26] The appellant submits that this material supports the contention that the legislature intended to ‘build on’ the common law in the joint commission provision in s 11.2A of the Code. In the second reading speech, the Attorney‑General said:[27]
[26] Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2009, 6964–9 (Robert McClelland, Attorney-General).
[27] Commonwealth, Parliamentary Debates, House of Representatives, 24 June 2009, 6967–8 (Robert McClelland, Attorney-General).
3. Joint commission
In terms of the undertaking of offences by way of a joint commission of offence with others, the bill introduces a new joint commission provision which is targeted at offenders who commit crimes in organised groups, and hence the relevance to serious and organised crime. This provision builds upon the common law principle of ‘joint criminal enterprise’.
If a group of two or more offenders agree to commit an offence together, the effect of joint commission is that responsibility for criminal activity engaged in under the agreement by one member of the group is extended to all other members of the group.
Joint commission targets members of organised groups who divide criminal activity between them. If, for example, three offenders agree to import heroin into Australia and two of the offenders each bring in 750 grams of heroin, all three offenders can be charged with importing a commercial quantity under the joint enterprise provisions.
As is clear, the legislature intended the provision to ‘build upon’ the common law principle of joint criminal enterprise, rather than merely restate it. Further, the example provided in the passage (albeit in the briefest of terms) involves three persons to an agreement where only two persons performed the conduct that completed the offence. In the example there is no reference to the third person having committed any act of participation in furtherance of the offence.
It cannot be said that the second reading speech supports the appellant’s construction of s 11.2A of the Code.
Other cases
The appellant also relied on the authorities of Romolo v R (‘Romolo’)[28] and R v Franze (No 2) (‘Franze’)[29] in support of his construction of s 11.2A of the Code.
[28] [2018] NSWCCA 3.
[29] (2013) 37 VR 101.
In Romolo, Fullerton J (with whom Button J agreed) agreed with the appellant’s construction of s 11.2A. Her Honour said:[30]
The essential features of an offender’s liability in a joint enterprise to commit a criminal offence at common law (as with the essential elements for joint liability under ss 11.2A(1), (2) and (4) of the Criminal Code) are the making of an agreement (whether it be tacit or express) by two or more people that they will commit a crime. Accordingly, proof of the existence of an agreement or arrangement is essential to proof of an offender’s liability in a joint criminal enterprise to commit a crime. In addition, while the agreement is on foot, the Crown is obliged to prove an offender’s participation in the commission of that crime with those who were party to the agreement that it be committed. The existence of the common understanding or arrangement that a crime should be committed, and the time the agreement was reached, may be inferred from all the circumstances, including the commission of the offence itself or the acts of those participating in its commission.
(emphasis added)
[30] [2018] NSWCCA 3 at [52].
In Romolo, the appeal was allowed on the basis that the Court determined that the evidence adduced at trial could not prove the existence of an agreement between the appellant and an alleged co-offender to commit the offence. Justice Fullerton’s remarks that the common law requirement of an act of participation was required to be proved were made as obiter dicta. It appears that the issue was not raised for consideration, nor did the Court have the benefit of any submissions on it.
The appellant’s construction of s 11.2A was also applied ‘as a matter of prudence’ by Kaye J in a ruling during the course of a trial in Franze.[31] Ultimately, his Honour determined that he did not need to decide the issue as to whether an act of participation must be proved.
[31] (2013) 37 VR 101 at [20].
In Franze, the prosecution agreed, for pragmatic reasons, to the jury being directed on the basis that an act of participation by each accused had to be proved in order for them to be found guilty on the basis of joint commission. The prosecution intended to prove the existence of the relevant agreement by proving acts of the accused which it alleged constituted participation by him in the commission of the offence. For that reason, Kaye J determined that he did not have to resolve the issue.
