Criminal law - Conspiracy - Conspiracy to traffic in commercial quantity of controlled drug - Whether trial judge erred in directing jury about recklessness in relation to substantive offence of trafficking

Criminal law - Whether miscarriage of justice - Whether wrong decision on question of law - Whether substantial miscarriage of justice

Criminal Appeals Act 2004 (WA), s 30(2), s 30(3), s 30(4)

Criminal Code Act 1995 (Cth), s 3.1, s 4.1, s 5.1(1), s 5.2, s 5.3, s 5.4, s 5.6, s 11.5(1), s 11.5(2), s 300.5, s 302.1, s 302.2(1)

Criminal Procedure Act 2004 (WA), s 143

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438

Ansari v The Queen [2010] HCA 18; (2010) 241 CLR 299

Carney v The State of Western Australia [2010] WASCA 90

Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358

CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440

Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373

Davies v The Queen [2011] NSWCCA 19

Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20

Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293

M v The Queen [1994] HCA 63; (1994) 181 CLR 487

Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414

Mahmood v The State of Western Australia [No 2] [2008] WASCA 259

McGrath v The Queen [2010] NSWCCA 48; (2010) 199 A Crim R 527

Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493

Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457

Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161

Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466

Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493

R v Ansari [2007] NSWCCA 204; (2007) 70 NSWLR 89

R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558

R v LK [2010] HCA 17; (2010) 241 CLR 177

R v RK [2008] NSWCCA 338; (2008) 73 NSWLR 80

R v Rudd [2009] VSCA 213; (2009) 23 VR 444

R v Saik [2007] UKHL 18; [2007] 1 AC 18

Sabourne v The State of Western Australia [2010] WASCA 242

Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145

The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81

TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365

1 PULLIN JA: The appellant appeals against his conviction for conspiracy to traffic in a commercial quantity of a controlled drug, contrary to the provisions of the Criminal Code (Cth) (Code).

2 The offence of trafficking in a commercial quantity of a controlled drug (trafficking) consists of three 'physical elements'. They are:

The first two physical elements must be accompanied by mental elements or 'fault elements' as they are called in the Code. The accused person must intend to traffic, and the accused person must intend, know, or at least be reckless about whether the substance is a controlled drug. If a person is charged with the offence of trafficking, the trial judge must inform the jury about both the physical elements and those fault elements.

3 However, if the person is charged with conspiracy to commit the offence of trafficking, the trial judge must direct the jury about the single physical element relating to conspiracy (conspiring to traffic in a controlled drug), and the fault element (that the accused intended to enter into an agreement to commit the offence). In addition, the judge must direct the jury that they must be satisfied that the accused intended to carry out the offence the subject of the agreement and that an overt act was committed. Finally, the trial judge must also direct the jury about the physical elements of the charge of trafficking.

4 What the trial judge must not do in such a conspiracy case is direct the jury about the fault elements applicable to the trafficking charge.

5 In this case, as the appellant contended, the trial judge did err by informing the jury about the fault elements relating to the trafficking offence. Similarly, the trial judge erred by overruling the appellant's objection to the proposed direction. The direction, although accurately stating what the fault elements were in the offence of trafficking, was unnecessary, potentially confusing and therefore an irregularity in the trial. The decision to overrule the objection was a wrong decision on a question of law amounting to an error of law and therefore a miscarriage of justice.

6 However, there was no substantial miscarriage of justice because the trial judge prevented any confusion from arising by directing the jury that the information given about the fault elements in the offence of trafficking was not relevant when deciding whether the appellant intended to enter into the agreement to traffic the controlled drug, and was not relevant in deciding whether the appellant intended to commit the offence the subject of the conspiracy.

7 The appellant contended that he was, or may have been, convicted of an offence not known to the law. That contention should be dismissed.

8 The appeal should be dismissed. More detailed reasons follow.

Between 1 July 2007 and 20 May 2008 at Perth in the State of Western Australia and elsewhere in Australia, Rade LJUBOJA, Dejan MEDAN, Dimitrios PAPADIMITRIOU and Fabian QUAID conspired together with Vaso ULIC and others to traffic in a substance, the substance being a controlled drug, namely 3,4 - methylenedioxymethamphetamine (MDMA), and the quantity being a commercial quantity contrary to sections 11.5(1) and 302.2(1) of the Criminal Code (Cth).

10 Of the named conspirators, Ljuboja and Medan pleaded guilty and Quaid and Papadimitriou pleaded not guilty. They were tried together before a jury presided over by Jenkins J and both were found guilty. Ulic was at all times in Montenegro and was never charged.

11 The prosecution alleged and, by the end of the evidence and addresses of counsel, the appellant did not dispute that Ulic in Montenegro and Ljuboja and Medan, who were at all material times in Australia, conspired to traffic in a commercial quantity of MDMA and that on 16 April 2008, pursuant to that conspiracy, a quantity of more than 44 kg of MDMA was imported into Australia at Fremantle on a ship called the 'Monica'. There was no dispute that Ljuboja, who was Ulic's senior operative in Australia, took possession of the MDMA, arranged for a flat to be rented, set it up with scales, a pill press and other material necessary to manufacture ecstasy pills from the MDMA and transported the MDMA to the flat in readiness for manufacture. The issue for the jury to decide was whether the appellant joined in the conspiracy. The jury, by its verdict, found that he did.

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, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

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.

(a) the person traffics in a substance; and

(b) the substance is a controlled drug; and

(c) the quantity trafficked is a commercial quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

(1) For the purposes of this Part, a person traffics in a substance if:

(a) the person sells the substance; or

(b) the person prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or

(c) the person transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or

(d) the person guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or

(e) the person possesses the substance with the intention of selling any of it

16 The phrase 'controlled drug' is defined in s 300.2 to mean a substance described as a controlled drug in s 314.1. Section 314.1 contains a table of controlled drugs and quantities. MDMA is described as a controlled drug in that section and the commercial quantity of MDMA is 0.5 kg.

(1) An offence consists of physical elements and fault elements.

(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.

(3) The law that creates the offence may provide different fault elements for different physical elements.

A physical element of an offence may be:

(a) conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, occurs.

A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk;

...

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

NOTE: Under subsection 5.4(4) recklessness can be established by proving intention, knowledge or recklessness.

If ... it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance ... was a controlled drug ... it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the controlled drug.

Evidence led by the prosecution and the prosecution's submission about the use of code

25 The prosecution case revealed that there had been a lengthy covert police surveillance operation over the period from July 2007 to May 2008. The operation involved the interception and recording of thousands of telephone calls between the conspirators and others, the covert photographing of meetings between some of the conspirators and the location of film showing the event when the MDMA was transferred from the Monica to a small vessel and taken ashore at Fremantle. It also involved the covert removal of the MDMA from the flat where the ecstasy manufacture was to take place and the substitution of an inert substance for the MDMA. Papadimitriou, Ljuboja and Medan were arrested at the front of the flat on 19 May 2008.

26 Relevant intercepted telephone calls, which were in English, were stored on DVDs and became exhibits. These were played to the jury and were available to the jury in the jury room and were available to members of this court to hear. Quaid and Papadimitriou spoke to Ulic and Ljuboja in English. Ulic, Ljuboja and Medan spoke with each other in Serbian. The telephone calls in Serbian were translated into English and read to the jury in court by an interpreter.

27 The intercepted telephone calls captured the first meeting between Ljuboja and Quaid and the first meeting of Ljuboja and Papadimitriou. In the telephone calls between Ulic, Ljuboja and Quaid, the caller rarely identified himself and the recipient rarely identified himself to the caller. Nevertheless, at the appeal, apart from minor exceptions, there was no dispute about the identity of the participants in the telephone calls.

28 For the purposes of this appeal, the Crown prepared a summary of all of the relevant telephone calls and events and summarised them in its written submissions. Attached to the submissions was a schedule containing a more detailed summary of all the relevant events and the substance of all the relevant telephone calls. Apart from minor exceptions, both Quaid and Papadimitriou accepted the accuracy of these summaries, save only that they put in issue what the Crown added to the schedule about the true meaning or interpretation of what was being said in those calls.

29 The prosecution submitted to the jury that the matters discussed during the telephone conversations evidenced an agreement to traffic the MDMA and showed the following: that Ulic was the senior overseas organiser; that Ljuboja was his senior Australian operative who facilitated the importation, storage, transportation and conversion of the MDMA into ecstasy pills; that Papadimitriou and Medan arranged for the transport of the pill press from Melbourne to Perth and were involved in setting up the granny flat and pill press; that Quaid provided funding to Ljuboja and arranged for his brother to help Ljuboja to furnish 299 Morley Drive East, which was where the ecstasy tablets were to be manufactured, and that Quaid was to be involved in distributing the drugs once they had been converted into ecstasy pills. Quaid had contacts with bikie gangs which, in effect, was circumstantial evidence supporting the prosecution case that Quaid was involved in order to arrange distribution.

30 The prosecution submitted that many of the intercepted telephone conversations involved the use of coded references to the MDMA which arrived on the Monica, to the landing of the drug, to the sale of the drug, to the proposed distribution of the drug and to the sale price and profits to be made in relation to the sale of the drug.

31 The Crown submitted that important coded telephone conversations occurred soon after the landing of the MDMA in Australia. In those telephone calls (referred to below), Ulic spoke to Ljuboja and Quaid, during which there was reference to the fact that 'the wedding' had occurred. Quaid, who gave evidence, was unable to provide any explanation as to the use of that term. The Crown submitted that the only event which had occurred, common to the parties, was that the drug had landed in Western Australia. No relevant wedding had just taken place. The Crown therefore submitted that references to the 'wedding' were to the arrival of the drugs.

32 A reference in the telephone conversations to a 'wooden box', the 'machine' and the 'tool' in context could be understood as a reference to a pill press. The Crown also contended that in the telephone calls referred to below:

(a) a reference to Ulic's 'cousin in America' was to Ljuboja and 'cousin' generally meant Ljuboja;

(b) the reference to the 'Greek guy' and 'Jim' was a reference to Papadimitriou;

(c) a reference to the 'restaurant now being open' meant that the conspirators were in business to sell the drugs;

(d) a reference to 'menus' and 'wine' was a reference to the drugs to be produced;

(e) a reference to '8%' was a reference to the amount Ulic was to get for the ecstasy; that is, $8 per tablet;

(f) a reference to 'credits' was a coded term for ecstasy;

(g) a reference to 'getting the cars ready for the race' was a reference to Quaid personally attending to getting the drugs ready;

(h) a reference to 'units' was not a reference to property but to units of MDMA;

(i) a reference to somebody putting 'bad fuel in the car' was a reference to the drug (after the police had covertly substituted an inert substance for the MDMA); and

(j) a reference to 'horses' was Serbian slang for money.

33 It was open to the jury to accept that the conversations did involve code as the Crown contended. The jury, by its verdict, clearly accepted that such code was used.

34 A selection of some of the evidence led at trial is set out below. It captures the most important aspects of the prosecution case (the abbreviation CSN below is to the intercepted telephone 'call sequence number' in exhibit 64):

(1) in July 2007, Ulic was in Montenegro, Quaid and Ljuboja were in Sydney, Medan was in Melbourne and Papadimitriou was in Queensland. Quaid had known Ulic for about 10 years and regarded him as a father figure (ts 2601);

(2) in July 2007, Quaid travelled to Western Australia (exhibit 3). He met Ljuboja in Subiaco on 19 July 2007 (CSN 345). Quaid had been put in touch with Ljuboja by Ulic and he had never met Ljuboja before that date (ts 2498, 2534);

(3) on 19 July 2007, after the meeting, Ljuboja called Ulic and reported on the meeting. Ulic said that he had a 'Greek' guy and that Ljuboja is to give him 5% credit (CSN 357);

(4) on 28 July 2007, Papadimitriou telephoned Ljuboja and introduced himself as 'Jim', saying that he had Ljuboja's number from his friend overseas (CSN 640);

(5) on 29 July 2007 Quaid telephoned Ljuboja and said he wanted to meet him (CSN 650);

(6) on 31 July 2007 Papadimitriou rang Ljuboja and said it was Jimmy calling and gave a number for Ljuboja to ring him on (CSN 682);

(7) on 30 November 2007 Ljuboja rang Quaid and said his cousin had rung him and he wanted to see Quaid (CSN 184);

(8) there were meetings between Ljuboja and Quaid between September 2007 and February 2008 (ts 566, 576, 579, 611 - 612, 2498);

(9) on 7 April 2008 a ship, the MSC Monica, arrived at Sydney after sailing from Mauritius. One of the crew members of the Monica was a Mr Pavlovic (ts 980);

(10) on 16 April 2008 the MSC Monica arrived at Fremantle with Mr Pavlovic still a crew member (ts 980);

(11) on 16 April 2008, Mr Pavlovic came ashore and was photographed at the Angels Cafe in Fremantle in the presence of Ljuboja (ts 980);

(12) at 2.40 am on 17 April 2008, a small vessel approached the stern of the MSC Monica and bags were taken off onto the small vessel (ts 305, 980). The bags contained a large quantity of MDMA powder (ts 1465);

(13) the bags containing the MDMA were transported to unit 2/35 Heyshott Road, Balga, which was where Ljuboja was staying (ts 1242);

(14) on 17 April 2008, some hours after the drug was taken off the Monica, there was a telephone call between Ulic and Ljuboja, during which Ulic asked Ljuboja whether he had finished with 'the wedding' and Ljuboja answered 'I have' (CSN 1671, ts 1023). Other evidence in the defence case revealed that Ulic's son was to be married in August of 2008 (ts 2459). The reference to Ljuboja being finished with the wedding was therefore not to Ulic's son's future wedding;

(15) on 17 April 2008, 10 minutes after the Ljuboja/Ulic telephone call, Ulic telephoned Quaid (CSN 2486). Ulic informed Quaid 'I had a phone call from my cousin from America - he went okay at the wedding'. Ulic said he was letting him have 'the good news'. Ulic said that the 'restaurant is open'. Quaid answered 'beautiful' and 'excellent'. Ulic said that someone was going to come and look for Quaid and he was going to tell Quaid what 'menus he's got';

(16) on 18 April 2008, Ljuboja telephoned Ulic and said that he had 'just been there' and that he was 'going home' (CSN 1682, ts 1045). Ljuboja said '50 is left over'. Ulic said 'How much was it for the whole group? I was told something around 85 or 80'. Ljuboja said 'No, no, I only got 50'. Ulic queried this and Ljuboja said 'only 50. It was 60. That guy took 10 ... only 50. There was 60. That one - Bube's guy took 10, and that's it'. A little later, Ulic told Ljuboja to 'tell your friend to get two to three menus ready' and then Ljuboja said 'he is coming tomorrow' and then Ulic said 'leave some aside ... so he can make two or three menus' (1046);

(17) on 18 April 2008, in a telephone conversation between Ljuboja and Medan, Ljuboja said that 'the cousin has a solution' and 'you will have to come back straight away' and 'to give to them the green light to get on with all of that' and to 'make a menu' and 'we need samples, couple of samples' (CSN 1692, ts 1052 - 1053);

(18) on 19 April 2008, Medan flew from Melbourne to Perth (exhibit 3);

(19) on 19 April 2008, Ulic rang Quaid and told him that he was going to get 'units' for him (CSN 4122). He said everything was 'okay'; that his cousin was 'good'; that he was going to see Quaid and get the 'menu' and that Quaid should look at the 'wine'. He said that he was going to rent 'the place' and that it was 'under your control';

(20) on 20 April 2008, Medan flew from Perth to Melbourne (exhibit 3);

(21) on 20 April 2008, there was a telephone conversation between Ulic and Quaid who was in Sydney (CSN 2824, exhibit 3). There was a discussion about a 100,000 credit. Ulic indicated to Quaid that it was Quaid's job to organise the 100,000 of credit. Quaid said that he would go over 'there'. Ulic indicated that whoever gets the credits, that 8% was to include him. Ulic said to Quaid that after that it was 'up to you'. Ulic asked if Quaid had someone for the credit and Quaid said 'yes'. Ulic said that it was a matter of seeing what 'we can sell it for' and 'how much we want to sell' and that he had already sold 14 units on 10% deposit. Quaid said he would 'get the cars ready for the race'. There was further discussion about profits. Quaid said that he would go over and supervise it himself. Ulic said that Quaid could make adjustments if he wanted to and that Quaid could see what he wanted to charge. Ulic said that if Quaid was not happy with the 'quality of the payments' then 'this can be changed' on the 'quality'. Quaid then asked for confirmation that he could make 'adjustments' and Ulic said that he could;

