Western Australia v Marchesi - [2005] WASCA 133

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: THE STATE OF WESTERN AUSTRALIA -v- MARCHESI & ANOR [2005] WASCA 133

CORAM: STEYTLER P
MCLURE JA
PULLIN JA

HEARD: 4 MAY 2005

DELIVERED : 20 JULY 2005

FILE NO/S: CCA 151 of 2004
CCA 152 of 2004

BETWEEN: THE STATE OF WESTERN AUSTRALIA
Appellant
AND
RODNEY ANTHONY MARCHESI
First Respondent
BRENDON SHAYNE McGUIRE
Second Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :DEANE DCJ
File No  :IND 1306 of 2002

Catchwords:

Criminal law - Misuse of Drugs Act - Conspiracy - Whether particulars could contradict the indictment - Conspiracy in Victoria - Whether an offence in Western Australia

Legislation:

Criminal Code (WA), s 12, s 582

Criminal Procedure Act 2004 (WA), cl 5(2)(a), Sch 1
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 33(2)

Poisons Act 1966 (NSW)

Result:

Appeal dismissed

Category: A

Representation:

Counsel:

Appellant:     Mr D Dempster
First Respondent           :     Mr P Haag
Second Respondent       :     Mr O P Holdenson QC

Solicitors:

Appellant:     State Director of Public Prosecutions
First Respondent           :     Justine Fisher
Second Respondent       :     Theo Magazis & Associates

Case(s) referred to in judgment(s):

Carusi v The Queen (1990) 64 ALJR 657
Director of Public Prosecutions v Doot [1973] AC 807
Giorgianni v The Queen (1985) 156 CLR 473
Gummer v Commissioner of Police [1995] 1 Qd R 346
Kamara v Director of Public Prosecutions [1974] AC 104
Krakouer v The Queen (1998) 194 CLR 202
Liangsiriprasert v Government of the United States of America [1991] 1 AC 225
Lipohar v The Queen (1999) 200 CLR 485
Mylonas [1987] WAR 261
Nirta v The Queen (1983) 51 ALR 53
Peters v The Queen (1998) 192 CLR 493
R v Carusi (1990) 45 A Crim R 165
R v Cuthbertson [1981] AC 470
R v Gudgeon (1995) 133 ALR 379
R v Hildebrandt [1964] Qd R 43
R v Marinovich (1990) 46 A Crim R 282
R v Robinson [1976] WAR 155
R v Rogerson (1992) 174 CLR 268
R v Trudgeon (1988) 39 A Crim R 252
R v Winfield & Lipohar (1997) 70 SASR 300
Re Bolton; Ex parte Beane (1987) 162 CLR 514
Shepherd v The Queen (No 5) (1990) 170 CLR 573
Truong v The Queen (2004) 78 ALJR 473
Vereker v Rodda (1987) 26 A Crim R 25

Case(s) also cited:

Morrison v Kiwi Elextrix Pty Ltd (1988) 19 WAR 482
Pinkstone v The Queen (2004) 78 ALJR 797
R v Catanzariti (1995) 65 SASR 201
R v Gummer [1975] 1 Qd R 346
R v Hutchinson (2003) 144 A Crim R 28
R v Isaac, Tajeddine & Elachi (1996) 87 A Crim R 513
R v Lee (1994) 76 A Crim R 271
R v Maio [1989] VR 281
R v Turner (2001) 25 WAR 258
R v Udechuku [1982] WAR 21
Romeo & Ricciardello v The Queen (1991) 65 ALJR 261
Weston v Commissioner of Police, Queensland [2004] 1 Qd R 103

STEYTLER P: This is a State appeal against a directed acquittal. The issues raised by the appeal, and the events which gave rise to them, are set out in the judgment of Pullin JA. I will not repeat them, save insofar as is necessary in order to express my own conclusions.

The indictment, the particulars to it and the prosecution opening

The indictment upon which the respondents were charged was expressed to rely upon ss 6(1)(a) and 33(2) of the Misuse of Drugs Act 1981 (WA) ("Act"). It alleged that:
"Between 27 February 2001 and 13 March 2001 at Perth and elsewhere RODNEY ANTHONY MARCHESI and BRENDAN SHAYNE MCGUIRE conspired together to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another."
On 19 December 2003, some eight months before the commencement of the trial, the prosecutor wrote to the then solicitors for the respondents, enclosing a copy of the indictment and a revised witness list. His letter went on to say:
"As you can see, the Crown is to proceed with only a single conspiracy charge. The common object alleged by the conspiracy is the possession by Marchesi in Western Australia of the methylamphetamine, the subject of the indictment."
When he opened the prosecution case against the two respondents at the trial, the prosecutor said that the conspiracy was one "to possess methylamphetamine with intent to sell or supply". He outlined to the jury the evidence which he proposed to lead. Having done so, he posed the question, "How do you tell when there is a conspiracy?" In answering that question for the jury, he said:
"The prosecution case is that this conspiracy was an agreement between the two … [respondents] with the object and a purpose that the accused Marchesi would possess that particular methylamphetamine in WA."

The prosecution case

The prosecution case (which has been more fully summarised by Pullin JA) was essentially as follows. The respondent McGuire lived in a house in Melbourne. The respondent Marchesi lived in Perth. Marchesi was a manager of an electrical goods store (known as "Rick Hart Retravision") in O'Connor in Western Australia. In early March 2001 Marchesi was in Melbourne. While he was there, a number of telephone calls took place between him and McGuire. These were monitored by police. On 7 March 2001 Marchesi drove to McGuire's home. There, the two men removed a number of boxes from the house and put them in the back of Marchesi's car. Marchesi drove from McGuire's home to a transport depot in Melbourne, where he consigned seven cartons to Perth. On 12 March 2001 police intercepted these cartons at a transport yard in Kewdale in Western Australia. One of them contained electrical goods in which had been secreted quantities of methylamphetamine. The evidence of the telephone conversations, the packing of the goods and other items of circumstantial evidence were relied upon as establishing the fact of the conspiracy.