The Court was also referred to Inegbedion v R (‘Inegbedion’).[32]This was an appeal against a conviction for the offence of attempting to possess a marketable quantity of an unlawfully imported substance, contrary to s 307.6(1) of the Code; s 11.2A was not charged or relied upon. Justice Rothman (with whom Hoeben CJ at CL and McCallum J agreed) granted leave to appeal on the basis that the directions on attempt disclosed error. The Court applied the proviso and dismissed the appeal. Having already determined the outcome of the appeal, Rothman J in obiter dicta said that if the prosecution had relied upon joint enterprise, it would have required proof of participation by the accused in the agreement.[33] The question of whether s 11.2A requires proof of an act of participation was not an issue on appeal and does not appear to have been the subject of any submissions by the parties. Justice Rothman did not undertake any analysis of the Code before making that observation.
[32] [2013] NSWCCA 291.
[33] Inegbedion v R [2013] NSWCCA 291 at [52].
In this Court, directions given by a trial judge in relation to s 11.2A of the Code were considered in R v Ruzehaji.[34] However, that case did not raise an issue as to whether an act of participation had been proved and the Court was not required to decide whether s 11.2A requires proof of any such act.
[34] [2018] SASCFC 60.
The construction of s 11.2A was also considered in Hill v The Queen (‘Hill’).[35] That case involved two accused charged with deception offences. The appeal was allowed on a basis which is of no relevance to this appeal. However, the Court in Hill observed that ss 11.2A(1)(a), (b)(i) and (2) of the Code provide an analogue under the Code of joint enterprise at common law, although the requirements of joint enterprise at common law and joint commission under the Code are not necessarily the same.[36]
[35] [2021] SASCA 83.
[36] [2021] SASCA 83 at [86] per Kelly P, Livesey JA and Blue AJA.
In the case of uniform national legislation, an intermediate appellate court ‘should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong’.[37] This principle applies to obiter dicta.[38] In Farah Constructions Pty Ltd v Say-Dee Pty Ltd, the High Court reiterated this principle and said that the New South Wales Court of Appeal should not have departed from ‘seriously considered’ dicta of the High Court.[39]
[37] Australian Securities Commission v Malborough Gold Mines Limited (1993) 177 CLR 485 at 492 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ.
[38] Australian Securities Commission v Malborough Gold Mines Limited (1993) 177 CLR 485 at 492 per Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ.
[39] Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [134] per Gleeson CJ, Gummow, Callinan, Heydon and Crennan JJ.
It appears that the obiter dicta in Romolo and Inegbedion that
s 11.2A requires an act of participation to be proved was said in the absence of any submissions on the issue and without any analysis of that provision within the Code.It is questionable whether in those circumstances the principle in Australian Securities Commission v Malborough Gold Mines Limited applies. To the extent that it does, for the reasons outlined earlier, we are satisfied that obiter dicta were plainly wrong.
We are satisfied that s 11.2A of the Code does not require proof that the appellant committed an act of participation in the commission of the offence in furtherance of the agreement with Blokland that the offence be committed. The trial Judge correctly directed the jury about the matters which were required to be proved for the appellant to be found guilty of the offence in accordance with
s 11.2A. There was no error of law.
We dismiss this ground of appeal.
Ground 1 – Unsafe or unsatisfactory
Where a ground of appeal alleges that a verdict is unsafe and unsatisfactory, or in the language of s 158(1)(a) of the Criminal Procedure Act1921 (SA), a verdict ‘is unreasonable and cannot be supported having regard to the evidence’, the test for the appellate court is whether it thinks, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.[40] As the High Court said in Coughlan v The Queen:[41]
An assessment of the sufficiency of the evidence to support the verdict of guilt in a circumstantial case such as this one requires the appellate court to weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that guilt has been proved to the criminal standard. That inference will not be open if the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.
(citation omitted)
[40] M v The Queen (1994) 181 CLR 487 at 493 per Mason CJ, Deane, Dawson and Toohey JJ, at 501–2 per Brennan J.
