Weng v The Queen
[2013] VSCA 221
•3 July 2013
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCR 2012 0202
S APCR 2012 0253
| XIA WENG | Appellant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES | BUCHANAN, NEAVE and OSBORN JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 22 May 2013 |
| DATE OF ORDER | 3 July 2013 |
| PUBLICATION OF REASONS | 27 August 2013 |
| MEDIUM NEUTRAL CITATION | [2013] VSCA 221 |
| JUDGMENT APPEALED FROM | DPP v Weng [2012] VCC 1160 (Judge Lawson, 2 August 2012 (date of verdict) and 9 August 2012 (date of sentence)) |
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CRIMINAL LAW – Appeal - Conviction – Appellant convicted of attempting to possess a marketable quantity of a border controlled drug contrary to ss 11(1) and 307.6(1) of the Criminal Code Act 1995 (Cth) – Fresh evidence given on hearing of appeal by a person not listed on indictment, or called, as a witness at committal or trial – Whether the evidence in question was actually or constructively available at trial – Where the evidence in question raises a significant possibility that the jury would have acquitted the appellant at trial – Substantial miscarriage of justice – Application for leave to appeal against conviction granted – Appeal allowed – Conviction quashed – Retrial ordered.
CRIMINAL LAW – Appeal – Conviction – Whether trial judge erred in failing to direct jury that it must be satisfied beyond reasonable doubt that the appellant knew or believed that the border controlled drug she attempted to possess was methamphetamine in particular – Meaning of intention for the purposes of attempt – Not necessary to prove that the accused attempted to possess the particular border controlled drug in question – Criminal Code Act 1995 (Cth) ss 2.2, 11(1), 11(6), 300.5, 307.6 – Kural v The Queen (1987) 162 CLR 502; Saad v The Queen (1987) 61 ALJR 243; HAT v The Queen (2011) 256 FLR 201 considered – R v Franze (Ruling No 2) [2013] VSC 230 distinguished.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr P Morrissey SC with Ms C Boston | Lewenberg & Lewenberg Solicitors |
| For the Respondent | Mr D Gurvich | Commonwealth Director of Public Prosecutions |
| For Mr Chou Chen | Ms M Stylianou | Doogue O’Brien George |
BUCHANAN JA:
I agree with Osborn JA, for the reasons stated by his Honour, that the application for leave to appeal against conviction should be granted, the conviction sustained by the appellant in the court below quashed and it be ordered that the appellant be re-tried.
NEAVE JA:
I have had the advantage of reading the draft reasons of Osborn JA. I agree with him, for the reasons he gives, that the applicant’s conviction should be quashed and that the matter should be remitted for re-trial.
OSBORN JA:
Following a trial by jury the applicant was convicted on 2 August 2012 of the offence of attempting to possess a marketable quantity of a border controlled drug, namely methamphetamine, contrary to ss 11(1) and 307.6(1) of the Commonwealth Criminal Code Act 1995 (‘the Code’).
On 9 August 2012 the applicant was sentenced to four years and six months’ imprisonment with a non-parole period of two years and six months.
The applicant now seeks leave to appeal against both conviction and sentence.
The first proposed ground pursued on appeal[1] is that, since the trial, fresh evidence has become available which demonstrates that a substantial miscarriage of justice has occurred.
[1]Ground 1 of the draft notice of appeal dated 15 May 2013 was abandoned. Ground 1 stated (emphasis omitted):
Ground 1:
The learned trial judge erred in failing to direct the jury that, in order to convict the applicant, inter alia they had to be satisfied beyond reasonable doubt that:
(a)the applicant knew that the package contained a border controlled drug;
(b)the applicant knew that the package contained at least a marketable quantity of a border controlled drug;
(c)the applicant knew that the drug had been unlawfully imported.
The second proposed ground pursued on appeal is that the learned trial judge erred in failing to direct the jury that in order to convict the applicant the jury must be satisfied beyond reasonable doubt that the applicant knew or believed that the substance she attempted to possess was methamphetamine.
Background facts
On about 15 September 2010, a package addressed to ‘Ting Lin’ at 8 Stewart Street, Reservoir arrived in Australia from China. A mobile phone number was provided on the consignment slip. The number 0411 755 315 was identical with the mobile phone number of the applicant’s boyfriend, Chou Chen, except that the last digit of the number was ‘5’ instead of ‘6’. Customs officers examined the package and found that it contained items of children’s clothing and a soft toy monkey. They further found an item wrapped in foil and clear plastic inside the monkey’s head. This contained 211.4 grams of an off-white powder which, on analysis, was found to be 58.5 per cent pure methamphetamine, comprising a total of 123.6 grams of methamphetamine.
Australian Federal Police seized the powder and reconstructed the package, substituting an inert substance within it for the purpose of conducting a controlled delivery.
On 22 September 2010 police officers left an imitation Australia Post ‘missed delivery slip’ at the Reservoir address. The slip was addressed to Ting Lin and bore the notation, ‘contact 0417 377 440’. This was the telephone number of a covert police agent.
On 24 September 2010, the covert agent noticed a missed call from the applicant’s telephone number. The agent called the number and had a conversation, posing as an Australia Post courier, in which the applicant pretended to be Ting Lin. The applicant made arrangements with the agent to pick up the package. She made
further telephone calls to the agent on 27 and 28 September to confirm arrangements to receive the package, which was to be delivered before 10:00 am on 28 September.
On 28 September 2010, the applicant went to the Reservoir address to take delivery of the package. Chou Chen and another male called Jie Chen[2] were also present. The applicant was arrested and found to be in possession of the collection slip previously delivered to the Reservoir address.
[2]Also referred to in the evidence as ‘Xi Chen’ and ‘Gi Chen’.
The applicant answered questions at the scene and later that day was formally interviewed by Federal Police officers. At the scene she claimed that a friend by the name of Jing Zhang[3] asked her to pick up the package as he could not make it. She claimed that Zhang had given her the missed delivery slip about two weeks earlier. She also claimed she was not told what was in the package.
[3]Also referred to in the evidence as ‘Jin Jang’.
In her record of interview the applicant again denied knowledge of what was inside the package, and claimed that Zhang asked her to pick up the package about two weeks earlier as he was busy and had given her the delivery slip at that time. She told police that she did not know where Zhang was, nor did she have any contact details for him or know where he lived. She also told police that she did not know anyone called Ting Lin but agreed that she had identified herself as Ting Lin in phone conversations regarding the package as she thought that if she used her real name she would not be given the package.
Chou Chen was interviewed by Federal Police agents on 28 September 2010, through a telephone interpreter.[4] He denied any involvement in the drug importation, and essentially stated that the applicant told him that she was going to collect a parcel on behalf of her friend. He said the applicant did not tell him who the friend was, and Chou Chen did not ask her as it was none of his business. Chou Chen also said that the applicant had called a taxi to take her to the Reservoir address and he had accompanied her because he was worried about her, as she had to go to university afterwards and would not be able to take the parcel with her.
