Ground 1: Trial judge's directions in relation to attempt
11Pursuant to the provisions of s 11.1 of the Code, an attempt to commit what is otherwise a Commonwealth offence is, itself, an offence under the Code. The relevant provisions of s 11.1 of the Code should be recited:
"11.1 Attempt
(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.
(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.
(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.
Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.
...
(4) A person may be found guilty even if:
(a) committing the offence attempted is impossible; or
(b) the person actually committed the offence attempted.
...
(7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud)."
12It is not particularly contentious to summarise the provisions of s 307.6 of the Code as creating an offence for a person to possess a substance that was unlawfully imported, which substance is a border controlled drug of a marketable quantity. Heroin is a border controlled drug and the quantity involved in these proceedings is a marketable quantity. It is unnecessary to recite the terms of s 307.6 of the Code.
13It is appropriate next to refer to fundamental principle. With the exception of offences of strict or absolute liability, criminal responsibility depends upon two aspects: a criminal act and a criminal intention. It is generally true to say, as Brennan J said in He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 (He Kaw Teh), "that an act or omission done or made by a person is the essential foundation of his criminal responsibility". As his Honour went on to explain:
"When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition. A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present." (He Kaw Teh, at 565, per Brennan J.)
14It is absolutely essential, in indictments other than particular statutory offences, that the two elements of an offence be understood and proved by the Crown. Those two elements are, as stated above, a criminal act and a guilty mind (actus reus and mens rea).
15When one is dealing with an attempt to commit an offence, this can sometimes take on a particular difficulty. Depending upon the offence that is attempted, different requirements are imposed on the state of mind. Under the common law, and prior to the promulgation, relevantly, of s 11.1 of the Code, an attempt to commit an offence was a misdemeanour. Nevertheless, both under Commonwealth law (see s 11.1 of the Code above) and under most state laws, an attempt to commit an offence is an offence of the same order.
16In order to prove that the accused is guilty of an attempt to commit a particular offence, the Crown must first prove, beyond reasonable doubt, that the accused intended to commit the crime, which the Crown alleges he attempted to commit. In other words, the accused must have intended to commit all of the physical acts which would constitute the crime attempted in circumstances which make those acts criminal.
17Over and above the proof of an intention to commit the crime alleged, the Crown must also prove, beyond reasonable doubt, that the accused, with that intention, performed some act that went towards the commission of the offence, which act was more than merely preparatory of the crime and was immediately connected with the commission of that crime, having no reasonable purpose other than its commission.
18In crimes of specific intent, an intention to commit the crime must include in the state of mind that specific intent. Thus, in a charge of attempted murder, the Crown must prove an intention to kill, not inflict grievous bodily harm: Knight v R [1992] HCA 56; (1992) 175 CLR 495.
19The general issue associated with the existence of both a criminal act and a criminal mind applies equally, perhaps even more obviously, to an attempt. While recklessness as to the probable and/or foreseen consequence will suffice for almost all offences, it will be insufficient to satisfy the mental element in attempt (or, irrelevantly, aiding and abetting and other like bases for liability): Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473 at 506, per Wilson, Deane and Dawson JJ. Often the difference will be more theoretical than practical, because an intention can be inferred from conduct that has known consequences.
20Nevertheless, there are two separate aspects to the crime of attempt. As earlier stated, the first such aspect is the state of mind or intention to commit the crime; the second aspect is conduct which is a step towards the commission of the offence in question and which step cannot reasonably be regarded as having any other purpose than the commission of the offence charged.
21Over the years there have been a number of attempts to define that which is a step towards the commission of an offence that does not have any other reasonable purpose than the commission of the offence. Often the relationship is referred to as an unequivocal act as a test of proximity: see Davey v Lee [1968] 1 QB 366. In other words, is the act upon which the criminal conduct rests an act that is too remote to constitute an attempt, which question is then answered by the answer to whether the act is directed to the commission of the particular offence or completed crime only.
22The existence of two separate aspects, the state of mind and conduct amounting to attempt, is the basis for the allegation of error said to arise from the directions of the learned trial judge. The appellant submits, in this Court, that the direction given to the jury by the trial judge gave "rise to a miscarriage of justice ... [being] ... the conflation of attempt and intent, with the consequent diminution, if not obviation, of the need by the prosecution to prove the physical element of the offence".
23It is necessary to deal with some of the extracts of his Honour's summation and directions to the jury. Before doing so it is necessary to point out that there was an exchange between counsel for the accused, at trial, and his Honour in which these aspects were discussed, prior to the summation. This exchange occurred on the day prior to his Honour's summing up at p 394 - 397 of the Transcript (AB Volume 2, 430 - 433, 10/11/11).
