Walters v The Queen
[2018] ACTCA 1
•15 February 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Walters v The Queen |
Citation: | [2018] ACTCA 1 |
Hearing Date: | 15 February 2018 |
DecisionDate: | 15 February 2018 |
Reasons Date: | 1 March 2018 |
Before: | Elkaim, Mossop and Wigney JJ |
Decision: | 1. Appeal allowed. 2. Verdict and orders of the Court on 6 April 2017 and 19 May 2017 are set aside. 3. A verdict of acquittal be entered in relation to the indictment dated 31 May 2016. 4. The appellant is discharged. |
Catchwords: | APPEAL – CRIMINAL LAW – Appeal against conviction and sentence – charge of conspiracy to traffic in controlled drug other than cannabis – whether agreement extended to trafficking – conspirators must be shown to have agreed to supply others or to possess drug with intention to supply others – expectation of on-supply not sufficient – appeal upheld – verdict and order set aside – appellant acquitted |
Legislation Cited: | Criminal Code 2002 (ACT), ss 48, 602, 603 |
Cases Cited: | Ansari v The Queen [2007] NSWCCA 204; 70 NSWLR 89 Chamberlain v The Queen [No 2] (1984) 153 CLR 521 Western Australia v Marchesi [2005] WASCA; 30 WAR 359 |
Parties: | Luke Walters (Appellant) The Queen (Respondent) |
Representation: | Counsel S Whybrow (Appellant) S Drumgold (Respondent) |
| Solicitors Legal Aid ACT (Appellant) Director of Public Prosecutions (ACT) (Respondent) | |
File Number: | ACTCA 17 of 2017 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Rangiah J Date of Decisions: 6 April 2017 (Judgment) 19 May 2017 (Sentence) Case Title: R v Walters Citations: [2017] ACTSC 77; [2017] ACTSC 123 |
THE COURT:
Introduction
This is an appeal from the conviction and sentence imposed by a single judge of the ACT Supreme Court after a trial conducted by judge alone. The trial judge convicted the appellant of a single count of conspiracy to traffic in a controlled drug other than cannabis, namely alpha-Pyrrolidinovalerophenon (“a-PVP”). The trial judge sentenced the appellant to 30 months imprisonment with a non-parole period of
15 months.
The appellant challenged the conviction as well as the sentence imposed by the trial judge. In relation to conviction, the grounds of appeal were:
(a)The evidence did not permit a finding beyond reasonable doubt that the appellant had conspired with his co-offender (Silvester-Day) to traffic [a-PVP];
(b)His Honour erred in finding the fact Silvester-Day’s continued participation [in] a conspiracy to import [a-PVP] following Silvester-Day becoming aware the appellant himself intended to traffic [a-PVP] was sufficient to establish beyond reasonable doubt a subsequent conspiracy between the appellant and Silvester-Day to traffic [a-PVP] had been formed;
(c)the conviction was unsafe and unsatisfactory because Silvester-Day was the critical prosecution witness and his evidence was demonstrably unreliable.
In relation to the appeal against sentence, the grounds of appeal asserted both a lack of parity between the sentence imposed upon Mr Walters’ and his co-offender (ground (d)) and that the sentence imposed was manifestly excessive (ground (e)).
At the conclusion of the hearing of the appeal, the Court made orders setting aside the verdict and orders of the Court below and directing that a verdict of acquittal be entered. These are the reasons for that decision.
The decision below
The charge in the indictment relied upon s 48 of the Criminal Code 2002 (ACT) which provided that a person committed the offence of conspiracy only if:
(a)the person entered into an agreement with at least one other person; and
(b)the person and at least one other party to the agreement intend that an offence be committed under the agreement; and
(c)the person or at least one other party to the agreement commits an overt act under the agreement.
Section 603(7) of the Criminal Code made it an offence to traffic in a controlled drug other than cannabis. Section 602 provides an extended definition of trafficking which includes possessing the drug with the intention of selling any of it: s 602(e).