The no case submission

At the end of the prosecution case counsel for the respondents submitted that there was no case for the respondents to answer. Their submission appears to have raised four principal contentions. The first was that the indictment, properly understood, charged a conspiracy pursuant to which Marchesi and McGuire were jointly to possess the methylamphetamine in Western Australia, notwithstanding what had been said by the prosecutor in his letter of 19 December 2003 and in his opening at the trial. The second was that there could, in any event, be no criminal conspiracy to possess a prohibited drug under s 33(2) of the Act unless it involved the joint possession of both conspirators. The third was that, however the charge was understood, the evidence fell short of establishing it. The fourth was that no act, omission, event, circumstance or state of affairs making up an element of the offence charged occurred in Western Australia, with the consequence that, by virtue of s 12 of the Criminal Code (WA) ("Code"), no offence was committed under the law of Western Australia.

The trial Judge's reasons

The trial Judge gave ex tempore reasons for upholding the no case submission. She said that the indictment, on its face, alleged "a conspiracy with respect to joint possession and a joint intention to sell or supply methylamphetamine", notwithstanding that this was not how the prosecution had opened its case. She then said that, "if there was joint possession, it was in Melbourne" and there was "no evidence … [which] could prove or sustain the allegation that there was a joint intention to possess or supply the drug to another in Western Australia". She went on to say that she accepted a submission "that the agreement, if there was one, for McGuire to supply Marchesi in Melbourne with the drug does not prove an agreement in Melbourne that they jointly possessed the drug". After returning to the manner in which the prosecutor had opened the case, she said that the opening "must mean as a matter of logic that there is no joint intention to possess the drug in Western Australia with the intention to sell or supply it to another".
She then turned to the jurisdictional issue raised by s 12 of the Code. She said, in that regard, that "the overt act or overt acts cannot be used in substitution of an element of the offence". Then, after referring to some of the evidence which had been led, she said that this "in no way cures the difficulty that I have referred to in relation to section 12". While it is not entirely clear from the trial Judge's ex tempore reasons (and, indeed, counsel for the respondents contended that her Honour had made no decision in this respect), it does seem from this that she considered that the jurisdictional prerequisite provided for by s 12 of the Code had not been satisfied.
The trial Judge returned to the evidence before concluding that the prosecution had failed to establish that the respondent McGuire had had any relevant intention, at the time of making the agreement said to comprise the conspiracy, as regards what should happen to the drugs once they left his home.
Finally, she said that, for all of the reasons which she had given, she was satisfied that the State had failed to adduce evidence which proved each of the elements of the offence charged. She arranged for the return of the jury and directed an acquittal.

Grounds of appeal

The grounds of appeal, which are fully set out in the judgment of Pullin JA, essentially raise three contentions. The first is that the trial Judge erred in holding that the requirements of s 12 of the Code had not been satisfied ("jurisdiction issue"). The second is that the trial Judge erred in her construction of, and approach with respect to, the indictment in that, when it is read together with the letter of 19 December 2003 and the prosecution opening, it is plain that "a joint intention to sell or supply was not part of the prosecution case" ("indictment issue"). The third is that the trial Judge erred in concluding that there was insufficient evidence to establish that McGuire knew and intended, at the time of making the conspiracy, that the drugs were to be transported to, and sold or supplied in, Perth ("evidence issue") .
Before dealing with these contentions, I propose to say something about the offence of conspiracy.