24Relevantly the exchanges are in the following terms:
"EDWARDS: Your Honour, my position is that the physical and fault elements that are required to make out this offence are required to be attributed to the accused. That's my position.
CROWN PROSECUTOR: Your Honour, I agree with that.
HIS HONOUR: I think we all agree with that.
EDWARDS: And that is whatever he alleged to have done, which is to be in the car, the jury must be satisfied beyond reasonable doubt that that constituted an attempt to possess a package.
CROWN PROSECUTOR: His intention to attempt to - that's right, I accept that.
HIS HONOUR: That's an intention. Well he's being in the car at the scene--
...
EDWARDS: ... In my submissions it's - I apologise for saying no your Honour. Your Honour, an attempt is--
HIS HONOUR: An attempt is an intent. He intends to possess.
...
HIS HONOUR: Attempt must be intend. That's what the law is as to the attempt.
EDWARDS: Because your Honour, they'll be given the direction ultimately. The question whether the conduct is more than merely preparatory to the commission of the offence is one of fact. So the jury are told that the person's conduct must be more than merely preparatory to the commission of the offence.
HIS HONOUR: Yes. We all agree with that.
EDWARDS: So it's an attempt to possess. So an intention could occur at any stage of a person's involvement in an offence, and it could occur in a context where is it merely--
HIS HONOUR: You just must intent [sic] but you must go to through those physical - the physical act, facts upon which the Crown relies.
EDWARDS: Yes your Honour.
...
HIS HONOUR: But in any event, yes. Possession, yes. Possession of a thing includes receiving, having control or obtaining possession. Yes.
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EDWARDS: So what I would submit to your Honour, that its more in fact than an intention. A physical element has to be an attempt which involves, in my submission, more than an intention but requires an intention, if I can put it like that. Certainly your Honour, you don't--
HIS HONOUR: Under 3.2 only one of the four elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.
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HIS HONOUR: An intention is that, yes.
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HIS HONOUR: Yes, the fault element is intention.
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EDWARDS: Yes, your Honour, but in terms of the - we see in the attempt it talks about the conduct and, your Honour, the conduct in this case, as I understand the Crown case, is that the accused was outside driving along the street, along Wolseley Street at the time Mr Uadiale got the package. Now, if that's accepted by the jury they would have to be satisfied that that constitutes an attempt. So it's the conduct that is in my submission--
HIS HONOUR: Well, it's just not the occasion when he's coming back, there's the earlier point of time when Sergeant Davenport said he saw him in the car.
EDWARDS: Yes, your Honour
HIS HONOUR: And also I think it was Saunders, he actually didn't say - he said parked, I'm not too certain if Sergeant Davenport said parked, I was going to transcript, and I think certainly Saunders said parked, saw him parked on the left hand side as he was driving down Wolseley Street.
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HIS HONOUR: Yes, but certainly that would be I take it the Crowns relying upon that evidence to show an intention to possess.
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HIS HONOUR: The whole lot, the fault element is intention, it must be more than merely preparatory to the commission of the offence, well that's certainly true, and you could put that."
25The submission from counsel appearing for the appellant, in this Court, is that this exchange shows his Honour to have "some difficulty in appreciating" the need for both physical and fault elements to be proved by the Crown. It is always necessary to be extremely wary of drawing too much from an exchange in transcript for a number of reasons. First, as is clear from the full exchange from which the foregoing is extracted, an exchange between counsel and the Court, in the absence of the jury, is often a means by which a trial judge refines that which is being submitted as the law that is required to be put to the jury in the summing up.
26Further, in an exchange with counsel that forms part of a much larger discussion, a looseness of expression generally occurs, without which the exchange, necessarily, would take a significantly longer period.
27Nevertheless, and without regard to the two foregoing considerations, the exchange between counsel and the trial judge, recited or summarised in the above extract, does not reveal a failure of his Honour to appreciate (or a difficulty in appreciating) that both mens rea and actus reus are required in order for the Crown to prove attempt.
28However, in the exchange his Honour, after referring to the evidence of the appellant's conduct, and whether he drove along the road and parked (by reference to the evidence of witnesses Davenport and Saunders) remarked that the Crown would be relying upon that evidence to show an intention to possess, which discloses the kind of looseness one would expect in an exchange with counsel, but a looseness which uses the term "intention" in other than its strict legal meaning as a state of mind to be distinguished from conduct. His Honour is there using "intention to possess" as meaning "attempting to possess".