At the commencement of the reasons for judgment (R v Walters [2017] ACTSC 77), his Honour gave an overview of the case for the Crown and the case for the defence. This provides a useful summary of the principal areas of contention at trial:
3.The Crown led oral evidence from five witnesses. The Crown, with the consent of the accused, also tendered a number of documents and photographs and a “list of admissions”. The Crown’s case depends heavily upon the credibility of evidence given by two witnesses, Izzak Silvester-Day and Tamara Sabol, implicating the accused.
4.Silvester-Day has previously pleaded guilty to a charge that he conspired with the accused to traffic in alpha-Pyrrolidinovalerophenone (“a-PVP”). In this matter, the Crown alleges that Silvester-Day placed an order for a-PVP from a website in China at the request of the accused. That order failed. The Crown alleges that the accused then asked Silvester-Day to place a second order for a larger quantity of a-PVP. The accused is alleged to have provided the money for each order. The second order was successful and a package containing a-PVP was sent by mail from China to Silvester-Day’s address. The a-PVP was detected by customs officers in Australia and the drug was replaced with another substance and the package delivered. The Australian Federal Police (“AFP”) then raided Silvester-Day’s apartment, finding both the package and the accused there. The Crown alleges that the accused and Silvester-Day entered an agreement to traffic in the drug.
5.The accused gave evidence. He denied any involvement with the a-PVP. He denied asking Silvester-Day to order it and denied paying for it. He said Silvester-Day had offered to buy him a birthday present and he was only at Silvester-Day’s apartment to pick up the birthday present when the police arrived. The defence submits that the evidence of Silvester-Day and Sabol implicating the accused is not credible or reliable and, conversely, the evidence of the accused should be accepted.
6.The primary case for the defence is that the Crown has failed to prove that there was any agreement at all between the accused and Silvester-Day involving a-PVP. The defence submits, alternatively, that the evidence demonstrates only that the accused and Silvester-Day entered an agreement to import the drug (which was not an offence), not an agreement to traffic the drug. The defence submits that, accordingly, the Crown has failed to prove its case to the requisite standard. (emphasis in original)
His Honour then set out the admissions made by the appellant, all of which were consistent with the Crown case but which did not directly implicate the appellant in relation to the purchase or importation of the a-PVP. His Honour then set out, in considerable detail, the evidence given by each of the seven witnesses:
Mr Silvester-Day, his girlfriend Ms Tamara Sabol, Mr Jack Taylor, Ms Michelle Carey,
Mr Brian Coe (whose statement was tendered), Leading Senior Constable Scott Clark and the appellant.
His Honour identified the relevant statutory provisions as well as explicitly giving himself appropriate directions to be applied in the case.
The primary position of the appellant at trial was that the evidence of Mr Silvester-Day and Ms Sabol should not be accepted and that the appellant’s evidence denying involvement with any importation should be accepted or at least be sufficient to give rise to a reasonable doubt. His Honour (at [129]-[149]) made a detailed assessment of the extent to which he accepted or did not accept the evidence of Ms Sabol,
Mr Silvester-Day, Mr Taylor and Ms Carey and the appellant. Following this detailed assessment, his Honour concluded that the evidence of Mr Silvester-Day and Ms Sabol should be accepted in relation to the appellant’s involvement with the importation and that the evidence of the appellant should be rejected to the extent that he denied such involvement. His Honour reached that conclusion having regard to the manner in which the witnesses gave their evidence, the substance of the evidence that each witness gave and the other evidence available in the case.
His Honour then (at [150]-[168]) went on to consider whether the prosecution had established beyond reasonable doubt the elements required to establish the conspiracy alleged.
He found that the accused asked Mr Silvester-Day to place two orders for a-PVP online and that Mr Silvester-Day did so. He also found that the appellant provided the funds for both orders. The first order involved the appellant providing $300. This order was unsuccessful because of difficulties with effecting the money transfer. The second order involved the appellant providing $3000, which was ultimately successful.