(22) on 21 April 2008, Ljuboja in a telephone call to Medan said 'I have told you a week ago that the wooden box is needed. How big is it roughly?' Medan gave some dimensions and Ljuboja then said 'he will give you - he will give you in Melbourne for this, you know' (CSN 2381, ts 1415 - 1416);

(23) on 22 April 2008, Ljuboja had a telephone conversation with Ulic seeking assistance to locate 'offices'. Ulic told Ljuboja he would get someone to contact him to assist (CSN 1794, ts 1146 - 1148);

(24) a short time later on 22 April 2008, Papadimitriou in Sydney, telephoned Ljuboja, who was in Perth, and asked whether Ljuboja wanted him to 'come there'. Ljuboja asked if Papadimitriou had family in Perth and Papadimitriou said he did (CSN 1795, exhibit 3);

(25) on 22 April 2008, Quaid spoke to Ulic by telephone. In that conversation Quaid indicated to Ulic that Quaid's brother Marc would help Ljuboja with everything (CSN 2957). Later evidence revealed that Quaid organised a meeting for his brother Marc to help Ljuboja. Quaid told his brother that Ljuboja was Ulic's friend and he should be helped out with some furniture and to go and see the manager of a Harvey Norman store who he knew (ts 2575 - 2577);

(26) on 23 April 2008, Ljuboja rang Papadimitriou and left a message on his answering machine asking Papadimitriou to call him urgently (CSN 1798);

(27) on 23 April 2008, Ulic, in a telephone conversation with Quaid, asked Quaid if he could 'go there' and 'have a talk with the main person' who was looking after the 'units and building'. Ulic said 'if you leave to the workers' and they do 'whatever' then tomorrow 'you may scratch your head'. Ulic said 'you know how you want to leave everything'. During the conversation Quaid said that he would be making a trip 'over there soon' to see if everything is 'as good as gold' (CSN 3059);

(28) on 24 April 2008, Papadimitriou flew to Perth from Brisbane (exhibit 3). Papadimitriou made arrangements with his cousin to rent out a stand-alone granny flat at the rear of his cousin's house at 299 Morley Drive East, Lockridge (exhibit 7, ts 1286). On 28 April, Ljuboja and Papadimitriou went round to carpet and tiling retail outlets for materials to renovate the granny flat (ts 1247 - 1248). Later that day, Papadimitriou, Medan and Ljuboja met at Burswood Casino (ts 1260);

(29) on or about 28 April 2008, Ljuboja transported the MDMA to 299 Morley Drive East, Lockridge, and between 28 April and 7 May 2008, Medan arranged for and assisted in the renovations of the granny flat (ts 1246, 1251, 1254, CSN 372, CSN 2186, ts 1321 - 1330). During that period, Medan went to the granny flat twice a day to check on the drugs (CSN 2146, ts 1277, 1544);

(30) on 28 April 2008, Quaid rang Ulic. Ulic referred to a sale of 10 to 15 units on 10% deposit (CSN 3392);

(31) on 30 April 2008, Medan telephoned a contractor about doing urgent work to create a gyprock wall at 299 Morley Drive East at an estimated cost of $3,500 to $4,000 (CSN 372);

(32) on 1 May 2008, Ljuboja flew to Sydney where Quaid was located (exhibit 3);

(33) on 2 May 2008, an unidentified male called Ljuboja from overseas and in the conversation Ljuboja said that 'in about 10 to 15 days, my work needs to start and then those people are already waiting you know, for me to start' (CSN 2180, ts 1313). Ljuboja said that 'a friend of mine just called me because I am without money'. He said 'I still need two and a half horses for the tool. A friend of mine who also works has invested in it, you know? The other guy needs to bring me that and get some spare money so I can start working and so on. You know what I mean?' He said 'He called me about an hour ago. He's supposed to bring it tomorrow. He also needs to sort out the transport for it. And it should start in about two weeks';

(34) on 2 May 2008, Ulic, in a telephone conversation with Quaid, said that 'my cousin is supposed to have money in the bank' (CSN 3947). He said that once the unit was finished they have done 'the job' and 'they want to get paid'. Ulic said 'one unit' has been sold. He said 'call my cousin ... he could explain how big are the units'. He said you give him the 'contact';

(35) on 5 May 2008, Ulic called Quaid and Quaid said he had caught up with 'your cousin' (CSN 4338);

(36) on 7 May 2008, Ljuboja and Medan spoke on the telephone and Ljuboja said that the 'machine has to be - tonight it has to be done'. Ljuboja added 'and urgently, the man is waiting. Jimmy is waiting for it to take it over' (CSN 2415, ts 1455 - 1456);

(37) on 8 May 2008, Ulic rang Papadimitriou and referred to Western Union (CSN 003). On the same day, Ulic rang Papadimitriou demanding to know what the problem was sending cash money from Western Union to Nikola Ulic. Papadimitriou said he would do that immediately (CSN 010);

(38) on 8 May 2008, Ljuboja rang Papadimitriou (CSN 2434). Papadimitriou said that he was trying to send money by Western Union. He said that the 'cousin wants the money today'. He said that he wants 'tens straight away';

(39) on 8 May 2008, in a covert operation, police substituted a harmless powder for the MDMA, which was found in a sulo bin at 299 Morley Drive East (ts 1465). The MDMA was analysed to weigh approximately 44 kg with a purity of about 80% (ts 2132, 2983);

(40) on 10 May 2008, Ljuboja telephoned Medan and told him 'this guy' has a problem because it looked like something was mixed and not original anymore (CSN 2543, ts 1525);

(41) on 10 May 2008, Ulic telephoned Papadimitriou. In that call, Papadimitriou said he had looked at the 'fuel' and someone had put a bit of bad fuel in the car (CSN 073);

(42) on 10 May 2008, not long after the previous call, Ljuboja telephoned Papadimitriou (CSN 2566). Ljuboja said 'my friend ... he tell me something'. Ljuboja said that he 'don't touch nothing'. Papadimitriou said 'he' did not say you. Papadimitriou said he would have to fix the problem;

(43) on 10 May 2008, Quaid flew from Sydney to Perth (exhibit 3);

(44) on 12 May 2008, Quaid met Ljuboja at Croissant Express in Subiaco. Ljuboja gave Quaid an envelope containing capsules which contained MDMA (ts 2683, ts 2499). Quaid agreed to provide Ljuboja with $20,000 (CSN 2693, ts 1628, CSN 1430, CSN 139);

(45) on 13 May 2008, in a telephone conversation between Ljuboja and Medan, Medan said 'this one is double the size and faster' (CSN 2742, ts 1673). Ljuboja said 'but if he had the small one it would be worthwhile'. Medan said 'it will take time, for weeks. This one can speed up everything by double';

(46) in May 2008, Papadimitriou arranged for a Mr Katsidis to fly from Sydney to Melbourne to hire a car and then for Mr Katsidis to drive that vehicle across the Nullarbor carrying a pill press (ts 1816 - 1819);

(47) on 16 May 2008, Ulic and Quaid spoke by telephone and Quaid said he had spoken to a couple of gentlemen 'they should have 50 ... at 14' that is 'half a million' and asked should he push for 'a 100'. Ulic told Quaid to call his 'cousin' and 'tell him to relax' (CSN 5539). Quaid admitted in cross-examination that the reference to his 'cousin' was to Ljuboja (ts 2637);

(48) on 18 May 2008, Mr Katsidis arrived in Perth driving the Kia Carnival containing the pill press and on 19 May 2008 the pill press was taken to 299 Morley Drive East and unloaded by Medan (ts 1821, 1900 - 1901). Papadimitriou and Ljuboja also assisted in unloading chemicals and binding agents from the car (ts 1900 - 1902). The three left and they returned with more items which they carried into the granny flat. These included a set of scales (ts 1905, 1883 - 1884, 1944);

(50) on 18 May 2008, at Perth, Quaid gave Ljuboja $20,000 in $100 notes (ts 2501, 2526);

(51) on 19 May 2008, the police arrested Ljuboja, Medan and Papadimitriou at 299 Morley Drive East (ts 1908). In the granny flat the police found the wheelie bin with its contents, the pill press, gloves with Papadimitriou's DNA on them, the scales and materials which could be used for making ecstasy pills out of MDMA powder. The Kia Carnival was at the granny flat (ts 1908 - 1909, 1944, 1949, 2123, 1898);

(52) on 21 May 2008, Quaid was arrested in Sydney (ts 2489).

35 Section 143 of the Criminal Procedure Act 2004 (WA) permits an accused to give an opening address to the court about the accused's case immediately after the prosecutor has given an opening address.

36 Such an address was made by Quaid's counsel and during that address he said that he wanted to spell out to the jury the issues between the prosecution and Quaid and to tell the jury what facts were not in dispute (ts 341). Counsel also said that there would be no dispute that the drug was imported into Australia and he said that 'most of the prosecution facts are not in dispute'. During the course of this opening address, counsel for Quaid said:

The issue is not whether there was a conspiracy to traffic in this drug but whether Mr Quaid was involved in the conspiracy that we say clearly, on the papers we've seen, existed (ts 345).

37 Quaid elected to give evidence. His evidence was that all of the recorded conversations he took part in were not about the conspiracy to traffic in drugs but about other matters. However, he admitted that in his telephone conversations he spoke in code (ts 2569 - 2570). His explanation for this was as follows:

I'm very guarded when I speak to everyone on the telephone for many reasons - well, for a couple of reasons. First of all, I'm guarded all the time; second of all, people that I do business with aren't all above board, and if I started talking freely, they'll hang up straight on me. So if I'm talking to ... or something like that, 'oh, this and that', hang up the phone, 'mate, you're a wanker'. I cop it straight when I see him. And thirdly, like I mentioned before in 2003 - and these officers will say it - I was called into the Australian Crime Commission where you're compelled to answer questions. And if you lie, you get locked up in gaol one year for every lie. And they played tapes and intercepts of me organising facilitating off-shore bank accounts and money transfers, and they were trying to charge me with tax evasion, false bank accounts, money laundering. Mind you, never - not one drug question the whole time I was getting questioned. Not one drug-related question. All to do with money, finances and off-shore accounts. And since that day, after listening to those tapes, those few days I was there, I turned, I became a convert and the code was it. (ts 2545)

38 Quaid denied he was involved in the conspiracy to traffic in drugs with Ljuboja and Ulic (ts 2490). He gave evidence that he met Ulic in '98/99' and that Ulic had a daughter and a son. He said he went to Ulic's daughter's wedding in Montenegro in 2002 (ts 2469) and that the son was due to be married in August 2008. He testified that Ulic would send people to him and he would 'facilitate money being shuffled everywhere' (ts 2596). He said that he used to collect debts for Ulic. He said that these debts were being collected 'from deposits that he had placed on prospective developments' which did not go ahead and which people refused to pay back (ts 2466). He gave evidence that he was asked by Ulic to collect the money for him. He also said that Ulic owned a horse and that Ulic 'used to do short-term high interest loans like money lending. Like, when the banks wouldn't give you the loan on, like, late notice, he'd - well, if you wanted $100,000, he'd charge you eight per cent a week or 8 per cent a day, but it was for short - sort of like desperate sort of people. Like loan sharking; legal loan sharking' (ts 2467).

39 He admitted that he met Ljuboja in July 2007 for the first time and that he did so because Ulic had asked him to help Ljuboja. He said that when he first met with Ljuboja, that Ljuboja told him that he had been involved in 'some business with some bikies' and that they had robbed him of money 'about 1.8 million' (ts 2476). He testified that he did not know that Ljuboja was 'involved in drugs in 2008' but that he had 'suspicions' about 'what the 1.8 million had been about in 2007' (ts 2488). Quaid gave evidence that he agreed to help Ljuboja and that he spoke to a particular named person to arrange for recovery of the money. Quaid gave evidence about his association with several bikie gangs. He testified that he was not a member of those gangs but that he would work with the president of one of the gangs to collect debts that were owed 'to people' (ts 2434, 2435).

40 He admitted that he spoke on the telephone to Ulic in Montenegro on all occasions alleged by the Crown. He gave evidence that he accepted an envelope from Ljuboja on 12 May 2008 in Perth which contained capsules containing MDMA powder (ts 2491). He said that he consumed the capsules.

41 He admitted that he met Ljuboja on 15 occasions (ts 2501). He admitted that after 4 May 2008 he had five meetings with Ljuboja in Perth (ts 2626). Quaid said that Ulic asked him if he could help Ljuboja out with '20,000' (ts 2486). He admitted that he gave $20,000 to Ljuboja on 18 May 2008. This was handed over in $100 notes (ts 2526). He testified that this was not part of the money he was proposing to collect from the bikies who had taken money from Ljuboja. He said it was money he collected on behalf of Ulic and that Ulic told him to give the money to Ljuboja. Quaid explained that he obtained the $20,000 from a man called 'Jack' in 'Stirling' (ts 2527, exhibit 69). He said that he did not remember the street in Stirling where he went to collect the money and that he only knew the person's Christian name. He said that this was money owing to Ulic and was not part of the money he agreed to recover for Ljuboja.

42 He said that he felt sorry for Ljuboja and that he was 'like an uncle' (ts 2482) and he said that Ljuboja seemed impressed that Quaid knew Mick Gatto and that Quaid was going to Mick Gatto's daughter's wedding (ts 2483). He testified that he did not ever agree to distribute drugs and that he did not know Papadimitriou before he was arrested.

43 Quaid was cross-examined as to the important telephone call between him and Ulic on 17 April 2008 in the hours following the arrival of the drug in Fremantle. He said that he had 'no clue' (ts 2544) as to what Ulic was talking about and did not know what Ulic was referring to when he referred to 'everything being okay at the wedding' or what he meant when he said that the 'restaurant' was 'open' or what the reference to the 'menu' was. He said he was 'intoxicated' at the time but then added (ts 2544) 'I don't even remember that call to be honest' (ts 2543). He admitted that the reference to the 'wedding' was not to Ulic's son's wedding and that the reference to the 'restaurant' was not a reference to the Four Olives Restaurant that Quaid was interested in buying.

44 Quaid was cross-examined about the telephone conversation between him and Ulic on 20 April 2008 when there were discussions about 'credits', 'profits' and getting 'cars ready for the race'. He said the discussion that took place in that call was about moving money 'off-shore' to an island on the east coast of Malaysia (ts 2571). He said the reference to organising a 100,000 of credit and getting the 'cars ready for the race' meant that he would collect money and that he was talking in 'mixed code' (ts 2570) because what he was doing was 'not the most legal thing; transferring funds offshore, not paying tax and all that sort of jazz' (ts 2573). He admitted that at Ulic's request he arranged for his brother Marc to help Ljuboja 'with some furniture' (ts 2576).

45 Three other witnesses were called by Quaid. The first was a Mr Castorina, who gave evidence that he worked at the Four Olives delicatessen in Manly in New South Wales and that Quaid used to visit the premises daily and that in April or May 2008, Quaid was involved in conversations about buying the business. A Ms Calacocci gave evidence that she and Quaid were organising her 21st birthday party, first at the White Water Restaurant in Manly, but after it became clear that it could not cater for the numbers, the venue was shifted to the Four Olives delicatessen. She gave evidence that on 19 April 2008, she received a text message from Quaid saying that he had booked for 40 people and that he had 'just got to go through the menu'. She testified that the party did not eventuate because her grandmother had a stroke. Finally, a Mr D'Allesandro gave evidence that he was the sales manager at Harvey Norman, that he knew Quaid, that Quaid's brother Marc came to the Harvey Norman store with an elderly gentleman to purchase furniture, that he had been to the Four Olives delicatessen in Manly and that he had discussed many times the possibility of opening a delicatessen or cafe in Fremantle.

46 The following formal admissions were made by Quaid. They were that:

(a) the MSC Monica arrived at Sydney on 7 April 2008 (ts 980);

(b) Mr Pavlovic was part of the crew of the MSC Monica on 8 April 2008;

(c) on 16 April 2008 at 1330 hrs, the MSC Monica arrived at Fremantle;

(d) Mr Pavlovic was still aboard the MSC Monica when it berthed at Fremantle;

(e) on 16 April 2008, Mr Pavlovic came ashore and at 1735 hrs he was photographed at the Angels Cafe in Essex Street, Fremantle, in company with Ljuboja;

(f) on 17 April 2008 at 0240 hrs, a small vessel approached and appeared to stop towards the stern of the MSC Monica on the port side. The small boat was not authorised to be there (ts 981).