[4]It is apparent from the record of interview that there were some communication difficulties throughout the interview.
Chou Chen did not provide a written statement. He was not listed as a witness on the indictment and was not called as a witness either at committal or trial.
Jie Chen was interviewed by police on 28 September 2010, and provided a written statement on that date. He was listed as a witness on the indictment, but was not called either at committal or trial.
When the trial commenced on 24 July 2012, the prosecutor told the judge that Chou Chen and Jie Chen were present at the house when Weng was arrested but that neither Chou Chen nor Jie Chen was contactable ‘at the moment’, and efforts made to locate them over the previous week and a half had proved fruitless. The prosecutor further stated that he had initially ‘anticipated that some of what they may say might have been relevant’ to the applicant’s defence, and that the Crown had initially sought to rely on them as ‘unavailable witnesses’ but that application was no longer proceeded with. The prosecutor also stated that Jing Zhang, who was not listed on the indictment, was not going to be called. Defence counsel did not address the judge about these matters.[5] He had, however, indicated earlier to the judge that whereas the written defence response indicated that the applicant’s case was that she acted at the request of Jing Zhang, which was a positive defence, the defence actually sought to be run was simply that the applicant was acting at the request of ‘another person’.
[5]See however [19] below.
In closing address, the prosecutor referred to the fact that the applicant had Chou Chen’s mobile number in her phone’s memory, and that she had also contacted another phone number from which the covert federal agent had received a call about the package. The fact that the applicant was in contact with another person who had an interest in the package was relied upon as a piece of circumstantial evidence suggesting that she knew what was in the package. The prosecutor further argued that Jing Zhang did not exist and that the jury should reject the applicant’s account in her record of interview that she was simply picking up a package at his request. The Crown case was that on the whole of the evidence, the only reasonable hypothesis was that the applicant knew that the package contained drugs and intended to possess those drugs.
The applicant did not give or call evidence at trial. Defence counsel argued in closing address that there were so many unanswered questions surrounding the package – including who it was intended for, whether the person Ting Lin existed and who got the delivery slip from the Reservoir address – that the jury could not be satisfied whether the applicant knew there were drugs in the package or intended to get drugs. Counsel further submitted that while the applicant might have been used by Jing Zhang, Jie Chen or Chou Chen, what in fact happened was all speculation. Alternatively, the applicant might have known that she was involved in some illegal activity but not known that it related to drugs. In short, the degree of uncertainty meant that the Crown had failed to prove to the criminal standard that the applicant knew that the package contained drugs or that she intended to possess drugs.
The jury found the applicant guilty on 2 August 2012. On her plea on 3 August 2012, defence counsel conveyed the applicant’s instructions, which at that point in time were that Chou Chen had in fact requested her to collect the package.
In her sentencing remarks delivered on 9 August 2012, her Honour Judge Lawson stated that she was satisfied that the applicant committed the offence ‘as a consequence of [her] naivety and misplaced loyalty to Chou Chen’ and observed that ‘there is no evidence to show that [the applicant] knew the quantity or the type of the drug involved or that [she was] to receive any financial reward.’ The judge further stated that Chou Chen:
has currently overstayed his Visa and is an illegal immigrant. He is avoiding the authorities. For some inexplicable reason, notwithstanding he was arrested and the evidence pointed to him being heavily involved in this attempted importation of a border controlled drug, he was never charged by
the police. Similarly Xi Chen, his cousin, was arrested but no further action was taken against them.
The fresh evidence
On 17 September 2012, Chou Chen made a statutory declaration interpreted into English to the effect that the applicant collected the package at Chou Chen’s request and would not have known that it contained drugs.
On the hearing of the appeal Chou Chen was called to give oral evidence and did so following the grant of a certificate pursuant to s 128 of the Evidence Act 2008. He gave evidence with the assistance of an interpreter. In the course of that evidence he stated as follows:
· Chou Chen is a plasterer living in Melbourne.
· In September 2010 he was also living in Melbourne.
· He entered Australia on a student visa but that visa had expired by September 2010.
· At the time of the alleged offence Chou Chen was in a relationship with the applicant and she knew his visa had expired.
· At that time he had a friend called Jing Zhang who came from western China. Jing Zhang’s name and phone number were in Chou Chen’s mobile phone, which was seized by police.
· Chou Chen had other friends called Jie Chen and Lou Lou whose phone numbers were also stored in Chou Chen’s phone.
· It was apparent at the time of the offences that the applicant loved Chou Chen.
· Jing Zhang asked Chou Chen to collect the package and told Chou Chen that it would be addressed to a person called Ting Lin. Chou Chen is not clear whether Ting Lin is a real or fictional person. The name is a common name in China used by both males and females.
· Jing Zhang told Chou Chen the package contained ‘ice’.
· Chou Chen did not tell the applicant this.
· Chou Chen asked the applicant to collect the package with him because he spoke very poor English and needed a translator.
· Chou Chen picked up a delivery slip relating to the package with a message from the postal service saying ‘sorry I missed you’. He showed the slip to the applicant so that she could translate it for him.
· He then first asked one of Lou Lou’s friends to ring the post office and then asked the applicant to do so. On the occasions that the applicant rang the post office Chou Chen put in the telephone number and ‘blocked’ the tracing of the calls by use of the numbers #31#. This was his idea.
· On the morning of the arrest Chou Chen asked the applicant to accompany him to pick up the package because previously it was a female who had rung about the package. They caught a taxi to the place where the applicant was arrested.
· It was proposed to tell the delivery man that Ting Lin was a friend.
· When they were arrested Chou Chen put the postal slip in the applicant’s bag because he had no place to put it.
· When he was interviewed at the police station Chou Chen did not tell the truth because he was selfish and afraid that he would be prosecuted. He did not believe at the time that the applicant would be prosecuted, convicted and imprisoned.
· Shortly prior to Weng’s trial Chou Chen attended at the offices of her solicitor. He did not tell the complete truth to the solicitor. He did not tell the solicitor of his own true role.
· Chou Chen has now come forward because the offence was not the applicant’s responsibility and he accepts that it is his responsibility.
In cross-examination Chou Chen said further, amongst other things:
· He was not living with the applicant in September 2010, because he had had a number of interstate jobs.
· He was living with the applicant after the arrest. He needed to comfort her.
· He did not tell the truth to her about the drugs after her arrest. She was very upset.
· He owed money to Jing Zhang who asked him to pick the package up in discharge of the debt. He told the applicant this but did not tell the applicant that he knew the package contained ice.
· Before the arrest he told the applicant that the package contained clothes.
· He went to see the applicant’s solicitor four days before the trial in order to make a statement. He did not tell the applicant whether he would give evidence.
· He gave the applicant’s solicitor his mobile phone number and address.
· In July 2012 he had a boyfriend/girlfriend relationship with the applicant. He knew she loved him and he loved her as well.
· Although he blamed the applicant when speaking to the police Chou Chen was lying at the time.
· Jing Zhang is a complete stranger to the applicant.