His Honour then dealt with the submission made by the appellant that, if there was an agreement between the appellant and Mr Silvester-Day, it was an agreement to import a-PVP (which was not an offence) rather than an agreement to traffic a-PVP (which was an offence). His Honour found that the appellant and Mr Silvester-Day initially made an agreement to procure a-PVP for the appellant’s personal use: at [155]. Having reviewed the evidence on that point, he then found that the appellant told Mr Silvester-Day, on a day prior to the delivery of the package on 30 May 2015, that he intended to sell the drug: at [156]. The submission made by the appellant was that the conduct of Mr Silvester-Day and the appellant, after Mr Silvester-Day became aware of the appellant’s intention, only involved the performance of the existing agreement and that no further agreement was reached which could give rise to the offence of conspiracy to traffic. His Honour’s conclusion on this point was as follows:
160.Accepting that the accused informed Silvester-Day that he intended to sell the a-PVP on a day shortly before the package arrived, what then happened was: the package was delivered; Silvester-Day informed the accused that the a-PVP had arrived and invited the accused to collect it; and the accused attended Silvester-Day’s apartment to collect the drug. In my opinion, when the accused informed Silvester-Day that he intended to sell the drug, the nature of what the alleged conspirators had agreed to do fundamentally changed. Whereas they had agreed to procure the a-PVP for the accused’s personal use (which may have been legal as it was not a border controlled drug), they now agreed to procure it so that it could be trafficked (which was illegal). What they now agreed to was so fundamentally different to what they had previously agreed, that they can be described as having entered a different agreement. That there was a conscious understanding of a common design to traffic in the drug is demonstrated by Silvester-Day’s conduct in taking steps to pass the package to the accused knowing that the accused now intended to sell the drug and the accused attending Silvester-Day’s apartment to collect the drug. I find that the accused and Silvester-Day entered into an agreement to traffic in the drug.
…
163.Under the agreement between the accused and Silvester-Day, the accused was to take possession of the a-PVP. He was to take possession with the intention of selling it, and then sell the a-PVP, either by itself or after preparing it by “cooking” it. This amounted to an agreement to traffic in a-PVP. The offence of conspiracy to traffic in a-PVP does not require that Silvester-Day was to actively participate in the trafficking of the drug. (emphasis added)
His Honour therefore found the offence proved.
On 19 May 2017 his Honour convicted the appellant and sentenced him to 30 months imprisonment with a non-parole period of 15 months: R v Walters [2017] ACTSC 123.
Appeal grounds (a) and (b)
The submissions of the appellant accepted that there was evidence sufficient to justify his Honour finding that the appellant and Mr Silvester-Day had entered into an agreement to procure a-PVP. Counsel for the appellant submitted that his Honour conflated the conspiracy to import and take possession of a trafficable quantity of a-PVP with a subsequent and separate conspiracy to traffic in a-PVP. He submitted that there was no evidence capable of establishing an agreement in relation to the trafficking in
a-PVP. He submitted that following the appellant informing Mr Silvester-Day, shortly before the package arrived, that he intended to sell the a-PVP, the conduct of
Mr Silvester-Day was “equally consistent with fulfilling the original conspiracy”, and hence, not evidence of the existence of a further agreement. Counsel submitted that the evidence was equally consistent with Mr Silvester-Day wanting no part in any drug trafficking and being anxious to ensure that the appellant attended to collect the a-PVP as soon as possible. He pointed to the absence of any financial motive in relation to trafficking and no other reason to involve himself in a significantly more serious crime than simply procuring the drug. As a consequence the appellant submitted that his Honour erred in finding the new conspiracy proved beyond a reasonable doubt.
Counsel for the appellant submitted that the awareness on Mr Silvester-Day’s part that the appellant may subsequently sell the drug did not prove the conspiracy to traffic was formed. He submitted that there was no direct acknowledgement by Mr Silvester-Day in his sworn evidence that his conduct, in calling the appellant to collect drugs, was pursuant to a new agreement to traffic the drugs rather than the original agreement to procure them. He submitted that “The appellant’s new intentions with respect to the
a-PVP may have become known to Mr Silvester-Day, but like the tango, it takes two to conspire.” As a consequence he submitted that the evidence was not sufficient to establish “a conscious understanding of a common design”: see R v Orton [1922] VLR 469 at 473, or that Mr Silvester-Day intended that the common design be carried out.