(g) Medan stayed at Unit 2, 35 Heyshott Road, Balga and that on four days, 1, 2, 3 and 4 May 2008, he was observed visiting the granny flat at the rear of the premises at 299 Morley Drive East, Lockridge (ts 1544);

(h) on 9 May 2008, Ljuboja was dropped off by a taxi near 299 Morley Drive East (ts 1545);

(i) continuity was not in dispute in respect of the drug found in the granny flat (ts 1465);

(k) the certificate of the analyst was not in dispute (ts 1465);

Aids prepared by the trial judge and provided to counsel

47 Towards the end of the prosecution case (ts 2418), the trial judge handed to counsel a draft of two documents which her Honour said she intended to give to the jury during directions. She asked counsel to look at them over the weekend and let her know the next week whether they wanted any changes made to them. She said that they were in respect of the elements of the charge of conspiracy and the elements of the charge of trafficking as well as what was called a jury check list; that is, three questions the jury could ask themselves when deliberating in respect of the elements of the charge in order to reach a verdict.

Conspiracy to traffic in a commercial quantity of MDMA

The three elements the prosecution must prove beyond reasonable doubt are:

(1) the accused you are considering entered into an agreement with one or more other persons; and

(2) that accused and at least one other party to the agreement intended that the offence of trafficking in a commercial quantity of a controlled drug, would be committed pursuant to the agreement; and

(3) that accused or at least one party to the agreement committed an overt act pursuant to the agreement.

Jury Memory Aid - Trafficking commercial quantities of a

controlled drug

It is an offence to traffic in a commercial quantity of a controlled drug.

A person traffics in a commercial quantity of a controlled drug if he:

(1) traffics in a substance; and

(2) the substance is a controlled drug; and

(3) the quantity trafficked is a commercial quantity.

Meaning of 'traffics'

[A] person traffics in a substance if he:

(a) sells the substance; or

(b) prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or

(c) transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or

(d) guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or

(e) possesses the substance with the intention of selling any of it.

'Prepares the substance for supply' includes packaging the substance or separating the substance into discrete units.

The Crown must prove that the person intended to engage in at least one of the above acts (a) - (e).

Meaning of 'controlled drug'

A controlled drug is a substance which the Australian Parliament has said is a controlled drug.

3,4-Methylenedioxymethamphetamine (MDMA) is a controlled drug.

If the other elements of the offence are proven, a person will be guilty of trafficking in a controlled substance if they are reckless as to whether the substance is a controlled drug. A person is reckless with respect to whether a substance is a controlled drug if:

(a) he is aware of a substantial risk that it is a controlled drug; and

(b) having regard to the circumstances known to him, it is unjustifiable to take the risk.

The Crown only has to prove that a person was reckless as to whether the substance was a controlled drug. The Crown does not have to prove that the person was reckless in respect of whether it was MDMA. It would be sufficient if the accused was reckless as to whether it was another controlled drug such as amphetamine, cocaine, methamphetamine or 3,4-Methylenedioxyamphetamine (MDA).

A person will also be guilty of trafficking in a controlled substance if he is aware that it is a controlled substance or believes that it is a controlled substance.

What is a 'commercial quantity' of MDMA?

The Commonwealth Criminal Code says that half a kilo or more of MDMA is a commercial quantity.

The prosecution only have to prove that there was half a kilo or more of MDMA. The prosecution do not have to prove that the person knew or believed that there was, or intended that there would be at least half a kilo of MDMA.

Even if a person reasonably believed that there was less than half a kilo, he would still be guilty.

Objection and submissions made by the parties about the aids by the trial judge

49 The following week Mr Levy, who was appearing with Mr Heliotis for Quaid, raised an objection to Jury Aid 2. No objection was raised about Jury Aid 1. The transcript reveals the following interchange:

LEVY, MR: Your Honour, I wonder if I might raise the proposed directions with respect to trafficking commercial quantities of a controlled drug.

JENKINS J: Yes.

LEVY, MR: Really, the direction that your Honour proposes with respect to the meaning of 'controlled drug' - in our submission, your Honour, it's - this is not a case about a person being reckless as to whether or not the substance is indeed MDMA, or certainly so far as Mr Quaid is concerned.

LEVY, MR: Really, the way in which the Crown has put its case is that this is clearly about MDMA. There's no confusion about the drug. And, in my submission, your Honour, it's not really necessary to provide directions about, with the greatest of respect, recklessness as to the actual substance itself.

JENKINS J: That would be what I have there, the usual sort of complete direction on that issue. When I was looking at that, it occurred to me that there - the Crown's case of course is that they're talking in code.

LEVY, MR: Yes.

JENKINS J: So no one ever says, even on the Crown's case, you know, 'We'll have so many units of MDMA.' There is always, it would seem to me, the possibility that a juror might say, 'Well, they were clearly talking about drugs but how do we know that an accused knew that it was MDMA as opposed to something else?'

LEVY, MR: Well, the difficulty with that, your Honour, is that this is clearly - the indictment reads that this is a conspiracy to traffic MDMA and an essential ingredient, therefore, would be that the agreement was for that particular drug. That's the way it's been particularised, your Honour. If they didn't know, in my submission, the way in which the case has been run - if they didn't know it was MDMA, they wouldn't be privy to all the facts of the agreement. It's simply just not this type of case, your Honour.

JENKINS J: I'll think about that over the weekend, Mr Levy (ts 2922 - 2923).

50 Before the court adjourned on 11 December 2009, the prosecutor was asked to comment and the following exchange appears in the transcript:

JENKINS J: Mr Levy has expressed concern about, do you say that that direction should be left in or omitted in this case?

BRADDOCK, MS: The standard is recklessness, whether it is this particular controlled drug, which we say was the intention of the agreement, or another controlled drug.

JENKINS J: So it should stay in, you say.

BRADDOCK, MS: It should stay in. Without making it unduly complex, recklessness is the appropriate mental element (ts 2926).

51 The next week there was further discussion and leading counsel for Quaid said he opposed the reference to 'recklessness' and the following exchange occurred between counsel and the trial judge:

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)

BRADDOCK, MS: Your Honour, section 5.6(2) of the Criminal Code is the provision which deals with the fault element in relation to a circumstance or result where the offence itself does not specifically provide what the fault element is. In relation to that, recklessness is the required fault element and, with respect, your Honour needs to direct in terms of the Code as to what the fault element is at that level in your Honour's direction on the elements of the offence. But the provision is subject to 5.4(4) which clearly states that recklessness can be established by proving intention, knowledge or recklessness. So in order not to cause any confusion, whilst the fault element is recklessness, your Honour may tell the jury that intention, knowledge or recklessness is sufficient to establish that as the fault element. It would be inappropriate not to give any direction as to what the fault element is. Although we have, of course, two layers here; that is to say, the conspiracy layer of the element and the trafficking layer of the element but, effectively, that is the position, your Honour, according to the Criminal Code (ts 2931).

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).

54 Reduced to their essential points, counsel said that directions needed to be tailored to the 'facts of a particular case', that there were 'no facts' that would enable the jury to consider 'recklessness in this case' and that all the parties, 'the Crown and everybody', understood that the conspirators intended to traffic MDMA. Counsel suggested that the direction should be in the following terms:

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.

55 Her Honour then said, having heard the submissions:

I have decided to leave my handout in the way that it is. I will, however, direct the jury that this is the only area where recklessness has any part to play. And I will stress to them that on the facts of this case that even in respect to this particular issue, they are unlikely to find that they have to bother themselves with the issue of recklessness. I will stress that to them (ts 2933).

Closing address to the jury by counsel for Quaid

56 Mr Heliotis addressed the jury on behalf of Quaid. He said:

You have heard of an undisputed importation by others into this country of a large quantity of drugs. You have heard of plans by others to manufacture ecstasy from that drug. (ts 2856)

Your job is not to decide if Mr Quaid has been proven to have broken the law generally, but whether he has committed this one specific crime that you heard evidence about. Did he conspire to traffic the MDMA imported into Australia in April of 2008?

... What's happened here is that the prosecution have developed the theory. They've gone from a known fact, that is, an importation has taken place, plans were afoot to manufacture ecstasy tablets and you don't manufacture them unless you want to distribute them**,** but they've moved from that to develop a theory in relation to Quaid's involvement. He is the distributor. That's their theory. (ts 2857 - 2858)

The drugs came into Australia on the Monica. Quaid, it's not suggested, was connected with that in any way. The drugs were collected by Ljuboja. Quaid nowhere anywhere near the drugs at that time. The safe house was secured and renovated ... the pill press was located and transported to the safe house.

... So none of the tangible, concrete, uncontroversial facts help the prosecution theory. What exactly did the Crown - did Mr Quaid do according to the prosecution question? The prosecutor dealt with that as a separate issue. (ts 2858 - 2859)

... 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. (ts 2869)

59 The trial judge summarised Quaid's case over five pages (ts 2997 - 3001). There is no suggestion that the trial judge did not accurately summarise Quaid's case. Her Honour directed the jury:

Mr Quaid does not deny that there was a conspiracy between Mr Ljuboja, Mr Ulic and Mr Medan but he says that he was not a party to it (ts 2997).

60 No objection was raised about that statement and this appeal does not challenge the correctness of that statement.

In broad terms, a conspiracy is simply an agreement between two or more people for them to commit an offence; in this case the offence of trafficking in a controlled drug (ts 2943).

62 There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

[W]here I've used the word 'intention' or 'intended', the Crown must prove that the accused you are considering meant to enter into the agreement (ts 2951).

64 There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

In this case, the prosecution allege that each accused formed an agreement with at least one other person named in the charge to produce and then distribute ecstasy tablets from the MDMA powder that was to be imported into Australia ... and which ultimately came off the MSC Monica in April 2008 (ts 2945).

[H]e and at least one other party to the agreement, must have intended and must be proven to have shown that they intended that the offence of trafficking would be committed pursuant to the agreement.

...

The Crown must prove that the person intended to engage in at least one of the ... acts (a) to (e) [see under 'Trafficking' below]. The Crown does not have to prove that there was an intent to engage in all of them (ts 2948 - 2950).

66 After referring to the part of Jury Aid 2 which defined trafficking in pars (a) to (e), the trial judge then said:

It's not sufficient for the Crown ... merely to prove that an accused was reckless as to whether those things were going to occur.

67 There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

The Crown must prove ... that that accused or at least one party to the agreement committed an overt act pursuant to the agreement (ts 2952).

69 There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

A person traffics in a commercial quantity of a controlled drug if he (a) traffics in a substance and (b) the substance is a controlled drug and (c) the quantity trafficked is a commercial quantity ... A person traffics in a substance if he (a) sells the substance or (b) prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it or (c) transports the substance with the intention of selling any of it or believing that another person intends to sell any of it or (d) guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it or (e) possesses the substance with the intention of selling any of it. Prepares the substance for supply includes packaging the substance or separating the substance into discrete units (ts 2949 - 2950).

71 There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

The Crown [must] ... prove that the accused and at least one other party to the agreement intended that the offence of trafficking in ... a commercial quantity of a controlled drug would be committed pursuant to that agreement (ts 2951).

A half kilo or more of MDMA is a commercial quantity (ts 2951).

72 There was no objection and there is no appeal ground alleging error in respect of this part of the trial judge's summing up.

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

What is a controlled drug? A controlled drug is a substance ... and MDMA .... is a controlled drug ...If the other elements of the offence are proven, a person would be guilty of trafficking in a controlled substance if they are reckless as to whether that substance is a controlled drug. A person is reckless with respect to whether a substance is a controlled drug if (a) he is aware of a substantial risk that it is a controlled drug and (b) having regard to the circumstances known to him, it is unjustifiable to take that risk. The Crown only has to prove that a person was reckless as to whether the substance was a controlled drug. The Crown does not have to prove that the person was reckless in respect to whether it was MDMA. It would be sufficient if the accused was reckless as to whether it was another controlled drug such as amphetamine, cocaine, methamphetamine or MDA. A person will also be guilty of trafficking in a controlled substance if he is aware that it is a controlled substance or believes that it is a controlled substance. Members of the jury, I have referred to the recklessness here because I am required by law to tell you what it means to traffic in a controlled drug. And at law, to traffic in a controlled drug means that a person will be guilty of trafficking in a controlled drug if they are reckless as to whether the substance is a controlled drug or whether they believe it is a controlled drug or whether they are aware that it is a controlled drug (ts 2950).

73 It is the reference to recklessness in this passage which Quaid submits was unnecessary and for that reason, erroneous. The appellant submits that Jury Aid 2, which was handed to the jury, also contains the same unnecessary and therefore erroneous direction. However, that passage was followed by the following direction, which is important when the respondent's submission about no substantial miscarriage of justice is considered:

I stress that this is the only area where recklessness plays any part ... in this offence. I have referred to the elements of the offence of conspiracy which require the Crown to prove that the accused intended to enter into an agreement to traffic a controlled drug and I have also referred to the elements which require the Crown to prove that the accused and at least one other party to the agreement intended that the offence of trafficking in a controlled - sorry; in a commercial quantity of a controlled drug would be committed pursuant to that agreement. Now, when I refer to intention, I mean just that in those circumstances. It's not sufficient for the Crown in those circumstances merely to prove that an accused was reckless as to whether those things were going to occur. In those circumstances where I've used the word 'intention' or 'intended', the Crown must prove that the accused you are considering meant to enter into the agreement and meant for the offence of trafficking in a commercial quantity of a controlled drug to be committed pursuant to that agreement.

This issue of recklessness is only relevant to the issue of proof of the substance that the person is intending to traffic, and in that sense they will be guilty if they know that the substance they intend to traffic is a controlled substance, if they believe it is a controlled substance or they are reckless as to whether it is a controlled substance (ts 2950 - 2951).

74 There were originally five grounds of appeal. The grounds of appeal read:

1. The learned trial Judge directed the jury in such a manner that:

(a) the jury has; or, in the alternative,

(b) there is a substantial risk that the jury has;

convicted the Appellant of an offence not known to the law and, as a consequence, there has been a substantial miscarriage of justice;

(i) The learned trial Judge, in directing the jury with respect to the elements of the offence of conspiracy to traffic in a commercial quantity of a controlled drug contrary to ss 11.5(1) & 302.2(1) of the Criminal Code Act, 1995 (Cth), directed the jury that one of the elements of the offence of trafficking in a commercial quantity of a controlled drug is that the accused is 'reckless' as to whether the substance is a controlled drug.

(ii) There cannot be such a conspiracy in which the parties to the agreement are 'reckless' as to whether the substance is a controlled drug.

1. The learned trial Judge erred in her directions to the jury with respect to the elements of the one offence specified in the Indictment and, as a consequence, there has been a substantial miscarriage of justice;

(i) The Appellant refers to and repeats Ground 1 herein.

1. (Abandoned)
2. (Abandoned)
3. The learned trial Judge erred in interpreting Section 11.5 of the Criminal Code, 1995 (Cth), such that to be guilty of conspiracy to commit an offence that has a physical element for which a fault element of recklessness is prescribed, it need not be proved that the offender intended that physical element.

Section 30 of the Criminal Appeals Act 2004

75 Section 30(2) of the Criminal Appeals Act 2004 (WA) provides that unless under s 30(3) the Court of Appeal allows the appeal, it must dismiss the appeal. Section 30(3) states that the Court of Appeal must allow the appeal if in its opinion:

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

(c) there was a miscarriage of justice.

76 Section 30(4) states that 'despite subsection (3), even if a ground of appeal might be decided in favour of the offender, the Court of Appeal may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred'.

77 If a trial judge errs by making a wrong decision on a material question of law, that will also constitute a miscarriage of justice: see Nudd v The Queen [2006] HCA 9; (2006) 225 ALR 161 [7] (Gleeson CJ). On that basis, the court, when deciding whether the conviction should be set aside, may consider whether or not there has been any substantial miscarriage of justice. If it considers that there has been no substantial miscarriage of justice by reason of the wrong decision on a question of law, then the Court of Appeal may dismiss the appeal under s 30(4). Alternatively, the court may form the opinion that although there was a wrong decision on a question of law, the conviction should not be set aside. The court would form that opinion if it considered that the wrong decision gave rise to no substantial miscarriage of justice.