29In other than the technical sense, and its ordinary meaning in colloquial English, intending to do something may sometimes include attempting to do something. For example, if a person said, "I intended to go inside, but the door was locked", it would ordinarily mean that an attempt was made to open the door. On the other hand, intention can be quite separate (as it is as a matter of law) to an attempt, best illustrated by a statement, "I intended to go to the beach, but it was raining". Much depends on context, which emphasises the need for precision in dealing with the issue, as a matter of law, and in directions or summing up to a jury.
30It is necessary to recite some of the extracts of the summing up of his Honour. It is impossible, in the context of this judgment, to repeat the whole of the summing up or to put the extracts in context. Nevertheless, these include the extracts upon which the appellant relies for this ground of appeal.
31His Honour, during the course of the summing up said:
"As the Crown has said it is for you as finders of fact to say whether or not Meredith Inegbedion did on12 April 2010 intend to take control of. That is what the words 'attempt to possess' mean. I will say a little bit further more in relation to that and the facts and how you would consider that, but I mention that to you as at this stage. It probably would be as well if I mention it now. The law applicable in this case is that the conduct of the accused on 12 April 2010, that is, the conduct which amounts to intention to take control of, must be more than merely preparatory to commission of an offence, more than preparatory to take control of the substance.
... The main matter is to focus on the fact that there was intent to take control of, and it must be from conduct that is more than merely preparatory to the commission of the offence.
...
That is, it is on the Crown to satisfy you beyond reasonable doubt that on 12 April 2010 the accused intended to take control of exhibit A, the package containing the heroin, and to reject the version that is put forward by the accused.
The accused does not have to persuade you to accept it, but if that evidence of the accused leaves you with a reasonable doubt as to whether or not the Crown has made out its case in respect of any element of the offence or an essential fact, then you are bound in law to bring in a verdict of not guilty.
...
The Crown in relation to the intention to possess, take control of the package, relies upon the circumstances as referred to in his address and as he stated the actions of the accused on 12 April 2010 and what was found on his person or in the vehicle on that day, and the links which follow in relation to the name of persons and telephone calls and puts to you that those actions can only, and it can be the only inference, show an intention to possess.
...
I can say it is a very good example I consider in relation to circumstantial evidence, and it is a good example of what the law requires, that when you have a Crown relying on circumstantial evidence, you must find beyond reasonable doubt that the only rational inference, the only one, from the circumstances upon which the Crown relies is that the accused on 12 April 2012 [sic] intended to take control of the package, and that his conduct was more than merely preparatory to the commission of the offence to possess the prohibited substance. They are the matters, and it can be the only inference that he indeed. The Crown puts to you that when you look at all that occurred on 12 April 2010, including the driving of the vehicle to Wolseley Street, Rooty Hill prior to the arrest, and the circumstances of the arrest and what was found in the vehicle which showed links according to pieces of paper to a person by the name of David Okeke which was the name referred to in package A on the address together with the actual address, which is again on the package, 16 Wolseley Street, Rooty Hill, and the telephone calls and the money transfers as referred to in exhibit J, and the other evidence, which is all before you, would lead you to the only rational inference that on that day, 12 April, he intended to take control of the package. The Crown submits that when you look at all that evidence that is the only rational inference, and that it has satisfied you beyond reasonable doubt that you ought to reject what the accused has stated as to the reasons why he was at Wolseley Road.
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Officer Leonard said:
'I saw from my right an African male come running towards me. That male asked me if I had a package for David Okeke to which I replied "I do". I then asked him for identification. At that time he told me that he did not have any identification and I told him that because it was an EMS package that I required identification before I could give him the package.'
She then said:
'Well do you have a tracking number?' And he said he could go and get the tracking number from Vecar [sic - read: the car] , so then I said, "Okay off you go and go and get the tracking number". He then went back to my right which was east, up Wolseley Street, disappeared out of sight and then returned with a mobile telephone in his hand and then he read the consignment number, so the tracking number, out to me. I checked it against the package, the tracking number that I had written down, and saw that they were the same. I then asked him to sign the receipt for the package and I asked him if he was David Okeke to which he said, "Yes". He then signed the receipt and I asked him if he would come over to the van and I got the package out. I then opened the back sliding door on the passenger side of the van and Federal Agents Brian Chow and Matthew Murray then emerged. We identified ourselves as police.'