The respondent submitted that a conspiracy may change throughout its life, and hence, it was open for the original agreement to have changed into the subsequent agreement found by his Honour. It was open to infer the change in the agreement from the subsequent conduct of the appellant and Mr Silvester-Day. Counsel submitted that it was not necessary to establish that both the appellant and Mr Silvester-Day intended to sell the a-PVP, but instead was sufficient if both intended the trafficking offence would be committed. As a consequence, the offence could be established even without
Mr Silvester-Day having the fault element for trafficking or a financial motive to intend that the trafficking offence be committed.
The submissions of the parties must be assessed in the light of the decision of the New South Wales Court of Criminal Appeal in Trudgeon (1988) 39 A Crim R 252 and the decision of the High Court in Krakouer v The Queen [1998] HCA 43; 194 CLR 202 (Krakouer). These were decisions to which, unfortunately, neither the trial judge or this Court were referred by the parties.
In Trudgeon, Mr Trudgeon was charged with conspiracy to supply a prohibited drug contrary to the Poisons Act 1966 (NSW). The conspiracy alleged was the obtaining of some heroin by one Cheung in order to sell it to Trudgeon for the purpose of Trudgeon supplying a person or persons unknown with that heroin. It was contended on appeal that the gravamen of the charge was that it was part of the agreement between Cheung and Trudgeon that Trudgeon would supply to others the material that was to be sold to him by Cheung. The principal issue on appeal was whether or not it was sufficient in order to establish the conspiracy alleged to demonstrate that there was an expectation on Cheung’s part that Trudgeon would on-sell the heroin to other persons. The Court found that it was not. Gleeson CJ and Lee CJ at CL wrote separate judgments.
Loveday J agreed with both. Gleeson CJ said (at 254):
No doubt the inference was open, and even compelling, that both Cheung and [Trudgeon] would have expected that [Trudgeon] would on-supply the material in whole or in part. However, it is one thing to say that, and a very different thing to say that there was an agreement between Cheung and [Trudgeon], of the kind essential to the crime of conspiracy, that [Trudgeon] would deal with the material in that way. It is consistent with the objective facts that Cheung, having been paid for the material, had no further interest in what happened to it, and that as far as he was concerned [Trudgeon] could do with it what he pleased. Of course, commonsense would indicate that Cheung would not have expected to received such a high price for the material unless [Trudgeon] intended to deal with it in some commercial manner. Even so, it is one thing to say that Cheung fully expected that [Trudgeon] would in turn supply the substance to a further person or persons, and quite a different thing to say that [Trudgeon’s] anticipated conduct in that regard was a part of their conspiracy.
At 256 his Honour said:
The mental element necessary to make a person an accessory does not precisely correspond with the mental element necessary to make a person a conspirator. One thing that is clear, however, is that to be liable as a conspirator an accused person must have an intention that (so far as is presently relevant) an unlawful act occur. The agreement consists in the manifestation of a common intention that an unlawful act occur. It does not suffice that there is an expectation that such an act will occur.
His Honour concluded (at 257):
As was earlier said, Cheung sold and delivered the material to [Trudgeon] and was apparently paid in full for it. There is ample basis for the inference that he would have expected that [Trudgeon] would on-sell it. However, it is consistent with the facts that Cheung really could not have cared less what [Trudgeon] did with the material, and was not a party to any agreement with [Trudgeon] about that matter.
The reasons of Lee CJ at CL (at 262) were to similar effect:
The evidence certainly permits an inference that the appellant Trudgeon intended, in purchasing the heroin from Cheung, to supply others. The quantity of heroin represented by the plaster of Paris block would plainly show that Trudgeon was not intending to receive a quantity of heroin just for his personal ingestion. But the establishment from the evidence that in agreeing to purchase the heroin from Cheung Trudgeon did so with the intention that there should be further sales by him in no way establishes that Cheung’s purpose in agreeing to sell and making the sale of heroin to Trudgeon was accompanied by an intention that Trudgeon should sell it.