· Chou Chen owed Jing Zhang more than $5,000. He told the applicant he owed Zhang money after her arrest but did not tell her the exact amount.
Chou Chen also adopted the translated statutory declaration that he had previously made, but it is unnecessary to go beyond his oral evidence for present purposes.
Following his attendance at this Court to give evidence upon the appeal Chou Chen was arrested and detained by Commonwealth Immigration officers. His evidence was given despite both the apprehension that this would probably occur and the possibility that the evidence he gave would be utilised for purposes relating to the assessment of his character in the course of any administrative consideration of the question whether he should be deported.[6]
[6]Chou Chen was given the opportunity to receive independent legal advice concerning each of these matters before he in fact gave evidence.
In addition to the evidence of Chou Chen the applicant relied on an affidavit sworn by her solicitor Avi Furstenberg. In part this indicated that after meeting with Chou Chen on 10 July 2012 and speaking to counsel, the solicitor formed the view that Chou Chen was not giving a complete account of events leading up to the collection of the package and was minimising his own involvement. In discussion with counsel it was decided that a forensic decision was to be made regarding how the trial would be conducted, depending on whether Chou Chen actually attended Court.
Fresh evidence
The guiding principles governing the receipt of fresh evidence in a case such as the present one are set out in R v AHK by Winneke P: [7]
The fundamental question for the Court, in each such case, is whether it perceives that a miscarriage of justice has occurred.[8] In answering this question authorities binding on this Court have laid down three general considerations which should guide the Court in coming to its conclusion. The first of these, although it is not an inflexible rule, is that the conviction will not usually be set aside if the evidence relied on could, with reasonable diligence, have been produced by the accused at his trial. The second and third considerations, which are inter-related, are that the ‘fresh evidence’ is apparently credible or plausible or, at least, capable of belief and, in the view of the Court, is sufficiently relevant and cogent in the sense that, if considered in combination with the evidence already given at the trial, the Court considers that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial’.[9] It is in respect of these last considerations that there has been, over the years, some difference of judicial opinion although it was the test adopted by this Court (albeit with a qualification) in R v Nguyen & Tran.[10] However, at the end of the day, it should not be forgotten that the expressions of judicial opinion to which I have referred are practical guidelines which do not detract from the force of the fundamental principle that an appellate court must allow an appeal if a miscarriage of justice is shown to have occurred. An appellate court will always receive ‘fresh evidence’ if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand.[11]
[7][2001] VSCA 220, [9] (citations in original).
[8]Cf Gallagher v The Queen (1986) 160 CLR 392, 395 (Gibbs CJ).
[9]Ibid 402 (Mason and Deane JJ).
[10][1998] 4 VR 394, 400–401 (Kenny JA).
[11]See R v McIntee (1985) 38 SASR 432, 435 (King CJ).
In R v Nguyen & Tran,[12] Kenny JA put the relevant principles this way:[13]
[12]1998] 4 VR 394.
[13]Ibid 400-401 (Kenny JA) (citations in original).
An appellate court cannot set aside a verdict on a ’fresh evidence‘ ground unless it is satisfied that there has been a miscarriage of justice because the fresh evidence was not put before the jury at the trial.[14] If this ground is made out, the verdict of guilty will be quashed and, depending on the evidence considered as a whole, the appellate court may direct a retrial or discharge the appellant.[15] Ordinarily a court will not be satisfied that the ’fresh evidence‘ ground is made out unless:
(a)the evidence was not available, or could not with reasonable diligence have become available, at the trial;
(b)the evidence is relevant and otherwise admissible;
(c) the evidence is apparently credible (or at least capable of belief); and
(d)there is a significant possibility (or maybe a likelihood) that the evidence, if believed, would have led the jury, acting reasonably, to acquit the applicant if the evidence had been before it at the trial.[16] (If there is any practical difference between a test expressed in terms of ’a significant possibility‘ and a test expressed in terms of ’a likelihood‘, none has thus far been suggested; for it has been said that ’likelihood‘ is no more than ’a substantial — a ”real and not remote” — chance regardless of whether it is less or more than 50 per cent‘.)[17]
[14]See Gallagher v R (1986) 160 CLR 392, 395, 402, 410; and Mickelberg v R (1989) 167 CLR 259, 301.
[15]See Ratten v R (1974) 131 CLR 510, 518-9 (Barwick CJ).
[16]See Gallagher at 399, 402, 410, 421 and Mickelberg at 273, 288, 301.
[17]See Boughey v R (1986) 161 CLR 10, 21; Mickelberg at 301; Cheney v R (1991) 28 FCR 103, 108; and R v Heffernan (unreported, Court of Criminal Appeal, 20 May 1994).
In the present case there is a threshold problem raised by the first consideration identified above. This is that the course taken at trial flowed in significant part from the instructions given by the applicant to her legal advisors at that point in time. The affidavit of her solicitor shows that he was not instructed as to the facts to which Chou Chen now deposes (almost all of which, if true, the applicant must have known). In turn when, at the outset of the trial, the prosecutor advised the trial judge that Chou Chen would not be called as a witness, the decision to proceed in his absence without application for an adjournment or stay[18] was made in the absence of instructions on the part of the applicant to her legal advisors that Chou Chen could potentially give the evidence he now gives.
[18]Which could hardly have been resisted in the circumstances of the case.
In Ratten v The Queen,[19] Barwick CJ (with whom McTiernan, Stephen and Jacobs JJ agreed) made the following observations concerning the concept of a fair trial in circumstances where the evidentiary course followed may be seen to have arisen from a forensic decision made by the accused:[20]
As Smith J rightly said in expressing the reasons of the Full Court in this case, ‘Under our law a criminal trial is not, and does not purport to be, an examination and assessment of all the information and evidence that exists, bearing on the question of guilt or innocence’.[21] It is a trial, not an inquisition: a trial in which the protagonists are the Crown on the one hand and the accused on the other. Each is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; always, of course, subject to the rules of evidence, fairness and admissibility. The judge is to take no part in that contest, having his own role to perform in ensuring the propriety and fairness of the trial and in instructing the jury in the relevant law. Upon the evidence and under the judge's directions, the jury is to decide whether the accused is guilty or not. Consequently if the proceedings are not blemished by error on the part of the judge, whether it be on a matter of law or in the proper conduct of the proceedings, or by misconduct on the part of the jury, there has been a fair trial. It will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial. Great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interest he could have had available at his trial, and it will probably be only in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence. But he must bear the consequences of his own decision as to the calling and treatment of evidence at the trial.
Thus, there will be no miscarriage simply because evidence which was available to him actually or constructively was not called by the accused, even though it may appear that if that evidence had been called and been believed a different verdict at the trial would most likely have resulted. The accused, nevertheless, will have had a fair trial. But if the new evidence does qualify as fresh evidence it can be said that the trial was not fair. Of course, if by reason of new evidence accepted by it though it may not be fresh evidence, the court is either satisfied of innocence or entertains such a doubt that the verdict of guilty cannot stand, the fact that the trial itself has been fair will not prevent the court upon that evidence quashing the conviction.