[41] (2020) 267 CLR 654 at [55] per Kiefel CJ, Bell, Gageler, Keane and Edelman JJ.
In making its assessment of the evidence, the appeal court must take into account the advantage the jury had in seeing and hearing the witnesses and must pay full regard to those considerations.[42] The appellant submits that in this case, the relevant evidence consisted of text messages and telephone records, with some observations by witnesses, so that the usual advantage of the Court at first instance is of less significance.
[42] M v The Queen (1994) 181 CLR 487 at 493–4 per Mason CJ, Deane, Dawson and Toohey JJ, at 502 per Brennan J.
The appellant submits that the prosecution case against the appellant was put to the jury in the following terms:
1.The appellant was present at the warehouse at the time of the delivery (as evidenced by the observations of surveillance officers);
2. The appellant had been seen at the warehouse regularly;
3.The appellant was present at the warehouse when Blokland was handling drugs; and
4.A text message conversation between the appellant and Blokland five months after the delivery showed that an agreement had existed between them to import the border controlled drug.
The appellant submits that the assertion by the prosecutor that the appellant was on the Premises when the consignment was delivered was attended by doubt. The appellant contends that the telephone interception material and the evidence of the surveillance officer left open the reasonable possibility that the appellant did not arrive at the Premises until after the consignment was delivered.
Further, the appellant submits that the evidence that he attended the Premises established nothing more than that he came and went to and from the Premises as an associate of Blokland. The appellant contends that he was not seen to do anything in particular at the Premises. Further, the Premises did not belong to the appellant, nor was he a party to either lease. The appellant submits that the evidence merely suggested that he visited the Premises as a friend of Blokland. There was no evidence that the appellant had any authority to accept deliveries to the Premises or do anything in relation to any delivery.
It was not in dispute that the appellant’s DNA was found on a set of scales and a money counter at the Premises and that the scales had traces of methamphetamine on them. While the appellant conceded that this evidence tended to suggest he knew of Blokland’s involvement with drugs, the appellant submitted that in the absence of evidence that the consignment was to be handled or unpacked at the Premises, this evidence went no further than suggesting that the appellant used methamphetamine. The appellant submits that this evidence could not found an inference that he had agreed with Blokland to import a large quantity of the drug.
The appellant submits that the text message exchange on 8 August 2019 is open to many different interpretations and, for that reason, there is insufficient evidence to enable an inference to be drawn beyond reasonable doubt that it was about the importation. The appellant contends that it is reasonably possible that the conversation was about dealing in drugs rather than importing them. The appellant also contends that it is reasonably possible that the conversation demonstrates that the appellant was genuinely unaware of Blokland’s involvement, as evidenced by his text message to the effect that there was nothing to implicate them in the offending.
The appellant submits that despite six months of telephone intercepts, which included the days and weeks leading up to the importation, the prosecution could produce no other evidence to establish that the appellant had formed an agreement with Blokland to import the border controlled drug.
The appellant submits that, at its highest, the prosecution evidence established the possibility that the appellant knew about Blokland’s involvement in the importation.
For the abovementioned reasons, the appellant submits that it was not open to the jury on the whole of the evidence to be satisfied beyond reasonable doubt that there was an agreement between Blokland and the appellant to import the border controlled drug. Therefore, the appellant submits it was not open to the jury to be satisfied of the appellant’s guilt beyond reasonable doubt. The appellant contends that the verdict of guilty should be set aside and a verdict of acquittal entered.
The evidence presented by the prosecution at trial was largely unchallenged. Rather, at trial, counsel for the appellant took issue with the incriminating inferences the prosecution sought to draw from the evidence. As outlined earlier, the trial Judge directed the jury that they could only find the appellant guilty if they were satisfied beyond reasonable doubt of Blokland’s guilt. The appellant makes no complaint about the jury’s finding, by its verdict, that Blokland committed the charge of importing a commercial quantity of a border controlled drug.
