Handlen v The Queen

Handlen v The Queen - [2011] HCA 51 - HCA 2011 case summary — Zoe

[13]

FRENCH CJ, GUMMOW, HAYNE, CRENNAN, KIEFEL AND BELL JJ. These appeals were heard together. The appellants were convicted, following their joint trial before the Supreme Court of Queensland (Applegarth J and a jury), of offences under the Criminal Code (Cth) ("the Code"), including two counts of importing a commercial quantity of border controlled drugs into Australia, contrary to s 307.1 of the Code ("the importation offences"). The trial was conducted on the mistaken assumption, shared by the parties and the trial judge, that guilt of the importation offences could be established by proof that the appellants were parties to a joint criminal enterprise to import the drugs into Australia. At the date of the appellants' trial, participation in a joint criminal enterprise was not a basis for the attachment of criminal responsibility respecting a substantive offence under the laws of the Commonwealth[1].
The appellants appealed against their convictions to the Court of Appeal of the Supreme Court of Queensland (Holmes JA, Fraser and White JJA concurring). The Court of Appeal found that the jury had been directed "in terms alien to the forms of criminal responsibility then recognised by the Criminal Code"[2] and that the appellants' liability was accessorial[3]. Nonetheless, the Court of Appeal was satisfied that the appellants' guilt had been established beyond reasonable doubt. The Court of Appeal considered that the failure to direct the jury correctly as to the basis of the appellants' liability for the importation offences had not involved a fundamental departure from a trial according to law[4]. The appeals were dismissed under the proviso[5].
The appellants appeal by special leave upon a single ground that challenges the application of the proviso. One aspect of the ground raised a constitutional issue. The appellants submitted that the requirement of "trial by jury" for Commonwealth offences tried on indictment[6] is inconsistent with the exercise of the power to dismiss an appeal under the proviso, at least in a case in which there has been a misdirection as to the elements of liability[7]. As these reasons will show, the prosecution of the appellants upon a basis that was not known to law was a departure from the proper conduct of the trial. The departure was fundamental. It denied the application of the proviso. This conclusion makes it unnecessary to address the appellants' constitutional arguments. The appeals should be allowed, the appellants' convictions quashed and a new trial ordered.

[15]

At common law, two or more persons may be jointly criminally responsible for the commission of an offence which, tacitly or otherwise, they have agreed to commit and which is committed while the agreement is on foot[8]. As McHugh J explained in Osland v The Queen, the criminal responsibility of each participant in such an enterprise is direct, each being equally responsible for the acts constituting the actus reus of the crime[9]. Commonly, proof of the offence and the accused's participation in the joint enterprise is facilitated by the evidentiary rule sometimes inaccurately described as "the co-conspirator's rule"[10]. The rule is not confined to the prosecution of conspiracy offences. It applies in the prosecution of substantive offences in which it is alleged that two or more persons acted in preconcert to commit an offence[11]. The acts and declarations of all the participants to the joint criminal enterprise are admissible to prove the offence and the accused's participation in its commission[12]. The agreement or preconcert implies that each participant has authority to act in furtherance of the common purpose on behalf of all of the other participants[13].
In 1995, the Parliament codified all of the general principles of criminal responsibility applying to offences against the laws of the Commonwealth. The legislative history is discussed in R v LK[14]. The general principles are found in Ch 2 of the Code. The statement of them is exhaustive[15]. The Code has been amended since the date of the appellants' trial by the insertion of s 11.2A, providing for criminal responsibility in circumstances involving the joint commission of a substantive offence[16].
At the date of the appellants' trial, guilt of a substantive Commonwealth offence might have been established in one of three ways. First, by proof of the existence of the physical and any fault elements of the offence[17]. Secondly, by proof that the accused, while possessed of any fault element(s) of the offence, procured an innocent agent to engage in conduct constituting the physical element(s) of the offence[18]. Thirdly, by proof that the accused aided, abetted, counselled or procured another person to commit an offence[19]. The words "aids", "abets", "counsels" and "procures" are not defined in the Code. They have a long history in the law of complicity and are to be understood as having their established legal meaning[20]. Each is used to convey the concept of conduct that brings about or makes more likely the commission of an offence[21]. At no time has the Code adopted the distinction made by the common law in the case of felonies between the accessory before the fact, who counsels and procures the commission of the offence, and the accessory at the fact, who aids and abets the commission of the offence[22]. All who aid, abet, counsel or procure the commission of an offence against a law of the Commonwealth are taken to have committed that offence and to be punishable accordingly.