[19](1974) 131 CLR 510.
[20]Ibid 517-8.
[21][1974] VR 201, 214.
In the present case it may be concluded that the applicant did not take all the steps reasonably open to her to bring Chou Chen’s evidence before the court. In particular, she did not instruct her legal advisors as to what are now contended to be the true facts of the case.
The failure to take any active steps to bring Chou Chen’s evidence before the court is subjectively understandable because it may be inferred that as a result of her affection for him the applicant did not wish to incriminate Chou Chen and/or cause him to be deported. In taking this course, however, the applicant cannot be said to have acted with reasonable diligence in presenting her own defence.
On the other hand it cannot readily be concluded that Chou Chen’s evidence was in any real sense available to the applicant at this point in time. Rather the evidence as a whole supports the conclusion that Chou Chen was not prepared at the time to give the evidence he now gives. This was, first, because of fear that he would be implicated in the offending and, secondly, fear that he would be deported.
In turn, I am not persuaded that Chou Chen’s evidence was in fact available either actually or constructively at the time of the applicant’s trial. Thus despite the course which the applicant elected to take at the trial with respect to instructions to her legal representatives, I accept that the essence of the first relevant consideration identified in the authorities has been demonstrated and that the evidence was not available and could not with reasonable diligence have been made available at the date of trial. I am fortified in this conclusion by the observation of Barwick CJ in Ratten that ‘great latitude must of course be extended to an accused in determining what evidence by reasonable diligence in his own interests he could have had available at his trial, and it will probably only be in an exceptional case that evidence which was not actually available to him will be denied the quality of fresh evidence.’
It is not in issue that Chou Chen’s evidence (including his translated written statement) is admissible save for some matters of purported opinion in the written statement.
The next issue is whether the evidence is apparently credible or plausible, or at least capable of belief. As the applicant’s counsel emphasised, the trial judge accepted in her sentencing remarks that the applicant acted at the behest of Chou Chen. If accepted, Chou Chen’s evidence bears directly on the understanding pursuant to which she did so. Chou Chen’s oral evidence to this Court was circumstantial and coherent. It also conveyed a credible sequential narrative which substantially conformed to the circumstantial evidence in the case. It is inherently difficult to go beyond such considerations in the assessment of the credibility of evidence given through an interpreter. Moreover the fact that Chou Chen was prepared to embrace the prospect of arrest and subsequent deportation in order to give the evidence may be regarded as tending strongly to confirm that it is plausible. When these matters are put together I am satisfied that Chou Chen’s evidence is credible in the relevant sense.
The final consideration is whether the evidence is sufficiently relevant and cogent that if considered in combination with the evidence at trial it raises a significant possibility that the jury would have acquitted the applicant at trial if the new evidence had been before it.
In Coleman v The Queen,[22] Buchanan JA elaborated the concept of significant possibility in this context:[23]
[22][2011] VSCA 301.
[23]Ibid [23]-[24] (citations in original).
The question then becomes whether the evidence was sufficiently relevant and cogent in that, if considered in combination with the evidence already given at the trial, there is ‘a significant possibility that the jury, acting reasonably, would have acquitted the applicant of the charge if the new evidence had been before it in the trial’ to use the words of Winneke P in R v AHK.[24] His Honour continued:
[24][2001] VSCA 220,[8] (Winneke P). See also Gallagher v R (1986) 160 CLR 392, 402 (Mason and Deane JJ); R v DD [2005] VSCA 308; Mickelberg v R (1989) 167 CLR 259, 273 (Mason CJ).
An appellate court will always receive ‘fresh evidence’ if it can be clearly shown that the failure to receive it might have the result that an unjust conviction is permitted to stand.
In Craig v R Rich and Dixon JJ stated the test in these terms:
It cannot be said that a miscarriage of justice occurred unless the fresh evidence has cogency and plausibility as well as relevance. The fresh evidence must, we think, be of such a character that, if considered in combination with the evidence already given upon the trial, the result ought in minds of reasonable men to be affected. Such evidence should be calculated at least to remove the certainty of the prisoner’s guilt which the former evidence produced. But in judging of the weight of the fresh testimony the probative force and the nature of the evidence already adduced at the trial must be a matter of great importance.[25]
[25](1933) 49 CLR 429, 439.
The test may be expressed in terms of significant possibility or likelihood. In Mickelberg v R[26] Toohey and Gaudron JJ said:
In essence, the fresh evidence must be such that, when viewed in combination with the evidence given at trial, it can be said that the jury would have been likely to entertain a reasonable doubt about the guilt of the accused if all the evidence had been before it or, if there be a practical difference, that there is ‘a significant possibility that the jury, acting reasonably, would have acquitted [the accused].’[27]
Likelihood here means a substantial chance, one that is real and not remote.[28]
This court must consider all the new evidence itself, ‘forming and acting upon its own belief in, or disbelief of, the evidence, and upon its own view of the facts of the case including the evidence at the trial …’.[29]
[26](1989) 167 CLR 259.
[27]Ibid 301.
[28]Boughey v The Queen (1986) 161 CLR 10, 21 (Mason, Wilson and Deane JJ). See R v Nguyen and Tran (1998) 4 VR 394, 401 (Kenny JA).
[29]Ratten v R (1974) 131 CLR 510, 518 (Barwick CJ).
In the present case the prosecutor on appeal summarised the circumstantial case against the applicant as follows:
(a) Between 21:06:24 on 23 September 2010 and 09:08:48 on 28 September 2010 the applicant persistently telephoned the covert police telephone number listed as the contact number on the missed delivery slip and received calls from the covert number regarding arrangements for the collection of the package.
(b) She pretended to be Ting Lin, the named consignee for the package, when making or receiving these calls.
(c) When making the first seven calls, between 21:06:24 on 23 September and 13:43:15 on 24 September, the applicant used a function on the telephone handset to block her telephone number from being seen by the recipient.
(d) In the days before, the applicant made a number of calls to a third party’s telephone number 0414 148 098. On 24 September the covert police number received missed calls both from the applicant’s telephone number and the third party’s number.
(e) When arrested the applicant had the missed delivery card in her handbag.
(f) The applicant’s telephone listed a contact number for ‘Chen’ that was almost identical (only the last digit was changed) to the consignee contact number listed on the consignment note for the package.
(g) The applicant told police in her interviews that:
(i) she had been given the missed delivery slip by Jing Zhang about two weeks prior (when in fact the delivery slip was only left at 8 Stewart Street on 22 September);
(ii) Jing Zhang was her friend and he had asked her to collect the package, apparently because he was busy, yet she did not have a contact telephone number for him, did not know where he lived and claimed she had only known him socially for a matter of months after meeting him in a club;
(iii) she did not know any person named Ting Lin and did not know anyone living at 8 Stewart Street;
(iv) she had paid $40 or $50 to take a taxi to 8 Stewart Street; and
(iv) she believed Jing Zhang was a user of illegal drugs but did not know if he was a dealer.