General observations about the grounds of appeal

78 The three points raised by grounds of appeal 1, 2 and 5 are that:

(a) the appellant may have been, or was, convicted of an offence not known to the law (ground 1); and

(b) the trial judge made a wrong decision on a question of law in overruling the objection to the proposed direction to the jury about recklessness (ground 5); and

(c) there was a miscarriage of justice in that the trial judge misdirected the jury by directing that recklessness was the mental element of trafficking and which had to be considered by the jury (ground 2).

79 The application for leave to appeal on ground 1 has been referred to the hearing of this appeal. Ground 1 has no reasonable prospect of success and leave should be refused for reasons which appear later: see [104] - [105]. Leave to appeal on grounds 2 and 5 has been granted.

80 Grounds 2 and 5, in effect, raise the same point. The appellant submits that the trial judge erred in law in overruling the objection to Jury Aid 2 and then erred likewise in directing the jury in accordance with Jury Aid 2. These grounds are considered in detail in the following paragraphs.

81 After the hearing of the appeal, the appellant's lawyers advised that grounds 3 and 4 were abandoned.

The High Court decision in R v LK and Ansari

82 The appellant calls in aid the High Court decisions in R v LK [2010] HCA 17; (2010) 241 CLR 177 (R v LK) and Ansari v The Queen [2010] HCA 18; (2010) 241 CLR 299 (Ansari), which were handed down five months after Quaid's conviction. The appellant relies on these decisions in support of his submissions in grounds 1, 2 and 5.

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

83 Counsel for the respondent conceded there was a misdirection as alleged by the appellant. If that concession is correctly made, then it follows that the respondent must also agree that her Honour's ruling on the objection was a wrong decision on a question of law. However, the respondent submitted that notwithstanding the misdirection and the wrong decision, there was either no substantial miscarriage of justice or, alternatively, that the error did not concern a live issue and that as a result there has been no miscarriage at all.

84 It is first necessary to consider whether the Crown's concession was properly made because agreement between the parties about a question of law cannot determine the law: Pantorno v The Queen [1989] HCA 18; (1989) 166 CLR 466 and Noto v The State of Western Australia [2006] WASCA 278; (2006) 168 A Crim R 457 [17] - [20].

85 Because the appellant places great reliance on R v LK and Ansari, it is important to closely consider what was decided in those cases.

86 Ansari is authority for the proposition that persons can conspire to commit an offence the mental element of which is recklessness [18], [37], [38]. This is because, by the operation of s 5.4(4), recklessness may be proved by intention or knowledge [18], [37]. The Crown set out to prove knowledge in R v Ansari [2007] NSWCCA 204; (2007) 70 NSWLR 89 [18]. In Ansari, the High Court adopted its reasons in R v LK about the elements of the offence of conspiracy: French CJ [2] and the plurality at [58]. As a result, particular attention needs to be paid to the decision in R v LK.

87 In R v LK the Crown sought to prove that the accused conspired to deal with money, being reckless as to whether or not the money was the proceeds of crime. This caused the trial judge to direct an acquittal.

88 In this case the Crown did not open its case alleging that the accused were reckless about the nature of the substance. Furthermore, as the case developed, it became clear that there was no issue about the substance being MDMA and no issue that any participant in the conspiracy was reckless about the nature of the substance. Quaid's defence was not that he did not think that the substance trafficked was MDMA. His defence was that he did not conspire with anyone to traffic in the substance, which he admitted was MDMA.

89 In R v LK, although the conspiracy alleged was not a conspiracy to traffic in drugs, the structure of the charge in that case allows the discussion about the law concerning the offence of conspiracy to be applied to the circumstances of this case. In R v LK, the offence the object of the conspiracy had a physical element that was a circumstance, namely the dealing with money that 'is the proceeds of crime' [119]. Likewise, in the present case, the offence the object of the conspiracy has a physical element that is a circumstance, namely that the substance 'is a controlled drug'.

90 The Code provides that an offence must contain one or more physical elements and, subject to provision to the contrary, a fault element must attach to each such physical element: see s 3.1 and s 3.2. Section 4.1 provides that a physical element may be conduct or a result of conduct or a circumstance in which conduct or a result of conduct occurs.

91 The plurality in R v LK described the offence of conspiracy as being an offence which:

[H]as a single physical element of conduct: conspiring with another person to commit a non-trivial offence. The (default) fault element for this physical element of conduct is intention (s 5.6(1) of the Code). At the trial of a person charged with conspiracy it is incumbent on the prosecution to prove that he or she meant to conspire with another person to commit the non-trivial offence particularised as being the object of the conspiracy. In charging a jury as to the meaning of 'conspiring' with another person, it is necessary to direct that the prosecution must establish that the accused entered into an agreement with one or more other persons and that he or she and at least one other party to the agreement intended that the offence particularised as the object of the conspiracy be committed pursuant to the agreement. Proof of the commission of an overt act by a party to the agreement conditions guilt and is placed on the prosecution to the criminal standard [141].

92 The following points may be extracted from the above passage and from other parts of the reasons in R v LK:

(a) The words 'conspires' and 'conspiracy', as used in s 11.5(1), are to be understood as fixed by the common law, subject to express statutory modification. The use of those words, without definition, in the statement of the Code offence, was intended to be understood by reference to that common law meaning [107].

(b) The elements of the offence of conspiracy are to be found in s 11.5(1) and not in s 11.5(2) [91]. There is a single physical element of conduct involved in conspiracy, which is an agreement to commit a non-trivial offence [132] and [141]. See also French CJ [57].

(c) Paragraphs (a) and (b) of s 11.5(2) are merely epexegetical of what it is to conspire. They do not specify elements of the offence [132] and [133].

(d) The mental or fault element of a charge of conspiracy is intention [141] ie, intention to enter into the agreement. See also French CJ [54] and [64]. The fault element is not expressly stated in s 11.5(1) but by default the fault element of a physical element that consists of conduct is intention [141]: see s 5.6(1). A person has intention with respect to conduct (the physical element, ie to agree) if they mean to engage in that conduct: s 5.2(1).

(e) There is a second mental condition (referred to in s 11.5(2)(b)) that the prosecutor must establish to make out the offence of conspiracy, and that is that the accused and at least one other party to the agreement intended, pursuant to the agreement, to commit the offence the subject or object of the conspiracy [75], [133]. This is not an 'element' of the offence [133]. Section 11.5(2)(b) informs the meaning of 'conspires' [117]. An intention to commit the offence requires knowledge or belief in the existence of facts that make the conduct the subject of the agreement an offence [117].

(f) It is not sufficient proof of this second mental condition that the person realised that the probable consequences of the agreed conduct might result in the performance of an unlawful act, or that the person was reckless as to whether the agreed conduct might result in an unlawful act [110] (approving Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 [66] (McHugh J)). In short, there cannot be a conspiracy in which the parties to the agreement are reckless as to the existence of a circumstance which is a necessary element of the offence the conspirators agree to commit [77]. The common law offence of conspiracy requires that an accused know the facts that make the proposed 'act' or 'acts' unlawful [94] and [114]. The reference to the 'act' or 'acts' is a reference to the physical elements of the substantive offence comprising the conduct, or circumstance or result involved in the commission of the substantive offence: see French CJ [57].

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

93 The trial judge in this case correctly directed the jurors that they had to be satisfied about the existence of the physical element of agreement; that the necessary fault element in relation to the physical act of agreement was intention to agree; that the prosecution also had to prove an intention on the part of the appellant and at least one other party to the agreement to commit the offence of trafficking; that they must be satisfied that the appellant knew that the offence involved trafficking a controlled drug; and that the prosecution needed to prove that an overt act occurred.

94 The trial judge also gave directions, as she was required to do, about the meaning of 'trafficking' and about the meaning of a 'commercial quantity' of MDMA. What was required was a direction about the meaning of trafficking as stated in s 302.1 of the Code and a direction about the physical elements of the offence of trafficking as stated in s 302.2(1); that is, that a person traffics in a substance (s 302.2(1)(a)), that the substance was a controlled drug (s 302.2(1)(b)) and that the quantity trafficked was a commercial quantity (s 302.2(1)(c)). Those directions were given.

95 It is true that the substantive offence of trafficking a commercial quantity of a controlled drug is not committed unless the fault elements applicable to the physical elements in s 302.2(1)(a) and (b) are also proved. (Absolute liability applies in relation to (c)). The trial judge correctly described, and Jury Aid 2 correctly described, the fault elements relating to the physical elements of the substantive offence of trafficking, and correctly stated that absolute liability applied to the physical element in s 302(1)(c).

96 However, because the charge was one of conspiracy to traffic, it was unnecessary and therefore wrong to inform the jury about the fault elements in s 302.2(1)(a) and (b). The trial judge should only have informed the jury about the physical elements of the offence of trafficking: R v LK [57], [94], [114].

97 Lord Nichols of Birkenhead, in R v Saik [2007] UKHL 18; [2007] 1 AC 18 (a case referred to in R v LK [112]), explained that conspiracy has 'its own mental elements', that this 'subsumes' any lesser 'mental element' required by the substantive offence and that 'in this respect the mental element of conspiracy is distinct from and supersedes the mental element in the substantive offence' [8]. Applying that reasoning here, the fault elements applicable to the offence of trafficking are 'subsumed' or 'superseded' by the fault element applicable to the offence of conspiracy, and by the requirement that there be proof of an intention to commit the physical acts involved in trafficking.

98 Counsel for the appellant submitted that the unnecessary direction about the fault elements of trafficking, and particularly about recklessness, would cause confusion in the minds of the jurors. There can be no doubt that such a direction had the potential to be confusing, but it was not confusing in this case. This is because the trial judge made clear to the jury that the direction given about the fault elements relating to the substantive offence of trafficking were not relevant to the jury's consideration about whether there was proof of the physical and fault elements of conspiracy and about whether there was proof of an intention to commit the substantive offence of trafficking.

99 The trial judge made it plain to the jury in the passage of the directions set out above at [73] that recklessness was not relevant to proof of the fault element of conspiracy. The trial judge made it plain that what was required was proof of an intent to conspire and proof of intent to commit the agreed offence.

100 The unnecessary and wrong direction to the jury was an irregularity in the trial and an error of law. The question is whether it gave rise to a miscarriage of justice.

101 Although 'any' departure from trial according to law may constitute a miscarriage (Carney v The State of Western Australia [2010] WASCA 90 [44] - [45]), there are authorities which state that irregularities not affecting the outcome are not miscarriages at all: see Sabourne v The State of Western Australia [2010] WASCA 242 [34]; TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 [79]; Suresh v The Queen [1998] HCA 23; (1998) 153 ALR 145. In TKWJ [79], McHugh J referred to 'material irregularities'. In Suresh [42], Kirby J referred to irregularities going beyond the 'trivial or irrelevant'. It would seem logical that a wrong decision on a question of law which is not relevant to the case, or an unnecessary direction, would not justify the setting aside of the conviction and would not constitute a miscarriage unless it had the potential to, or did give rise to confusion in the minds of the jurors.

102 The direction about recklessness in this case did have the potential to confuse the jury and that leads to the conclusion that there was a miscarriage of justice. The fact that the jury might not have been confused by reason of other directions given by the trial judge can be taken into account in deciding whether there was a substantial miscarriage of justice. The trial judge's decision overruling the objection to the proposed direction and the proposal to give Jury Aid 2 to the jury was likewise a wrong decision on a question of law giving rise to a miscarriage of justice.

103 As a result, grounds 2 and 5 should be upheld. Section 30 of the Criminal Appeals Act requires the court to allow the appeal unless the court considers that no substantial miscarriage of justice has occurred, in which case it may dismiss the appeal. The respondent submits that there was no substantial miscarriage of justice. That submission is considered later in these reasons.

104 As a result of the directions given by the trial judge, the appellant submits that he was convicted of an offence not known to law. There is no merit in that submission. The charge in the indictment was not defective. It was a charge known to law and the appellant was convicted of that charge. The appellant's counsel said that R v LK supported the submission that the appellant had been convicted of an offence not known to the law. That submission cannot be sustained. In R v LK, the charge in the indictment alleged that there was a conspiracy to commit the offence 'recklessly' and the Crown announced that it set out to prove that the accused intentionally entered into an agreement to deal with funds, being reckless as to whether or not they were the proceeds of crime. In this case the Crown sought to prove that the appellant and the other named persons conspired to traffic in MDMA and intended to traffic in MDMA. The Crown did not allege that they agreed to traffic in a substance and were reckless as to whether it was MDMA or another controlled drug.

105 The trial judge informed the jury about recklessness in relation to the substantive offence but by other directions made sure that the jury was not confused about the issues they had to determine. The directions did not result in a conviction of an offence unknown to the law. The jury at the end of the trial was asked to return a verdict in relation to the charge in the indictment and the verdict on that charge was a verdict of guilty. This ground has no merit and leave to appeal on ground 1 should be refused.

Was there a substantial miscarriage of justice?

106 Although grounds 2 and 5 have been upheld, the respondent submits that there has been no substantial miscarriage of justice. The principles are well known: see Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300; Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414. Despite the submissions of the appellant, this is not a case where there has been a serious breach of the 'presuppositions of the trial' so as to deny the application of the proviso: as to which see Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [94].

107 In the light of the directions read as a whole, the erroneous direction did not confuse the jury for the following reasons. On the issue about whether or not the appellant joined the conspiracy, correct directions were given. The trial judge made it clear that in relation to the jury's consideration about the issue about whether there was an agreement to commit the substantive offence, the information provided about the fault element of recklessness in the offence of trafficking was not relevant.

108 An assumption which underlies trial by jury is that until the contrary is demonstrated, it must be accepted that juries understand and conform to the direction of the trial judge: Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22; The State of Western Australia v Bowen [2006] WASCA 133; (2006) 32 WAR 81 [31].

109 It has not been demonstrated that the jurors did not understand and conform to the express direction of the trial judge not to consider whether the appellant was reckless when considering intent to conspire and intent to commit the substantive offence. After the passage of the trial judge's summing up set out above and complained about by the appellant [72], the trial judge stressed that recklessness was not sufficient to prove that the accused intended to commit the substantive offence [73]. In the latter passage, the trial judge directed the jury that it was 'not sufficient for the Crown ... merely to prove that an accused was reckless as to whether' the substantive offence was to occur (ts 2951). At the same time, the trial judge correctly reinforced in the jury's mind that they had to consider whether the appellant 'meant to enter into the agreement' and 'meant for the offence of trafficking in a commercial quantity of a controlled drug to be committed pursuant to that agreement'.

110 The trial judge thereby made it clear that any reference she had made to recklessness in relation to the substantive offence had nothing to do with their consideration of whether there was an intention to enter into the agreement or whether there was an intention to commit the offence the subject of the agreement.

111 As a result, there could have been no confusion in the mind of the jury. It must be accepted that the jurors would have concentrated entirely on the issue of whether Quaid reached and intended to reach an agreement to join the conspiracy between Ljuboja, Ulic and Medan to traffic in the commercial quantity of MDMA.

112 It is not correct to consider whether by reason of the misdirection, the appellant lost 'a fair chance of acquittal'. See Mraz v The Queen [1955] HCA 59; (1955) 93 CLR 493. In Weiss [32] - [35], the High Court was critical of that expression on the basis that there was a risk that such an expression might be taken as a substitute for the language of the proviso. It is an expression which may mask the nature of the appellate court's task in considering the application of the proviso. It tends to concentrate attention on what the jury or a reasonable jury might have done. In Weiss, the High Court made it clear that the task of this court is not to decide what the jury or a hypothetical jury might have decided; instead it is for the appellate court itself to decide whether a substantial miscarriage of justice has actually occurred. This is to be decided objectively, in a manner not materially different from other appellate tasks, and the standard of criminal guilt is beyond reasonable doubt, subject to the qualification that there may be cases where natural limitations that exist in the case of an appellate court proceeding on the record require the appellate court to conclude that it cannot reach the necessary degree of satisfaction: Weiss [41], Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 [35]. This is not such a case where any limitations would prevent the court from being satisfied that there was no substantial miscarriage.

113 It is important to bear in mind that correct directions were given about what the jury had to be satisfied of before it could find that there was an agreement, before it could find that there was an intention to enter into the agreement and to commit the offence and before it could find that there had been an overt act. In Weiss, the plurality said at [43] that the 'fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of the trial'. That is particularly important in this case because the jury heard the prosecution evidence and was correctly directed about how it was to approach that task of deciding the issue of whether Quaid agreed to join in the conspiracy. Thus, the jury's verdict can only be explained on the basis that they found (after correct directions from the judge) that there was an agreement to traffic in MDMA, an intention to so agree, an intention to commit the substantive offence and an overt act. These findings were open on the evidence: see Weiss [41] and M v The Queen [1994] HCA 63; (1994) 181 CLR 487. The potential for confusion produced by the direction about recklessness was eliminated because of the trial judge's directions. As a result, there was no substantial miscarriage of justice.