The prosecution case against Blokland
The prosecution case against Blokland was that he alone committed the physical acts constituting the offence by providing the address where the consignment was to be delivered and by taking delivery of the consignment containing the drugs in accordance with an agreement with the appellant. There were surveillance photographs depicting Blokland unloading the consignment delivery at the Premises using a forklift (Trial Exhibit P6).
There was considerable evidence to support the jury’s finding that at the time of committing the physical conduct, Blokland knew the substance was a border controlled drug, or, was at least reckless as to that fact. This included:
·evidence that he had been engaged in methamphetamine trading prior to 5 March 2019;
·the lack of any legitimate ongoing business with sufficient income to pay the leases for the Premises and provide an income to Blokland;
·a call shortly after the consignment was delivered in which Blokland says he cannot leave the warehouse before 5pm;
·a call made on the same day, but after the consignment was delivered, in which Blokland gave his son and partner a refund from airline tickets and referred to the refund as ‘[i]t’s a drop, son, believe me’;[43]
·previous similar shipments from the same consignor in Malaysia that were delivered to the Wingfield warehouse with an increase in the frequency of the deliveries after Blokland leased 5 Clyde Street; and
·the gate in front of the warehouse being locked after delivery of the consignment when it was generally left open.
[43] Trial Exhibit P27.
As outlined earlier, Blokland gave evidence in his defence at trial. He spoke of a person named Mr Le, whom he said had rented a small amount of space in the warehouse for $1,000 per month and who, from time to time, would have items delivered and later retrieved. Blokland said that he would not ask what was being delivered. He said he assumed the consignment containing the drugs the subject of the charge was another of Mr Le’s shipments. The jury clearly rejected Blokland’s evidence in respect of Mr Le by returning a verdict of guilty, and there was no submission to this Court that the jury was not entitled to do so on the evidence at trial.
The prosecution case against the appellant
Once the jury were satisfied that Blokland had engaged in the conduct necessary to constitute the physical elements of the offence, the jury needed to be satisfied of the following matters to convict the appellant of the offence:
1. The appellant was party to an agreement with Blokland to import a border controlled drug and at the time of entering the agreement (which must have occurred before Blokland received delivery of the consignment at the warehouse), the appellant and Blokland both intended that a border controlled drug would be imported;
2.The conduct Blokland had engaged in to import the substance had been done in accordance with the agreement;
3. The border controlled drug was methamphetamine; and
4. The amount of methamphetamine imported was at least 750 grams.
At trial, the issues in dispute related to whether the prosecution had established that the appellant was party to an agreement with Blokland to import a border controlled drug and, at the time of entering the agreement, the appellant and Blokland both intended that a border controlled drug would be imported. This is the basis upon which it is contended that the conviction is unreasonable.
In proof of these elements of the offence, the prosecution relied on the following evidence:
·The appellant’s relationship with Blokland (as shown by the amount of time the appellant spent at the warehouse and the number of calls and text messages between the appellant and Blokland in the months leading up to the delivery of the consignment);
·The appellant’s knowledge of Blokland’s prior methamphetamine trading, as shown by his DNA on the cash counting machine and set of digital scales, the latter of which also had traces of methamphetamine on them;
·The appellant’s presence at the warehouse when the consignment was delivered (although there was evidence which militated him having been there at the time); and
·The text message exchange between the appellant and Blokland on 8 August 2019 when both the appellant and Blokland were jointly charged with the offence.
As discussed earlier, the crucial piece of evidence to prove the case against the appellant was the text message exchange. The trial Judge directed the jury that they needed to be satisfied beyond reasonable doubt that the appellant admitted in the text message exchange that he was party to an agreement with Blokland to import a border controlled drug to find the appellant guilty of the offence.
On appeal, the respondent conceded that the text message exchange itself could not found a conviction, but asserted that when considered in conjunction with the other pieces of circumstantial evidence, it was capable of establishing the appellant’s guilt.
