R v. Lake ; R v Carstein ; R v Geerlings [2007] QCA 209
[2007] QCA 209
Court of Appeal (Qld)|2007-06-22|Before: McMurdo P, Jerrard JA and Holmes JA, Separate reasons, for judgment of each member of the Court, each concurring as to the orders, made
McMurdo P, Jerrard JA and Holmes JA, Separate reasons, for judgment of each member of the Court, each concurring as to the orders
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –
IRREGULARITIES
IN RELATION TO JURY – OTHER CASES – where the appellants were
Source
Original judgment source is linked above.
Catchwords
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –IRREGULARITIESIN RELATION TO JURY – OTHER CASES – where the appellants wereconvicted of conspiracy to import cocaineunder s 233B(1)(b) of the CustomsAct 1901 (Cth) – where the appellants discussed plans for the illegalimport through telephone conversations which were taped and conversationscaptured on a listening device planted in a motel room – where the jury attrial listened to the telephone and listening deviceconversations – wherethe jury were provided with transcripts of the conversations – whether thetrial judge erred inallowing the jury to retain the transcripts during thetrial and during their deliberationsCRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION– APPEAL AND NEW TRIAL – PARTICULAR GROUNDS –MISDIRECTION ANDNON-DIRECTION – GENERAL MATTERS – PRESENTATION OF DEFENCE CASE AND
CROWN CASE AND REVIEW OF EVIDENCE
– PRESENTATION OF DEFENCE CASE –
where the appellants were convicted of conspiracy to import cocaine under s
233B(1)(b)
of the Customs Act 1901 (Cth) – where defence counsel
for Geerlings and Lake submitted that their actions were merely preparatory
– where defence
counsel for Carstein submitted that he had no actual
intention or capacity to import cocaine – whether the learned trial judge
failed to adequately direct the jury as to the inferences that could be drawn on
the defence cases as opposed to the Crown case –
whether this amounted to
a lack of balance in summing up
CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY –
CONSPIRACY – PRACTICE AND PROCEDURE – where s
11.5(2)(c) of the
Criminal Code Act 1995 (Cth) requires that a party to the agreement must
have committed an “overt act” pursuant to the agreement –
where
counsel for the appellants sought particulars of the overt acts as alleged
against them by the Crown – where the Crown sought
to rely on each
separate telephone call as constituting an overt act – whether the trial
judge erred in failing to require
the Crown to provide particulars of the overt
acts alleged against the appellants
CRIMINAL LAW – GENERAL MATTERS – ANCILLARY LIABILITY –
CONSPIRACY – PRACTICE AND PROCEDURE – where s
11.5(2)(c) of the
Criminal Code Act 1995 (Cth) requires that a party to the agreement must
have committed an “overt act” pursuant to the agreement –
where
counsel for the appellants sought particulars of the overt acts as alleged
against them by the Crown – where the Crown sought
to rely on each
separate telephone call as constituting an overt act – where the learned
trial judge in summing up explained
the requirements of an overt act and listed
the matters relied upon by the Crown as constituting overt acts – whether
the jury
should have been directed that it was necessary to agree on the overt
act committed pursuant to the agreement
CRIMINAL LAW – APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION
– APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE
– APPEAL BY
CONVICTED PERSONS – APPLICATIONS TO REDUCE SENTENCE – WHEN REFUSED
– GENERALLY – where
the appellants were convicted of conspiracy to
import cocaine under s 233B(1)(b) of the Customs Act 1901 (Cth) –
where the applicants Lake and Geerlings were sentenced to seven years
imprisonment with a non parole period of three
and a half years – where
the applicant Carstein was sentenced to eight years imprisonment with a non
parole period of four
years – where Counsel for the applicants submitted
that given the futility of the scheme the sentences should have been reduced
– where Counsel for Carstein argued that the alleged lesser involvement of
Carstein in the scheme should also have been taken
into account in his sentence
– whether the sentences imposed were manifestly excessive
Crimes Act 1914 (Cth), s 86(3)
Criminal Code Act 1995
(Cth), s 5.2, s 11.5(2)
Customs Act 1901 (Cth), s
233B(1)(b)
Evidence Act 1977 (Qld), s 93A
Azzopardi v The Queen [2001] HCA 25
(2001) 205 CLR 50, considered
Butera v
Director of Public Prosecutions (Vict) [1987] HCA 58
(1987) 164 CLR 180, applied
R v
Cramp [1999] NSWCCA 324
(1999) 110 A Crim R 198, considered
Driscoll v The Queen
[1977] HCA 43
(1977) 137 CLR 517, applied
Fermanis v State of Western Australia
[2007] WASCA 84, considered
Gerakiteys v The Queen [1984] HCA 8