114 There is a further basis for concluding that there was no substantial miscarriage of justice. That is, that the directions about the fault elements of a trafficking offence were not only unnecessary (and for that reason erroneous), but they were also irrelevant. When erroneous directions are given about a point which is irrelevant, then if they do not cause confusion there will be no substantial miscarriage of justice. This outcome may be seen in McGrath v The Queen [2010] NSWCCA 48; (2010) 199 A Crim R 527 and R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558, which were cases involving allegations of an offence of sexual intercourse with a victim without consent. There had been a misdirection by the trial judge about the meaning of consent. However, both cases were fought by the accused on the basis that no

sexual intercourse had taken place, not that it had taken place and that it was consensual. It was held that the misdirection about consent was a misdirection about a non-issue and it could not have resulted in a substantial miscarriage of justice: see McGrath [31] and Gulliford [116]. The same process of reasoning leads to the conclusion that there was no substantial miscarriage of justice in this case. There was no issue in this case requiring a consideration about recklessness. The direction was about a non-issue.

115 For all the reasons given above, there was no substantial miscarriage of justice.

116 Leave to appeal on ground 1 should be refused, ground 2 and ground 5 should be upheld but because there was no substantial miscarriage of justice, the appeal should be dismissed.

118 BUSS JA: On 16 December 2009, the appellant (Mr Quaid) was convicted, after a trial in the Supreme Court before Jenkins J and a jury, on a count in an indictment which alleged that between 1 July 2007 and 20 May 2008 at Perth and elsewhere in Australia, Mr Quaid, Rade Ljuboja (Mr Ljuboja), Dejan Medan (Mr Medan) and Dimitrios Papadimitriou (Mr Papadimitriou) conspired together with Vaso Ulic (Mr Ulic) and others to traffic in a controlled drug, namely MDMA, and that the quantity was a commercial quantity, contrary to s 11.5(1) and s 302.2(1) of the Criminal Code (Cth) (the Code).

119 Mr Quaid was tried jointly with Mr Papadimitriou. Mr Papadimitriou was also found guilty of the conspiracy offence. Mr Ljuboja and Mr Medan pleaded guilty before the trial. At all material times, Mr Ulic resided in Montenegro. He was never charged.

120 On 23 March 2010, Mr Quaid was sentenced to 17 years' imprisonment. The trial judge fixed a non-parole period of 10 years 6 months.

121 Mr Quaid has appealed to this court against his conviction.

122 In July 2007, investigations by law enforcement authorities revealed that Mr Ljuboja, in conjunction with Mr Ulic, was planning to import MDMA, in powder form, into Australia. They intended, after importation, to convert the powder into ecstasy tablets and distribute them for sale in Australia.

123 The Crown's case was that in July 2007, Mr Ulic sought the assistance of Mr Quaid and Mr Papadimitriou, and Mr Ljuboja sought the assistance of Mr Medan, to implement the plan made between Mr Ulic and Mr Ljuboja.

124 It was alleged by the Crown that on 19 July 2007, Mr Ljuboja met with Mr Quaid in Subiaco where they agreed that upon the MDMA powder being imported, ecstasy tablets would be produced and distributed for sale. Mr Ljuboja was to oversee the importation of the powder and, with Mr Medan, arrange for its conversion into tablets. Mr Quaid was to arrange for the distribution of the tablets. Mr Papadimitriou's role was to assist Mr Ljuboja.

125 Mr Papadimitriou located a granny flat at 299 Morley Drive East, Lockridge, in which the MDMA powder, a pill press and other materials required for the conversion of the powder into tablets were stored. He also arranged for the transportation of the pill press from Melbourne to Perth.

126 Mr Medan provided the pill press to Mr Papadimitriou in Melbourne. Mr Medan's principal role was to convert the MDMA powder into ecstasy tablets. The pill press was to be used for this purpose. He was to obtain the chemicals and other ingredients to be combined with the MDMA to make the tablets. Also, he was to give support, as necessary, to Mr Ljuboja.

127 Between July 2007 and April 2008, Mr Quaid and Mr Ljuboja met on at least seven occasions.

128 The investigations of the law enforcement authorities indicated that the MDMA powder was to be imported into Australia on the cargo ship, MSC Monica. On 7 April 2008, the vessel docked in Port Botany. On 16 April 2008, it arrived in Fremantle.

129 In the early hours of 17 April 2008 at Fremantle, about 60 kg of MDMA powder was unloaded by unknown persons from the MSC Monica to a small vessel alongside it. The small vessel then returned to shore. About 10 kg of the drug was taken immediately by others involved in the importation. Mr Ljuboja collected the balance and took it to the house of a friend at Unit 2, 35 Heyshott Road, Balga, where Mr Ljuboja stayed from time to time. On or about 28 April 2008, Mr Ljuboja transported the powder to the granny flat.

130 On 8 May 2008, police, acting covertly, executed a search warrant at the granny flat. They found and removed the MDMA powder, which was inside large plastic bags concealed in two black sports bags. The drug was replaced with an inert substance.

131 On the afternoon of 19 May 2008, Mr Ljuboja, Mr Medan and Mr Papadimitriou were arrested in front of the granny flat. Police executed another search warrant. An inspection of the granny flat disclosed the following:

(a) a pill press had been placed in the eastern side of the room, plugged into the wall, and the electricity turned on;

(b) the large plastic bags containing the inert substance had been removed from the sports bags and placed on the ground alongside a wall and near the pill press;

(c) some of the inert substance had been removed from the large plastic bags and separated into a number of small transparent snaplock bags of about one kilogram in weight;

(d) one unsealed bag was located near a set of scales on a table next to the pill press; and

(e) two sealed bags were located on shelving near the table.

132 Police seized, amongst other things, the inert substance, various binding and cutting agents, the pill press, $12,700 in cash, and mobile telephones.

133 On 21 May 2008, Mr Quaid was arrested in Sydney.

134 The MDMA powder seized by the law enforcement authorities from the granny flat weighed 44.16 kg. The purity of the 44.16 kg averaged about 80%. The powder seized was about 70 times the quantity prescribed by law as the commercial quantity of MDMA.

Formal admissions made by Mr Quaid at the trial

135 At the trial, Mr Quaid made numerous formal admissions, including:

(a) the MSC Monica arrived at Sydney on 7 April 2008 (ts 979 - 980);

(b) Predrag Pavlovic was part of the crew of the MSC Monica on 7 April 2008 (ts 979 - 980);

(c) on 16 April 2008 at 1330 hrs, the MSC Monica arrived at Fremantle (ts 979- 980);

(d) Mr Pavlovic was still aboard the MSC Monica when it berthed at Fremantle (ts 979 - 980);

(e) on 16 April 2008, Mr Pavlovic came ashore, and at 1735 hrs he was photographed at the Angels Cafe in Essex Street, Fremantle, in company with Mr Ljuboja (ts 979 - 980);

(f) on 17 April 2008 at 0240 hrs, a small vessel approached and appeared to stop towards the stern of the MSC Monica on the port side (ts 979 -980);

(g) Mr Medan stayed at Unit 2, 35 Heyshott Road, Balga and on four days, 1, 2, 3 and 4 May 2008, he was observed visiting the granny flat at 299 Morley Drive East, Lockridge (ts 1544);

(h) on 9 May 2008, Mr Ljuboja was dropped off by a taxi near 299 Morley Drive East (ts 1544 - 1545);

(i) continuity was not in dispute in respect of the drug found in the granny flat (ts 1465);

(j) that the drug was MDMA was not in dispute (ts 1465); and

(k) a certificate of a chemist in relation to the MDMA powder was not in dispute (ts 1465).

136 The Crown's case against Mr Quaid was based substantially on hundreds of intercepted telephone calls, including calls between Mr Quaid and Mr Ljuboja or Mr Ulic, and evidence concerning the surveillance of the alleged conspirators (including Mr Quaid) and of meetings between various of the alleged conspirators (including between Mr Quaid and Mr Ljuboja), in numerous locations.

137 The intercepted telephone calls (including calls between Mr Quaid and Mr Ljuboja or Mr Ulic) were conducted in code in an attempt to disguise the illegal enterprise. It was necessary to interpret the code in order to make sense of the conversations. The Crown contended that when the intercepted telephone calls were interpreted, in the context of the whole of the evidence, it should be concluded beyond reasonable doubt that each of the elements of the conspiracy offence had been proved against Mr Quaid.

138 According to the Crown, Mr Quaid asked his brother, Marc Quaid, to assist Mr Ljuboja to establish a 'safe house' for the MDMA in order to produce ecstasy tablets, and Mr Quaid gave Mr Ljuboja $20,000 cash as working capital to enable the granny flat to be set up to produce the tablets.

The opening address at the trial by counsel for Mr Quaid

139 At the trial, counsel for Mr Quaid made an opening address.

140 Counsel for Mr Quaid told the jury that most of the facts alleged by the Crown were not in dispute (ts 342). It was the interpretation that the Crown put on the facts 'to make them fit the [prosecution] theory' that was in contest (ts 343). Counsel said that it was the interpretation of, and the meaning to be ascribed to, the telephone intercepts that was of primary importance (ts 343).

141 Although counsel for Mr Quaid accepted that there had been a conspiracy to import MDMA, he said that Mr Quaid was not a conspirator. Counsel said that Mr Quaid spoke to and met with some of the conspirators, but the meetings and conversations had 'nothing to do with Mr Quaid either being involved in a conspiracy to traffic these drugs or having anything at all to do with the distribution of drugs' (ts 343). The conversations and meetings were concerned with other business and social dealings he had with Mr Ljuboja and Mr Ulic (ts 344).

So ultimately, the question for you will be whether you are able to interpret the intercepted calls and the other evidence to make them fit the prosecution theory, knowing that ultimately you're going to have to be able to interpret those calls sufficiently to be satisfied beyond reasonable doubt that the prosecution theory is correct (ts 344).

143 Mr Quaid gave sworn evidence at the trial. He denied that he had been involved in the conspiracy. Also, he denied any knowledge or awareness of it.

144 During evidence-in-chief, Mr Quaid gave this evidence:

Mr Quaid, were you involved in this conspiracy---No, I was not involved in this conspiracy.

Were you involved in a conspiracy to traffic drugs as alleged here; that is, with Mr Ljuboja and Mr Ulic---No.

Were you aware that whatever you were doing might be of assistance to them in their endeavour to traffic drugs---No (ts 2490).

145 Mr Quaid said that he had never been involved in any drug activity with Mr Ljuboja, Mr Ulic or any of the other alleged co-conspirators. He had never agreed to distribute drugs for them. Before his arrest, he had never met or, to his knowledge, spoken to Mr Papadimitriou (ts 2491).

146 Mr Quaid gave evidence that he carried on business as a mediator and a debt collector. He acknowledged that on 19 July 2007 (and on other occasions) he had met with Mr Ljuboja. The 19 July 2007 meeting was in Subiaco. On this occasion, Mr Ljuboja told him that $1.8 million of his money had been stolen. According to Mr Quaid, Mr Ljuboja asked for his assistance in obtaining its return. Mr Quaid agreed to provide his assistance. He said that he continued to work towards this goal until his arrest.

147 Mr Quaid gave his interpretation of and explanation for the numerous intercepted telephone calls he had with Mr Ljuboja and Mr Ulic. These conversations were conducted 'in code' because he had previously been questioned by the Australian Crime Commission. He thought that some of his telephone calls might be intercepted and, as a result, he was always very careful about what he said and spoke about on the telephone. Mr Quaid denied that any of the 'coded' telephone calls were about the importation of MDMA, its conversion into ecstasy tablets or the distribution of the tablets in Australia. The conversations were about business and social matters unconnected with illicit drug dealing.

148 Mr Quaid admitted that he had asked his brother, Marc Quaid, to assist Mr Ljuboja in Perth with accommodation or anything else he required. But Mr Quaid denied that it was for the purpose of assisting Mr Ljuboja with the trafficking of the MDMA.

149 Mr Quaid also admitted that on 18 May 2008 he had met with Mr Ljuboja in Perth and given him $20,000 cash. But Mr Quaid denied the Crown's suggestion that he gave this money to Mr Ljuboja pursuant to an agreement to traffic MDMA; in particular, he denied that he knew Mr Ljuboja was setting up a 'safe house' for the MDMA in order to produce ecstasy tablets and that the $20,000 was to assist Mr Ljuboja to finance the operation. According to Mr Quaid, he gave the money to Mr Ljuboja to help him set up new premises in Perth which, on his understanding, were not related to illicit drug dealing. He thought that Mr Ljuboja was moving to Perth to escape from troubles he had on the eastern seaboard.

150 The following exchange occurred in the course of Mr Quaid's cross-examination:

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).

The closing address at the trial by counsel for Mr Quaid

151 Counsel for Mr Quaid emphasised in his closing address that although there was a conspiracy to import drugs 'going on around' Mr Quaid, he was not involved in the conspiracy.

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).

(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, is guilty of the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed.

Note: Penalty units are defined in section 4AA of the Crimes Act 1914.

(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.

(2A) Subsection (2) has effect subject to subsection (7A).

...

(7) Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

(7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

155 The term 'special liability provision', referred to in s 11.5(7A), is defined in the Dictionary at the end of the Code to mean:

(a) a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence; or

(b) a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew a particular thing; or

(c) a provision that provides that, in a prosecution for an offence, it is not necessary to prove that the defendant knew or believed a particular thing.

(a) the person traffics in a substance; and

(b) the substance is a controlled drug; and

(c) the quantity trafficked is a commercial quantity.

Penalty: Imprisonment for life or 7,500 penalty units, or both.

(2) The fault element for paragraph (1)(b) is recklessness.

(3) Absolute liability applies to paragraph (1)(c).

Note: Section 313.4 provides a partial defence in relation to the matter in paragraph (1)(c).

For the purposes of this Part, a person traffics in a substance if:

(a) the person sells the substance; or

(b) the person prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or

(c) the person transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or

(d) the person guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or

(e) the person possesses the substance with the intention of selling any of it.

158 The term 'controlled drug' is defined in s 300.2 to mean, relevantly, a substance described as a controlled drug in s 314.1. The term 'commercial quantity', in relation to a controlled drug, is defined in s 300.2 to mean, relevantly, a quantity not less than the quantity specified as a commercial quantity of the drug in, relevantly, div 314. Division 314 includes s 314.1. Section 314.1 contains a table of controlled drugs and quantities. MDMA is listed in the table as a controlled drug, and the commercial quantity of MDMA is specified as 0.5 kg.

159 Section 3.1 provides:

(1) An offence consists of physical elements and fault elements.

(2) However, the law that creates the offence may provide that there is no fault element for one or more physical elements.

(3) The law that creates the offence may provide different fault elements for different physical elements.

160 By s 4.1(1):

A physical element of an offence may be:

(a) conduct; or

(b) a result of conduct; or

(c) a circumstance in which conduct, or a result of conduct, occurs.

161 Section 5.1(1) provides:

A fault element for a particular physical element may be intention, knowledge, recklessness or negligence.

162 By s 5.2:

(1) A person has intention with respect to conduct if he or she means to engage in that conduct.

(2) A person has intention with respect to a circumstance if he or she believes that it exists or will exist.

(3) A person has intention with respect to a result if he or she means to bring it about or is aware that it will occur in the ordinary course of events.

163 Section 5.3 provides:

A person has knowledge of a circumstance or a result if he or she is aware that it exists or will exist in the ordinary course of events.

164 Section 5.4 is concerned with recklessness. It provides, relevantly:

(1) A person is reckless with respect to a circumstance if:

(a) he or she is aware of a substantial risk that the circumstance exists or will exist; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

(2) A person is reckless with respect to a result if:

(a) he or she is aware of a substantial risk that the result will occur; and

(b) having regard to the circumstances known to him or her, it is unjustifiable to take the risk.

...

(4) If recklessness is a fault element for a physical element of an offence, proof of intention, knowledge or recklessness will satisfy that fault element.

165 By s 5.6:

(1) If the law creating the offence does not specify a fault element for a physical element that consists only of conduct, intention is the fault element for that physical element.