It is therefore necessary to carefully consider the text message exchange. In the early messages in the text message exchange, Blokland wrote of other people letting the two of them down: ‘Those other cunts hung us out to dry mate’. Blokland then goes on to say that he has to pay for lawyers ‘cause they not’. At 7.05pm, Blokland says that he thinks that the charges against the appellant will be dropped, but not against him. The reference to the ‘charges’ could only mean the joint charge against both men then before the Court. In the text messages from 7.47pm to 8.45pm, the appellant and Blokland continue to discuss the charge.
In the context of discussing the joint charge, and following on from their earlier text exchanges, the appellant and Blokland then have the following conversation from 9pm:
9.00pm Blokland Appellant If we do get off bro we going big so it’s worth the risk bro 9.01pm Appellant Blokland All the way ,bro 9.02pm Blokland Appellant I didn’t know if you would want to do it again with me 9.05pm Appellant Blokland Bro ,Im with you all the way , I got your back if you know what I mean ? Brothers from another mother ! The Gucci Crew 9.08pm Appellant Blokland No matter what happens , didn’t we make pack 9.08pm Blokland Appellant I know this business bro but I can’t go big alone and unfortunately I can trust very few people to have my back but you are no.1 bro 9.11pm Appellant Blokland Well I Hope you meant that ? Just look what I did for us , not once but twice ,at the shop , ? 9.12pm Blokland Appellant That’s what I mean bro 9.17pm Appellant Blokland Partners all the way , we can only rely on each other to watch each others back ? Cause look at Johnny promised that they had our backs ,the crew , brothers yeah right . 9.23pm Blokland Appellant They’ll get theirs all shit cunts do bro
The term ‘get off’ plainly refers to being found not guilty of the charges. There is then a reference to ‘going big’, which in the context of the reference to the charges and it being ‘worth the risk’, was open to be construed as a reference to the possibility of them engaging in similar conduct in the future. The appellant confirms his willingness the next minute by answering ‘[a]ll the way ,bro’. A minute later Blokland texts, ‘I didn’t know if you would want to do it again with me’. It was open for the jury to conclude ‘it’ referred to the subject of the import charge and ‘again’ was a reference to the fact the two men had worked together before. The appellant responded, ‘[n]o matter what happens , didn’t we make pack’, or pact. Given this message follows from a discussion about a charge that the appellant and Blokland were facing at that time (the import offence), it was open to the jury to infer that the appellant’s comments were a reference and admission to a prior agreement between the two men to import the controlled drugs the subject of the charge. In reaching that conclusion, it was also open to the jury to consider other evidence which supported that finding, including that: Blokland was knowingly engaged in conduct in connection with the importation of the consignment; and the close and trusting relationship between the appellant and Blokland.
At trial, Blokland gave evidence about the text message exchange. He said that he and the appellant were in fact discussing a brothel business they were involved in together. Blokland said that the appellant had worked as a driver for him in connection with the brothel. When he wrote that he didn’t know if the appellant would want to do it again with him, he said it was in relation to them being in business together with another brothel. He said the persons he referred to as having ‘hung us out to dry’ were the prostitutes and perhaps Mr Le. The ‘risk’ referred to was in relation to setting up a larger and more lucrative brothel and ‘bikies’. Counsel for the appellant did not challenge these assertions in his cross‑examination of Blokland. In his closing address, counsel for the appellant also submitted that the text message exchange was about brothels, not a drug importation.
At the hearing of this appeal, counsel for the appellant advanced another possible interpretation of the text message exchange. It was submitted that it is reasonably possible that the text message exchange is about dealing in drugs rather than importing them. By way of background, on the voir dire, the appellant challenged the admissibility of evidence that the appellant’s DNA was located on the cash counter and digital scales. The trial Judge originally decided the evidence was admissible to prove the appellant’s previous involvement in trading in methamphetamine. His Honour later changed his mind and ultimately left the evidence to the jury to show the appellant knew of Blokland’s trading in drugs, which was relevant to the closeness of their relationship and the level of trust between them. This was in turn relevant to the question of whether the prosecution had proved the agreement between the appellant and Blokland.