(1984) 153 CLR 317,
distinguished
R v Isherwood [2005]
QCA 251
CA No 419 of 2004, 22 July 2005, considered
R v Leivers
[1998] QCA 99
[1999] 1 Qd R 649, cited
Mok v The Queen (1987) 27 A Crim R 438,
considered
Moore v The Queen [1988] 1 Qd R 252, considered
Morex
Meat Australia Pty Ltd & Doube v The Queen [1996] 1 Qd R 418
[1995]
QCA 154, considered
R v Shahrokhey-Zadeh [2006]
QCA 4
CA No 138 of 2005, 31 January 2006, considered
R v Theophanous
[2003] VSCA 78
(2003) 141 A Crim R 216, considered
R v Tichowitsch [2006]
QCA 569
CA No 280 of 2006, 22 December 2006, considered
R v Watts
(1992) 1 Qd R 214, applied
R v Weaver [1931] HCA 23
(1931) 45 CLR 321,
distinguished
R v Zurek [2006]
QCA 543
CA No 24 of 2006, 15 December 2006, distinguished
Judgment (186 paragraphs)
[1]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - IRREGULARITIES IN RELATION TO JURY - OTHER CASES - where the appellants were convicted of conspiracy to import cocaine under s 233B(1)(b) of the Customs Act 1901 (Cth) - where the appellants discussed plans for the illegal import through telephone conversations which were taped and conversations captured on a listening device planted in a motel room - where the jury at trial listened to the telephone and listening device conversations - where the jury were provided with transcripts of the conversations - whether the trial judge erred in allowing the jury to retain the transcripts during the trial and during their deliberations
[2]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS - MISDIRECTION AND NON-DIRECTION - GENERAL MATTERS - PRESENTATION OF DEFENCE CASE AND CROWN CASE AND REVIEW OF EVIDENCE - PRESENTATION OF DEFENCE CASE - where the appellants were convicted of conspiracy to import cocaine under s 233B(1)(b) of the Customs Act 1901 (Cth) - where defence counsel for Geerlings and Lake submitted that their actions were merely preparatory - where defence counsel for Carstein submitted that he had no actual intention or capacity to import cocaine - whether the learned trial judge failed to adequately direct the jury as to the inferences that could be drawn on the defence cases as opposed to the Crown case - whether this amounted to a lack of balance in summing up
[3]
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - PRACTICE AND PROCEDURE - where s 11.5(2)(c) of the Criminal Code Act 1995 (Cth) requires that a party to the agreement must have committed an "overt act" pursuant to the agreement - where counsel for the appellants sought particulars of the overt acts as alleged against them by the Crown - where the Crown sought to rely on each separate telephone call as constituting an overt act - whether the trial judge erred in failing to require the Crown to provide particulars of the overt acts alleged against the appellants
[4]
CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - PRACTICE AND PROCEDURE - where s 11.5(2)(c) of the Criminal Code Act 1995 (Cth) requires that a party to the agreement must have committed an "overt act" pursuant to the agreement - where counsel for the appellants sought particulars of the overt acts as alleged against them by the Crown - where the Crown sought to rely on each separate telephone call as constituting an overt act - where the learned trial judge in summing up explained the requirements of an overt act and listed the matters relied upon by the Crown as constituting overt acts - whether the jury should have been directed that it was necessary to agree on the overt act committed pursuant to the agreement
[5]
CRIMINAL LAW - APPEAL AND NEW TRIAL AND INQUIRY AFTER CONVICTION - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - APPEAL BY CONVICTED PERSONS - APPLICATIONS TO REDUCE SENTENCE - WHEN REFUSED - GENERALLY - where the appellants were convicted of conspiracy to import cocaine under s 233B(1)(b) of the Customs Act 1901 (Cth) - where the applicants Lake and Geerlings were sentenced to seven years imprisonment with a non parole period of three and a half years - where the applicant Carstein was sentenced to eight years imprisonment with a non parole period of four years - where Counsel for the applicants submitted that given the futility of the scheme the sentences should have been reduced - where Counsel for Carstein argued that the alleged lesser involvement of Carstein in the scheme should also have been taken into account in his sentence - whether the sentences imposed were manifestly excessive
R v Zurek[2006] QCA 543; CA No 24 of 2006, 15 December 2006, distinguished
[26]
J D Henry SC, with J Trevino, for the appellants, Lake & Geerlings
[27]
Commonwealth Director of Public Prosecutions for the respondent
[28]
[1] McMURDO P: The appeals should be dismissed and the applications for leave to appeal against sentence refused for the reasons given by Holmes JA.