Now it is important I consider that that evidence be read out to you because it does, it is the start of the package and it was signed for as we know by Peter Uadiale, not the accused. But nevertheless because of the matters which are referred to and the evidence of other witnesses, particularly the officers, Davenport and Saunders, as to the fact that there was a parked vehicle, that is, the Tiida Vehicle, parked in an area of number 8 Wolseley Road and that was observed prior to Federal Agent Leonard speaking to Uadiale, that that is a circumstance on which the Crown relies, that is, there was a car driven by Mr Matthew Inegbedion and that it was in that area prior to that van attending at 16 Wolseley Street." [Emphasis added.]
[His Honour then set out the factual material upon which the Crown relied at the end of which, at AB 492, his Honour continued with his summing up.]
"I have referred to that evidence, members of the jury, because the circumstances are matters upon which the Crown relies. And you have heard the evidence of the accused that he went there and that he simply spoke to Mr Uadiale and he was there for about twenty minutes, and then Mr Uadiale got out of the vehicle. He said he went there, you will recall, after he received some telephone calls. He said he went there and he was driving a Tiida because he was involved in an accident, and there is no evidence contrary to his evidence that he was involved in an accident and there is the hire purchase agreement with the Tiida vehicle.
...
You have also had exhibit 2 marked in red what Mr Inegbedion said he wrote or did not write on the pieces of paper and you have heard the submissions of counsel in that regard. The Crown puts to you that those pieces of paper show links to David Okeke and he is the person to whom the package is addressed and you have heard the submissions of the Crown in that regard, and the telephone calls that were had on 11 April and also the money transfers and the names that were found inside the Bible, exhibit 7, and the reference to those names, and you would look at all the evidence so that the money transfers and through the pieces of paper are linked to those persons, and that you would reject his evidence that he had simply gone there to have a chat with Mr Uadiale and that he had gone there with the express intention of taking control of the package, and it certainly was not a preparatory step to the commission of an offence, and that you would reject the version of the accused." [Emphasis added.]
32After an exchange with counsel, in the absence of the jury, further directions were given by his Honour. Relevantly, those directions were in the following terms:
"The Crown submits to you that on the established facts as to the accused driving to Wolseley Street, Rooty Hill, on 12 April 2010, and of being there at the time Uadiale was running down the street towards him, as he stated, and turning into the driveway on the opposite side - or the driveway in Wolseley Street in the area which he stated in his exhibits, that he was there not preparing, not taking a preparatory step, but intended to take possession of the prohibited substance.
...
And the Crown submits that on those facts, those matters, it was not preparatory to any offence him driving there to Wolseley Road, but he was there with the intention of taking possession of the prohibited substance." [Emphasis added.]
33In Onuorah v R [2009] NSWCCA 238, Hodgson JA discussed the offence of attempt under the Code and, at [30], said:
"If one restricts attention to the elements of the attempted offence, then, in my opinion, in accordance with Britten, the question in truth turns on whether an accused person intends each element of the relevant crime to occur, and in pursuance of that intention does acts that are not merely preparatory but are sufficiently proximate to the intended commission of the crime. Where an element of the relevant offence is that there be a border-controlled drug that has been imported into Australia, then for there to be an attempt there must be an intention that there be such a drug that has been imported; but it is not necessary that this actually be the case."
The reference to Britten in the foregoing is to Britten v Alpogut [1987] VR 929.
34As can be seen from the extracts of the summing up by the trial judge, there was no occasion when the trial judge expressly referred to two separate elements: the conduct and the state of mind. The trial judge referred to conduct and intention, as can be seen from the extracts, but not in a way that contrasted the nature of the two elements.
35Nevertheless, the trial judge made clear that the conduct of the appellant towards the commission of the offence had to be more than merely preparatory. He directed the jury expressly that the appellant's conduct had to be "conduct that is more than preparatory to [the] commission of an offence, more than preparatory to take control of the substance".
36Further, his Honour emphasised that the jury needed to conclude an intention to commit the offence from the appellant's conduct in order to convict and needed to do that from conduct that was more than preparatory towards the commission of the offence. This Court must assume that the jury followed the trial judge's direction and, if they did, in reaching their verdict, they must have found both the relevant conduct and intention.
37To the extent that the trial judge, through his directions, confined the jury to considering only conduct more than merely preparatory in determining whether there was the requisite intention, the trial judge unduly restricted the jury's consideration in a manner favourable to the appellant.
38Nevertheless, the trial judge did not direct the jury to consider separately the requisite conduct and the relevant intention. Nor did he adequately explain the distinction. That failure discloses error.