His Honour illustrated the proposition (at 263) by reference to the following example:
I may take my car to a car yard for sale to the proprietor thereof, and I may be quite sure in my mind that the proprietor intends, if he buys it, to sell it to someone, but there cannot from that state of affairs be implied any agreement between him and me that he should or will sell it or any intention on my part that he should … The truth of the matter is that in the circumstances I have referred to, that ambit of the agreement made between the vendor and purchaser is limited to the immediate sale of the goods and the vendor is not imputed with an intention that the goods be resold: in short it is not inferred from the mere agreement to sell or sale that that is the object he has in mind when he sells to the purchaser. The vendor’s expectation that there will be resale may be undeniable but that is a different matter altogether. (emphasis in original)
His Honour considered that on the evidence in the case there was nothing to show that Cheung agreed, expressly or impliedly, with Trudgeon that Trudgeon would try to sell the heroin to others even though he expected that would be the case. Rather, his Honour said (at 264):
He may have been wholly indifferent to whether Trudgeon sold all or any. In the absence of any evidence showing that his agreement with Trudgeon went beyond a mere sale of the heroin to Trudgeon, he cannot be shown to have been a party with Trudgeon to the conspiracy charged and Trudgeon cannot be held to have been a party with him to that conspiracy.
His Honour went on to say that, even if the evidence given provided some evidence pointing to an agreement between Cheung and Trudgeon that Trudgeon would make further sales, the state of the evidence in the case, which was wholly circumstantial, was such that it could equally be said that it pointed only to an expectation by Cheung that Trudgeon would sell off the heroin. It therefore failed to negative a reasonable hypothesis consistent with innocence, namely, that Cheung never did agree or intend the unlawful object alleged.
The decision in Trudgeon was approved in Krakouer. The facts in that case were somewhat similar to the present. Police had intercepted a shipment of 5.3kg of methylamphetamine hidden in the door panels of a car transported from Victoria to Western Australia. Police substituted the packages with packages of flour which included a listening device and allowed the car to be collected by Krakouer and one Calder. At the point where the police intervened, one of the bags of flour had been removed from one of the doors. Apart from evidence that Krakouer was present when the car was collected from the company which transported it to Western Australia and when the substitute powder was removed, there was some other, limited, evidence connecting him to the drugs.
On appeal to the High Court, the appellant established a misdirection by the trial judge and one of the issues was whether or not the proviso under s 689(1) of the Criminal Code (WA) applied. It was in that context that the appellant raised an argument based upon the decision in Trudgeon. The plurality judgment of Gaudron, Gummow, Kirby and Hayne JJ impliedly approved the reasoning in Trudgeon, saying of the facts in Trudgeon (at [30]):
In those circumstances, it is clear that the agreement between Cheung and Trudgeon may have extended no further than an agreement for sale and purchase, with no meeting of minds about the future fate of the drugs: see also R v Carey (1990) 20 NSWLR 292; R v Marinovich, Romeo & Ricciardello (1990) 46 A Crim R 282; Manisco v The Queen (1995) 14 WAR 303.
Their Honours went on (at [31]) to say in relation to the facts in the case with which they were dealing:
[T]he appellant was charged with conspiracy to possess and the attempt to possess. But the conspiracy alleged here was an agreement to possess the goods with a particular intention - to sell or supply - and the attempt charged was an attempt to possess with that same intention. Given the quantity of drugs concerned, it may be readily accepted that those who conspired or attempted to possess them may well have contemplated that the drugs would be sold or supplied to another. But to prove conspiracy or attempt to commit the crime of possessing the drugs with intent to sell or supply, it would not be sufficient to show that the accused foresaw that someone would sell or supply the drugs to others. It was necessary to show that the accused agreed or attempted to possess the drugs with that intent … To amount to a conspiracy to commit an offence under s 6(1) the alleged conspirators had to be shown to have agreed that the possession of the drugs would be with that intent.
Because of the relationship between the two charges and the manner in which the jury might, if it had been properly directed, have considered those charges, the Court considered that the proviso did not apply and that the appeal had to be allowed notwithstanding the strong case against the appellant. A retrial was ordered.