[29]
[2] JERRARD JA: I have read the judgment of Holmes JA and respectfully agree with the reasons and orders proposed therein.
[30]
[3] HOLMES JA: The three appellants were convicted of conspiracy to import a commercial quantity of cocaine, contrary to s 233B(1)(b) of the Customs Act 1901 (Cth). The case against them was that they enlisted, for that purpose, the assistance of a number of residents of the Torres Strait Islands who claimed to be able to locate and obtain cocaine from Papua New Guinea. Although large amounts of money were paid to those contacts, the plan never came to fruition. They appeal against conviction and seek leave to appeal against sentence. Lake and Geerlings were each sentenced to seven years imprisonment with a non parole period of three and a half years. Carstein, who had a lengthy criminal history, was sentenced to eight years imprisonment with a non parole period of four years.
[31]
[4] The appellants contend that the learned trial judge erred in allowing the jury to retain transcripts of telephone intercepts during the trial and during their deliberations; that his directions lacked balance and failed sufficiently to put the case for each of the appellants; and that he erred in failing to require the Crown to provide particulars of the overt acts alleged against the appellants and in failing, in the course of the summing up, to identify the overt acts alleged against each of them. Leave to appeal against sentence is sought by all three on the basis that sentences were manifestly excessive, particularly given the futility of the scheme; and in the case of Carstein, it is argued that he should have been treated as having a lesser involvement than the other two.
[32]
[5] Cocaine is a prohibited import,[1] its importation made an offence at the relevant time by s 233B(1)(b) of the Customs Act 1901. By Schedule, a "commercial quantity" is two kilograms. The offence of conspiracy is created by s 11.5 of the Schedule to the Criminal Code Act 1995 (Cth), which provides at sub-s 2:
[33]
"(2) For the person to be guilty:
(a) the person must have entered into an agreement with one or more other persons; and
(b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and
(c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement."
[34]
[6] The Crown case was based on 209 intercepted telephone conversations, surveillance of the appellants' activities, including travel by Lake and Carstein from Cairns to Thursday Island and Horn Island, and evidence obtained from a listening device installed in Lake's motel room on Horn Island. What emerged from that evidence, particularly the telephone intercepts, was that the appellant Geerlings borrowed $18,000 by way of capital, armed with which Carstein and another man, Dorner, travelled to Thursday Island in December 2002 in an attempt to obtain cocaine. There they met three islanders: Glenn Manuel, Palcon Samai and Waiban Wosomo. After a couple of days, Carstein returned to Cairns without drugs or money, an outcome which was the source of some contention in later tape recorded telephone conversations between him and Geerlings.
[35]
[7] In January 2003, renewed attempts were made to locate cocaine. Geerlings and Carstein made contact with Wosomo, who was on Saibai Island, close to Papua New Guinea. They had been told that he could obtain five kilograms of cocaine; initially he was thought to have possession of it, but later it emerged that he had still to obtain it from Papua New Guinea. In conversations with Geerlings, Manuel also claimed to know of a stash of cocaine in Papua New Guinea belonging to someone who had been arrested. It is not clear whether his supposed source was the same as Wosomo's. Geerlings, Lake and another man named Aitken[2] were recorded making arrangements for Carstein and an islander named Medy Charlie to fly to Horn Island to advance matters. A price of $12,000 per kilogram had been negotiated with Wosomo. Geerlings and Lake told Carstein to offer him an extra $10,000 to bring his cocaine to Horn Island. Carstein in fact telephoned Wosomo, offered him $20,000 and told Geerlings that Wosomo had demanded double.