As counsel for the applicant submits, Chou Chen’s evidence substantially explains away or creates doubt as to the inferences that might be drawn from a series of these matters either taken individually or together:
· The making of repeated phone calls with respect to the parcel is explained by Chou Chen’s need for an English-speaking agent.
· The posing as Ting Lin is explained by Chou Chen’s request to do so.
· The blocking of the applicant’s phone is explained by Chou Chen’s evidence that it was he who dialled the relevant telephone number and the blocking code.
· The possession of the postal slip is explained by Chou Chen’s request that the applicant impersonate Ting Lin and Chou Chen’s evidence that he initially had the postal slip, but put it into the applicant’s bag because he had nowhere else to put it.
· The listing of a contact number for ‘Chen’ in the applicant’s phone which was almost identical with but different in respect of one digit only to the relevant consignment number is explained by Chou Chen’s involvement in the importation.
· The applicant’s personal relationship with Chou Chen explains why she did not give a frank and truthful account when interviewed by investigating police and in particular blamed Zhang not Chou Chen.
Conversely, not all the critical matters relied on by the Crown are potentially explained away by Chou Chen’s evidence. In particular, the presence of telephone contacts with an unexplained third party telephone number, from which enquiries relating to the parcel were also made to Australia Post, is not on its face consistent with the applicant simply acting as Chou Chen’s agent.
Nevertheless, it seems to me that, viewed in the broad, it is plain that if Chou Chen were to give evidence that the applicant acted at his behest, and was never told of the character of the parcel, this evidence viewed in the context of a relationship in which Weng trusted Chou Chen, might have caused a jury to reasonably doubt whether Weng knew or believed that the parcel contained a border controlled substance. In turn, she might have been acquitted.
As the authorities emphasise, the fundamental question for this Court is whether it perceives that a substantial miscarriage of justice has occurred.[30] Even if I am incorrect with respect to the view I have expressed that Chou Chen’s evidence could not with reasonable diligence have been produced at the applicant’s trial, this consideration is not an inflexible requirement. As Gibbs CJ affirmed in Gallagher v The Queen,[31] the principles that may be extracted from the authorities ‘should not … be regarded as absolute or hard and fast rules.’[32]
[30]Criminal Procedure Act 2009 s 276.
[31](1986) 160 CLR 392.
[32]Ibid 395, citing Green v The King (1939) 61 CLR 167, 175.
In my view, Chou Chen’s evidence is such that a failure to receive it may have the result that an unjust conviction is permitted to stand. Accordingly, this Court should grant leave to appeal with respect to the applicant’s conviction, quash that conviction and direct a retrial.
The further ground of appeal
It is necessary for the sake of completeness to address the further proposed ground of appeal against conviction, which was expressed as follows:
Ground 3:The learned trial judge erred in failing to direct that, in order to convict the applicant, inter alia the jury had to be satisfied beyond reasonable doubt that the applicant knew or believed that the package contained methamphetamine.
Section 307.6 of the Criminal Code (Cth) provides:
(1) A person commits an offence if:
(a)the person possesses a substance; and
(b)the substance was unlawfully imported; and
(c)the substance is a border controlled drug or border controlled plant; and
(d)the quantity possessed is a marketable quantity.
Penalty: Imprisonment for 25 years or 5,000 penalty units, or both.
(2)Absolute liability applies to paragraphs (1)(b) and (d).
(3)The fault element for paragraph (1)(c) is recklessness.
(4)Subsection (1) does not apply if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.
(5)Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.
Note:A defendant bears a legal burden in relation to the matters in subsections (4) and (5) (see section 13.4).
Section 11.1 further provides:
(1)A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.[33]
(2)For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(3)For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note:Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.
[33]Emphasis in original.
Upon the trial it was necessary for the Crown to prove that:
· the applicant engaged in conduct that was more than merely preparatory to the commission of the substantive offence; and
· the applicant engaged in that conduct intending to take possession of a substance that she intended or knew to be a border controlled drug.
After directing the jury concerning the physical elements of the offence, the trial judge directed that the fault element was that:
When the accused did the act or acts she did so with the intention of possessing a border controlled drug – that is, that she believed that the package contained a border controlled drug, and she intended to possess the border controlled drug.
The applicant submits that her Honour should further have directed the jury that the Crown had to prove that the applicant knew or believed that the package contained methamphetamine in particular.
I accept that her Honour made it clear to the jury that they did not need to be satisfied that the applicant had knowledge or belief as to the identity of the particular drug. As her Honour said at one point:
The prosecution in this case allege that Ms Weng attempted to possess the package believing that the package contained methamphetamine or some other border controlled drug and Ms Weng denies having an intention to possess methamphetamine or some other border controlled drug, the border controlled drug at the relevant time.
The respondent accepts that it was necessary for the Crown to prove beyond reasonable doubt that:
· the border controlled drug that was (attempted to be) possessed was in fact methamphetamine; and
· that such border controlled drug was unlawfully imported.
The respondent takes issue however with the contention that the Crown was required to prove that the applicant knew or believed the border controlled drug was methamphetamine.
Section 307.6
The starting point must be the terms of s 307.6 itself. The offence created by that section includes the physical element (1)(c):
(c) the substance is a border controlled drug or border controlled plant …
The relevant element of the offence is defined by the concept of a ‘border controlled drug’.[34] It is not defined by the specification of a particular drug.
[34]Section 300.2 defines ‘border controlled drug’ as follows:
border controlled drug means a substance, other than a growing plant:
(a)listed or described as a border controlled drug in section 314.4; or
(b)prescribed by regulations under paragraph 301.3(1)(a); or
(c)specified in a determination under paragraph 301.8(1)(a).
Item 93A of s 314.4 lists methamphetamine as a border controlled drug.
It is possible to readily hypothesise a situation in which an accused who acts as an intermediary knows or believes that he or she possesses a border controlled drug but does not know precisely what that drug is. That such a situation may still amount to an offence in cases of prosecution under s 307.6 simpliciter is made clear
by s 307.6(5) which provides that the fault element under s 307.6(1)(c) is recklessness.[35]
[35]Section 5.4 provides in relation to ‘recklessness’:
(1)A person is reckless with respect to a circumstance if:
(a)he or she is aware of a substantial risk that the circumstance exists or will exist; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(2)A person is reckless with respect to a result if:
(a)he or she is aware of a substantial risk that the result will occur; and
(b)having regard to the circumstances known to him or her, it is unjustifiable to take the risk.
(3)The question whether taking a risk is unjustifiable is one of fact.
(4)If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.
In the case of an attempt an accused will have the relevant intention with respect to the circumstance in issue if he or she believes that it exists or will exist.[36]
[36]Section 5.2 provides in relation to ‘intention’:
(1)A person has intention with respect to conduct if he or she means to engage in that conduct.
(2)A person has intention with respect to a circumstance if he or she believes that it exists or will exist.