Conspiracy at common law

Gillies, Criminal Law, 4th ed (1997) at 694 defines the offence of conspiracy at common law (in a manner which he acknowledges to be circular) as follows:
"It consists simply of an agreement between two or more persons for the effectuation of one or more acts whose nature is such that at common law each of them renders an agreement for its effectuation criminal."
The conspiracy comprises only the agreement: R v Trudgeon (1988) 39 A Crim R 252 at 254, per Gleeson CJ; R v Carusi (1990) 45 A Crim R 165; affd Carusi v The Queen (1990) 64 ALJR 657. It does not include the unlawful or "overt" acts which are agreed upon: R v Gudgeon (1995) 133 ALR 379 at 389, per McPherson JA and Thomas J. Indeed, it does not matter for the purposes of the offence whether the agreement is or is not put into action. In R v Rogerson (1992) 174 CLR 268 at 279, Brennan and Toohey JJ said, of a conspiracy to pervert the course of justice, that, like any other conspiracy to commit an offence, it was complete without the doing of any act save the act of agreeing to pervert the course of justice. While overt acts will often be relied upon as a means of proof of the existence of a conspiracy, an overt act is not itself an "element" of the conspiracy: R v Winfield & Lipohar (1997) 70 SASR 300 at 310, per Millhouse J, and, on appeal, Lipohar v The Queen (1999) 200 CLR 485 at 541 [140], 560 [189] and [190], per Kirby J (dissenting in the result), and 573 [227], per Callinan J; Kamara v Director of Public Prosecutions [1974] AC 104 at 119; and Gummer v Commissioner of Police [1995] 1 Qd R 346 at 354, per Pincus JA, with whom White J was in agreement.
Although the offence is complete once the agreement has been made, a conspiracy continues in existence during the time in which its unlawful purpose is put into effect. In Director of Public Prosecutions v Doot [1973] AC 807 at 827 Lord Pearson said:
"A conspiracy involves an agreement expressed or implied. A conspiratorial agreement is not a contract, not legally binding, because it is unlawful. But as an agreement it has its three stages, namely (1) making or formation (2) performance or implementation (3) discharge or termination. When the conspiratorial agreement has been made, the offence of conspiracy is complete, it has been committed, and the conspirators can be prosecuted even though no performance has taken place … But the fact that the offence of conspiracy is complete at that stage does not mean that the conspiratorial agreement is finished with. It is not dead. If it is being performed, it is very much alive. So long as the performance continues, it is operating, it is being carried out by the conspirators, and it is governing or at any rate influencing their conduct. The conspiratorial agreement continues in operation and therefore in existence until it is discharged (terminated) by completion of its performance or by abandonment or frustration or however it may be."
Similarly, in R v Cuthbertson [1981] AC 470 at 481 a conspiracy was said by Lord Diplock (with whom Lords Edmond‑Davies, Russell, Keith and, relevantly, Scarman were in agreement) to be "a continuous one in the sense that it continues to be committed by the parties to the agreement so long as the agreement remains on foot but … is complete as soon as the agreement has been made". In Vereker v Rodda (1987) 26 A Crim R 25 at 39 Jackson J described the offence as one which "may be 'complete' without being completed". Other cases in which similar statements have been made are Lipohar (HC) at 496 ‑ 497 [14], per Gleeson CJ; and Truong v The Queen (2004) 78 ALJR 473 at 480 [35].
The guilty mind required for the offence of conspiracy comprises both an intention to agree upon the commission of the unlawful act and knowledge of the facts and circumstances which disclose its unlawful nature. Each conspirator must intend that the unlawful act be committed: Giorgianni v The Queen (1985) 156 CLR 473 at 506, per Wilson, Deane and Dawson JJ.
Trudgeon provides a useful illustration of this last proposition. The applicant was convicted of conspiring to supply a prohibited drug. The offence charged was that he conspired with one Cheung to supply diamorphine (heroin). The prosecution case was that the conspiracy was in terms that Cheung would supply the applicant with the drug and that the applicant would on‑sell it to others. The sale agreement between the applicant and Cheung was established, but there was no direct evidence that Cheung intended the applicant to on‑sell the drug. On the appeal, the applicant contended, amongst other things, that there had been insufficient evidence to establish the charge. The Court (Gleeson CJ, Lee CJ at CL and Loveday J) upheld that contention.
Gleeson CJ said, in this respect (at 254):
"No doubt the inference was open, and even compelling, that both Cheung and the applicant would have expected that the applicant 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 the applicant, of the kind essential to the crime of conspiracy, that the applicant 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 the applicant could do with it what he pleased. Of course, commonsense would indicate that Cheung would not have expected to receive such a high price for the material unless the applicant intended to deal with it in some commercial manner. Even so, it is one thing to say that Cheung fully expected that the applicant would in turn supply the substance to a further person or persons, and quite a different thing to say that the applicant's anticipated conduct in that regard was a part of their conspiracy."
At pages 255 ‑ 256, Gleeson CJ quoted the following extract from Glanville L Williams, "Criminal Law: The General Part", 2nd ed (1983), at 668:
"Mere knowledge of and mental consent to a crime about to be committed by another does not make a man a conspirator; but quite a slight participation in the plan will be sufficient. It seems, in the words of Wright, that 'a person may involve himself in the guilt of a conspiracy by his mere assent to and encouragement of the design, although nothing may have been assigned or intended to be executed by him personally'. In other words, it need not be intended that all the conspirators should take part in the crime as principals in the first or second agree."
Gleeson CJ went on to say (at 256):
"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. In argument before this Court the Crown relied upon the proposition that a person's foresight that something will certainly occur may amount in law to an intention that it occur. That proposition needs to be related to the circumstances of the particular case. Cheung sold and delivered to the applicant what they both thought was heroin, and received what was apparently payment in full. The quantity of heroin involved, and the price paid for it, no doubt made it highly probable that the applicant was buying it for resale. The critical step, however, is that which involves the conclusion that there was agreement between Cheung and the applicant that the applicant should resell the heroin; in other words, that it was a part of their common design, a matter of shared intention, that the applicant should resell the heroin."
Lee CJ adopted a similar approach in his judgment. At 260, he dealt, also, with a contention by the appellant that the charge was "not a proper charge". He said:
"There could be many circumstances in which persons might agree between themselves that one should sell something to the other and that that other should then sell it to someone else or to other persons. Provided the evidence is available to support that charge and provided it is properly particularised, then I can see no reason why it is not lawful for the prosecution to lay such a charge. The final object of the conspiracy as so laid, namely, that the appellant should sell the heroin to others, is plainly an unlawful purpose …".
Loveday J agreed with each of the other judgments.
Another example is R v Marinovich (1990) 46 A Crim R 282. In that case Malcolm CJ and Kennedy J found that, in the way in which the Crown had put its case, it was essential for success on each count of the conspiracy charged that it was proved that there was an agreement between the applicants that they would obtain possession of heroin jointly and that they would have that possession intending themselves to sell or supply the drug. They went on to say (at 309 ‑ 310), as to the second element, that they did not consider that expectation or knowledge on the part of one conspirator that the heroin would be on‑sold would be sufficient and that it was necessary to prove a shared intention as part of the common design that the heroin, when possessed, would be on‑sold. See also Krakouer v The Queen (1998) 194 CLR 202 at 215, per Gaudron, Gummow, Kirby and Hayne JJ.

Conspiracy under the Act

This case is, of course, concerned with a statutory conspiracy rather than one under the common law. The relevant provisions are ss 6 and 33 of the Act. Section 6(1)(a), as it stood at the material time, made it an indictable offence, subject to exceptions which are not presently relevant, for a person to have in his or her possession a prohibited drug with intent to sell or supply it to another. Section 33(2)(a), as it stood at the material time, provided that a person who conspires with another to commit an offence which is indictable under s 6(1), commits that offence.

It is plain from these provisions that, as would be the case under the common law, an agreement to commit the crime of possession of a prohibited drug with intent to sell or supply it to another amounts to a conspiracy. There is no reason to conclude otherwise than that the common law principles discussed above are applicable to the statutory provision.

