Yazdani & Chopra v The State of Western Australia - [2005] WASCA 255

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: YAZDANI & CHOPRA -v- THE STATE OF WESTERN AUSTRALIA [2005] WASCA 255

CORAM: PULLIN JA

HEARD: 12 DECEMBER 2005

DELIVERED : 12 DECEMBER 2005

FILE NO/S: CACR 168 of 2005
CACR 188 of 2005

BETWEEN: SAHBA YAZDANI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

FILE NO/S :CACR 169 of 2005
CACR 189 of 2005

BETWEEN :MANISH CHOPRA
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :YEATS DCJ
File No  :IND 423 of 2003

Catchwords:

Appeal - Criminal law and procedure - Application for leave to appeal - Whether reasonable prospects of success - Turns on own facts

Criminal law and procedure - Bail pending appeal - Appeal against conviction - Conspiracy to sell methylamphetamine - Whether exceptional reasons

Legislation:

Nil

Result:

Application for bail dismissed
Application for leave to appeal dismissed
Appeal dismissed

Category: B

Representation:

CACR 168 of 2005

CACR 188 of 2005

Counsel:

Appellant: Mr O P Holdenson QC
Respondent: Ms T D Sweeney SC

Solicitors:

Appellant: Michael Tudori
Respondent: State Director of Public Prosecutions

CACR 169 of 2005

CACR 189 of 2005

Counsel:

Appellant: Mr O P Holdenson QC
Respondent: Ms T D Sweeney SC

Solicitors:

Appellant: Michael Tudori
Respondent: State Director of Public Prosecutions

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

Mills (1962) 47 Cr App Rep 49
O'Brien (1974) 59 Cr App Rep 222
R v Anderson [1986] AC 27
R v Orton [1922] VLR 469
The State of Western Australia v Marchesi [2005] WASCA 133
Tieleman v The Queen [2004] WASCA 285
United Mexican States v Cabal (2001) 209 CLR 165

Case(s) also cited:

