Agius v R; Abibadra v R; Jandagi v R; Zerafa v R

Supreme Court of NSW|2020-10-13|Before: Garling J

REASONS FOR DECISION

Pursuant to s 78 of the Crimes (Appeal and Review) Act 2001 ("the Act"), Huy Huynh ("the applicant") applies for an inquiry into his conviction for an offence contrary to ss 11.5(1) and 307.11(1) of the Criminal Code Act 1995 (Cth).

The Trial

The applicant was tried in the District Court of NSW between 13 April 2015 and 9 June 2015 before Whitford SC DCJ and a jury. He was convicted of the one count upon which he was indicted, namely that between 1 January 2012 and 30 June 2012, he was involved in a conspiracy to import a commercial quantity of a border-controlled drug precursor (pseudoephedrine), with the intention of the substance being used to manufacture a controlled drug. The trial involved allegations that a number of other named individuals were involved in the enterprise. The Crown's case was one of an ongoing conspiracy which, relevant to the applicant's charge, involved in 2012, a March importation and a June importation.

The Appeal

The applicant lodged an application for leave to appeal to the Court of Criminal Appeal against his conviction. The appeal was heard jointly with the appeal against the conviction of Mr Cranney. The applicant, who appeared for himself on the appeal, relied on nine grounds of appeal. One ground of appeal was that the verdict was an unreasonable one, because the evidence failed to establish the existence of a single conspiracy relating to both importations rather than separate conspiracies for each importation. The application for leave and the appeal were heard on 22 February 2017, and all grounds of appeal were dismissed: see Cranney v R; Huynh v R [2017] NSWCCA 234.

Special Leave Application

The applicant sought leave to appeal to the High Court of Australia in 2019, however leave was refused: see Huynh v The Queen [2019] HCASL 6. The High Court said that the application had insufficient prospects of success to warrant a grant of special leave to appeal.

Relevant Legislation

Sections 78 and 79 of the Act relevantly provide: "78 Applications to Supreme Court An application for an inquiry into a conviction or sentence may be made to the Supreme Court by the convicted person or by another person on behalf of the convicted person. ... 79 Consideration of applications After considering an application under section 78 or on its own motion: the Supreme Court may direct that an inquiry be conducted by a judicial officer into the conviction or sentence, or the Supreme Court may refer the whole case to the Court of Criminal Appeal, to be dealt with as an appeal under the Criminal Appeal Act 1912. Action under subsection (1) may only be taken if it appears that there is a doubt or question as to the convicted person's guilt, as to any mitigating circumstances in the case or as to any part of the evidence in the case. The Supreme Court may refuse to consider or otherwise deal with an application. Without limiting the foregoing, the Supreme Court may refuse to consider or otherwise deal with an application if: it appears that the matter: has been fully dealt with in the proceedings giving rise to the conviction or sentence (or in any proceedings on appeal from the conviction or sentence), or …, or …, or …, and the Supreme Court is not satisfied that there are special facts or special circumstances that justify the taking of further action. … (4) Proceedings under this section are not judicial proceedings. However, the Supreme Court may consider any written submissions made by the Crown with respect to an application. (5) ..."

Nature of a Part 7 Application

The Court is engaged in an administrative task or function when determining this application: Varley v Attorney General (NSW) (1987) 8 NSWLR 30 at 48‑50. As expressly provided in s 79(4) of the Act, these proceedings are not judicial proceedings. Further, this application is not another avenue of appeal. Rather, it is an administrative function engaged once the criminal justice system has run its course, following a trial and an appeal: see Application of Peter James Holland under s 78 Crimes (Appeal and Review) Act 2001 [2008] NSWSC 251 at [4]ff per Johnson J.
Section 79 of the Act does not confer a power on this Court on this application to quash a conviction or sentence as would occur if there was a successful appeal. Rather, this Court's powers under s 79 are limited to either directing that an inquiry take place or else referral of the matter to the Court of Criminal Appeal to be dealt with as an appeal.
The pre-condition for the exercise of these powers is the appearance of a "doubt or question" regarding one (or more) of three things: guilt, any mitigating circumstances in the case, or any part of the evidence in the case. This precondition will be satisfied if there is available material which causes the decision-maker "… unease or a sense of disquiet in allowing the conviction or sentence to stand": Holland at [6].
As Johnson J said in Holland at [10], applications under s 78 of the Act "in almost every case, [arise] where additional evidence has come to light which is said to raise a doubt or question as to guilt or sentence".
I note that in this application, no such additional evidence is relied upon. Whilst this does not preclude the Court from exercising the powers under ss 78 and 79 of the Act, it does mean that the Court must be conscious to ensure that the process is not being used as another form of appeal. In this matter, the applicant must show that, based on material that has already made its way through the criminal justice system, his application gives rise to a relevant sense of unease or disquiet which needs to be one that was not considered or dealt with in his trial or on his appeal. This is a high bar. This is not an opportunity to run the trial again on paper, with the ultimate submission that an acquittal should result: Holland at [9].
Given the nature of the jurisdiction under Part 7 of the Act, there is some flexibility involved in terms of the material which may be relied upon in support of an application for an inquiry or referral to the Court of Criminal Appeal.