(2) If the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or a result, recklessness is the fault element for that physical element.

Note: Under subsection 5.4(4), recklessness can be established by proving intention, knowledge or recklessness.

If, in a prosecution for an offence against this Part, it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance ... was a controlled drug ... it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the controlled drug.

The offence of conspiracy under s 11.5 of the Code

167 In R v LK [2010] HCA 17; (2010) 241 CLR 177, the High Court gave detailed consideration to s 11.5 of the Code. See also Ansari v The Queen [2010] HCA 18; (2010) 241 CLR 299.

168 A number of propositions in relation to s 11.5 may be discerned from the reasons in LK and Ansari, including:

(a) Section 11.5(1) creates an offence of conspiring with another person to commit an offence. The words 'conspires' and 'conspiracy', where appearing in s 11.5, are to be understood by reference to the common law, subject to express modification under s 11.5. One such modification is that the offence under s 11.5(1) is confined to agreements to commit an offence (being a non-trivial offence). By contrast, liability for conspiracy under the common law covers a wider field. See LK [96] - [107]; Ansari [58].

(b) The elements of the offence of conspiracy are contained in s 11.5(1). See LK [141].

(c) The offence has a single physical element of conduct, namely, conspiring 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. See LK [141].

(d) The fault element of the offence is intention. See LK [117], [141]; Ansari [33].

(e) In LK, the plurality (Gummow, Hayne, Crennan, Kiefel & Bell JJ) explained what is required to prove an intention to commit an offence in the context of s 11.5(1):

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].

(f) In Ansari, the plurality (Gummow, Hayne, Heydon, Crennan, Kiefel & Bell JJ) rejected the contention that:

[Section] 11.5 is to be interpreted as requiring proof that an accused conspirator intended that a specified fault element (being a fault element of lesser culpability than the fault element of intention) accompany a particular physical element of an offence as distinct from proof that the accused intended that an act or acts be performed which, if carried out in accordance with the agreement, would amount to the commission of an offence [60].

(g) In Ansari, the plurality also rejected the contention that 'under s 11.5 a person does not intend that an offence will be committed unless he or she intends that any fault element specified for that offence will exist at the time the physical element for the fault element comes into existence' [61].

(h) The offence created by s 11.5(1) 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. The Crown must establish that the accused persons intentionally entered into an agreement to commit the offence particularised in the indictment as the subject of the conspiracy. This requires proof that each accused person meant to enter into an agreement to commit that offence. See LK [117], [141], [145].

(i) Section 11.5(2)(a) and (b) are epexegetical of what it is to 'conspire' with another person to commit an offence within s 11.5(1). Section 11.5(2)(b) requires that for a person to 'conspire' under s 11.5(1), he or she and at least one other party to the agreement 'must have intended', when the agreement was entered, that an offence be committed pursuant to it. Neither s 11.5(2)(a) nor s 11.5(2)(b) specifies an element of the offence. See LK [133].

(j) It is necessary for a trial judge, in charging a jury as to the meaning of 'conspiring' with another person, to direct that the prosecution must establish that the accused entered into an agreement with one or more other persons, and that he or she and at least one other party to the agreement intended that the offence particularised as the object of the conspiracy be committed pursuant to the agreement. Also, the prosecution must prove to the criminal standard that a party to the agreement committed an overt act pursuant to the agreement: s 11.5(2)(c). See LK [141].

What the Crown had to prove against Mr Quaid

169 In the present case, the Crown's case was opened, run and closed on the basis that the agreement in question was to traffic in MDMA powder, the MDMA powder was to be imported and converted into ecstasy tablets, and the tablets were then to be distributed for sale in Australia. It was necessary, in these circumstances, for the Crown to prove beyond reasonable doubt against Mr Quaid the following.

170 First, Mr Quaid entered into an agreement with one or more of Mr Ljuboja, Mr Medan, Mr Papadimitriou and Mr Ulic to traffic in MDMA (being a substance that was a controlled drug, as defined in s 300.2 of the Code).

171 The Crown's case was that Mr Quaid was a party to an agreement with one or more of the other alleged conspirators to traffic specifically in MDMA. The Crown did not assert that there was an agreement to traffic generally in controlled drugs or an agreement to traffic in any controlled drug that could be procured.

172 Secondly, if Mr Quaid entered into such an agreement, Mr Quaid and at least one other party to the agreement intended that the offence of trafficking in MDMA would be committed pursuant to the agreement.

173 It was necessary for the Crown to prove that Mr Quaid and one or more of the other alleged conspirators meant to enter into the agreement to commit the offence of trafficking in MDMA.

174 Subject to one qualification, this necessarily involved proof that Mr Quaid had knowledge of, or belief in, the existence of the facts that made the conduct the subject of the agreement an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct).

175 The facts that made the conduct the subject of the agreement an offence were:

(b) preparing the MDMA for supply with the intention of selling any of it or believing that another person intended to sell any of it.

It was necessary for the Crown to prove that Mr Quaid had knowledge of, or belief in, the existence of these facts; that is, relevantly, the Crown had to prove that Mr Quaid knew or believed that one or more of the conspirators would take possession of MDMA and that the MDMA would be converted into ecstasy tablets with the intention of selling at least some of the tablets.

176 The qualification to which I have referred is that it was not necessary for the Crown to prove that Mr Quaid knew or believed that the quantity of MDMA to be trafficked would be a commercial quantity (as defined in s 300.2 of the Code). See s 302.2(1)(c) of the Code read with s 302.2(3), the definition of 'special liability provision' in the Dictionary, s 11.5(2A) and s 11.5(7A). See also LK [117].

177 Thirdly, if Mr Quaid entered into such an agreement and Mr Quaid and at least one other party to the agreement had the requisite intention, Mr Quaid or at least one other party to the agreement committed an overt act pursuant to the agreement.

The jury aids provided by the trial judge to the jury

178 The trial judge, in the course of her summing up, provided two documents to the jury, described as 'jury aids', which read:

Conspiracy to traffic in a commercial quantity of MDMA

The three elements the prosecution must prove beyond reasonable doubt are:

(1) the accused you are considering entered into an agreement with one or more other persons; and

(2) that accused and at least one other party to the agreement intended that the offence of trafficking in a commercial quantity of a controlled drug, would be committed pursuant to the agreement; and

(3) that accused or at least one party to the agreement committed an overt act pursuant to the agreement.

Jury Memory Aid - Trafficking commercial quantities of a

controlled drug

It is an offence to traffic in a commercial quantity of a controlled drug.

A person traffics in a commercial quantity of a controlled drug if he:

(1) traffics in a substance; and

(2) the substance is a controlled drug; and

(3) the quantity trafficked is a commercial quantity.

Meaning of 'traffics'

[A] person traffics in a substance if he:

(a) sells the substance; or

(b) prepares the substance for supply with the intention of selling any of it or believing that another person intends to sell any of it; or

(c) transports the substance with the intention of selling any of it or believing that another person intends to sell any of it; or

(d) guards or conceals the substance with the intention of selling any of it or assisting another person to sell any of it; or

(e) possesses the substance with the intention of selling any of it.

'Prepares the substance for supply' includes packaging the substance or separating the substance into discrete units.

The Crown must prove that the person intended to engage in at least one of the above acts (a) - (e).

Meaning of 'controlled drug'

A controlled drug is a substance which the Australian Parliament has said is a controlled drug.

3,4-Methylenedioxymethamphetamine (MDMA) is a controlled drug.

If the other elements of the offence are proven, a person will be guilty of trafficking in a controlled substance if they are reckless as to whether the substance is a controlled drug. A person is reckless with respect to whether a substance is a controlled drug if:

(a) he is aware of a substantial risk that it is a controlled drug; and

(b) having regard to the circumstances known to him, it is unjustifiable to take the risk.

The Crown only has to prove that a person was reckless as to whether the substance was a controlled drug. The Crown does not have to prove that the person was reckless in respect of whether it was MDMA. It would be sufficient if the accused was reckless as to whether it was another controlled drug such as amphetamine, cocaine, methamphetamine or 3,4-Methylenedioxyamphetamine (MDA).

A person will also be guilty of trafficking in a controlled substance if he is aware that it is a controlled substance or believes that it is a controlled substance.

What is a 'commercial quantity' of MDMA?

The Commonwealth Criminal Code says that half a kilo or more of MDMA is a commercial quantity.

The prosecution only have to prove that there was half a kilo or more of MDMA. The prosecution do not have to prove that the person knew or believed that there was, or intended that there would be at least half a kilo of MDMA.

Even if a person reasonably believed that there was less than half a kilo, he would still be guilty. (emphasis added)

179 Before she commenced her summing up, her Honour provided copies of the jury aids to counsel and gave them an opportunity to make submissions on them.

180 Initially, the prosecutor had no submissions on the documents except for a minor point in relation to jury aid 2 which is not relevant for the purposes of this appeal (ts 2914 - 2915).

181 Counsel for Mr Quaid objected to the inclusion in jury aid 2 of the passage I have highlighted under the heading 'Meaning of "controlled drug"' (ts 2929 - 2930).

182 Counsel for Mr Quaid suggested that there be a direction as follows:

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 (ts 2932 - 2933). (emphasis added)

183 Counsel for Mr Papadimitriou expressed his agreement with the objection and suggestion of counsel for Mr Quaid (ts 2933).

184 After counsel for Mr Quaid made his submissions on jury aid 2, the trial judge heard again from the prosecutor who expressly endorsed her Honour's proposed instruction in relation to recklessness (ts 2931).

I have decided to leave my handout in the way that it is. I will, however, direct the jury that this is the only area where recklessness has any part to play. And I will stress to them that on the facts of this case that even in respect to this particular issue, they are unlikely to find that they have to bother themselves with the issue of recklessness. I will stress that to them (ts 2933).

The unchallenged directions given by the trial judge in her summing up

186 The trial judge gave directions to the jury in relation to the offence of conspiracy contained in s 11.5 of the Code which are unchallenged in this appeal.

(a) A conspiracy is, in broad terms, 'simply an agreement between two or more people for them to commit an offence; in this case, the offence of trafficking in a controlled drug' (ts 2943).

(b) The Crown must prove that '[Mr Quaid] meant to enter into the agreement' (ts 2951).

(c) The Crown alleges that 'each accused formed an agreement with at least one other person named in the charge to produce and then distribute ecstasy tablets from the MDMA powder that was to be imported into Australia' (ts 2945).

(d) Mr Quaid and at least one other party to the agreement 'must have intended' and it must be proven by the Crown that 'they intended that the offence of trafficking would be committed pursuant to the agreement' (ts 2949).

(e) It is not sufficient for the Crown 'merely to prove that [Mr Quaid] was reckless' as to whether the matters referred to at pars (a) - (d) above were going to occur (ts 2951).

(f) The Crown must prove that '[Mr Quaid] or at least one party to the agreement committed an overt act pursuant to the agreement' (ts 2952).

188 Also, her Honour gave a conventional direction in relation to the meaning of trafficking in accordance with s 302 of the Code (ts 2949 - 2950). Her Honour then gave a direction in relation to trafficking in 'a commercial quantity of a controlled drug', which is not challenged (ts 2951).

189 Further, her Honour instructed the jury in orthodox terms about Mr Quaid's evidence. She said, relevantly:

Well, it may be that you believe all of Mr Quaid's evidence, in which case you would no doubt find him not guilty. Even if you were not to believe all his evidence, you cannot find an issue against him if his evidence has given rise to a reasonable doubt on that issue (ts 2970).

The contentious direction given by the trial judge in her summing up

190 The contentious direction given by the trial judge in her summing up is this:

What is a controlled drug? A controlled drug is a substance ... and MDMA ... is a controlled drug ... If the other elements of the offence are proven, a person would be guilty of trafficking in a controlled substance if they are reckless as to whether that substance is a controlled drug. A person is reckless with respect to whether a substance is a controlled drug if (a) he is aware of a substantial risk that it is a controlled drug and (b) having regard to the circumstances known to him, it is unjustifiable to take that risk. The Crown only has to prove that a person was reckless as to whether the substance was a controlled drug. The Crown does not have to prove that the person was reckless in respect to whether it was MDMA. It would be sufficient if the accused was reckless as to whether it was another controlled drug such as amphetamine, cocaine, methamphetamine or MDA. A person will also be guilty of trafficking in a controlled substance if he is aware that it is a controlled substance or believes that it is a controlled substance. Members of the jury, I have referred to the recklessness here because I am required by law to tell you what it means to traffic in a controlled drug. And at law, to traffic in a controlled drug means that a person will be guilty of trafficking in a controlled drug if they are reckless as to whether the substance is a controlled drug or whether they believe it is a controlled drug or whether they are aware that it is a controlled drug (ts 2950). (emphasis added)

191 The contentious direction must, however, be read with the following instruction which was given immediately after the contentious direction:

I stress that this is the only area where recklessness plays any part ... in this offence. I have referred to the elements of the offence of conspiracy which require the Crown to prove that the accused intended to enter into an agreement to traffic a controlled drug and I have also referred to the elements which require the Crown to prove that the accused and at least one other party to the agreement intended that the offence of trafficking in a controlled - sorry; in a commercial quantity of a controlled drug would be committed pursuant to that agreement. Now, when I refer to intention, I mean just that in those circumstances. It's not sufficient for the Crown in those circumstances merely to prove that an accused was reckless as to whether those things were going to occur. In those circumstances where I've used the word 'intention' or 'intended', the Crown must prove that the accused you are considering meant to enter into the agreement and meant for the offence of trafficking in a commercial quantity of a controlled drug to be committed pursuant to that agreement.

This issue of recklessness is only relevant to the issue of proof of the substance that the person is intending to traffic, and in that sense they will be guilty if they know that the substance they intend to traffic is a controlled substance, if they believe it is a controlled substance or they are reckless as to whether it is a controlled substance (ts 2950 - 2951). (emphasis added)

192 Originally, Mr Quaid relied on five grounds of appeal. However, his counsel abandoned grounds 3 and 4. The remaining grounds read:

1. The learned trial Judge directed the jury in such a manner that:

(a) the jury has; or, in the alternative,

(b) there is a substantial risk that the jury has;

convicted the Appellant of an offence not known to the law and, as a consequence, there has been a substantial miscarriage of justice;

(i) The learned trial Judge, in directing the jury with respect to the elements of the offence of conspiracy to traffic in a commercial quantity of a controlled drug contrary to ss 11.5(1) & 302.2(1) of the Criminal Code Act, 1995 (Cth), directed the jury that one of the elements of the offence of trafficking in a commercial quantity of a controlled drug is that the accused is 'reckless' as to whether the substance is a controlled drug.

(ii) There cannot be such a conspiracy in which the parties to the agreement are 'reckless' as to whether the substance is a controlled drug.

1. The learned trial Judge erred in her directions to the jury with respect to the elements of the one offence specified in the Indictment and, as a consequence, there has been a substantial miscarriage of justice;

(i) The Appellant refers to and repeats Ground 1 herein.

1. The learned trial Judge erred in interpreting Section 11.5 of the Criminal Code, 1995 (Cth), such that to be guilty of conspiracy to commit an offence that has a physical element for which a fault element of recklessness is prescribed, it need not be proved that the offender intended that physical element.

193 On 23 July 2010, Mazza J granted leave to appeal on grounds 2 and 5, and referred the application for leave to appeal on ground 1 to the hearing of the appeal.

194 Counsel for Mr Quaid submitted that the trial judge directed the jury, in jury aid 2 and in the contentious direction, that one of the elements of the offence of trafficking in a commercial quantity of a controlled drug is that the accused is 'reckless' as to whether the substance is a controlled drug.

195 It was submitted that, as a result of the impugned passage in jury aid 2 and the contentious direction, the jury was instructed that they could convict Mr Quaid if the Crown 'only' proved that Mr Quaid, at the time he allegedly joined the conspiracy, was reckless as to whether the substance, the subject of the conspiracy, was a controlled drug.

196 According to counsel, it was necessary for the Crown, in the present case, to prove beyond reasonable doubt, relevantly, that Mr Quaid believed that the substance being trafficked was, in fact, a controlled drug and, further, that he believed that the quantity of the substance being trafficked was, in fact, at least 0.5 kg of MDMA.