[18]

Reed, a Canadian citizen, worked for a computer recycling company in Vancouver. He said that he was introduced to Handlen in August 2005 by a colleague known as "TJ" and that the three of them discussed the possibility of exporting drugs to Australia, concealed inside computer monitors. Reed prepared costings for the warehousing and freight of a consignment of computer monitors at Handlen's request. Thereafter, he arranged for the purchase of 480 monitors using funds provided by Handlen. In January 2006, Reed, Handlen and TJ leased a warehouse in the name of Cyberdesk, a legitimate business that was operated by TJ ("the Cyberdesk warehouse"). The monitors were delivered to the warehouse and, in March 2006, Reed, Handlen and TJ met there to pack the drugs inside the cathode ray tubes of selected monitors. The appellant in the second appeal, Dennis Paddison, and his father-in-law assisted in this task.
In early April 2006, Reed and Handlen flew to Brisbane. The tickets were booked by Reed with money given to him by Handlen. Reed was on friendly terms with Nerbas, a Brisbane resident. At Reed and Handlen's instigation, Nerbas arranged for the registration of a company, Reliable Computer Conversions Pty Ltd ("Reliable"), of which he and Reed became directors. Reliable was to be the consignee of the shipment of monitors. Nerbas and Reed were each signatories to Reliable's bank account. They signed a lease for a warehouse located in Geebung ("the Geebung warehouse"). Nerbas paid the security deposit and rent for the warehouse. There was evidence that moneys had been transferred from accounts associated with Paddison to an account operated by Nerbas in May 2006.
Reed organised to have the monitors collected in Vancouver, placed in a container and shipped to Brisbane. He engaged customs brokers in Brisbane, providing them with the bill of lading and an invoice from Cyberdesk addressed to Reliable for the consignment. Handlen gave Reed the name of a union official, who he said might facilitate the process of clearing the consignment through Customs. Reed made contact with this individual. In due course, the consignment was cleared and delivered to the Geebung warehouse.
Handlen, Reed and Nerbas removed the monitors from the container and stored them in the Geebung warehouse. About a week later, they returned and removed the drugs from the monitors. Handlen placed some samples of the drugs in a shopping bag and took it back to the unit in which he and Reed were staying. Handlen later gave a sample of the drugs to a man named John. Handlen told Reed that he had another client who would collect the remaining samples. These were collected by a man named David Shen. A few days later, Reed, Handlen and Nerbas returned to the warehouse, collected the remaining drugs and hid them in an apartment rented by Reed. Handlen arranged for most of these drugs to be picked up by certain men, including two of Shen's employees, and disposed of the remainder himself over time.
Evidence of the unpacking of the drugs and the subsequent dealings with them was relevant to the possession count against Handlen. As the Court of Appeal noted, this evidence does not appear to have been relevant to the case against Paddison[33]. Its admission was the subject of complaint in the Court of Appeal. The ground of challenge was dismissed since Paddison's counsel had not objected to the evidence and the trial judge summed-up on the evidence only as it related to the count of possession against Handlen[34].
Handlen and Reed returned to Vancouver in mid-June 2006. At Handlen's suggestion, in late July 2006, a second shipment of monitors was sent to Brisbane. There were no drugs concealed in this shipment. The purpose of sending an untainted consignment of monitors was to deflect any suspicions entertained by Customs officers.
Reed arranged for a third consignment of monitors to be shipped to Brisbane in early August 2006. On this occasion, the monitors were stored in the garage at Paddison's home before being transported to the Cyberdesk warehouse. Reed saw Handlen opening a package that appeared to contain cocaine at Paddison's home. He next saw the monitors loaded and taken from Paddison's home to the Cyberdesk warehouse. Reed, Paddison and a friend of Paddison's unloaded the monitors at the warehouse, stacking them on pallets.
On 10 August 2006, Reed flew to Brisbane, using money given to him by Handlen. At Handlen's suggestion, he and Nerbas rented premises in which to store the monitors that had been used to hide the drugs in the first shipment. Also at Handlen's suggestion, Reed and Nerbas met Shen, from whom they collected money. Paddison flew to Brisbane on 4 September 2006. He helped Reed unload the monitors from the second "dummy run" shipment. Handlen arrived in Brisbane on 6 September 2006 and attended a meeting with Shen.
On 8 September 2006, Customs officers examined the third shipment and found drugs concealed in one of the monitors. They contacted the Australian Federal Police, who examined the entire consignment, removed the drugs and replaced them with packages containing a harmless substance. The police commenced a surveillance operation, which included intercepting and recording telephone calls made by Reed, Nerbas and the appellants.
Reed retained customs brokers to secure the clearance of the third consignment and its delivery to the Geebung warehouse. Handlen supplied him with the money to pay the brokers. The container was delivered to the Geebung warehouse on the morning of 18 September 2006. Around midday that day, Reed and Paddison went to the warehouse, opened the container and observed that its contents were disordered. Reed telephoned Handlen, saying that they were "just in the middle of work here … I don't like it". That evening, Shen rang Handlen. Handlen told Shen that "they" had gone "through it with a … fine tooth comb" but that it was a "clean bill of health".
On 20 September 2006, Reed and Paddison returned to the Geebung warehouse to unpack the drugs. Their activities inside the warehouse were recorded by a surveillance camera. The recording was of poor quality, but tended to confirm Reed's account that they had unscrewed the casing of one of the monitors, and that Paddison had looked inside it and shaken his head. They left the warehouse immediately and were arrested shortly after. Handlen was arrested later that evening. Handlen had an email in his pocket from Reed advising details of the ship and the container.
The police took possession of the monitors from the first shipment. Paddison's fingerprint was found inside the outer casing of one of the monitors. A packet of tablets, apparently overlooked, was found in another monitor.
Handlen did not give evidence. Paddison gave evidence denying that he knew that drugs were concealed in the monitors. He claimed that the bank records purporting to relate to his account were false and that the recordings of telephone conversations to which he was a party were edited. He said that he had accompanied Handlen on the trip to Australia for a holiday at a time when he was attempting to overcome his addiction to heroin.