It can be seen that the appellant made an understandable forensic decision at trial to not put evidence before the jury that pointed to him being involved in the trading of drugs. Consequently, that argument advanced on appeal as to an alternative innocent explanation for the text message exchange was not the subject of submissions to the jury by counsel or directions by the trial Judge. Whilst not fatal to the success of this argument on appeal, it must be assessed by this Court having regard to how the appellant conducted his case at trial.[44]
[44] The Queen v Baden-Clay (2016) 258 CLR 308 at [48], [53] and [63] per French CJ, Kiefel, Bell, Keane and Gordon JJ.
In any event, we consider a jury would inevitably have rejected this ‘innocent’ explanation. The admissions in the text message exchange were made by the appellant following a discussion about the charge he and Blokland were facing. They plainly related to the import charge. Taking into account the alternative hypothesis raised by the appellant for the first time on appeal, we nonetheless consider it was open to the jury to be satisfied beyond reasonable doubt that the text message exchange constituted an admission by the appellant that he had been party to an agreement with Blokland to import a border controlled drug. Further, it was open to the jury to find that the drugs were imported by Blokland pursuant to the agreement with the appellant.
We have undertaken the task of making our own independent assessment of the evidence in accordance with the principles in M v The Queen.[45] For the reasons outlined above, we are satisfied there was a sufficient evidentiary basis provided by the text message exchange (viewed in the context of the other circumstantial evidence against the appellant) for the jury to find the appellant entered an agreement with Blokland to import a border controlled drug; that both intended the offence to be committed; and that the drugs were imported by Blokland pursuant to the agreement. The other elements of the offence were not in dispute and plainly proved on the evidence. Our independent review of the evidence has not caused us any doubt as to the appellant’s guilt.
[45] (1994) 181 CLR 487.
As the error of law complained of in Ground 2 is not established, the second complaint in Ground 1 is also not established.
We dismiss the appeal against conviction.
Appeal against sentence – Manifest excess
The question of whether or not a sentence is manifestly excessive is to be determined by asking whether, after considering all the circumstances relevant to sentence, and notwithstanding that no specific error of reasoning may be apparent, the sentence imposed was unreasonable or plainly unjust.[46] This Court will only intervene if the sentence is outside the permissible range of sentences for the offender and the offence. It is not sufficient for the Court to determine that it would have imposed a lesser sentence.
[46] Hilfy v The Queen [2020] SASCFC 72 at [36]-[37] per Nicholson J (with whom Peek and Stanley JJ agreed); Markarian v The Queen (2005) 228 CLR 357 at [25] per Gleeson CJ, Gummow, Hayne and Callinan JJ.
In sentencing the appellant, the trial Judge commenced with a notional starting point for the head sentence of 12 years and six months, and nine years for the non-parole period. His Honour then reduced both the head sentence and non‑parole period by a total of four months for time served in custody and on home detention bail. This resulted in a head sentence of 12 years and two months, with a non-parole period of eight years and eight months, commencing on 11 March 2020.
In sentencing the appellant’s co-offender, Blokland, the trial Judge adopted the same notional starting points as with the appellant. It was not a ground of appeal that the trial Judge erred in so doing, but in any event, we have considered whether adopting the same notional starting point for the appellant and Blokland rendered the appellant’s sentence manifestly excessive.
In considering whether or not to adopt the same starting point for the appellant as Blokland, the trial Judge acknowledged that there was no evidence of the appellant having committed any act of participation in the commission of the offence. Whereas Blokland leased the Premises (the delivery point for the consignment) and took delivery of the consignment. His Honour also said that he could not make any finding as to whether Blokland approached the appellant to become a party to the agreement, or vice versa. The trial Judge decided to commence with the same notional sentence in relation to each offender. As to the appellant, his Honour said:
However, you were part of the same agreement. There is nothing in your personal circumstances that warrants any distinction. I have come to the view that the starting points for your head sentence and non-parole period should be the same as for Mr Blokland.