197 Counsel for Mr Quaid submitted that the trial judge's erroneous direction as to the elements of the offence charged had, or may have had, several consequences, namely:

(a) the jury has returned a verdict of guilty with respect to an offence not known to the law;

(b) the jury has returned a verdict of guilty with respect to a prosecution case which was, first, neither opened nor closed by the prosecutor; and secondly, not met by Mr Quaid;

(c) Mr Quaid has been deprived of the right to have his sworn evidence considered and evaluated by the jury by reference to the correct fault (that is, mental) element of the offence charged;

(d) the jury has not assessed Mr Quaid's case (including his sworn evidence) in the manner required by the elements of the offence charged; and

(e) the jury has merely considered Mr Quaid's guilt in the context of her Honour's erroneous direction.

198 It was submitted that, in these circumstances, the defects in Mr Quaid's trial can only be characterised as 'substantial', and it cannot be said that there has been 'no substantial miscarriage of justice' within the proviso.

199 Counsel then advanced an alternative submission as to why the proviso could not be applied.

200 First, it was argued that, in the circumstances set out at [197] above, there had been a 'serious breach of the presuppositions of the trial'. The erroneous direction was 'fundamental in nature' and, in consequence, the application of the proviso was 'necessarily excluded'.

201 Secondly, it was argued that the 'natural limitations' of this court, as an appellate court proceeding on the trial record, precluded the court from being satisfied beyond reasonable doubt that Mr Quaid was guilty of the offence charged. According to counsel, this court must give no weight to the verdict of guilty returned by the jury, because the Crown could not exclude the possibility that the error did not influence or impact upon the jury's evaluation of Mr Quaid's sworn evidence and his case. This court cannot decide from the transcript that Mr Quaid's sworn evidence should be rejected in that the rejection of his evidence necessarily involves an assessment of his credit.

202 Thirdly, it was argued that the Crown has not discharged the burden of proving Mr Quaid's guilt of the offence charged beyond reasonable doubt. In particular, it was said that the Crown had not proven beyond reasonable doubt that Mr Quaid was a party to the conspiracy charged.

203 Counsel for the Crown conceded that the trial judge misdirected the jury in relation to the fault element applicable, on a charge of conspiracy to commit an offence, where recklessness is the fault element of the substantive offence.

204 However, counsel submitted that, despite her Honour having made an error of law in directing the jury with regard to recklessness, the appeal should be dismissed because no substantial miscarriage of justice had occurred.

205 Ground 1 alleges in substance that, as a result of the trial judge's directions, the jury has, alternatively there is a substantial risk that the jury has, convicted Mr Quaid of an offence unknown to the law.

206 The impugned direction relates to her Honour's instruction concerning 'recklessness' as to whether the substance to be trafficked was a controlled drug.

207 Counsel for Mr Quaid relied in support of his argument on the decision in LK. The respondents in LK were tried jointly on indictment in the District Court of New South Wales on a charge of conspiring to deal with money, being reckless as to the fact that the money was the proceeds of crime. The trial judge directed a verdict of acquittal on the basis that the indictment did not disclose an offence known to the law. The Court of Criminal Appeal of New South Wales dismissed an appeal by the Crown. It held that the indictment did not disclose an offence known to the law in that it alleged the respondents were reckless as to whether the money was the proceeds of crime, rather than alleging that they knew the money was the proceeds of crime. See R v RK [2008] NSWCCA 338; (2008) 73 NSWLR 80. The further appeal by the Crown to the High Court was dismissed.

208 By contrast with the indictment in LK, in the present case the indictment read, relevantly:

Between 1 July 2007 and 20 May 2008 at Perth in the State of Western Australia and elsewhere in Australia, Rade LJUBOJA, Dejan MEDAN, Dimitrios PAPADIMITRIOU and Fabian QUAID conspired together with Vasco ULIC and others to traffic in a substance, the substance being a controlled drug, namely 3,4-Methylenedioxymethamphetamine (MDMA), and the quantity being a commercial quantity contrary to sections 11.5(1) and 302.2(1) of the Criminal Code (Cth).

209 The count, as formulated, disclosed an offence known to law.

210 A misdirection by a trial judge (including a misdirection on an element of the offence) does not convert the count in the indictment from an offence known to the law to an offence unknown to the law. If the jury returns a verdict of guilty then the accused will have been convicted of the offence alleged in the indictment. It may be that the trial judge's misdirection results in the conviction being set aside. However, that outcome is based on the trial judge's misdirection constituting an error of law or occasioning a miscarriage of justice, and not on the accused having been convicted of an offence unknown to the law.

212 Grounds 2 and 5 allege in substance that the trial judge misdirected the jury in relation to the fault element applicable on a charge of conspiracy to commit an offence where recklessness is the fault element of the substantive offence.

213 Counsel representing the Crown conceded that her Honour had misdirected the jury as alleged. The concession was properly made.

Section 30(3) and (4) of the Criminal Appeals Act 2004 (WA)

215 Section 30(3) of the Criminal Appeals Act 2004 (WA) provides that this court must allow an appeal against conviction by an offender if, in its opinion:

(a) the verdict of guilty on which the conviction is based should be set aside because, having regard to the evidence, it is unreasonable or cannot be supported;

(b) the conviction should be set aside because of a wrong decision on a question of law by the judge; or

216 By s 30(4), despite s 30(3), even if a ground of appeal might be decided in favour of the offender, this court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred.

217 In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, the trial judge had erred in permitting the prosecution to adduce inadmissible evidence. The accused was convicted. The Court of Appeal of Victoria held that the trial judge had made an error of law, but applied the proviso and dismissed the appeal. The High Court reversed the Court of Appeal. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ enunciated three fundamental propositions in relation to the proviso to s 568(1) of the Crimes Act 1958 (Vic) (a provision indistinguishable, in substance, from s 30(4) of the Criminal Appeals Act) which, their Honours said, must not be obscured:

First, the appellate court must itself decide whether a substantial miscarriage of justice has actually occurred. Secondly, the task of the appellate court is an objective task not materially different from other appellate tasks. It is to be performed with whatever are the advantages and disadvantages of deciding an appeal on the record of the trial; it is not an exercise in speculation or prediction. Thirdly, the standard of proof of criminal guilt is beyond reasonable doubt [39].

218 Later, their Honours summarised the statutory task which must be performed by an appellate court in deciding whether to dismiss an appeal against conviction on the ground that no substantial miscarriage of justice has occurred:

That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence (Driscoll v The Queen [1977] HCA 43; (1977) 137 CLR 517 at 524 - 525 per Barwick CJ; Storey [1978] HCA 39; (1978) 140 CLR 364 at 376 per Barwick CJ. Morris v The Queen [1987] HCA 50; (1987) 163 CLR 454; M v The Queen [1994] HCA 63; (1994) 181 CLR 487; Festa [2001] HCA 72; (2001) 208 CLR 593 at 631 - 633 [121] - [123] per McHugh J) and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record (Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 125 - 126 [23] per Gleeson CJ, Gummow and Kirby JJ), the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself [41].

219 The appellate court's task must be undertaken on the whole of the trial record, including the fact that the jury returned a verdict of guilty: see Weiss [43]. Their Honours also said:

The court is not 'to speculate upon probable reconviction and decide according to how the speculation comes out' (Kotteakos v United States [1946] USSC 108; (1946) 328 US 750 at 763). But there are cases in which it would be possible to conclude that the error made at trial would, or at least should, have had no significance in determining the verdict that was returned by the trial jury. The fact that the jury did return a guilty verdict cannot be discarded from the appellate court's assessment of the whole record of trial. Secondly, it is necessary always to keep two matters at the forefront of consideration: the accusatorial character of criminal trials such as the present (RPS v The Queen [2000] HCA 3; (2000) 199 CLR 620 at 630 [22] per Gaudron ACJ, Gummow, Kirby and Hayne JJ) and that the standard of proof is beyond reasonable doubt [43].

220 In Weiss, it was emphasised that it was necessary, in determining whether to apply the proviso or not, to proceed on the basis of the statutory language rather than secondary sources or materials [31] - [33]. The court also emphasised that it is not correct or of assistance to endeavour to articulate absolute rules or singular tests which are to be applied where an appellate court examines the trial record for itself, beyond the three fundamental propositions I have recorded at [217] above. Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ added:

(The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration [42].

221 Their Honours acknowledged that no single universally applicable description of what constitutes 'no substantial miscarriage of justice' can be given. They said, however, that one negative proposition may safely be offered:

It cannot be said that no substantial miscarriage of justice has actually occurred unless the appellate court is persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused's guilt of the offence on which the jury returned its verdict of guilty [44].

See also Darkan v The Queen [2006] HCA 34; (2006) 227 CLR 373 [84], [94] - [96] (Gleeson CJ, Gummow, Heydon and Crennan JJ).

222 In AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438, Gummow and Hayne JJ referred to the passages in Weiss which I have set out at [220] - [221] above, and said that the negative proposition in those passages (about when the proviso cannot be engaged) must not be treated as if it states what suffices to show that no substantial miscarriage has occurred:

To treat the negative proposition in this way would be to commit the very same error which Weiss sought to correct, namely, taking judicial statements about aspects of the operation of statutory provisions as substitutes for the statutory language [53].

223 In Weiss, the High Court noted that there may be cases where it would be proper to allow an appeal and order a new trial, even though the appellate court is satisfied beyond reasonable doubt of the appellant's guilt. The High Court referred, by way of example, to two categories of case. The first included cases 'where there has been a significant denial of procedural fairness at trial' [45]. The second included cases where the 'errors or miscarriages of justice occurring in the course of a criminal trial may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso' [46]. Their Honours referred to Wilde v The Queen [1988] HCA 6; (1988) 164 CLR 365, 373. Wilde was concerned with an appeal by an offender who had been convicted following a trial before a judge and jury. The Court of Criminal Appeal of New South Wales held that the trial judge had made a serious error of law in the trial in that evidence relating to one count against the appellant was not admissible in proof of some other counts against him, so the first count should have been severed from the indictment and tried separately. Nevertheless, the Court of Criminal Appeal was of the opinion that the evidence in support of the counts upon which the appellant was convicted was so strong, and the defence so weak, that there had been no substantial miscarriage of justice. It dismissed the appeal. The appellant's appeal to the High Court also failed.

224 In Wilde, Brennan, Dawson and Toohey JJ held that the proviso was not intended to apply 'when the proceedings before the primary court have so far miscarried as hardly to be a trial at all'; and also, that the proviso does not apply 'where an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings' so that 'the accused has not had a proper trial and ... there has been a substantial miscarriage of justice' (373).

225 In AK, the High Court heard a criminal appeal from a judge sitting without a jury. The trial judge erred in law by failing to give adequate reasons for his decision to convict the appellant. The trial judge breached the requirement in s 120(2) of the Criminal Procedure Act 2004 (WA) that his reasons articulate the connection identified between the relevant legal principle in AK (proof beyond reasonable doubt) and the relevant findings of fact. The majority of the High Court (Gummow, Hayne and Heydon JJ) held that the trial judge's complete failure to meet the mandatory requirements of s 120(2) of the Criminal Procedure Act, with respect to the central issue in the appellant's trial, constituted a substantial miscarriage of justice. In particular, it was a substantial miscarriage because the Act required that the appellant's trial produce a reasoned decision that met the criteria specified in the statute. Gummow and Hayne JJ said:

When there has been a trial by jury, and an appellate court concludes that the trial judge made a wrong decision on a question of law or that there was some other miscarriage of justice, deciding whether there has been no substantial miscarriage of justice necessarily invites attention to whether the jury's verdict might have been different if the identified error had not occurred. That is why, if the appellate court is not persuaded beyond reasonable doubt of the appellant's guilt it cannot be said that there was no substantial miscarriage of justice. But just as persuasion of the appellate court of the accused's guilt does not in every case conclude the inquiry about the proviso's application in appellate review of a jury trial, inquiring about the weight of the evidence led at a trial by judge alone does not determine whether there was a substantial miscarriage of justice. In a case, like the present, where the Criminal Procedure Act required that the trial yield a reasoned decision, but no reasons were given for the determination of the central issue tried, it cannot be said that there was no substantial miscarriage of justice [59].

226 In Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293, Gummow and Hayne JJ said in relation to the observations in Wilde concerning a serious breach of the presuppositions of a criminal trial:

Identifying a priori some kinds of error as precluding application of the proviso presents difficulties of the same kind as are presented by using judicial statements about the application of the proviso as some substitute for the relevant statutory test. That is, it is neither possible nor useful to seek to apply the proviso according to a taxonomy of errors at trial which describes some as 'fundamental' and others as not. And what was said in Wilde v The Queen ([1988] HCA 6; [1988] HCA 6; (1988) 164 CLR 365 at 373 per Brennan, Dawson and Toohey JJ) about 'such a departure from the essential requirements of the law that it goes to the root of the proceedings' is not to be understood as prescribing or defining a class of cases to which the proviso cannot be applied. Rather, what was said in the passage quoted from Wilde is a description, in words other than the statutory words, of one kind of case in which an appellate court could not conclude that there had been no substantial miscarriage of justice. For the reasons given in Weiss, a negative proposition of this kind cannot be taken as a substitute for the statutory language.

Whether the error constituted by giving the impugned instructions is properly described as 'fundamental' or as an error going 'to the root of the proceedings' would depend upon the content that is given to the expressions used. The statutory question is whether the Full Court considers that 'no substantial miscarriage of justice has actually occurred' (Criminal Law Consolidation Act 1935 (SA), s 353(1)). In answering that question it is necessary to consider the nature of the error and in doing that it will be important to consider the possible effect that the error may have had on the outcome of the trial [33] - [34].

227 The appellant in Gassy was convicted of murder. The High Court, by a majority (Gummow, Hayne and Kirby JJ; Crennan and Kiefel JJ dissenting) quashed the conviction and ordered a new trial. The majority held that certain instructions given by the trial judge to the jury rendered the trial a miscarriage of justice. The impugned instructions were given after the jury had been deliberating on their verdict for some time. The relevant instructions involved her Honour suggesting an approach the jury might take in an attempt 'to move [their] discussions along' [23]. The instructions occasioned a miscarriage of justice because they were unbalanced; in particular, they contained no substantial reference to the competing arguments and considerations relevant to the appellant's case [31].

228 In AK, Gleeson CJ and Kiefel J accepted, as a matter of principle, that 'some errors are so fundamental or involve such a departure from the essential requirements of a fair trial that they exclude the operation of the proviso, irrespective of the strength of the prosecution case, or the appellate court's view as to the guilt of the accused' and that 'the proviso cannot be applied where the error at trial denies or substantially frustrates the capacity of an appellate court to decide whether a conviction is just' [23]. Gummow and Hayne JJ held that, although the class is difficult to describe in the abstract, there exists a 'class of ... circumstances' in which 'radical' error at trial renders the application of the proviso all but impossible [54].

229 Those observations in AK were referred to by Kirby J in CTM v The Queen [2008] HCA 25; (2008) 236 CLR 440. His Honour said:

The failure on the part of the trial judge to explain to the jury the legal ingredients of an offence, and to assign correctly the burden and standard of proof in respect of them, seem to me to be 'radical' errors, inconsistent with the requirements of the law. It cannot matter that the law in question is common law and not, as in AK (See [2008] HCA 8; (2008) 232 CLR 438 at 456 [55]; cf Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293 at 307 [33] - [34]), expressed in a statute. It is still the law [128].

It was also acknowledged in AK that one of the 'two principal safeguards for the accused in a criminal trial' is 'the criminal burden and standard of proof' ((2008) [2008] HCA 8; 232 CLR 438 at 477 [102] per Heydon J). If this is the case, then surely it must be a grave (or 'radical') error for the trial judge to misdirect the jury on each of these considerations, as occurred in the appellant's trial. If this Court is itself to deny relief to an otherwise successful appellant by its own application of the 'proviso', it must, in my respectful opinion, be consistent in doing so [129].

230 In Weiss, the High Court referred to a 'significant' denial of procedural fairness at trial as an example of a category of case where it would be proper to allow an appeal and order a new trial, even though the appellate court was satisfied beyond reasonable doubt of the accused's guilt [45]. The word 'significant' and other formulations by the High Court (for example: a 'serious' breach of the presuppositions of a criminal trial: Weiss [46]; such a departure from the essential requirements of the law that it goes to 'the root' of the proceedings: Wilde (373); errors which are 'so fundamental' or involved 'such a departure' from the essential requirements of a fair trial: AK [23]; 'radical' error at trial: AK [54]; a 'grave' error by the trial judge: CTM [129]), indicate that questions of degree are involved in determining whether, in the circumstances of a particular case, an appellate court considers that the nature of the error or miscarriage at trial precludes the court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the prosecution case or the appellate court's opinion as to the accused's guilt.