[36]
[8] Carstein and Charlie made the trip to Horn Island, staying at a resort under false names, and met Manuel and Samai. Wosomo's return with the cocaine was thought to be imminent and was the subject of telephone conversations between Carstein and Geerlings. There was a series of delays: according to Wosomo, there was a raid on his intended destination, he had no transport, he needed money for fuel. Meanwhile Lake and Aitken made a trip from Cairns to Hervey Bay to borrow $60,000 (the purchase price, the Crown pointed out, of the cocaine Wosomo claimed to be able to get) from a Mr Champney, a friend of Aitken's. Lake flew to Horn Island with that money on 2 February 2003.
[37]
[9] Carstein, whose relations with Manuel and Samai had become hostile, by that time had returned to Cairns. Intercepts of telephone conversations between Geerlings and Lake show the two becoming increasingly critical of Carstein, Lake asserting that he had spent Geerlings' $18,000. He seems thereafter to have been excluded from active involvement in the attempts to obtain cocaine, but he continued, for the next few weeks, to speak to Geerlings by telephone. The latter complained repeatedly of losing the money he had put in on Carstein's assurances that he could obtain the "coca-cola" (which meant cocaine, the Crown said). Carstein admitted to dissipating $5,000, but blamed Manuel, Samai and Dorner for the loss of the balance.
[38]
[10] The intercepts also show increasing disenchantment with Wosomo. Telephone conversations between Lake and Aitken turned around travel to Papua New Guinea by Samai, Manuel and Charlie. One such trip was reportedly made without result because a contact was not there; then they were unable to travel because of engine trouble. The listening device in Lake's room recorded him discussing a proposed trip with the three and handing over several thousand dollars to Manuel, $4,000 of which was to buy an outboard motor. However, some concern about being under surveillance led Lake and Charlie to return to Cairns on 15 February. What followed through March and April was a series of telephone discussions between Lake and Samai in which Samai continued to say that he could obtain both "C" (cocaine, according to the Crown) and gold from Papua New Guinea, but various reasons were given as to why the excursion had not taken place. From time to time Samai asked for, and received, expenses in amounts ranging between $500 and $3,000, which were paid to him.
[39]
[11] At one point Samai was expected to arrive at Horn Island. He indicated that he had some "C" obtained from his contact in New Guinea, an amount less than a kilo, for which he wanted $5,000. Lake refused to pay, saying that he wanted "big C". Samai told him that there was a whole shipment at Port Moresby which his contact could get, provided his expenses were paid. At another point it was suggested that Medy Charlie bring up $15,000 to $20,000 in order to buy a number of packages; then in mid-April it was suggested that Samai would bring his contact to Bamaga where Lake could meet them with cash to make the exchange. Lake made arrangements to go, but Samai advised that his contact had gone back to Port Moresby for a week. There was no more contact with Samai after that, despite attempts to get in touch with him.
[40]
[12] Most of the evidence in the Crown case was of a relatively formal nature and was not subject to challenge. Flight Centre staff confirmed that they had made bookings for travel; customs officers at Cairns airport gave evidence of observing the comings and goings of Charlie and Carstein at the airport; the resort manager at Horn Island confirmed the stay there of two men under the names Reid and Johnson (Carstein and Charlie) and Lake; police officers gave evidence of surveillance of different members of the group in Cairns, Thursday Island and Bamaga, of installing a listening device in Lake's motel room and of the recordings made from it; an airfreight services employee had sent a package to Horn Island in early February, consigned by a man otherwise identified as Aitken; and Mr Champney gave evidence that Aitken borrowed $60,000 from him, supposedly to buy gold.
[41]
The transcripts of the telephone and listening device intercepts
[42]
[13] The members of the jury listened to the 209 telephone and listening device conversations over the course of the trial. They were supplied with three folders containing transcripts of telephone intercepts. It appears that in the course of the trial, the folders were removed, at least over a weekend, and subsequently returned, but otherwise they seem to have remained in the jury's possession. A witness named Prichard, a senior investigator employed by the Australian Crime Commission, gave evidence that he had had conversations with Geerlings and Aitken and was able to recognise their voices. Lake and Carstein had occasionally identified themselves in the course of telephone calls; he was also able by context (for example, by knowing of the individuals' movements from surveillance) to tie particular speakers in with conversations. He had noted the transcripts accordingly with the initials of the speakers he had identified. The transcripts also bore the times and dates of the calls.