Relevant Factual Background

On 14 October 2013, the applicant was arrested by the Australian Federal Police. This arrest followed arrests earlier in 2012 and 2013 of a number of individuals alleged to be involved in a conspiracy to import a commercial quantity of pseudoephedrine.
Many of the others arrested as alleged conspirators in the conspiracy to import were employed at Sydney International Airport in various capacities. Though the applicant was not himself employed in any such capacity, his co‑accused at trial was employed as a customs officer at the Sydney International Airport.
The applicant's trial on indictment occurred between 13 April 2015 and 9 June 2015, before Whitford SC DCJ and a jury. The Crown case relied heavily on the oral evidence of other conspirators, who testified that the applicant had participated in the conspiracy.
The Crown also relied on circumstantial evidence, being telephone intercepts between the applicant and a Vietnamese man, where there was discussion of the applicant's ability to get things out of aeroplanes; physical surveillance of the applicant and other alleged co-conspirators meeting on a number of occasions; links between a courier and the applicant, as well as relationship evidence between the applicant and other co‑conspirators in relation to previous alleged importations; evidence of trips that the applicant took to Vietnam at times relevant to the importation timeline; evidence that the applicant hired a car at a time one of the importations occurred; and the applicant's possession of mobile phones in other peoples' names and a large amount of cash in his bank at the time of the June importation (when he was unemployed).
At trial the applicant denied he had any involvement in the conspiracy (although he did not deny that such a conspiracy existed). The applicant gave sworn evidence that he had only ever discussed his debt with the conspirators and that he had never been party to any conversation about importing pseudoephedrine. He explained that the money he had come into was the result of a bet, and that the telephone conversation with the Vietnamese man was ended by him abruptly precisely because he was not interested in being involved in whatever scheme was being planned.
The applicant was convicted by the jury, following lengthy directions by the trial Judge. The applicant's counsel did not seek redirection on any point.
The applicant appealed his conviction to the Court of Criminal Appeal. On appeal, the applicant argued that the verdict was unreasonable because the evidence at trial indicated that the two importations (one in March, one in June) were separate conspiracies, not one broad conspiracy. Therefore, in the applicant's submission, the evidence meant that some jurors may have been convinced of the applicant's involvement in the March importation and some of his involvement in the June importation, as there was no a clear direction from the trial Judge that the jury had to be convinced that the conspiracy was ongoing. The applicant further submitted that the failure of the trial Judge to direct the jury that the Crown must prove a single conspiracy, rather than two, which amounted to erroneous directions of law resulted in a miscarriage of justice. Finally, the applicant submitted that the charge upon which he was indicted was bad for latent duplicity, as the evidence established that there were two agreements before the jury.
The Crown on appeal argued two central points: first, that no issue was raised at trial concerning multiple conspiracies or latent duplicity; and, secondly, it maintained that the evidence showed that overt acts continued to be undertaken under the same overarching agreement, meaning a single conspiracy charge was appropriate, and therefore that the evidence established one broad conspiracy during which more than one importation took place.
The Court of Criminal Appeal dismissed the applicant's appeal. Price J (with whom Latham J and Hoeben CJ at CL agreed) found that the Crown had made its case of a single conspiracy clear throughout the trial, that there was strong evidence at trial that a single agreement governed the actions of the conspirators, that those actions had a common purpose and a common design which remained largely unchanged across different importations, and that the entry or departure of parties to the conspiracy (e.g. couriers) did not disprove the existence of the conspiracy. His Honour found that it was open to the jury to find both the March and the June importations in 2012 were carried out as part of the broad single conspiracy alleged by the Crown.
His Honour further held that any failure by the trial Judge to specifically direct the jury about the requirement to be satisfied of a single conspiracy was not erroneous. His Honour was satisfied that those directions of the trial Judge were correct. To the extent that other directions of law were said by the Court to be erroneous, the Court found that no substantial miscarriage of justice had occurred. The applicant was refused leave to argue the latent duplicity ground as his Honour found that it was without merit in the circumstances.
The applicant sought special leave to appeal his conviction to the High Court of Australia. He argued that the Court of Criminal Appeal had erred in failing to find that the guilty verdict was unreasonable, and that the verdict was erroneous because of the ambiguity as to whether the jury was unanimous in its verdict with respect to either or both of the importations in March 2012 and June 2012. Special leave was refused on the basis that there were insufficient prospects of success to merit a grant of special leave to appeal.

