QUAID -v- THE QUEEN [2011] WASCA 141 (1 July 2011)

QUAID -v- THE QUEEN [2011] WASCA 141 (1 July 2011) - WASCA 2011 case summary — Zoe

[179]

HELIOTIS, MR: Yes, your Honour. I've read the transcript of Friday afternoon and I'm somewhat concerned as to what your Honour wants to say to the jury in relation to recklessness in this case. I'm aware of the definition, but the directions your Honour gives need to be tailored to the facts of a particular case. And it would seem to me, with respect, particularly given that this is a conspiracy, that there are no facts that would enable them to consider recklessness in this case.

HELIOTIS, MR: The Crown case is knowledge beyond any - I mean, they've never even put material that might entice a jury to think, 'Well, perhaps it wasn't'. We've not taken any points that it wasn't. And it just seems to us, your Honour, that despite my lateral faith sometimes in the jury system, I am concerned that recklessness may be transferred - this concept of recklessness may be transferred to other areas of the law. In my submission, your Honour, in our submission, your Honour should leave this case to the jury purely on - the Crown case here is that they knew, and that doesn't seem to be an issue in this case, something to that effect.

JENKINS J: So you---

HELIOTIS, MR: Pardon me, your Honour, it just troubles me that there are other areas where intention must figure, such as, for example, the overt act of the payment of 20,000. That's got to be a payment with knowledge or an intention that it be part of the conspiracy. Now, I'm just concerned that a day down the track they may recall something about recklessness and start to apply that to areas where they need intention. Now, normally we're stuck with it. But in the facts of this case - and I've taken the opportunity to discuss it with the Crown. In the facts of this case, there really just doesn't seem to be any room for recklessness, and it's merely complicating their function, your Honour.

JENKINS J: You don't think in the sense that on the Crown case, these accused could not have known what was on the Monica, they could have only had a belief about what might be there? And in that sense, there being no evidence that they made any specific inquiries as to what was there, in essence, they were simply reckless as to what was on the Monica.

HELIOTIS, MR: It doesn't matter what we're on about, your Honour. It's a fact that it's a conspiracy that changes all of that. They've got to be satisfied that the agreement that was reached was the agreement that the Crown has led, and that is that, 'This is MDMA that's going to be made into ecstasy tablets and that's what we're going to import'.

JENKINS J: Well---

HELIOTIS, MR: Now, it doesn't matter at the end of the day---

JENKINS J: That's what their agreement is and that's what their intent is, but that their intent is and their agreement is to traffic in MDMA. But the offence of trafficking in MDMA is committed if one is simply reckless as to the identity of the drug. That's the way I look at it.

HELIOTIS, MR: The agreement, your Honour, is completed once they believe that this is MDMA. They don't need to know what it is, because in effect it need never be there. The agreement is the way that's important to them. And that's why I say that it becomes very complicated and very esoteric if we go down the path of saying, 'Well, here's what you need for the agreement, now I'll tell you what you need for trafficking, and now you need to have an intention to be reckless'. It just becomes a very difficult process for a jury to understand. And as I say, it doesn't really matter whether there's anything on the ship at all. It's their agreement to traffic MDMA and to convert it into ecstasy that is the important matter.

JENKINS J: So in respect to my handout on trafficking, what do you think it should say?

HELIOTIS, MR: Just pardon me a moment, your Honour. I, with respect, would urge your Honour to stop after the first two sentences.

JENKINS J: Under the heading of Meaning of Controlled Drug? (ts 2929 - 2930)

[181]

HELIOTIS, MR: That is - your Honour, all I can add to that is to say, how does one formulate the conspiracy in the terms of recklessness? An agreement - referring to this case specifically, it's an agreement to traffic whatever is on that boat by making it into ecstasy. I mean, that's the point where, in our - my submission, what's being proposed, it just becomes nonsensical and the law, and your Honour's charge, needs to be adapted to these points and I, personally, don't know how the Crown would formulate the - what they allege in this case by proving recklessness - (indistinct) recklessness.

JENKINS J: Well, is not, as I put it to you, that the Crown case is - and they've specified it - they've particularised it in the indictment - that the conspiracy was to traffic MDMA and the law requires, in order for that to be proved, that the accused must intend to commit the offence of trafficking in MDMA but that that will be satisfied if the jury find that the accused agreed with others to traffic in a controlled drug and was reckless as to whether it was MDMA or knew that it was MDMA or believed it to be MDMA.

HELIOTIS, MR: I can't imagine a more speculative arena, your Honour. How could they possibly find that on the facts?