The trial Judge found that both the appellant and Blokland were poor candidates for leniency given their significant criminal antecedents. The appellant was 48 years old at the time of sentence. He had prior convictions for transporting cannabis in New South Wales, armed robbery in the Northern Territory, and numerous other less serious offences in South Australia and Queensland.
The appellant complains that the sentence is manifestly excessive having regard to the trial Judge’s findings that:
·the appellant and Blokland did not have overall responsibility for the importation as it was possible others were to collect the consignment and unpack it elsewhere;
·the appellant may not have known every detail of how the operation was conducted and indeed, may not have known exactly how much methamphetamine was in the consignment;
·the reward to be received by the appellant was unclear, except to say that it would not have been trifling; and
·there was an absence of evidence of the appellant’s role in the importation beyond entering the agreement with Blokland.
The appellant also complains as to the reliance placed by the trial Judge on the sentencing decision of Obiekwe v R (‘Obiekwe’).[47]The appellant emphasises that in Obiekwe, the offender was described as a ‘central person’ in an importation which involved 17.43 kilograms of methamphetamine.[48] Yet, in Obiekwe, the applicant was sentenced to a comparable head sentence of 12 years, with a lower non-parole period of seven years. It is to be immediately noted that the offender in Obiekwe pleaded guilty to the offence and had no prior convictions.
[47] [2018] NSWCCA 55.
[48] [2018] NSWCCA 55 at [35] per Payne JA (with whom Johnson and Campbell JJ agreed).
Sentencing remarks
The trial Judge sentenced the appellant and Blokland on the following factual basis consistent with the evidence adduced at trial. In late February 2019, 14 four‑wheel drive winch kits were consigned to Global Trading Supplies at the Premises. The consignment arrived at Adelaide Airport on the morning of 5 March 2019. The same day, the consignment was delivered by a transport company to the Premises. At about 1pm, Blokland unloaded the consignment, placed it just inside the gates, and locked them. At about 4pm, the police attended at the Premises. The consignment was in the same position as it had been left by Blokland. Within the consignment were 14 boxes, each containing an inoperable winch. Within the body of each winch was methamphetamine. There was over 14.5 kilograms of methamphetamine, with a street value of between about $4 and $7 million.
The trial Judge made no finding as to whether the appellant was present at the time the consignment was delivered at the Premises. His Honour considered it to be immaterial to sentence.
The trial Judge found that both the appellant and Blokland knew that the importation involved an amount of methamphetamine that was substantial and valuable. Further, his Honour was satisfied they both knew that a location for safe delivery of the consignment was a crucial aspect of the importation. The trial Judge found that Blokland agreed for the Premises to be used for the delivery and then took delivery of the consignment.
Consistent with the jury’s verdict, his Honour found that the appellant entered into the agreement with Blokland to import the methamphetamine before the consignment arrived in Adelaide. His Honour found, as a matter of inference, that the appellant and Blokland would both receive a financial reward and it was not going to be trifling.
The trial Judge referred to the lengthy criminal history of both Blokland and the appellant. As to the appellant, his Honour said that because of his poor criminal history, he was not a candidate for leniency and personal deterrence was of particular importance in sentencing. His Honour also considered the appellant’s prospects of rehabilitation to be poor.
Consideration
The conviction of the appellant by operation of s 11.2A of the Code meant that in accordance with s 11.2A(1), both the appellant and Blokland were to be sentenced for the conduct completed between them (that is, by Blokland) pursuant to their agreement to import methamphetamine. Both were liable to be punished for the conduct of Blokland that established the physical elements of the offence.