The jurisdiction issue

That brings me to the question whether the District Court of Western Australia had jurisdiction to try this case.
While the issue is, in the end, one of statutory construction, it is important to place s 12 of the Code in context. That involves some consideration of the common law, and also of the terms of s 12 prior to its amendment in 1996, when it took its present form.
As to the common law, the question arose, in Doot, whether a conspiracy to commit a crime, formed outside England, but in respect of which overt acts were committed in England, was indictable in England. The majority of the House of Lords found that there was jurisdiction upon the basis that the conspiracy was a continuing one and was introduced into England when certain of its parties committed overt acts there. Lord Salmon, at 832 ‑ 833, suggested that the English courts had jurisdiction on a wider basis. He considered that the fact that the conspiracy was one for the commission of a crime in England created a sufficient nexus for the purposes of English jurisdiction. Then, in Liangsiriprasert v Government of the United States of America [1991] 1 AC 225 Lord Griffiths, speaking on behalf of the Judicial Committee of the Privy Council, said, at 251:
"Their Lordships can find nothing in precedent, comity or good sense that should inhibit the common law from regarding as justiciable in England inchoate crimes committed abroad which are intended to result in the commission of criminal offences in England. Accordingly a conspiracy entered into in Thailand with the intention of committing the criminal offence of trafficking in drugs in Hong Kong is justiciable in Hong Kong even if no overt act pursuant to the conspiracy has yet occurred in Hong Kong."
What was said by Lord Griffiths was agreed with by Gleeson CJ in Lipohar (HC) at 502 ‑ 503. Gaudron, Gummow and Hayne JJ, in that case, left open the question whether a conspiracy formed abroad to do an unlawful act in Australia, but not to any degree actually implemented in this country, sufficed to support a charge of a conspiracy under Australian common law. However, they said that, if steps were taken inside Australia in furtherance of the agreement between the conspirators, that was sufficient to support a charge of conspiracy under Australian common law, even if the conspiracy had been formed wholly outside Australia.
That brings me to s 12 of the Code. It reads as follows:
"Territorial application of the criminal law
(1)An offence under this Code or any other law of Western Australia is committed if -
(a)all elements necessary to constitute the offence exist; and
(b)at least one of the acts, omissions, events, circumstances or states of affairs that make up those elements occurs in Western Australia.
(2)Without limiting the general operation of subsection (1), that subsection applies even if the only thing that occurs in Western Australia is an event, circumstance or state of affairs caused by an act or omission that occurs outside Western Australia.
(3)This section does not apply to an offence if -
(a)the law under which the offence is created explicitly or by necessary implication makes the place of commission an element of the offence; or
(b)the law under which the offence is created is a law of extraterritorial operation and explicitly or by necessary implication excludes the need for a territorial nexus between Western Australia and an element of the offence."
Prior to its amendment in 1996, that section ("former section") read as follows:
"12Application of Code to offences wholly or partially committed in Western Australia
This Code applies to every person who is in Western Australia at the time of his doing any act or making any omission which constitutes an offence.
With regard to offences which are of such a nature that they comprise several elements, if any acts or omissions or events actually occur which, if they all occurred in Western Australia, would constitute an offence, and any of such acts or omissions or events occurs in Western Australia although all or some of the other acts or omissions or events, which, if they occurred in Western Australia, would be elements of the offence occur elsewhere than in Western Australia; then -
(1)If the act or omission which, in the case of an offence wholly committed in Western Australia, would be the initial element of the offence, occurs in Western Australia, the person who does that act or makes that omission is guilty of an offence of the same kind, and is liable to the same punishment, as if all the subsequent elements of the offence had occurred in Western Australia; and
(2)If that act or omission occurs elsewhere than in Western Australia, and the person who does that act or makes that omission afterwards comes into Western Australia, he is, by such coming into Western Australia, guilty of an offence of the same kind, and is liable to the same punishment as if that act or omission had occurred in Western Australia and he had been in Western Australia when it occurred:
But in any such case it is a defence to the charge to prove that the accused person did not intend that the act or omission should have effect in Western Australia.
…".
The former section, which essentially followed the then like provision of the Criminal Code (Qld), defined the scope of the Code (as the current version does) and was consequently definitive of the Court's jurisdiction: R v Hildebrandt [1964] Qd R 43 at 47; R v Robinson [1976] WAR 155 at 157 and Gummer at 354.
At the time of the 1996 amendment, the Minister moving it said, in the course of his second reading speech (Hansard, 20 June 1996, page 3015):
"A significant problem with the operation of [the existing] s 12 is that it restricts the jurisdiction of Western Australian courts to try offences in Western Australia which were orchestrated by persons outside the State. In particular, this occurs when there is a conspiracy to commit an offence inside Western Australia by persons outside the State. For example … unless a conspirator actually enters the State, Western Australian courts have no jurisdiction to try the offence. The potential ramifications are obvious. Drug traffickers, for example, may take advantage of this loophole and establish drug‑trafficking headquarters in other jurisdictions to service a network of dealers in this State …
…
With a view to addressing these problems, sections 12, 13 and 14 of the code have been redrafted to expand Western Australia's territorial jurisdiction in relation to criminal offences. Specifically, section 12 provides that if an act or omission occurs which would constitute an offence in this State, the person committing the act or omission attracts the jurisdiction of this State's courts irrespective of where the person resides."
On the resumption of the second reading of the Bill on 20 August 1996 (Hansard, page 4077), the Minister was asked to "give some examples of prosecutions which have not been able to take place in Western Australia as a result of the current provisions, and at what sorts of offences … the Minister [is] aiming by these extensions". The Minister's response was as follows:
"It could apply to anything, but I suppose the most obvious example is drug trafficking, where the conspiracy to import and perhaps to sell drugs in this State would more than likely be hatched outside the State, and probably outside Australia, yet the offence is then committed in this State. It can also involve people in this State. In that sense, it is sought to amend the code to overcome what is regarded as a technical problem of extraterritoriality."
Counsel for the appellant contended, against this background, that s 12(1) should be read widely and that it is enough, for the purposes of that section, that one of the overt acts relied upon to establish the conspiracy occurred in Western Australia. This, he said, is supported by two factors. The first is the existence of s 12(2) which, as will be apparent, applies subs (1) even if all that occurs in Western Australia is an event, circumstance or state of affairs caused by an act or omission that occurs outside Western Australia. The second is the Minister's second reading speech at the time of the amendment of s 12.
It seems to me that, on the plain meaning of the words used in s 12(1)(b), no offence is committed under Western Australian law unless one or more of the acts, omissions, events, circumstances or states of affairs constituting the elements of the offence occurs in Western Australia. The ordinary meaning of the words "make up", in this context, is "constitute" or "form" (see the Macquarie Dictionary definition) and not "prove" or "establish". Subsection (2) seems to me not to detract from that proposition. It is expressed to take effect without limiting the general operation of subs (1). Its effect, if both subsections are read together, is only that, while an act, omission, event, circumstance or state of affairs making up an element of the offence must occur in Western Australia, it does not matter, in the case of such an event, circumstances or state of affairs occurring in that State, that it was caused by an act or omission that occurred outside that State (as, for example, in the case of a death by shooting, where the shot was fired from outside the border).
As to the second reading speech, this does lend some support to the construction advanced on behalf of the appellant. It seems plain enough from what was said by the Minister that the amendment was aimed, at least in part, at conspiracies made outside the State to import drugs within it. However, it also appears from what was said by him that one of the concerns which motivated the amendment was an inability to charge a conspirator who did not actually enter the State (presumably in a case, contemplated by subs (2) of the former section, in which the act or omission comprising the initial element of the offence occurred outside Western Australia). As I read it, the amendment was successful in addressing the latter issue, but not the former.
As was pointed out by Mason CJ, Wilson and Dawson JJ in Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518, a second reading speech, even if quite unambiguous, cannot be determinative, even though it deserves serious consideration. Their Honours went on to say (at 518) that the words of a Minister must not be substituted for the text of the law. In my opinion the text of the law in this case is plain and unambiguous - some act, omission, event, circumstance or state of affairs making up or constituting an element of the offence must occur in Western Australia. In the case of a conspiracy, whether at common law or under s 33(2), there is only one element, being the making of the agreement itself. That the agreement may continue in force during the period of its implementation does not alter that fact. Also, while proof of the conspiracy may require evidence of a number of distinct events in the course of its implementation, that does not make the offence one that comprises several elements: Gummer, at 354, per Pincus JA. I have said, earlier in these reasons, that overt acts are not component elements of the offence. They merely evidence the offence.
In this case it is common cause that the agreement comprising the conspiracy was made entirely in Victoria. Indeed, all communications, and the only association, proved to have taken place between the two respondents took place in Victoria. There was no evidence of any form of communication between them outside that State. Consequently, the District Court of Western Australia had no jurisdiction in respect of the conspiracy charged.
This conclusion disposes of the appeal. However, I will comment, also, on the remaining issues which were raised.