Trudgeon has been uniformly accepted by intermediate Court’s of Appeal as correctly identifying the requirements for a charge of conspiracy: Davidovic (1990) 51 A Crim R 197 at 204-205; Lee (1994) 76 A Crim R 271 at 280; R v Deng (1996) 136 FLR 201 at 208, 211, 217; Western Australia v Marchesi [2005] WASCA 133; 30 WAR 359 at [14], [18], [43] [47] [79] [85]; Musarri v The Queen [2006] WASCA 92; 32 WAR 19 at [113]; Ansari v The Queen [2007] NSWCCA 204; 70 NSWLR 89 at [61]; Ramsay v The State of Western Australia [2008] WASCA 17 at [62]; Palumbo v Western Australia [2014] WASCA 55; 239 A Crim R 297 at [47]; Thangavelautham v The Queen [2016] NSWCCA 141 at [18]; Cranney v The Queen [2017] NSWCCA 234 at [206]; 325 FLR 173.
Davidovic was an appeal from the ACT Supreme Court. In that case, the issue was whether it was open to a jury to have been satisfied beyond reasonable doubt that a supplier, Davidovic, intended the heroin he supplied be resold to others by the persons to whom he supplied it, Tebbutt and Diamond. The trial judge had explained to the jury that it was required to be satisfied beyond reasonable doubt that Davidovic was a party to an agreement that the heroin he delivered would be supplied by Tebbutt and Diamond to other people, and that an immediate expectation that this would occur would not be enough. A Full Court of the Federal Court (Miles, Foster and Von Doussa JJ) distinguished the facts from those in Trudgeon, finding that it was open to the jury to have been satisfied that Davidovic had supplied heroin to Tebbutt and Diamond with the intention that the heroin, or some of it, would be supplied to other people. The evidence in the case had established a pattern of frequent supply by Davidovic to Tebbutt or Diamond of a standard amount of heroin, at a standard price, using a standard procedure. It was also demonstrated that Davidovic extended credit to Tebbutt and Diamond. The Court concluded:
The frequency of deliveries and their value make it highly likely that at least a substantial part of each delivery was to be resold. The inference is clearly open that the appellant would not extend credit in the circumstances unless he intended the heroin to be resold thereby providing a source of money to repay him and to enable his profitable distribution through Batman Street to continue.
The case was therefore one in which the relationship between supplier and dealer was such that it allowed the conclusion that there was an agreement rather than a mere expectation as to what would happen with the drugs that were supplied.
In the light of the decision in Trudgeon and its approval in Krakouer, it is necessary to return to the circumstances of the present case.
His Honour found that at the point where the appellant had asked Mr Silvester-Day to purchase $300 worth of a-PVP, the appellant had told him that he wanted it “for personal use, training for the gym”. That was consistent with Mr Silvester-Day’s evidence. There were no further findings about any other statement of the appellant’s intended use of the drug until the finding that the appellant told Mr Silvester-Day, on a day prior to the delivery of the package on 30 May 2015, that he intended to sell the drug obtained as a result of the second purchase. It was that knowledge of the appellant’s intention, in combination with the appellant and Mr Silvester-Day’s subsequent conduct, which led to his Honour finding (at [160]) that the appellant and Mr Silvester-Day “now agreed to procure [the
a-PVP] so that it could be trafficked”.
The evidence about what Mr Silvester-Day was told that formed the basis for what his Honour found was a new agreement was as follows:
You’ve now given evidence that it was Mr Walters---?---Correct.
---who asked you to place the order. What conversation did you have with Mr Walters about what he was intending to do with the a-PVP?---There was no prior conversation until closer of receiving date.
So in relation - just to get the timeline right, in relation to placing the second order and receiving it, are you saying it happened in between those?---Yeah, closer to the receiving.
And what did he say?---Nothing along the lines-just more of he’d asked his friends about value and what it does and who would buy it and stuff like that, but no direct intent of what he was going to use it for.
Did you just say that he was asking who would buy it?---Yes. Just what parties would be interested.
Yesterday you gave evidence that the drug was for yourself just for research purposes. Do you remember that?---Yes.
Do you recall having a meeting with prosecutors last week?---Yes.
You told prosecutors that Mr Walters was talking about turning a-PVP into flakka?---Correct.
Do you remember telling them that?---Yes.
And that was the truth?---Yes.
That that’s what he was going to do?---Yes.
And that you became aware that he was intending to sell it?---Yes, closer to the day.
That’s what you told the prosecutors?---Correct.