Nil

PULLIN JA: This is an application for leave to appeal against conviction and an application for bail pending appeal against conviction and sentence. The appellants were convicted after trial of the following offences: count 1, 15 June 2001, conspiracy to sell methylamphetamine; count 2, 19 June 2001, conspiracy to sell methylamphetamine; and count 3, 19 June 2001, a conspiracy to sell MDMA.
The sentences imposed in relation to Mr Yazdani were as follows: count 1, 4 years; count 2, 1 year and 8 months; and count 3, 16 months. The sentences on counts 2 and 3 were made concurrent on counts 1 and 2 and the sentence in relation to count 2 was made cumulative on count 1. There was a parole eligibility order made. The effect of sentence was therefore 5 years and 8 months and the custodial part of the sentence is therefore 3 years and 8 months.
The sentence imposed in relation to Mr Chopra were the same, except that in relation to count 1 the sentence was 4 months less. Mr Yazdani was given a higher sentence because, according to the sentencing Judge, Mr Chopra backed away after the agreement in relation to counts 2 and 3, and because Mr Yazdani encouraged and directed Mr Chopra.
On 20 September 2005 both appellants filed an appeal against sentence on the following grounds. Firstly, the sentence was manifestly excessive. The particulars say that the sentencing Judge erred by failing to give sufficient weight to mitigating factors "of the offender" and in particular the circumstances of offending, the appellant's character, the appellant's personal circumstances and the delay in hearing of the charges and the appellant's efforts at self‑rehabilitation following the period of refunding. The second ground was that count 2 should not have been made cumulative on count 1 because that was said to have breached the totality principle. Leave has been granted earlier by me in relation to both of those grounds on both of the sentence appeals.
On 3 October 2005 both appellants filed an appeal against conviction on the grounds that:
(1)the verdict of guilty in relation to count 1 was unreasonable or could not be supported having regard to the evidence, and
(2)the same ground is maintained in relation to counts 2 and 3.
In both grounds in both appeals the contention is that the evidence did not reveal hat there was any clear or concluded agreement.
All criminal appeals require leave of the Court of Appeal. Leave is required for each ground. Section 27(2) of the Criminal Appeals Act 2004 (WA) stipulates that a Court of Appeal must not give leave to appeal on a ground unless satisfied the ground has a reasonable prospect of succeeding.
A single Judge has jurisdiction to grant or refuse leave. The power of a single Judge of the Court of Appeal to grant or refuse an application for bail pending an appeal or an application for leave to appeal is found in s 13(1) and item 4(1) of Pt A of Sch 1 (previously item 4(d) to the Bail Act 1982 (WA)). These amendments were made in the Acts Amendment (Court of Appeal) Act 2004 (WA) (see s 28(4)). Clause 4 of Pt C of Sch 1 to the Bail Act stipulates that in deciding whether or not to grant bail to an offender who was awaiting the disposal of appeal proceedings a Judge shall consider whether there are exceptional reasons why the offender should not be kept in custody and if there are, even then, shall grant bail only if satisfied bail may properly be granted, having regard to the provisions of cl 1 and cl 3 of that part.
Where the prospects of success of the appeal is one of the matters relied upon as establishing exceptional circumstances, then more than an arguable case must be shown. Ordinarily the court will grant bail pending appeal only if the applicant can demonstrate strong grounds for concluding that the appeal would be allowed, and that the sentence, or the custodial part of it, will be likely to have been substantially served before the appeal is determined (see United Mexican States v Cabal (2001) 209 CLR 165 and Tieleman v The Queen [2004] WASCA 285).
I now turn to the conviction appeals. I will first consider whether leave to appeal should be granted. So far as the law is concerned there is no doubt that the essence of a conspiracy charge is the agreement to do the unlawful act (see The State of Western Australia v Marchesi [2005] WASCA 133). In Mills (1962) 47 Cr App Rep 49 it was pointed out that if matters of substance have not been agreed, then the correct analysis may be that the parties are still in negotiation and have not reached an agreement which would constitute a conspiracy (see also O'Brien (1974) 59 Cr App Rep 222). However, as Cussen J in R v Orton [1922] VLR 469 at 473 said:
"An agreement need not possess all the formalities of an ordinary contract."
So, for example, consideration may be lacking or there may be persons involved who are not parties to the agreement.
In R v Anderson [1986] AC 27 at 37 Lord Bridge said, when speaking of conspiracy as defined in the Criminal Law Act 1977 (UK):
"What is important is to resist the temptation to introduce into this [area of law] ideas derived from the civil law of contract."
I now turn to the facts. In relation to count 1 the conspiracy evidence was recorded in a document with the identification CSN166. From this transcript of a telephone call between the two appellants, it is quite clear that the proposed sale of drugs had been the subject of discussion between them before this conversation. The proposed transaction was with an unknown person who was going to arrange to get money for the transaction, and there was discussion between the two appellants about the time that would happen. The two appellants then discussed and agreed the quantity of drug to be involved. They discussed and agreed the price. There was discussion about whether a sample would be shown and Mr Chopra said that it had been promised without a sample.
There was discussion about whether the transaction should be on credit or not, and Mr Chopra said that he did not like doing transactions on credit whereas Mr Yazdani was not troubled about the transaction being done on credit. Nevertheless, it is clear in my opinion they had agreed to sell, because they then talked about doing more transactions and whether or not Mr Chopra should be provided with additional samples, this indicating that they had reached agreement about the transaction that is under consideration in this case. The transcript ends with Mr Chopra agreeing that he would report back on the transaction the next morning.
In my opinion, this provided evidence which permitted the jury to reach the conclusion that there was a concluded agreement and a verdict of guilty based on that evidence was not unreasonable. In my opinion there is no reasonable prospect of succeeding on ground 1, and I would therefore refuse leave on that ground.
Ground 2 concerns counts 2 and 3, which are the subject of another recording identified as CSN231. This conversation was recorded at about 6.23 pm on 19 June 2001. Once again it is a conversation between the two appellants. Something less than an hour and a half before there had been another conversation recorded which was advanced in evidence. This conversation was between a police operative who was given the name, Tony, and Mr Chopra. There was a discussion between Tony and Mr Chopra about how the transaction and how the handover of the drugs was to take place.
Then in CSN231 the appellants discuss the transaction. The two appellants agree on the details of the quantity of MDMA, and the price for that quantity, and discuss and agree upon the quantity of methylamphetamine and the price. They then turn to discuss the mechanics of how it was that the drugs and the money were to be exchanged. They then agreed that Mr Chopra would call Mr Yazdani back after telephoning Tony again.
In my opinion that transcript reveals an agreement to supply both methylamphetamine and MDMA or, more correctly, it was open to the jury to reach that conclusion, and in my opinion such a conclusion was reasonably open on the evidence.
There is no reasonable prospect of success on ground 2 and I would therefore refuse leave on that ground as well. Even if leave had been granted, and there were strong prospects shown in relation to the merits, it would not have been shown that most of the non custodial sentence would be served before the appeal was heard, and that would have been justification for refusing the bail application if it had been necessary to hear it.
Reliance is also placed on the sentence appeal to support the bail application. In relation to the sentence appeal, even if the appeal is successful, my opinion is that the appeal would be determined before any reduced sentence would see the appellants released. The sentence appeal therefore affords no special circumstances warranting the grant of bail. The result is that leave is refused in relation to the conviction appeal grounds. Pursuant to s 27(3) the conviction appeals are therefore taken to be dismissed and the bail applications are refused.