(3)A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.
Belief of this kind was discussed by Mason CJ, Deane and Dawson JJ in Kural v The Queen[37] in the context of consideration of the common law requirement that the Crown prove an intention to import or take possession of narcotic goods in respect of an offence under legislation prior to the provisions now contained in the Code:
Where, as here, it is necessary to show an intention on the part of the accused to import a narcotic drug, that intent is established if the accused knew or was aware that an article which he intentionally brought into Australia comprised or contained narcotic drugs. But that is not to say that actual knowledge or awareness is an essential element in the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained narcotic drugs would obviously sustain an inference of intention. So also would proof that the forbidden act was done in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the importation of narcotic drugs if it is proved beyond reasonable doubt that the accused actually imported the drugs and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in what he was importing and of the likelihood that it was a narcotic drug. What we have said is designed to emphasise that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from primary facts found by the tribunal of fact. In this, as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law. In that regard, we would emphasise that the foregoing comments are not designed as a direction or instruction to be read by trial judges to juries. They are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases.[38]
[37](1987) 162 CLR 502.
[38]Ibid 504-5
By parallel reasoning, belief that a package contains border controlled drugs, falling short of belief as to the precise nature of such drugs, will constitute a proper basis for a finding that an accused intends to take possession of a border controlled drug.
Thus, in Saad v The Queen[39] Mason CJ, Deane and Dawson JJ applied the same reasoning and further stated:
In our judgment in Kural v R, we sought to give such guidance in a case where the alleged offence was the importing of a prohibited import. We emphasised then, and we do so again, that our comments were not designed as a direction or instruction to be read by trial judges to juries. Our comments are intended to give guidance to trial judges in order to enable them to formulate such directions as may be appropriate to the facts and circumstances of particular cases. In the following paragraph of this judgment, we apply what was said in Kural to an offence such as that involved in the present case.
In a case such as the present where it is necessary to show an intention on the part of an accused to have in his possession a narcotic drug, that intent is established if the accused knew or was aware that an article which was intentionally in his possession comprised or contained a narcotic drug. That is not to say that actual knowledge or awareness is an essential element of the guilty mind required for the commission of the offence. It is only to say that knowledge or awareness is relevant to the existence of the necessary intent. Belief, falling short of actual knowledge, that the article comprised or contained a narcotic drug would obviously sustain an inference of intention. So also would proof of the possession of the forbidden drug in circumstances where it appears beyond reasonable doubt that the accused was aware of the likelihood, in the sense that there was a significant or real chance, that his conduct involved that act and he nevertheless persisted in that conduct. As a practical matter, the inference of mens rea or a guilty mind will ordinarily be irresistible in cases involving the possession of narcotic drugs if it is proved beyond reasonable doubt that the accused was actually in possession of the drug and that he was aware, at the time of the alleged commission of the offence, of the likelihood of the existence of the substance in question in his possession and of the likelihood that it was a narcotic drug.
As we have indicated, the previous paragraph involves no more than an application of what we said in our judgment in Kural. As in Kural, we would emphasise that the existence of the requisite intention is a question of fact and that in most cases the outcome will depend on an inference to be drawn from the facts established by the prosecution and that, in this as in other areas of the law, it is important not to succumb to the temptation of transforming matters of fact into propositions of law.[40]
[39](1987) 61 ALJR 243.
[40]Ibid 244 (citation omitted); see also Pereira v Director of Public Prosecutions (1988) 63 ALJR 1, 3.
Despite the fact Kural was a case which was concerned, not with proof of specific intention as a distinct element of the offence, but proof that the accused had acted with mens rea or a guilty mind, the process of reasoning referred to may be open in a case such as the present. In R v Cao[41] Howie J emphasised that these authorities demonstrate a process of reasoning which is equally applicable to proof of intention under the Code as to proof of intention under the common law:
In my opinion, the decisions of the High Court to which I have referred are still applicable, notwithstanding that this was a prosecution to which the Code applied. They simply set out a process of reasoning that the jury might follow in order to find the mental, or fault, element of the offence proved. That process of reasoning seems to me to be as applicable to proof of intention under the Code as to proof of intention under the Common Law. I have already pointed out that this Court in R v Saengsai-Or accepted that this line of authority was applicable to an offence of importation to which the Code applied. There is no reason in logic or law, that I can see, why it should not also apply to a case of possession or attempted possession of imported goods.[42]
[41](2006) 65 NSWLR 552.
[42]Ibid [53].
The contrary view would very materially limit the efficacy of the provisions. The experience of the courts is that referred to in Wong v The Queen:[43]
It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for
many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic.[44]
[43](2001) 207 CLR 584 (Gaudron, Gummow and Hayne JJ)
[44]Ibid [68].
The fact that the definition of border controlled drug embraces diverse substances does not assist the applicant. Rather, it would be anomalous if the jury could not convict because they could not be satisfied, for example, that an accused intended to take possession of a quantity of methaqualome as distinct from methamphetamine.
Likewise it is not to point that ‘border controlled drug’ is not a term in everyday usage. Neither is methamphetamine or the other drugs described in the relevant schedule. The question of whether an accused believed something to comprise a specific drug rather than an undefined border controlled drug may necessarily be seriously difficult to demonstrate beyond reasonable doubt because of the technical nature of the issue. The point can be illustrated this way. Most intermediaries involved in drug importation will not have a belief as to the nature of the drugs based on a certificate of chemical analysis. If they have a belief at all it will ordinarily be based on hearsay expressed in slang or street language. In the present case, Chou Chen gave evidence through an interpreter that he knew the package contained ‘ice’. Cassell’s Dictionary of Slang[45] indicates that since the 1970s ‘ice’ has been used as slang for both cocaine and methamphetamine. The prevalence of methamphetamine use as against cocaine use in this jurisdiction does not remove this potential ambiguity. Slang is inherently picturesque rather than precise.[46] In turn it may be difficult to conclude beyond reasonable doubt the precise nature of the drug in issue from evidence which goes no further than the use of such terms. On the other hand, they may readily support a conclusion that what is in issue is a border controlled drug.
[45]Jonathon Green, Cassell’s Dictionary of Slang (Weidenfeld & Nicolson, 2nd ed, 2-5).
[46]Thus the same dictionary gives the following alternatives for methamphetamine: bomdido, bombita, boo, chalk, Christina, cool smoke, cringe, crink, glass, ice, lemon drop, meth, poor man’s cocaine, quill, redneck cocaine, rock, rock crank, shabu and sketch. A number of local variants are used in this jurisdiction, including ‘freeze’.
Likewise the fact that the offence involves an element of quantity does not advance the applicant’s argument. A ‘marketable quantity’ differs according to the type of border controlled drug.[47] Nevertheless, s 307.6(1)(d) is an absolute liability element of the offence by virtue of s 307.6(2).[48] The defence bears the legal burden with respect to this element. In turn, s 307.6(4) enables an accused to displace the effect of this absolute liability ‘if the person proves that he or she neither intended, nor believed that another person intended, to sell any of the border controlled drug or any of the border controlled plant or its products.’[49] The effect of this defence may leave open the alternative of possessing an unlawfully imported border controlled drug under s 307.7.