Indictment issue

Leaving to one side, for the moment, the terms of the indictment which was brought against the respondents, it is plain that the prosecution case, as it was advanced at the trial, was that the conspiracy consisted of an agreement between Marchesi and McGuire that Marchesi would possess methylamphetamine in Western Australia with intent to sell or supply it to another.
It seems to me to be plain enough that, under the common law, a charge of that kind might be brought. If A and B agree that A should commit a crime, then both will be parties to a conspiracy. Both have a common purpose or intention that a crime be committed: see Gillies, The Law of Criminal Conspiracy, 2nd ed (1990), at 169. That this is so is supported by what was said in Trudgeon. I have mentioned that Gleeson CJ there said, at 256, that in order to be liable as a conspirator an accused person must have an intention that (so far as is relevant) an unlawful act occur. Similarly, in Nirta v The Queen (1983) 51 ALR 53 at 64 Jenkinson J said that a conspiracy to commit an offence will be committed if "there is an agreement that acts shall be done by a person who … is party to that agreement, which acts would if done be capable of causing … the commission of that offence".
Whether that is the position under s 33(2) of the Act may be a little more problematic, given that it refers to a person who conspires with another "to commit an offence" and not to a person who conspires with another "that an offence be committed". Counsel for each of the respondents contended, relying upon the words used in s 33(2), that the section contemplates only a conspiracy for the commission of an offence by both conspirators. However, I very much doubt that the legislature could have intended, in drafting that section, to restrict the operation of common law in that way. There is no reason in principle, or in policy, why that should be done. Rather, it seems to me that the words "to commit an offence", when read against the common law background, are intended to comprehend the commission of an offence by either or both of the conspirators. Counsel for the second respondent, at one point in the course of his oral submissions, appeared to acknowledge that a person, X, who conspires with another, Y, that X would commit an offence under s 6(1) of the Act would be caught by s 33(2) but said that X would not be liable if it was Y who was to commit the offence. While s 33(2) is literally capable of being read in that way, there is, once again, no reason in policy or in principle (or, indeed, in logic) why the legislature should have wished to limit the operation of the common law in that way and I am unable to accept that this could have been its intention.
That brings me to the question whether the prosecution case, as advanced at the trial, was consistent with the indictment.
In my opinion what, on the face of it, seems to have occurred in this case is that the framer of the indictment attempted to use the words of the statute, as is often done. Section 582 of the Code provided, at the material time (see, now, cl 5(2)(a) of Sch 1 of the Criminal Procedure Act 2004 (WA)), that it is sufficient to describe an offence in the words of the statute defining it. I have said that s 33(2) of the Act speaks of a person "who conspires with another to commit an offence". The offence in this case was, as I have also said, one under s 6(1)(a) of the Act, being possession of a prohibited drug with intent to sell or supply it to another. It was seemingly with these provisions in mind that the prosecution charged the two men with having "conspired together to possess a prohibited drug … with intent to sell or supply it to another". Once particulars had, in effect, been given by the prosecutor's letter of 19 December, and certainly after the prosecutor had opened the prosecution case, it was made abundantly clear that the conspiracy intended to be charged was one which consisted of an agreement between the two men that Marchesi alone would possess the methylamphetamine in Western Australia, with intent to sell or supply it to another. There was no challenge to the indictment in the light of the particulars supplied or in the light of the Crown opening. In all of these circumstances, it was, in my opinion, open to the prosecutor to advance the case that he did, notwithstanding the terms of the indictment prior to its particularisation.
I should add, before leaving this aspect of the appeal, that there is, as I read those cases, nothing in Marinovich or in Trudgeon (both of which were relied upon by the respondents in this respect) which should lead to any different conclusion. As to Marinovich, it is true that in that case the indictment took the same form as in this case and that the formulation was there read (at 309 and 314) as importing a charge of joint possession with intent to sell or supply. However, that was the way in which the Crown had chosen to put its case in opening (see at 309), unlike this case, where the prosecution not only provided the further particulars to which I have referred, but opened the case consistently with those particulars. As to Trudgeon, the respondents rely upon the fact that Gleeson CJ said, in that case (at 255), that a mutual intention formed between A and B that B should supply drugs to a third party does not constitute "agreeing to supply", although it might constitute "agreeing that B should supply, which is not the same thing". However, what his Honour there said does not bear upon the question which arises in this case. His comment was addressed to the definition of "supply" in the Poisons Act 1966 (NSW), and was consequently made in a materially different context.