231 The appellants in Cesan v The Queen [2008] HCA 52; (2008) 236 CLR 358 were convicted, after a trial, of conspiring together and with others to import into Australia a 'commercial quantity' of a prohibited import, namely the narcotic drug commonly known as ecstasy. The High Court allowed the appellants' appeals and ordered a retrial. The trial judge had fallen asleep during some parts of the trial. As a consequence of the trial judge falling asleep, the jury were repeatedly distracted from attending to the evidence at various stages of the trial, including when one of the appellants was giving his evidence. This constituted a miscarriage of justice [119]. A critical issue in the appeal was whether the 'proviso' in s 6(1) of the Criminal Appeal Act 1912 (NSW) was engaged. The Court of Criminal Appeal of New South Wales, by a majority, had applied the proviso.

232 In Cesan, Hayne, Crennan and Kiefel JJ (with whom Gummow J agreed in relation to the application of the proviso and Heydon J agreed generally) said that the disposition of the appeal depended on the application of established principles to the particular facts and circumstances of the case. No development or amplification of those principles was necessary [110]. Their Honours noted, consistently with the observations of Gummow and Hayne JJ in Gassy, that what was said in Wilde is not to be taken as if it were a judicially determined exception grafted upon the otherwise general language of the proviso [126].

233 Although the record before the High Court in Cesan included the jury's verdict of guilty, it was not possible, in the circumstances, to place any weight upon the jury's verdict because the relevant miscarriage involved the jury not paying attention to all of the evidence adduced at the trial [129]. Significantly, their Honours said:

Each accused proffered an explanation of what was put against him. In transcript the explanation may lack persuasion. But whether the evidence as a whole, including what each accused said in explanation, was sufficient to establish guilt beyond reasonable doubt was a question for the jury to decide having regard to more than the words that are recorded in the transcript of the proceedings. But because members of the jury were distracted, they did not perform this task. And more importantly, the Court of Criminal Appeal could not decide from the record alone that the explanations proffered by each accused were in each case to be rejected and the conclusion reached beyond reasonable doubt that each was guilty [130]. (emphasis in original)

234 Their Honours concluded that the proviso was not engaged. It could not be said that no substantial miscarriage of justice had actually occurred.

235 In my opinion, the fact that an accused gave sworn evidence in his or her own defence at the trial, and that the jury's assessment of the accused's credit may have been influenced by an error of law or an irregularity at the trial (for example, the wrongful admission of evidence), does not necessarily preclude an appellate court from applying the proviso. The critical question is whether, notwithstanding that the accused gave sworn evidence and notwithstanding the natural limitations that exist in the case of an appellate court proceeding wholly or substantially on the record, the appellate court is nevertheless satisfied beyond reasonable doubt of the accused's guilt. See Mahmood v The State of Western Australia [No 2] [2008] WASCA 259 [3] (McLure JA), [210], [215] (Buss JA); Mackrell v The State of Western Australia [2008] WASCA 228; (2008) 37 WAR 414 [33] (Buss JA); R v Rudd [2009] VSCA 213; (2009) 23 VR 444 [80] (Redlich JA, Maxwell P & Vickery AJA agreeing).

In the present case, the appeal must be allowed unless this court applies the proviso

236 The trial judge's misdirection constituted a wrong decision on a question of law, within s 30(3)(b) of the Criminal Appeals Act. This court must allow Mr Quaid's appeal against conviction unless it considers that no substantial miscarriage of justice has occurred. If the court is satisfied that there has been no substantial miscarriage, it may dismiss the appeal.

In the present case, is this court precluded from applying the proviso?

237 In my opinion, the proviso is not incapable of application merely because the trial judge misdirected the jury in relation to an element of the offence of conspiracy. The proviso has been applied in favour of the Crown where a trial judge has omitted to direct, or has made an error in directing, the jury on an element of the offence charged. See Davies v The Queen [2011] NSWCCA 19 [92] (James J, Hall & Price JJ agreeing); R v Gulliford [2004] NSWCCA 338; (2004) 148 A Crim R 558 [190] (Wood CJ at CL, Howie J agreeing). The question remains whether, in the particular circumstances, the appellate court considers that no substantial miscarriage of justice has occurred.

238 I would not characterise her Honour's misdirection as being 'so fundamental' or involving 'such a departure' from the essential requirements of a fair trial as to preclude this court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has occurred, irrespective of the strength of the Crown's case or this court's opinion as to Mr Quaid's guilt. As I explain at [247] below (in the course of considering whether I am satisfied beyond reasonable doubt as to Mr Quaid's guilt), there is no real (as distinct from a fanciful) possibility that the misdirection could have materially influenced or affected the jury's assessment of the admissible evidence (especially Mr Quaid's sworn evidence), or Mr Quaid's case at the trial, or otherwise materially prejudiced Mr Quaid. The nature of the misdirection, in the circumstances of the present case, does not constitute a denial of procedural fairness or a serious breach of the presuppositions of a criminal trial so as to preclude this court from applying the proviso.

In the present case, should this court apply the proviso?

239 As I have mentioned, Mr Quaid gave sworn evidence at the trial. He denied that he had been involved in a conspiracy to traffic MDMA as alleged by the Crown. Also, he denied any knowledge or awareness of the conspiracy. In particular, he said he did not know that Mr Ulic was arranging with Mr Ljuboja to import a large quantity of MDMA powder into Australia or that Mr Ljuboja had possession of MDMA powder in Perth or that MDMA powder was to be converted into ecstasy tablets. Further, Mr Quaid rejected the prosecutor's suggestion that he was to arrange for the distribution of the ecstasy tablets in Australia or that he had, with knowledge or awareness of the conspiracy, provided assistance to Mr Ljuboja.

240 The jury, by their verdict of guilty, must necessarily have rejected Mr Quaid's exculpatory evidence, including his explanations of the intercepted telephone calls with Mr Ljuboja and Mr Ulic, the meetings with Mr Ljuboja, the request he made of his brother, Marc Quaid, to assist Mr Ljuboja, and the $20,000 cash he (Mr Quaid) gave to Mr Ljuboja.

241 Also, the jury, by their verdict of guilty, must necessarily have been satisfied beyond reasonable doubt that:

(a) Mr Quaid entered an agreement with one or more of Mr Ljuboja, Mr Medan, Mr Papadimitriou and Mr Ulic to traffic in a controlled drug.

(b) Mr Quaid, and at least one other party to the agreement, intended that the offence of trafficking in a commercial quantity of a controlled drug would be committed pursuant to the agreement.

(c) Mr Quaid, or at least one other party to the agreement, committed an overt act pursuant to the agreement.

The jury must necessarily have been satisfied about each of these matters because her Honour said, in jury aid 1 and in unchallenged directions in her summing up, that the Crown had to prove each of these matters beyond reasonable doubt.

242 A jury's verdict of guilty is an aspect of the trial record. Ordinarily, an appellate court is not only entitled, but obliged, to have regard to the verdict in deciding whether no substantial miscarriage of justice has occurred. However, in the present case, this court may not accord any weight to the jury's verdict in deciding whether to apply the proviso or not unless it is satisfied that there was no real (as distinct from a fanciful) possibility that her Honour's misdirection could have:

(a) materially influenced or affected the jury's assessment of the admissible evidence (especially Mr Quaid's sworn evidence) or Mr Quaid's case at the trial; or

243 The trial judge's misdirection related to the necessity for the Crown to prove that Mr Quaid, and at least one other party to the agreement, knew or believed that the substance which they intended would be trafficked pursuant to the conspiratorial agreement was a controlled substance. In particular, her Honour told the jury that it would be sufficient if the Crown proved that they knew the substance was a controlled substance or they believed that it was a controlled substance or that they were reckless as to whether it was a controlled substance. See [190] - [191] above.

244 As I have mentioned, the trial judge directed the jury that they must be satisfied beyond reasonable doubt, relevantly, that Mr Quaid and one or more of his alleged co-offenders were party to an agreement to traffic in a controlled drug, and that Mr Quaid, and at least one other party to the agreement, intended that the offence of trafficking in a controlled drug would be committed pursuant to the agreement, and that Mr Quaid, or at least one other party to the agreement, committed an overt act pursuant to the agreement. Her Honour stated in unequivocal language that it was not sufficient for the Crown merely to prove that an accused was reckless in relation to any of these matters. She added that the Crown had to prove that the particular accused 'meant to enter into the agreement and meant for the offence of trafficking in a commercial quantity of a controlled drug to be committed pursuant to that agreement' (ts 2951).

245 In my opinion, no substantial miscarriage of justice has occurred as a result of the misdirection. My reasons are as follows.

246 First, neither Mr Quaid nor any of the other witnesses gave evidence or was cross-examined about recklessness in relation to MDMA or any other controlled drug, in the context of the alleged conspiracy or the substance which the Crown asserted the conspirators intended to traffic pursuant to the conspiratorial agreement.

247 Secondly, the trial judge expressly and carefully confined her instruction in relation to recklessness to proof that the substance which Mr Quaid, and at least one other party to the agreement, intended should be trafficked pursuant to the agreement was a controlled drug. See [191] above. There is no real possibility that the misdirection could have materially influenced or affected the jury's assessment of the admissible evidence (especially Mr Quaid's sworn evidence) or Mr Quaid's case at the trial. Further, there is no real possibility that the misdirection could have otherwise materially prejudiced Mr Quaid; for example, by misleading the jury in their approach to the other elements of the offence of conspiracy or whether the Crown had proved its case in relation to those elements beyond reasonable doubt.

248 In the circumstances, I may accord full weight to the jury's verdict of guilty and, in particular, to the consequences of that verdict, except to the extent that it relates to the controlled drug in question being MDMA. In particular, the jury must necessarily:

(a) have rejected Mr Quaid's exculpatory evidence (see [240] above); and

(b) have been satisfied beyond reasonable doubt in relation to the other elements of the offence (see [241] above).

249 Thirdly, in the administration of the criminal law, it must be accepted, until the contrary is demonstrated, that the jury accede to and faithfully apply the trial judge's directions. See Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22 (Barwick CJ). Mr Quaid has not demonstrated that there is any reason to doubt that the jury did not faithfully apply her Honour's direction that recklessness was only relevant to the issue of proof that the substance the accused intended to traffic was a controlled substance.

250 Fourthly, I am satisfied beyond reasonable doubt that the particular drug, the subject of the agreement made by Mr Quaid with one or more of Mr Ljuboja, Mr Medan, Mr Papadimitriou and Mr Ulic, and the drug which Mr Quaid and at least one other party to the agreement intended be the subject of the offence of trafficking that would be committed pursuant to the agreement, was MDMA. No other conclusion is reasonably open. As I have mentioned, the Crown's case was opened, run and closed on the basis that the agreement in question was to traffic in MDMA powder, the MDMA powder was to be imported and converted into ecstasy tablets, and the tablets were then to be distributed for sale in Australia. It was never suggested by anyone, at any point in the trial, that any other

controlled drug was or might be the subject of the conspiracy which, even on Mr Quaid's own case, existed.

251 Fifthly, after examining the trial record, including the intercepted telephone calls between Mr Quaid and Mr Ljuboja or Mr Ulic, the evidence concerning the surveillance of the alleged conspirators (including Mr Quaid) and of meetings between various of the alleged conspirators (including between Mr Quaid and Mr Ljuboja), and the evidence of Mr Quaid, I am satisfied beyond reasonable doubt of Mr Quaid's guilt.

252 Mr Quaid's conviction was correct and should not be disturbed.

253 Leave to appeal on ground 1 should be refused and the appeal should be dismissed.

254 HALL J: I have had the benefit of reading in draft the reasons of Pullin JA and those of Buss JA. They have both concluded that leave to appeal on ground 1 should be refused. They have also concluded that although there was an error in the trial judge's directions to the jury, as referred to in grounds 2 and 5, the appeal should be dismissed as there was no substantial miscarriage of justice: s 30(4) Criminal Appeals Act 2004 (WA). I agree with those conclusions.

255 The facts and relevant statutory provisions are detailed in the reasons of Pullin JA and Buss JA and it is unnecessary for me to repeat them. My reasons for joining in the conclusion that the appeal against conviction must be dismissed are substantially the same and can be briefly stated.

256 Ground 1 asserts that the appellant was convicted of an offence not known to law. That ground has no merit. The appellant was convicted of conspiring with others to commit an offence, namely trafficking in a controlled drug, contrary to s 11.5(1) and s 302.2(1) of the Criminal Code Act 1995 (Cth). That is plainly an offence known to the law. There is nothing in the way in which the charge was framed or the prosecution case presented that provides any support for a contention to the contrary. Accordingly, leave with respect to this ground must be refused.

257 Grounds 2 and 5 address the same issue; whether the trial judge erred by referring to recklessness in her directions to the jury as to the fault elements of the offence charged. The relevant portions of the trial judge's

directions are set out in Pullin JA's reasons. Ground 2 asserts that the misdirection resulted in a substantial miscarriage of justice.

258 A conviction may be set aside where an error of law is made by a trial judge or there is a miscarriage of justice: s 30(3) Criminal Appeals Act. Not every error will also be a miscarriage of justice. That will depend on the nature and significance of the error. In any event, an appeal may be dismissed notwithstanding the existence of an error if this court considers that no substantial miscarriage of justice has occurred: s 30(4) Criminal Appeals Act.

259 I agree that there was an error, though the nature of it is important in deciding whether there was any substantial miscarriage of justice. Her Honour correctly directed the jury as to the elements of the offence of conspiracy, including that it was necessary for the prosecution to prove that the appellant and at least one other party 'intended that the offence of trafficking ... in a commercial quantity of a controlled drug would be committed pursuant to that agreement'.

260 No doubt because the conspiracy was an agreement to commit an offence of trafficking the trial judge considered it necessary to explain the nature of that offence. It was in that context that her Honour referred to recklessness. The directions in that regard were an accurate reflection of s 302.2(2) which provides that the fault element in regard to whether the substance that has been trafficked is a controlled drug is recklessness. However, in the context of a conspiracy charge recklessness had no part to play in assessing the fault elements applicable to the appellant. Whilst it is possible to commit the substantive offence of trafficking by being reckless as to the substance being trafficked, in the case of conspiracy the possibility of recklessness is subsumed by the necessity to prove that the person charged entered into an agreement with the intention that the offence of trafficking would be committed. In these circumstances any reference to recklessness is irrelevant and unnecessary.

261 Any risk that the jury might be misled into applying the wrong fault element was obviated by the directions given in regard to conspiracy. If those directions were properly applied the jury would have no occasion to consider recklessness. For the jury to conclude that the appellant was guilty of conspiracy they must have been satisfied beyond reasonable doubt that he agreed with at least one other person to traffic in MDMA and that he intended that such trafficking would in fact occur pursuant to the agreement. If the jury followed the directions that they were given in regard to conspiracy, as it must be assumed that they did: Demirok v The Queen [1977] HCA 21; (1977) 137 CLR 20, 22, then the reference to recklessness as being an element of the substantive offence could have had no effect on the outcome.

262 To ask whether any error that has been identified could have been material in all the circumstances is not, of course, a substitute for applying the statutory test as to whether there has been any substantial miscarriage of justice: Gassy v The Queen [2008] HCA 18; (2008) 236 CLR 293. There can be occasions where, notwithstanding that the appellate court is persuaded of the appellant's guilt, there has been some significant departure from the essential requirements of a fair trial such that it cannot be said that a substantial miscarriage of justice has not occurred: AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 438. That is not to say that the proviso is excluded; rather in applying the statutory test to such cases a substantial miscarriage of justice cannot be discounted.

263 In my view the direction in regards to recklessness did not involve a significant departure from the essential requirements of a fair trial. All of the necessary and appropriate directions were given. The fact that an additional and unnecessary direction was given is of no practical significance in all of the circumstances of this case.

264 Because the misdirection was in regard to a matter that was not in issue at the trial it is not reasonably possible that it could have misled the jury. For this reason I am of the view that the error resulted in no substantial miscarriage of justice. I have, however, also considered the evidence at the trial. In my view it was proven beyond reasonable doubt that the parties to the agreement, including the appellant, intended that MDMA would be trafficked. The issue at trial was not whether a conspiracy to traffic in MDMA was in existence but rather whether the appellant was a party to the evident conspiracy. No substantial miscarriage of justice has occurred and thus the appeal should be dismissed.