[44]

Discussion

The vice in the trial was not that the trial judge failed to direct the jury that the requisite intention was an intention to aid as distinct from an intention to single-handedly import the drugs. The vice was in prosecuting the case against the appellants as one of joint criminal enterprise and in framing the issue for determination as whether the prosecution had proved that the appellants were parties to the group exercise to import the drugs.
The Court of Appeal's analysis proceeded on the assumption that the "evidentiary content of the Crown case" was unaffected by the misconception as to the basis of the appellants' criminal responsibility. The Court of Appeal said that the Crown Prosecutor was "entitled to lead evidence of the acts and statements of all accused in furtherance of the common purpose of importation on the Tripodi principle"[48].
The evidence that the Crown Prosecutor was entitled to lead in the case against each appellant was evidence tending to establish (i) the commission of the importation offences by Reed; (ii) the conduct of the appellant that aided, abetted, counselled or procured the commission of the offences; and (iii) any fact or circumstance from which it was open to infer that the appellant had the intention, in engaging in the conduct, to assist Reed in the commission of offences of this type.
There was no objection to the admission of evidence of the acts and statements of persons taking place outside the presence and hearing of the appellant against whom they were tendered to prove the existence of the group exercise. This may be explained by the circumstance that defence counsel shared the Crown Prosecutor's mistaken understanding as to the basis of criminal responsibility for the importation offences. An appreciation of the true basis of any criminal responsibility might be expected to have prompted consideration of the admissibility of evidence of matters such as the internet searches carried out by Nerbas and his and Reed's visit to the spyware shop. It is not correct to say that the Crown Prosecutor was "entitled" to lead evidence to prove the existence of the group exercise. However, given the lack of objection, the appellants' complaint is not with the admission of the evidence but with the directions that are set out above as to the use that the jury might make of it.
The question of whether the appellants were parties to the group exercise obscured the requirement to prove that each appellant engaged in conduct that in fact facilitated the commission of the importation offences by Reed. The case against Paddison for the September importation illustrates the point. Paddison's conduct that might be relied upon as aiding in the commission of the offence was his assistance in packing the drugs in the monitors, knowing that they were border controlled drugs and knowing that Reed was intending to import them into Australia. Proof of this conduct depended upon acceptance of Reed's evidence. Although the trial judge did refer in terms to Paddison's help in packing the drugs in his directions relating to the September importation, he did not direct that satisfaction that Paddison engaged in this conduct was essential to proof of guilt. In the way the matter was left, Paddison's guilt depended upon proof that he was a party to the group exercise to import the September shipment. The jury might have reasoned from the evidence of his visit to the warehouse on 20 September 2006 and from the things that he said in telephone conversations that he was a party to the group exercise. That evidence was capable of supporting acceptance of Reed's account; however, it was not evidence of conduct that aided, abetted, counselled or procured the importation of the drugs by Reed. The importation was complete by the time the surveillance of the members of the group commenced. It cannot be assumed that the jury's verdict reflected satisfaction beyond reasonable doubt that Paddison engaged in conduct that facilitated the commission of the offence.
As this Court explained in Weiss v The Queen, there is no single universally applicable description of what constitutes a "substantial miscarriage of justice"[49]. The appellants were convicted of serious criminal offences[50] following a trial at which the prosecution case was conducted, and left to the jury, on a basis for which the law did not provide. The conduct of the trial on this basis conferred an evidentiary advantage on the prosecution, leading to the admission of evidence to prove the existence and scope of the group exercise. Ultimately, the issue posed for the jury was whether the prosecution had proved that the appellants were parties to the group exercise when this was irrelevant to proof of their complicity in Reed's offences. The verdicts on the importation counts reflect the jury's satisfaction that each appellant was a party to the group exercise but it does not follow that the jury must have been satisfied of the facts necessary to establish the appellants' guilt of the importation offences in the only way for which the law allowed. It was not open to the Court of Appeal to apply the proviso in the circumstances of these appeals.