[47]The Code s 314.4.
[48]Section 6.2 of the Code provides that:
(1)If a law that creates an offence provides that the offence is an offence of absolute liability:
(a)there are no fault elements for any of the physical elements of the offence; and
(b)the defence of mistake of fact under section 9.2 is unavailable.
(2)If a law that creates an offence provides that absolute liability applies to a particular physical element of the offence:
(a)there are no fault elements for that physical element; and
(b)the defence of mistake of fact under section 9.2 is unavailable in relation to that physical element.
(3)The existence of absolute liability does not make any other defence unavailable.
[49]Emphasis added.
The offences created by the Code relating to border controlled drugs proceed by reference to pure quantities of drugs. It is inherently unlikely any accused who was no more than an intermediary could ever be proved to know of the quantity of pure drug contained within a mixture cut with other substances. Each of these considerations demonstrate that it is unlikely the legislature intended the section to operate in the way the applicant contends.
The applicant relies on the ruling of Kaye J in R v Franze (Ruling No 2).[50] In that case the accused was charged with two counts of attempting to possess a commercial quantity of unlawfully imported border controlled drugs. The prosecution case was that the accused was party to a joint criminal enterprise and had entered into an agreement with another person to possess a quantity of border controlled drug being in respect of count 1 methamphetamine and with respect to count 2 cocaine.
[50][2013] VSC 230.
Section 11.2A(1) of the Code relevantly provided:
(1) If:
(a)a person and at least one other party entered into an agreement to commit an offence; and
(b)either
(i)an offence is committed in accordance with the agreement … or
(ii)an offence is committed in the course of carrying out the agreement …
The person is taken to have committed the joint offence referred to. …
His Honour concluded that the relevant agreement to commit an offence must be capable of definition with some degree of certainty:[51]
Section 11.2A consists of a codification (with some differences) of the common law relating to what is described as a joint criminal enterprise in this State. The basis of an accused’s liability at common law, under the principles attaching to joint criminal enterprise, was recently described by the High Court in Likiardopoulos v R[52]. In that case, the accused was charged with murder committed jointly with three others. The principal case against the accused was that he was liable for the murder pursuant to the principles of joint criminal enterprise. The plurality described that basis of criminal liability as follows:
On the principal case, the appellant was liable for the murder of the deceased under the principle of joint criminal responsibility variously described as joint criminal enterprise, common purpose or concert. On this analysis, it was necessary to prove that the appellant was a party to an understanding or arrangement, whether formed expressly or tacitly, with John Likiardopoulos, Aydin and Singh, to inflict really serious injury on the deceased and that, while that arrangement was on foot, one or more of the parties to it did the acts which caused death intending thereby to do really serious injury to him. The appellant’s participation in the enterprise while possessed of the requisite intention (here to inflict really serious injury) operates to fix him with liability for the acts of the other parties carried out in pursuance of it. On the principal case, the appellant’s liability is direct … .[53]
As such, the proof of the commission of a crime, pursuant to a joint criminal enterprise, requires the prosecution to prove that the accused was a party to an understanding, arrangement or agreement to commit the crime. Subject to the principles of ‘extended common purpose’ (which is not relied on by the prosecution in this case), the offence committed must fall within the criminal purpose which was agreed by the parties, and in particular by the accused. In that way, it is clear that the agreed criminal conduct must be capable of a degree of definition, notwithstanding that it may not have the same measure of certainty as that required of a contract at common law.
[51]Ibid [20]-[21] (citations in original).
[52][2012] HCA 37.
[53]Above, [19].
On the facts in Franze this required proof of an agreement which differentiated between the different drugs comprised in the first and second counts:
Furthermore, in this case, the prosecution relies on the proof of a joint enterprise to establish the guilt of the accused on one count alleging attempted possession of a commercial quantity of methamphetamine, and a second count alleging attempted possession of a commercial quantity of cocaine. Thus the enterprise must relate to the attempted possession of two separate border controlled drugs. If the jury were not satisfied that the joint agreement related to more than one ‘border controlled drug’, in the absence of the principles of extended common purpose (which are not relied on), and in the absence of the jury being satisfied as to the identity of that ‘border controlled drug’, the jury would be left with the insoluble conundrum as to upon which count the accused would be guilty.[54]
[54]R v Franze (Ruling No 2) [2013] VSC 230, [22].
With respect his Honour’s reasoning responded directly to the facts with which he was concerned and does not compel the conclusion that in a case such as the present the prosecution must prove that the accused intended to take possession of methamphetamine. Indeed, his Honour expressly observed as follows:
I accept that in some cases the evidence or issues may make it necessary or appropriate to give a direction to the jury in the wide form contended for by the prosecution. However this is not such a case. As I stated, the prosecution case is that the accused was a party to an agreement to possess the drugs, which were contained in the consignment of Cupaca beer addressed to AAMA Pacific. Two such drugs were detected. The prosecution case is that the accused was a party to an attempt to possess those drugs. The defence has not disputed that there was a joint enterprise between Sitar and Ramazanoglu to import and possess border controlled drugs. Indeed, in his preliminary opening to the jury at the commencement of the trial, Mr Tovey QC (who appears with Ms Boston for the accused) expressly conceded the existence of that enterprise. There is nothing in the evidence to suggest that the enterprise involved any other border controlled drug. The only issue is whether the prosecution has proven beyond reasonable doubt that the accused was a party to that agreement. Thus, as I have already noted, the point raised by the Crown is probably academic.[55]
[55]Ibid [29].
For the above reasons, I accept the respondent’s submission that the language of s 307.6(1)(c) does not require proof of a particular border controlled drug either for the purpose of proof of the completed offence or for an attempt in accordance with s 11.1.
In the alternative, the respondent submits that the same conclusion is supported by s 300.5 of the Code, which provides:
If, in a prosecution for an offence against this Part, it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance or plant was a controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor, it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the controlled drug, controlled plant, controlled precursor, border controlled drug, border controlled plant or border controlled precursor.
Section 11.6 of the Code further provides as follows:
(1)A reference in a law of the Commonwealth to an offence against a law of the Commonwealth (including this Code) includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to such an offence.
(2)A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against section 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.
(3)Subsection (1) or (2) does not apply if a law of the Commonwealth is expressly or impliedly to the contrary effect.
(4) In particular, an express reference in a law of the Commonwealth to:
(a)an offence against, under or created by the Crimes Act 1914; or
(b)an offence against, under or created by a particular provision of the Crimes Act 1914; or
(c)an offence arising out of the first mentioned law or another law of the Commonwealth; or
(d)an offence arising out of a particular provision; or
(e)an offence against, under or created by the Taxation Administration Act 1953;
does not mean that the first mentioned law is impliedly to the contrary effect.
Section 2.2 of the Code provides:
(1) This Chapter applies to all offences against this Code.