JENKINS J: So what do you think? You think they should just be told that it's sufficient if they form an agreement to commit the offence of trafficking a controlled drug, in essence?

HELIOTIS, MR: I wouldn't frankly be satisfied with that, because in the facts of this case, there is no other room for them to move. That is the facts of the case, that they agree - did they enter into an agreement here to traffic a controlled drug? Now, the Crown and everybody - this case has been led on the basis that they intended to traffic MDMA but it doesn't really matter what the - I just can't imagine - how could the jury possibly say, well, were they reckless? Where's the evidence that they may have been reckless as to what was on that boat? How can we find that? And it's just really inviting them to speculate. Personally, I wouldn't be concerned other than there are so many other areas of intention in this case that it troubles me that it's easy, 24 hours after your Honour's finished telling them the concept, if they're deliberating, to slide - to use the concept of recklessness in other areas where intention is required. And, your Honour, what would be wrong with saying to them: look, the offence is committed, they agreed to traffic in the substances, the substance being a controlled drug. Now, ladies and gentlemen, the Crown says a controlled drug is MDMA and there seems to be no issue that that was the only drug you need to concern yourself about but the offence is that they conspired to traffic a controlled drug. And I'd be content with that (ts 2931 - 2933).

[332]

BRADDOCK, MS: You see, what I'm suggesting, Mr Quaid, is that you knew that Vaso Ulic was dealing - or having dealings with Ljuboja concerning the import to Australia of MDMA powder.

JENKINS J: In general or this powder?

BRADDOCK, MS: In specific terms, your Honour, in the period of the conspiracy. Between July 2007 and May 2008. So in the relevant period for this trial, I'm suggesting that you knew that your friend Mr Ulic was arranging with Mr Ljuboja to import to Australia a large quantity of MDMA---That's a complete lie.

And moreover that Mr Ljuboja - sorry; that the MDMA powder was going to come to Australia under Mr Ulic's direction, and Mr Ljuboja was going to receive it here. I'm suggesting that you were aware of that fact---That's false.

And that that was one of the reasons you met with him in Perth in July of 2007---There's no evidence of that, and that's a lie.

...

Specifically, I'm putting it to you, Mr Quaid, that that meeting was effectively involving you with Mr Ljuboja in discussing future------Which meeting's this one?

19 July 2007 in Perth. You met and you discussed with Ljuboja the distribution of MDMA powder------I've not heard a bigger lie than what I've just heard now. Completely false. No truth to it whatsoever. No evidence either. Nothing.

And that subsequently, in April of 2008, you knew that Mr Ljuboja had possession of MDMA powder in Perth. Do you agree---Not at all.

And that he was going to be processing that powder in Perth---That's a lie.

And in addition to that, you discussed with Mr Ulic your discussions - we've been through the calls - in code discussed the price that was going to be charged for MDMA tablets that you were going to distribute---Completely false.

And that you knew when you asked your brother to go and assist him; that is to say, Ljuboja, with accommodation that the purpose of the accommodation was to find a place to put the MDMA powder---There's no evidence of that, and that's a lie. Complete lie. And you know that.

And that subsequent to your brother not being fast enough, you knew that a Greek friend of Mr Ulic was being sent to assist finding accommodation and to assist Mr Ljuboja---The one from Europe that you said? That one? You're making it up as you go.

Specifically Mr Papadimitriou---Never met him in my life. No phone calls. Not even in the same---

And that the business that Mr Ulic was so concerned that you would not let him down over was the distribution of the MDMA tablets---That's completely untrue. Business matters completely.

You admit that you accepted an envelope from Mr Ljuboja on 12 May 2008 in Perth------That's correct.

- - - which contained capsules containing MDMA powder---That's right.

Can I suggest that you knew when he gave it to you that that was what was in it---Well, if you see on the video, I left him, I said 'Goodbye' and then I told him I had a party and then he said, 'Oh, I've got something for you,' because if you notice, we say 'Goodbye' then I leave and then he gives them to me. When he gave them to me, he said, 'This is something for you. You have a good night. It's a present.' I said, 'Mate, thank you,' gave him a hug, 'See ya later.' I didn't know until I opened it.

So are you suggesting you had no idea what was in the envelope---Not until after he gave it to me and I opened it.

You see, I suggest to you that you were given samples of the substance that Mr Ljuboja was working on in Perth to test or to have tested---No evidence of that. It's a lie. I had them myself and I had a good night (ts 2680 - 2683).