The evidence issue

As to the evidence issue, it will be apparent from what I have earlier said that, in a case charging the respondents with a conspiracy that one of them, Marchesi, would possess methylamphetamine in Western Australia, with intent to sell or supply it to another, it was necessary for the prosecution to prove that both men intended, as part of their agreement, that this would happen. If, as the respondents contend was the fact, the evidence fell short of this and established no more than that McGuire expected this to be so, without having any intention that it should be so, then, as Pullin JA has pointed out, it was impossible to say that a jury, properly charged, would be able to convict.
There was no evidence of any expressed term of the agreement between Marchesi and McGuire that Marchesi would take the drugs to Western Australia and sell or supply them. Consequently, McGuire's intention could only be proved by inference. However, there was evidence from which an inference of that kind might be drawn.
The police surveillance tapes reveal that, after Marchesi's arrival in Melbourne in early March 2001, a number of telephone conversations took place between him and McGuire. The conversations were in terms indicating a considerable degree of familiarity between the two men. On 5 March 2001 they discussed their attempts to find boxes and agreed to try to box some items on that day. Later that day, McGuire telephoned Marchesi and said that he could not get large enough boxes. Still later on that day, McGuire again telephoned Marchesi. This time he told Marchesi that the socket set that he had was too big and that "the socket won't fit in there". He said that he needed a "CRV E6" socket. Marchesi said that he would try and get "that tool". Immediately before that, he had said to McGuire that he "really wanted 'em off today" to which McGuire had responded, "Yeah no, I wanna get 'em off today."

On the following day McGuire rang Marchesi asking him what he was doing and whether or not he had got "that tool". Marchesi responded by saying that he had not been able to get one but that he would get his grinder out and "grind it down a bit". Later that day McGuire again rang Marchesi and asked whether it was all right "to pack it all up". Marchesi said that it was.
On the following morning McGuire again rang Marchesi. He said that he wanted to "get this done" and that he wanted to "get this shit out". Marchesi agreed to come and "pick it up".
Approximately 30 minutes later police observed Marchesi drive up to McGuire's house. A little later the two men were seen carrying a number of boxes out of the front door of the house and placing them in Marchesi's car. The same boxes were then shipped to Perth and the methylamphetamine was found to have been secreted in electrical items which had been packed in the boxes. The three boxes which had contained electrical items concealing drugs were a Toshiba box marked "R/H O'Connor", a Sony box marked "Rick Hart O'Connor, corner of Stock Road and South Street, O'Connor, WA, 6163" and a box bearing the name "Mass Technologies Pty Ltd" which was marked, in large writing, "Perth Western Australia".
One of the places in which the drug had been concealed was the inside of a speaker. An electrical part had been removed from the speaker and the methylamphetamine had been inserted in the space so created. McGuire's fingerprints were found on the outside of that speaker.
A search was subsequently conducted at McGuire's home. The police seized an electrical part, a DVD player box (methylamphetamine had also been secreted in a DVD player) and a socket set. The electrical part was consistent with that which had been removed from the speaker. Drill holes were in the same locations on each, the number of wires on the part was the same as the number of connection terminals on the speaker and the silicone deposits on the part and speaker were in the same place. McGuire acknowledges to police officers that he had had a DVD player but said that he had "sent it back" because it was "stuffed". One of the sockets in the socket set found at McGuire's home (a CRVE 8 socket) had been ground down and could have been used to undo the screws in the base plate of the seized speaker that had concealed the methylamphetamine.
When asked by police about the electrical part, McGuire said that he did not know what it was but acknowledged that it must be his. When asked about the cardboard DVD box, McGuire acknowledged that the box was his and said that his friend "Rod" (he said that he did not know his surname) had "brought all this stuff home". In the course of a formal video‑recorded interview conducted by the police later on that day, McGuire acknowledged that "Rod" had installed a home entertainment system in his home. While maintaining that he did not know "Rod's" last

name, he acknowledged that he knew that "Rod" was from "Rick Hart O'Connor". When asked what Marchesi had been doing at his home on the day upon which the packages had been removed, McGuire said that Marchesi had been setting up a projector and that he had been taking away stuff that was not needed.

In my opinion all of this evidence raised an overwhelming inference that McGuire knew that the drugs were to be taken to Perth. He knew that Marchesi ran a shop in O'Connor and he must have known, given the markings on the packaging, that O'Connor was in Perth. He knew that the drugs were being packaged for the purpose of transporting them somewhere and the only reasonable inference, in the absence of any other explanation, is that he knew that the place to which they were to be transported was Perth. Moreover, given the quantity of the drug which had been packed and the fact (according to one of the police witnesses who gave evidence) that that quantity had an estimated street value in Perth of "thousands of dollars", it must also have been obvious to McGuire that some of the drug, at least, would be sold or supplied by Marchesi after it had arrived at its destination.
Of course, it may be one thing for McGuire to have been shown to have known that these events would occur, and another for him to have been proved to have intended, as a matter of agreement, that they should occur. However, it seems to me that the question whether or not the evidence was sufficient in this last respect was one which should have been left to the jury, if the Court had had jurisdiction. In my opinion, in circumstances in which the evidence disclosed such a detailed and active level of participation by McGuire in concealing and packaging the drugs for transport, it was open to a jury, properly instructed, to conclude that the only reasonable inference, in the absence of any other explanation, was that McGuire had not only known, but had intended as part of the conspiracy that the drugs would be shipped to Perth and sold or supplied there by Marchesi.

Conclusion

It follows from what I have said that, while there is, in my opinion, substance to the second and third issues raised by the appellant, the appeal should be dismissed upon the ground that the District Court of Western Australia lacked the jurisdiction to hear the case.
MCLURE JA: I agree with Steytler P.

PULLIN JA: This is an appeal by the State against a directed acquittal which followed upon the learned trial Judge upholding a submission of no case to answer.
The indictment against the respondents alleged that:
"Between 27 February 2001 and 13 March 2001 at Perth and elsewhere RODNEY ANTHONY MARCHESI and BRENDAN SHAYNE MCGUIRE conspired together to possess a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another."
Long before the trial commenced, Crown counsel wrote to the solicitors for the respondents and in that letter said:
"I am Crown counsel and enclose a copy of the indictment dated 19 January 2004, with a revised witness list, which the Crown will seek to substitute for the original at the outset of the trial. As you can see, the Crown is to proceed with only a single conspiracy charge. The common object alleged by the conspiracy is the possession by Marchesi in Western Australia of the methylamphetamine, the subject of the indictment."