And that was in fact the truth?---Correct.
…
When did you have that conversation… with Mr Walters?---Very close to the receiving date of the product.
You said that Mr Walters had spoken to you about cooking it?---Correct.
That’s what you told the prosecutors?---Yes, correct.
And that is in fact what Mr Walters told you?---Correct.
Mr Walters, you told the prosecutors, said to you that he needed to make it into a drug?---Correct.
That’s what you told the prosecutor?---Yes.
And that is what he had told you?---Correct.
There was other evidence from Ms Sabol of the appellant, on the second occasion when he visited her and Mr Silvester-Day’s house, saying something about selling the substance and that he had people lined up.
It was this evidence which led his Honour to find that there was a new and different agreement between the appellant and Mr Silvester-Day. His Honour said at [160]:
That there was a conscious understanding of a common design to traffic in the drug is demonstrated by Silvester-Day’s conduct in taking steps to pass the package to the accused knowing that the accused now intended to sell the drug and the accused attending
Silvester-Day’s apartment to collect the drug.
In substance, his Honour’s finding was based upon Mr Silvester-Day’s knowledge of the appellant’s intention and his subsequent participation in those steps necessary for the appellant to take possession of the a-PVP.
His Honour correctly found that to make out its case, the Crown was required to prove beyond reasonable doubt that the appellant entered into an agreement with
Mr Silvester-Day to commit the offence of trafficking in a-PVP and that both the appellant and Mr Silvester-Day intended that the offence of trafficking in a-PVP would be committed pursuant to the agreement. Having regard to the fact that the Crown case as to the existence of such an agreement and intention on the part of both the appellant and
Mr Silvester-Day was a circumstantial one, it was necessary for the Crown to demonstrate that the circumstances were such that there was no reasonable hypothesis other than that of the agreement that the drug be dealt with by on-sale: Chamberlain v The Queen [No 2] (1984) 153 CLR 521 at 536. It was not sufficient to establish the existence of the conspiracy alleged if the circumstances left open, as a reasonable hypothesis, that Mr Silvester-Day had an expectation that is what the appellant would do but, to use the language of Gleeson CJ in Trudgeon (at 257), Mr Silvester-Day “really could not have cared less what the [appellant] did with the material”. If that was the case, then the Crown would not have established beyond reasonable doubt that the agreement extended to trafficking rather than simply possession and that Mr Silvester-Day intended that the offence of trafficking in a-PVP would be committed pursuant to the agreement.
Such a hypothesis was not excluded by the evidence. The evidence did not establish any reason why Mr Silvester-Day would have had any interest in what the appellant did with the drugs once the appellant possessed them. There was no evidence that
Mr Silvester-Day’s motivation for his participation in the scheme was monetary. That was the case both before and after an intention to sell the a-PVP was disclosed to him. He appears to have been doing a favour for a friend that extended to receiving the
a-PVP and handing it over to him. He would not make any financial gain if the appellant sold rather than used the a-PVP. As such he had no pecuniary interest in what the appellant did with the drugs after they came into his possession and hence no interest in or motivation for the meeting of minds about what was to occur after the appellant received the drugs. He no doubt had an expectation as to what was going to happen to them but that is not enough.
As a consequence, it was a case in which there must have been a doubt about the appellant’s guilt upon the conspiracy charge in the indictment. The evidence was not capable of proving beyond reasonable doubt that the appellant and Mr Silvester-Day entered into an agreement to commit the offence of trafficking in a-PVP, or that
Mr Silvester-Day intended that the offence of trafficking would be committed pursuant to that agreement. In those circumstances the appeal had to be allowed: see Richardson v The Queen [2016] ACTCA 63 at [6]-[9] and the authorities there cited. That was the case even though (as counsel for the appellant conceded) there were other charges which might have been laid of which, on the findings made by the trial judge, the appellant could have been found guilty.
In the light of the conclusion reached in relation to grounds (a) and (b) in the Notice of Appeal it was unnecessary to consider the other grounds of appeal.
| I certify that the preceding forty-three [43] numbered paragraphs are a true copy of the Reasons for Judgment the Court. Associate: Date: 1 March 2018 |
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