[62]

The issues raised by s 11.2. The jury had to be satisfied that, and had to be directed in language turning their minds to the question whether, three conditions existed. The first is that provided for in s 11.2(2)(a). The second is that provided for in s 11.2(2)(b). The third is that provided for in s 11.2(3)(a). It was not in issue that the second condition (s 11.2(2)(b)) was satisfied: the appellants did not cross-examine Reed to suggest that his evidence of having committed offences was wrong. Further, the Court of Appeal concluded that the jury findings must have rested on a conclusion that the intention of each appellant answered s 11.2(3)(a), and this is not in issue. So the third condition is not controversial. What is controversial is the first condition - whether the judge's directions made it clear that the jury had to be satisfied beyond reasonable doubt that each appellant had aided, abetted, counselled or procured the commission of Reed's offence - that is, had brought that offence about or made it more likely. The Court of Appeal described this issue as being whether each appellant "did things to advance the importation of drugs into Australia"[57]. That description, as a description, was not attacked as erroneous.
It is noteworthy that the appellants did not submit that, if the jury had been directed in terms of s 11.2, the evidence was insufficient to support the convictions on the importing charges.
The submissions advanced on behalf of the appellants tended to obscure the simplicity of the problem by saying that the jury was wrongly directed about every factual ingredient and that "the jury was never asked to determine the facts that would establish [accessorial] liability."
Was it correct for the appellants to submit that the jury was never asked to determine the facts described in s 11.2(2)(a)? No.
The case against the second appellant. The prosecution case against the second appellant was that he packed drugs in Canada by cutting into cathode ray tubes in computer monitors, placing packages of drugs in them, and resealing them; that he had unloaded the monitors in Australia; that he examined them with a view to removing the contents; and that in April and May 2006 he made payments to assist the first appellant and Reed while they were in Australia.
The directions about the second appellant. The trial judge directed the jury in a manner conforming to that case. The trial judge said that the prosecution case in relation to each importation was that "no one person can do all that is necessary to achieve the importation, [and] there were many tasks that had to be performed and divided between the various participants." Although the judge was not thinking in s 11.2 terms, that remark told the jury that each appellant's conduct had to be examined to see how it advanced the importation - had brought it about or made it more likely - and thus how it aided, abetted, counselled or procured it. Then the trial judge said a question for the jury in relation to the May 2006 importation was:

[75]

To some degree these directions are framed in terms of the joint criminal enterprise case. But the direction about the transfer of funds raised for the jury's consideration the issue of whether the transfer was for the purpose of facilitating the importation of drugs; and if the transfer took place it obviously did facilitate the importation. The jury was also asked to consider whether the second appellant "along with others" engaged in conduct which brought the drugs into Australia. To engage in that conduct with others is to bring about or make more likely the importation by Reed, and thus to aid, abet, counsel or procure it.
The case against the first appellant. The case against the first appellant was that he had discussed with Reed the possibility of sending drugs concealed in computer monitors by shipping container to Australia. He arranged for Reed to prepare a list of costs in relation to freight and warehousing. He gave Reed money to place a deposit on an order for 480 computer monitors. He, Reed and another located a warehouse to use in their activities. He provided money to Reed to pay for the balance owing on the computer monitors. With Reed and another he began packing the computer monitors with drugs, assisted by the second appellant and the second appellant's father-in-law. The first appellant and Reed travelled to Australia in order to rent a warehouse where the consignment of drugs could be received. The first appellant paid for his and Reed's tickets to Australia. He also arranged for the taking of other steps in relation to the importing of drugs. He arranged through a union official to have the relevant container cleared quickly through customs in Brisbane. He, Reed and another used a borrowed forklift to transfer the pallets containing the drugs into a warehouse. He handled some of the drugs and supplied them to particular individuals. His activities in relation to the September 2006 shipment of drugs were similar.
The directions about the first appellant. The directions in relation to the first appellant were similar to those in relation to the second appellant.
Thus the trial judge said in relation to the May 2006 importation:

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