The prosecution case

In opening the prosecution case to the jury, counsel for the State said:
"The prosecution case is that this conspiracy was an agreement between the two men with the object and a purpose that the accused Marchesi would possess that particular methylamphetamine in WA."
The evidence led was that the respondent McGuire lived in a house in a suburb in Melbourne. The respondent Marchesi was a manager of the Rick Hart store in O'Connor in Western Australia but in early March 2001 he was in Melbourne. During this time the police had a warrant to intercept telephone calls on Marchesi's mobile telephone and evidence was given to the jury about the content of calls made on 5, 6 and 7 March 2001.
On 7 March 2001 the police were watching McGuire's premises. Marchesi arrived in a motor vehicle and the two men were observed taking boxes from the house and putting them in the back of the motor vehicle. Marchesi left McGuire's premises and he was then observed to go to Thompson's Transport depot in a Melbourne suburb where he consigned seven cartons to Perth. On 12 March 2001 the police in Western Australia attended at Thompson's Transport yard in Kewdale in Western Australia and intercepted a consignment in which a carton was found containing various boxes which themselves contained a Sony processor, a DVD player and a Sonic Renegade speaker. In each item was found methylamphetamine which together weighed more than 500 grams. This is a prohibited drug. A drop saw was also among the items in the consignment. Marchesi attended at the Kewdale premises and he was there arrested and was present when the investigation continued. He acknowledged that the saw was his and that some of the boxes marked "RH O'Connor" were from his store. Fingerprints of both respondents were found on items in the consignment. Police also searched McGuire's premises and found a component which had been removed from the Sonic Renegade speaker and a tool which had been modified to fit the base board and was necessary for the purpose of concealing the methylamphetamine.
Tapes of the telephone calls were played at trial and they revealed Marchesi and McGuire discussing McGuire's difficulty with the tool to fit the base board and that McGuire had modified the tool for that purpose. Marchesi expressed a wish to get the "shit out" and to "pick it up".
After the State had led its evidence and closed its case there was a submission of no case from the accused. The points raised during the no case submission were as follows:
(a)the correct interpretation of the indictment was the conspiracy that both Marchesi and McGuire should "jointly" possess the drug in Western Australia;
(b)based on that interpretation, there was no evidence to support an inference that the two men conspired to jointly possess the drug in Western Australia;
(c)the prosecution's letter describing the conspiracy and the statements made during the opening of the case alleging that the conspiracy was that Marchesi alone should possess the drug in Western Australia, could not alter what was alleged in the indictment;
(d)in any event, even if the prosecution could advance the case as opened and as described in the letter, there was no evidence of a conspiracy that Marchesi alone should possess the drug in Western Australia;
(e)there was no evidence of any act, omission, event, circumstance or state of affairs making up the elements of the offence which occurred in Western Australia as required by s 12 of the Criminal Code (WA).
Her Honour upheld those submissions and ruled there was no case to answer and accepted a directed verdict of not guilty.
The appellant's grounds of appeal are that:
"1.The learned trial Judge erred in law in holding that an overt act occurring within Western Australia is insufficient to found jurisdiction in respect of an alleged conspiracy according to s 12 of the Criminal Code.
2.The learned trial Judge erred in taking into account irrelevant matters in reaching the conclusion that there was no or insufficient evidence.
Particulars
(a)The learned trial Judge erred in finding that there was insufficient evidence to prove an agreement to jointly possess methyl amphetamine, when the prosecution case was not one of joint possession.
(b)The learned trial Judge erred in finding that there was insufficient evidence to prove a joint intention to sell or supply the drug to another, when a joint intention to sell or supply was not part of the prosecution case.
(c)The learned trial Judge erred in considering that the terms and form of the indictment were defective, when the prosecution had particularised its case months beforehand in correspondence and by way of opening at the trial.
(d)The learned trial Judge erred in finding that there was insufficient evidence to prove that there was an agreement as to sale or supply, when the prosecution case was merely that the agreement was as to possession with an intent on the part of the Respondent Marchesi to sell or supply.
(e)The learned trial Judge erred in considering that there was insufficient evidence to support an allegation on the part of Brendon Shayne McGuire as to specific intention, when that was not part of the prosecution case.
3.The learned trial Judge erred in finding that there was no sufficient evidence to establish that Brendon Shayne McGuire knew that the boxes containing the drugs were to be transported to Perth or intended that they be transported to Perth.
4.Accordingly, the learned trial Judge erred in finding that, at the close of the prosecution case, the Respondent had no case to answer."

Ground 2 - the appellant's case

I will deal with ground 2 first because it deals with the issue about the content of the charge against the respondents. The State submits that it was entitled to give particulars of the indictment so that it should be understood to allege that the respondents conspired, not that they would jointly have possession of the drug with intent to sell or supply, but rather that Marchesi alone would have possession of the drug with intent to sell or supply.
In my opinion, if the particulars and what was said in opening are ignored, the indictment unambiguously alleges that the conspiracy was that the respondents would jointly possess the drug. The indictment was in exactly the same form as the indictment in R v Marinovich, Romeo & Ricciardello (1990) 46 A Crim R 282.
The question is whether the prosecution could, by what was said in the letter and what was said in opening, override or alter the plain meaning of the indictment. In Marinovich's case reference was made to a passage in R v Trudgeon (1988) 39 A Crim R 252 where there was ambiguity in the "facts and circumstances" (see Marinovich at 308) concerning the issue of supply. In Trudgeon's case the indictment alleged that there was a conspiracy by which one Cheung would supply the applicant with heroin and that the applicant would then sell it to others. Gleeson CJ in Trudgeon's case at 253 said:
"The facts and circumstances involved at least three levels of actual or potential dealing in the goods. First there was the actual supply from someone to Cheung. Secondly there was the actual supply from Cheung to the applicant. Thirdly there was the contemplated supply by the applicant to a person or persons unknown."
Gleeson CJ referred to particulars supplied by the Crown which were repeated at the opening of the Crown case and by the trial Judge at the commencement of his summing‑up. The Chief Justice said that the particulars by no means resolved the ambiguity. By implication, this reasoning indicates that the particulars or statements made by the prosecution in opening may cure ambiguity in the indictment.
In my opinion, however, what is said by way of particulars or what is said in opening a prosecution case cannot be used to contradict the indictment. The particulars or opening may cure ambiguity, but neither particulars nor statements in opening may produce the result that the accused faces a charge different from that in the indictment. In Marinovich the indictment was in the same form as the indictment in this case. Malcolm CJ and Kennedy J said at 314:
"In the present case the Crown chose to formulate the relevant agreement as one to jointly possess heroin with intent to sell or supply to another. That was not necessarily the only formulation possible, but it was that chosen and the only formulation left to the jury. In our view it involved the Crown in proving an agreement that the heroin be jointly possessed …"
In my opinion the reference to the Crown choosing to formulate the agreement is a reference to the choice made when formulating the indictment. It is not to be read as leaving the prosecution to advance the case they have formulated in this case in the letter and in opening. In my opinion, a case of joint possession is the only case that could be advanced on this indictment. The indictment does not ambiguously suggest that either the two accused conspired together to jointly possess a prohibited drug or alternatively they conspired together for the first respondent to possess the prohibited drug. To suggest the alternative is to attempt to contradict the terms of the indictment which in my opinion cannot be done by letter or opening statement.
There was evidence of a conspiracy to jointly possess the drug in Victoria. The evidence revealed that they had arranged this by telephone. However, this was not the conspiracy the State wanted to prove. To show that an offence had been committed in Western Australia it wanted to prove a conspiracy that Marchesi would possess the drug in Western Australia. It is for that reason that the State contended at trial and still contends that "the prosecution case was not one of joint possession". In my view the indictment unambiguously alleged joint possession and trial Judge was correct to so hold. This ground must be dismissed.