[335]

It is particularly difficult when you are dealing with the fact - with a conspiracy that is in fact going on. You see, it would be easy for any one of you to say, 'I'm not guilty in a conspiracy to import drugs', because there's no conspiracy going on around you. The problem arises there is in fact a conspiracy happening. There's no dispute about that. Uncontroversial. There is a conspiracy going on so that a lot of these calls, you can look at them and say, 'Yes, they are about a conspiracy'. And they are. Then there's one person, Mr Quaid, who's on the periphery of this. He's the money man. Not money for a conspiracy. He's the money collector. But he is around this whole area. He's around these people from time to time. He's been pestered by Mr Ljuboja to get money, he's been pestered by Mr Ulic for money, to sell units, to do these things. He's there. And it becomes very difficult when that's the position, because it's easy to get dragged in, get a few of your calls out of context. Throw them in with the known calls about a conspiracy and its easy to formulate a theory that brings it all together and you say, 'Aha'. You see, you've got to be satisfied beyond reasonable doubt. Quaid's presence at the scene, we say, is totally unrelated to the conspiracy of drugs. But he is at the scene. All right. Enough about theory. Let me demonstrate to you what I mean in practice. What is the prosecution theory in this case? It starts, and we say it finishes, on 19 July 2007. At that meeting, says the prosecution, Mr Quaid joined the conspiracy. At that meeting he agreed to become the distributor. Make no mistake, that is the prosecution theory. 'On 19 July 2007 at this meeting that took place at the coffee shop Cafe Cafe, Mr Quaid', says the prosecution, 'joined the conspiracy and was to be the distributor'. That is the theory. Do you have any hard evidence to fit that theory? No, because there was no tape of what happened at that meeting. Well, Mr Quaid told you what that meeting was about. He was approached to try and recover 1.8 million that had been taken, no doubt - reading between the lines, no doubt taken from Mr Ljuboja as the result of a drug deal gone wrong, a previous importation. And Mr Quaid was approached to see if he could assist to recover the money because of his connections. The approach was made by Mr Ulic. Now, that's what Mr Quaid told you the meeting was about. And that is the only evidence as to what was discussed at the meeting; the only hard evidence from one of the participants (ts 2869 - 2870).

[376]

The offence of conspiracy under the Code is confined to agreements that an offence be committed. A person who conspires with another to commit an offence is guilty of conspiring to commit that offence. It was incumbent on the prosecution to prove that LK and RK intentionally entered an agreement to commit the offence that it averred was the subject of the conspiracy. This required proof that each meant to enter into an agreement to commit that offence. (Code, s 5.2(1).) As a matter of ordinary English it may be thought that a person does not agree to commit an offence without knowledge of, or belief in, the existence of the facts that make the conduct that is the subject of the agreement an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct). This is consistent with authority with respect to liability for the offence of conspiracy under the common law. Subject to one reservation, it is how the fault element of the offence created in s 11.5(1) operates. The reservation concerns the application of s 11.5(2)(b). As these reasons will show, this provision informs the meaning of 'conspires' in sub-s (1) by making clear that at least one other party to the agreement must have intended that an offence be committed pursuant to the agreement. It also speaks to proof of the accused's intention. The reservation arises because s 11.5(2)(b) is subject to s 11.5(7A), which applies any special liability provisions of the substantive offence to the offence of conspiring to commit that offence. (Sub-sections (2A) and (7A) were introduced into the Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth).) A special liability provision includes a provision that absolute liability applies to one or more (but not all) of the physical elements of an offence. (The Dictionary to the Code provides that a 'special liability provision' is a provision that absolute liability applies to one or more (but not all) of the physical elements of an offence or that in a prosecution for an offence it is not necessary to prove that the defendant knew a particular thing or that the defendant knew or believed a particular thing.) Proof of the intention to commit an offence does not require proof of knowledge of, or belief in, a matter that is the subject of a special liability provision [117].

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (535 paragraphs)

QUAID -v- THE QUEEN [2011] WASCA 141 (1 July 2011)

Directions about the fault elements in the offence of trafficking - recklessness

Crown concedes there was an erroneous direction and wrong decision by the trial judge

Analysis of the trial judge's directions in the light of ***Ansari* and *R v LK***

Legislation Cited (6)

Cases Cited (28)

QUAID -v- THE QUEEN [2011] WASCA 141 (1 July 2011)

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (535 paragraphs)

QUAID -v- THE QUEEN [2011] WASCA 141 (1 July 2011)

Directions about the fault elements in the offence of trafficking - recklessness

Crown concedes there was an erroneous direction and wrong decision by the trial judge

Analysis of the trial judge's directions in the light of Ansari and R v LK

Legislation Cited (6)

Cases Cited (28)

Analysis of the trial judge's directions in the light of ***Ansari* and *R v LK***