Grounds of this Application

This application is very similar to the special leave application filed for the High Court. In substance and effect, there are two grounds advanced by the applicant as the basis for the application: 1. that the conspiracy charge constituted an abuse of process; and 2. that there was a failure to put the applicant's defence for the June importations to the jury.
In considering these grounds, it is necessary to bear in mind that the relevant test under the legislation requires me to consider whether there appears to be a doubt or question as to the applicant's guilt or, to put it another way, whether the available material causes me unease or a sense of disquiet in allowing the conviction to stand.

Discernment

The count upon which the applicant was found guilty was an offence contrary to ss 11.5(1) and 307.11(1) of the Criminal Code Act 1995 (Cth). Section 307.11 defines the criminal offence itself as: "307.11 Importing and exporting commercial quantities of border controlled precursors (1) A person commits an offence if: (a) the person imports or exports a substance; and (c) the substance is a border controlled precursor; and (d) the quantity imported or exported is a commercial quantity."
Section 11.5 defines the charge of conspiracy: "11.5 Conspiracy (1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed." (2) For the person to be guilty: (a) the person must have entered into an agreement with one or more other persons; and (b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and (c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement."
The elements of the offence of conspiracy are contained in 11.5(1), with 11.5(2) being an explanatory or clarifying provision: R v LK; R v RK [2010] HCA 17; (2010) 241 CLR 177.
I will commence with a consideration of the first ground, namely whether the conspiracy charge constituted an abuse of process.

Abuse of Process

I accept that the submissions of the Attorney-General accurately described this ground as being constituted by five distinct points as follows: 1. that the Crown chose to subsume two separate and distinct offences (identified as the March importation and the June importation) under the one conspiracy; 2. that the prosecution of the indictment as particularised was an abuse of process; 3. that it was an abuse of process because the prosecution's "ulterior motive in subsuming two separate and distinct offences under the guise of a single conspiracy was so it could subvert the Court's processes in order to make it easier to facilitate conviction" in circumstances where the applicant argues he had two different defences; 4. that the prosecution circumvented the co-conspirators rule by allowing evidence of the applicant's participation in the agreement for the March importation as evidence of an agreement for the June importation; and 5. that both "offences" (the March and June importations being characterised as separate offences) were made "significantly stronger" by being joined together and it was unfair that the applicant was "precluded from getting a verdict for each separate offence.
These arguments amount to a submission that the Crown, by charging a single conspiracy, has produced a miscarriage of justice, such that there is a doubt as to the applicant's guilt. Put differently, the way the Crown conducted the case at trial should cause me to feel a sense of unease as to the applicant's guilt.
Consistently with the decision of the High Court of Australia in R v LK, the Crown was required to prove the following to prove the single conspiracy charge at trial: 1. that the applicant intentionally entered an agreement with at least one other person to commit the offence of importing a commercial quantity of pseudoephedrine, intending to use or believing another person would use the substance to manufacture a controlled drug; 2. that at least one party to the agreement did an overt act in furtherance of the conspiracy; and 3. that the applicant was exposed to liability if the conspiracy was carried through by any party.
If the applicant tried to withdraw from the conspiracy such that he could not be convicted for his role in the agreement, he must have withdrawn before the commission of an overt act in furtherance of the conspiracy and taken all reasonable steps to prevent the commission of the offence: s 11.5(5) Criminal Code.
It is uncontentious that conspiracy is a continuing offence. The High Court said in Savvas v The Queen [1995] HCA 29; (1995) 183 CLR 1 at 8: "But it is equally plain that the conspiracy does not end with the making of the agreement. It will continue so long as there are two or more parties to it intending to carry out the design"
On my review of the evidence, it is plain that no miscarriage of justice was occasioned by a single charge of one conspiracy. It was open to the Crown to charge a single offence and open to the jury to convict on the evidence. There appears to be no evidence of or any compelling reason why the two separate importations would properly be regarded as separate conspiracies. Many of the conspirators remained constant across each importation and the modus operandi of the conspirators remained the same. In short, they were distinct but similar importations carried out as part of the same agreement.
The charged conspiracy was not, in my view, complete when the couriers' bags were intercepted in the March importation as the applicant argues. No second or separate conspiracy was started after the March importation. The findings of the Court of Criminal Appeal in regards to this point are persuasive. The June importation used a similar modus operandi to the March importation and was an importation of the same substance and involved similar conspirators. It is obvious to me that it was in furtherance of the same ultimate goal as the March importation. In my view it was open to, and correct for, the jury to find the June importation was part of the same single conspiracy as the March importation, and that both importations were undertaken under the same agreement.
Any difference of couriers between the two importations does not amount to a new conspiracy. It is well established law that conspirators may leave and join conspiracies without the conspiracy coming to an end: see e.g. Agius v R; Abibadra v R; Jandagi v R; Zerafa v R [2011] NSWCCA 119 at [54].
I am further unconvinced that the Crown opting to charge a single conspiracy rather than multiple substantive charges, constituted an abuse of process. If the Crown sets out in a trial to establish a broad "conspiratorial ring" involving a single organisational framework and multiple offences, a single conspiracy charge is appropriate if it most readily accords with the reality of the situation: R v James William Shepherd (1988) 37 A Crim R 303 at 309-310.
This conclusion is not contradicted by those cases where courts have found that a broad conspiracy charge was inappropriate in one or other set of circumstances. Cases where conspiracy charges were deemed inappropriate were usually instances where the Crown used a conspiracy charge to avoid charging substantive offences or multiple conspiracies, even though such charges were appropriate in the circumstances (often because there was little evidence that a single broad conspiracy existed): see e.g. Gerakiteys v R [1984] HCA 8; (1984) 153 CLR 317.
I am wholly unpersuaded that the applicant's trial was one where the broad conspiracy charge constituted an abuse of process. As only one importation was intercepted, multiple substantive charges were not realistic in the circumstances. There was sufficient evidence at trial for it to be open to the jury to find a broad, single conspiracy existed.
Each argument advanced by the applicant on this point relies on my having a doubt as to whether the March and June importations were a single conspiracy. That is to say, each argument rests on the idea that they should have been charged as separate offences. I am not convinced of this argument. I have no doubt that a single conspiracy charge was appropriate.
It follows that on this ground, I do not have a doubt about the guilt of the applicant, nor as to any particular mitigating circumstance in the case or as to any part of the evidence in the case.
As well, this ground has been fully dealt with as part of the trial and appeal in the proceedings, and as I am not satisfied that there are special facts or special circumstances that justify the taking of further action, I would reject this ground of the application.