It follows that it was not necessary for the trial Judge to make any finding as to whether the appellant committed an act of participation in the commission of the offence as regardless, he was equally liable for the physical conduct committed by Blokland. The gravamen of the appellant’s offending was entering an agreement with Blokland to import a border controlled drug and intending that it be imported. Once the jury were so satisfied, the appellant was liable for the conduct of Blokland, which constituted the physical elements of the offence, and was to be punished accordingly.
The trial Judge was also correct in finding there was little to distinguish their personal circumstances. Both the appellant and Blokland had significant criminal antecedents and had previously served sentences of imprisonment yet were not deterred from reoffending. Whilst Blokland was found to have had previously been involved in uncharged drug trading, this did little to differentiate their personal circumstances in the context of the appellant’s antecedents. It is also to be noted that the trial Judge sentenced both the appellant and Blokland on the basis the offending was isolated and without having regard to any involvement by either offender in importing prior consignments.
For those reasons, we consider there was a sound basis for the trial Judge adopting the same notional head sentence and non-parole period for the appellant and Blokland. In doing so, the trial Judge did not impose a sentence upon the appellant that was manifestly excessive.
As to the more general submission that the sentence was manifestly excessive, pursuant to s 16A(1) of the Crimes Act 1914 (Cth), the trial Judge was required to impose a sentence of an appropriate severity in all the circumstances of the offending. As acknowledged by the trial Judge, the offence committed by the appellant and Blokland was a serious example of an offence of its type. There was a vast amount of methamphetamine concealed in the consignment with a street value of between $4 and $7 million. Further, it was a sophisticated and intricately planned operation. The provision of an address and taking delivery of the consignment were integral parts of that operation. Methamphetamine is a drug which causes considerable harm in the community. Principles of both general deterrence and the need for protection of the community from such a harmful drug needed to be properly reflected in the sentence.
There was very little which could be said on behalf of the appellant in mitigation of the offending. He had significant antecedents and had reoffended relatively shortly after being released on parole (albeit not in breach of parole). Personal deterrence clearly had a significant role to play in the context of his criminal antecedents. He had poor prospects of rehabilitation, and again, there was not much which could be positively put on the appellant’s behalf. There was limited scope for leniency.
The respondent tendered a schedule of comparative sentences for offences against s 307.1(1) of the Code. The schedule contains decisions of intermediate courts of appeal. National consistency is an important consideration in sentencing federal offenders.[49] As submitted by the respondent, past sentences can provide guidance as to the identification and application of relevant sentencing principles and stand as a yardstick against which to examine a sentence, in order to ensure sentencing courts are consistently applying the relevant principles (as opposed to numerical equivalence).[50] Moreover, a comparable schedule of the range of sentences for similar offending may also provide a general guide when considering whether a sentence is manifestly excessive.[51] A review of the schedule does not support the appellant’s contention that the sentence imposed was outside the permissible range for this offence.
[49] Hili v The Queen (2010) 242 CLR 520 at [49] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[50] Hiliv The Queen (2010) 242 CLR 520 at [48]-[49] and [54] per French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ.
[51] R v Nozuhur [2013] SASCFC 81 at [55] per Nicholson J citing R v Clancy [2013] SASCFC 63 at [63] per Sulan and Blue JJ.
Bearing in mind the significant amount and value of the importation, general deterrence needed to feature strongly in the sentence. For the reasons outlined earlier, there was little scope for leniency on account of the appellant’s personal circumstances. The appellant had significant criminal antecedents and limited prospects of rehabilitation given that he reoffended shortly after being released on parole (although not whilst on parole). There was a clear need for principles of personal deterrence to be reflected in the sentence. We are satisfied that the sentence imposed was not plainly unjust or unreasonable and an appropriate exercise of the trial Judge’s discretion. Whilst it might be said to be a heavy sentence, we are not satisfied that it was manifestly excessive.
We allow permission to appeal and dismiss the appeal against sentence.
Conclusion
For the reasons set out, we grant permission to appeal against conviction on Ground 1 but dismiss the appeal. We also grant permission to appeal against sentence but dismiss the appeal.
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