(2)Subject to section 2.3, this Chapter applies on and after 15 December 2001 to all other offences.
(3)Section 11.6 applies to all offences.
I accept that as the applicant submits s 300.5 does not apply of its own force to a prosecution for an offence of attempt, because s 11.1 is not contained in pt 9.1 and s 300.5 applies in terms ‘in a prosecution for an offence against this Part’.
Nonetheless the respondent submits that s 300.5 is a law of the Commonwealth which contains a reference ‘to an offence against a law of the Commonwealth (including this Code)’ in terms of s 11.6(1) or a reference in a law of the Commonwealth (including this Code) to a particular offence in terms of s 11.6(2). The reference to ‘an offence against this Part’ includes an offence contrary to s 307.6. In turn the reference in s 300.5 to an offence ‘against this Part’ is to be taken to include a reference to an attempt to commit such an offence.
The respondent relies upon the reasoning of Redlich JA (with whom Neave JA and Lasry AJA agreed) in HAT v The Queen.[56] In that case the two appellants pleaded guilty to one count of conspiring to deal with money which was, and which the appellants believed to be, proceeds of crime, the value of the money being $1 million or more, contrary to ss 11.5 and 400.3 of the Code. The two appellants were responsible for the day to day running of money transfer businesses through which proceeds of crime were laundered. They were sentenced by reference to the aggregate value of the transactions which took place at the businesses between the start and end dates of the charges.
[56](2011) 256 FLR 201.
Section 400.12 of the Code provided that if a single charge related to two or more instances of the defendant engaging in conduct that constituted an offence against a provision in div 400 of the Code, the value of the property the subject of the charge ‘is taken to be the sum of the values of the money and other property dealt with in respect of each of those instances.’
On appeal it was argued that s 400.12 did not apply to a charge of conspiracy to commit an offence against s 400.3 and that the appellants ought to have been sentenced by reference only to transactions which involved amounts of $1 million or more.
Redlich JA held that s 400.12 of the Code is capable of application to a charge of conspiracy to commit a substantive offence in div 400 of the Code. In the first instance his Honour reasoned by reference to the elements of the offence of conspiracy.[57]
[57]Ibid 212 [37].
He further reasoned that s 11.6 of the Code supported a like view and adopted a purposive interpretation of that provision:[58]
[58]Ibid 213 [40]-[42] (citations in original).
Section 11.6 of the Act falls within Pt 2.4 entitled ‘Extensions of criminal responsibility’ and is to be interpreted in a manner which will facilitate that objective in relation to Commonwealth offences including those in Div 400. Offences against laws of the Commonwealth are those offences created by, or under the authority of the Criminal Code or any other Act.[59]
The Explanatory Memorandum to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999, referred to it in these terms:
Items 9, 10 and 11 of Schedule 1 — amendments to section 11.6
Section 11.6 of the Criminal Code is an interpretative provision which provides that references to offences against an Act also include relevant extensions of criminal responsibility such as attempt, complicity and conspiracy. This simplifies the drafting of criminal statutes. The proposed amendments in items 9 and 10 make it clear this rule extends to not only Acts but other laws of the Commonwealth that create offences (for example, regulations). Proposed new subsection 11.6(4) which would be inserted by item 11 preserves references in existing laws to extensions of criminal responsibility.[60]
The provision is referred to in the Commonwealth Criminal Code — Guide for Practitioners, as one essentially of drafting convenience that ensures that references in Commonwealth laws to Commonwealth offences includes references to crimes such as conspiracy, attempts and incitement.[61]
[59]1.1 Codification. Under s 38(1) of the Acts Interpretation Act 1901 (Cth), Act means an Act passed by the Parliament of the Commonwealth.
[60]The Explanatory Memorandum to the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Bill 1999, para 13.
[61]Commonwealth Attorney General's Department, March 2002, pp 292-293 (I Leader-Elliott).
His Honour further rejected a narrow view of the notion of reference to ‘an offence against a law of the Commonwealth’ and of the notion of reference to a ‘particular offence’:[62]
The applicants submitted that as neither s 400.3 or s 400.12 makes any reference to ‘an offence against a law of the Commonwealth’ s 11.6 cannot apply to their construction. That submission cannot be sustained. Section 2.2(3) of the Act provides that s 11.6 applies to all offences. Further the very terms of s 11.6 treat the code [sic] as a law of the Commonwealth. Next the applicants contend that s 11.6(2) cannot apply because neither s 400.3 or s 440.12 refer to a ‘particular offence’. That involves an artificial and narrow construction of s 11(6). Section 400.3 is for the purpose of s 11(6) a particular offence of law of the Commonwealth. So to [sic] is the reference to ‘a single charge of an offence against a provision of this Division’ in s 400.12. Next it is submitted that s 11.6(3) applies. Section 400.12 is said to be expressly or impliedly to the contrary effect to s 11.6(1) and (2) because it is confined to ‘a single charge of an offence against a provision of this Division’. Those words do not reflect any contrary intention. That is made clear by s 11.6(4). To so construe the words would defeat the plain purpose of s 11(6) as supported by s 2.2(3). Finally it was submitted that in the alternative, if s 11.6(1) and (2) applied to s 400.12, it would have to be interpreted as meaning that the ‘2 or more instances of engaging in conduct (at the same or different times) that constitutes an offence’ are reference to two or more conspiracies to commit a breach of s 400.3. I do not accept that is how the provision is to be construed. Section 11.6 does not require that both references to ‘an offence’ in s 400.12 must be interpreted as a reference to a conspiracy. Such a construction would also defeat the plain purpose of the provision.
[62]HAT v The Queen (2011) 256 FLR 201, 213 [43].
I accept that the application of ss 11.6(1) and (2) to s 300.5 is not entirely free from difficulty. The view might be taken as Kaye J did in R v Franze (Ruling No 2),[63] with respect to s 11.6(2):
The statutory provisions under consideration affect the scope and reach of particular criminal offences prescribed by the Code. For that reason it is appropriate that s 11.6(2) be construed according to its plain terms, and not in an expansive manner … Understood in that sense, it does not operate to apply s 300.5 to offences under s 11.1 of the Code.
[63][2013] VSC 230, [14].
Nonetheless in my view the respondent’s alternative submission should be upheld and the purposive reasoning adopted in HAT should be applied in the present circumstances. The effect of ss 11.6(1) and (2) is thus that s 300.5 extends to prosecutions for an attempt to commit ‘an offence against this Part’. In turn s 300.5 provides an alternative basis for rejecting the applicant’s submission that it was necessary for the prosecution to prove that the applicant knew or believed that the package contained methamphetamine.[64]
[64]A like view of the underlying question of interpretation was taken in R v Hill (2011) 212 A Crim R 359, 395–6 [120] (per Atkinson J, with whom Muir and White JJA relevantly agreed).
Conclusion
For the above reasons leave to appeal against conviction should be granted on the fresh evidence ground alone and a retrial should be directed.
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