Failure to Direct Jury as to Applicant's Defence

The applicant's submissions on this point asserted an inadequacy in the directions delivered by the trial Judge when dealing with the argument that there were two conspiracies.
Underpinning the applicant's submissions was the view that he was charged with defending two conspiracies under the heading of one conspiracy. This led to an argument by the applicant that the trial Judge had failed to properly direct the jury as to what had to be proved in relation to the June importation in order for the applicant to be properly convicted.
This was a complete mischaracterisation of the Crown case. Any difference in the nature of the involvement of the applicant between the March and June importations was not a matter which disproved his involvement in the conspiracy. Nor did it cast any doubt on it. Section 11.5 of the Code makes clear the threshold for leaving a conspiracy. The applicant did not to reach that threshold and, given the factual circumstances, it was not open to the jury to find that he had.
Consequently, any defence by the applicant needed to be against the case put by the Crown against him, not to the individual steps taken within the conspiracy. Any "defence" to involvement in the June importation would not be a complete defence to the charge the Crown was prosecuting. Lesser involvement in the June importation did not absolve the applicant of involvement in the broader conspiracy.
This submission of the applicant also does not engage with the reality of the applicant's defence at trial: namely, he argued that he was not involved at all in the conspiracy. He did not have a separate defence for each of the two importations. His defence for each importation, and for the entire conspiracy, was the same, namely that he was wholly uninvolved with the entire criminal enterprise which undoubtedly existed.
It is also important to note again that no redirection was requested by his counsel at trial, that these arguments were considered extensively by the Court of Criminal Appeal on his appeal, and they were also raised unsuccessfully in his special leave application.
I have no sense of unease as to the appropriateness of the directions given to the jury at trial, and no doubt is raised as to the applicant's guilt. The submissions from the applicant as to jury directions represent a misunderstanding of the charge and the Crown case that he needed to meet at trial, and they do not engage with the reality of how his trial was run by his own defence counsel.

Conclusion

The applicant has done no more than raise issues that he has raised previously on appeal.
An application under s 78 is not to be approached by this Court, acting in an administrative capacity, as another Court of Appeal. When faced with an application that does no more than restate submissions raised in the proceedings and on appeal, it is open to me to refuse to consider the application: s 79(3) of the Act.
This was plainly an available course for the disposal of this application. However, I have chosen to examine the applicant's submissions and all of the relevant material. Having done so, and having considered the issues substantively, I have no sense of unease or doubt as to the applicant's guilt.
In these circumstances, the application is dismissed.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 13 October 2020

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (13 paragraphs)

Legislation Cited (1)

Cases Cited (11)

Cited By (5)