Ground 1

Having reached the conclusion I have in relation to ground 2, it is strictly unnecessary to consider ground 1 because it is drawn on the assumption that the charge as particularised in the letter and in opening was the charge the respondents faced. My conclusion on ground 2 is that it was not open to the State to contradict the indictment by alleging that the conspiracy was one whereby Marchesi was to possess the drug in Western Australia. That being so, it is pointless to consider whether Marchesi's conduct in bringing the drug into Western Australia was, as ground 1 alleges "an overt act occurring in Western Australia" to "found jurisdiction in respect of an alleged conspiracy according to section 12 of the Criminal Code".
Because the State has been determined to seek to prove the case as particularised in the letter and opening, it did not attempt to contend that, by reason of s 12 of the Criminal Code, the charge as formulated, ie a conspiracy by the respondents to jointly possess the drugs "elsewhere" (as the indictment alleges) namely in Victoria, was an offence in Western Australia. There was evidence that the respondents did conspire to do that. Section 12 does not make such an offence punishable in Western Australia. This is because the essence of conspiracy is agreement to do an unlawful act: Marinovich (supra) at 307 and Trudgeon (supra) per Gleeson CJ at 254. The agreement itself constitutes the offence: Peters v The Queen (1998) 192 CLR 493and see Lipohar v The Queen (1999) 200 CLR 485 at [42].The agreement is the actus reus not the possession of the drugs or the delivery or the arrival of the drugs; these are overt acts of "evidentiary significance only". See Lipohar v The Queen (supra) at [140], [189], [227]; Mylonas [1987] WAR 261 at 264; Marinovich (supra) at 287. There was one element in this case. It was the conspiracy to do the acts referred to, entered into between the two accused, at the place alleged. A conspiracy is a state of affairs, or expressed in reverse, the state of affairs making up the element was the conspiracy. All of the circumstances or acts from which it may be inferred that there was a conspiracy, occurred in Victoria. Even though conspiracy is a continuing offence (see Truong v The Queen (2004) 78 ALJR 473 at [35]) the making and performance of the conspiracy as charged occurred in Victoria, not in Western Australia.
Section 12(1) did not apply, because while the element necessary to constitute the offence existed, none of the "acts, omissions, events, circumstances or states of affairs" that made up that element occurred in Western Australia. Section 12(2) did not apply because there was no evidence that the state of affairs (ie the conspiracy to jointly possess the drugs) "occurred" in Western Australia.
As a result there is no territorial nexus with Western Australia and therefore the conspiracy to jointly possess the drug in Victoria and established by the evidence was not an offence against Western Australian law; and I repeat that this was not an offence the appellant set out to prove.
The appellant referred to the fact that that Parliament intended s 12 to apply to out of State conspiracies to commit offences in Western Australia: see the Second Reading Speech to the Criminal Law Consolidation Bill 1996, Hansard, 20 June 1996, p 3015. However, the Minister did not suggest that the section was to apply to out of State conspiracies with no connection to Western Australia. The evidence of a conspiracy to jointly possess the drug in Victoria had no connection with this State.

Ground 1 must be dismissed.

Ground 3 - Knowledge on the part of the second respondent

The heading above is the heading used by the appellant as a summary of ground 3. In my opinion this ground involves a misconception of what was required to be proved by the prosecution in the charge it particularised. Once again it is not strictly necessary to consider this ground in view of my conclusion on ground 2. However, I will consider it because it would show, even if ground 2 had succeeded, that the appeal would still have been dismissed.
Even if the appellant had been permitted to prove the particularised charge, then what had to be shown was that there was an agreement between the two respondents that Marchesi should have possession of the drugs in Western Australia. There was no evidence of an express agreement in those terms. The appellant submits that an inference could be drawn from the facts that McGuire knew that Marchesi would be sending the drugs to Perth so that he (Marchesi) could collect them when he returned to his home State. No doubt the inference was open and even compelling that McGuire would have expected that Marchesi would pack up the goods and send them to Western Australia or carry them back himself. However, it is one thing to draw that inference and quite another to draw an inference that there was an agreement between them of the kind essential to the crime of conspiracy that Marchesi would deal with the material in that way. In Trudgeon's case (supra) at 254, Gleeson CJ, when speaking of similar arguments advanced by the prosecution in that case, said:
"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."
All that could be said from the evidence relied upon by the appellant in this case is that McGuire might expect that Marchesi would return to Western Australia with the drugs. However, other reasonable inferences were open. For example it is equally possible that Marchesi, having acquired the goods in Victoria, planned to travel to some other State in order to dispose of the drugs or to travel out of Australia to dispose of the drugs. Thus the existence of an inference that McGuire expected that Marchesi would possess the goods in Western Australia was not enough to make out the charge. It was therefore impossible to say that a jury properly charged would be able to convict on the basis of the evidence relied on by the appellant: see Shepherd v The Queen (No 5) (1990) 170 CLR 573.
Thus, even if ground 2 had succeeded, ground 3 would have failed.
I would dismiss the appeal by the State.