[43]
[14] It does not seem that there was any challenge to the voice identification, but in relation to the timing of the calls, counsel for Geerlings tendered a Telstra account in his client's name. The dates of the calls billed on it did not correspond with the dates on the intercept transcripts. Mr Prichard, cross-examined on the question, said that Telstra bills were notoriously inaccurate, typically not recording calls made free at certain periods of the day, and that it was necessary to obtain the Telstra call charge record in order to establish what calls had actually been made.
[44]
[15] Objection was taken at first instance to the jury's retaining the transcripts on the basis that it gave the Crown an unfair advantage, reinforcing the effect of the evidence by keeping it in front of the jury. The learned trial judge rejected that submission. He described the purpose of the transcript as "an aide-memoire to allow each individual juror to record what that individual heard." The alternative, he said, was to turn the trial into a memory test, with the prospect of the jury having to listen repeatedly to particular recordings in order to remind themselves of what they contained. He instructed the jury, in accordance with that view, that the transcript was provided as an aide-memoire to assist them to recall what they had heard. If they heard on the tape something different from what appeared in the transcript, they ought to alter the transcript so that it remained an accurate record of what they had heard.
[45]
The appellants' submissions as to retention of the transcripts
[46]
[16] Counsel submitted on the appeal that the jury ought not to have been permitted to retain the transcripts of conversations during the trial and deliberations. The learned trial judge's characterisation of the transcripts as an aide-memoire was at odds, counsel argued, with the generally accepted justification for the use of transcripts as assisting the jury in understanding what was being said on the tape. Counsel also sought to draw an analogy with the provision of recordings or transcripts of evidence of child complainants taken under s 93A of the Evidence Act1977 (Qld) to the jury during its deliberations, a practice not generally approved by this Court.[3] Reliance was placed on Williams JA's observation in R v Tichowitsch in the context of provision of a transcript of trial evidence that the -
[47]
"overriding requirement is that what is done be fair and balanced so that the trial of the accused person is in no way prejudiced while affording the jury the best opportunity of arriving at a true verdict."[4]
[48]
A further complaint was that the notations on the transcripts of voice attribution and times and dates of calls amounted to evidence. No warning had been given about voice identification or the use of the transcripts as evidence of date and time; although, as counsel conceded, none was sought.
[49]
[17] Counsel for Carstein also submitted that the learned trial judge had acted on the premise that the contents of the transcripts were themselves evidence. In the course of the argument at first instance, there was a complaint that the provision of transcripts was, effectively, provision to the jury of a transcript of the evidence. His Honour responded by saying that it was a transcript of what they heard; it was a part of the evidence. Then, in the course of summing up he had directed the jury as follows:
[50]
"[T]he evidence consists of what you heard the witnesses say in the witness box, the documents that are before you, and what you heard yourself listening to the recorded telephone intercepts. The documents, including the transcript of the intercepts, will be before you in the jury room."
[51]
The inclusion of the transcripts in the reference to documents conveyed by inference, counsel submitted, the suggestion that they were part of the evidence. He contended also that retention of the transcripts was particularly unfortunate for his client, because there were prejudicial references, not objected to at trial, to Carstein's receiving a couple of ounces of an unidentified substance from Lake for sale, to his having to appear in Court for some unspecified reason, and, in a conversation with Geerlings, to swapping guns for gold.
[52]
The jury's retention of transcripts caused no unfairness
[53]
[18] In Butera v Director of Public Prosecutions (Vict)[5] the High Court considered whether transcripts which were translations of tape recorded telephone conversations in a foreign language were properly admitted in evidence and whether they ought to have been provided to the jury in the jury room. Mason CJ, Brennan and Deane JJ cited with approval the majority judgment in R v Menzies,[6] in which the following was said as to the basis on which a transcript may be provided to the jury:
[54]
"If the tape is reasonably short and clearly audible there can normally be no justification for allowing a transcript as well as playing the tape. But there will be cases in which the aid of an expert is reasonably necessary. For example, there may be the use of a foreign language. Or deficiencies in the recording may make it necessary to play tapes more than once to enable a better understanding, yet the sheer length of the tapes may mean that inordinate time would be taken by replaying them to the jury. In such cases, while there should normally be at least one playing to the jury, the evidence of an expert should be admissible as an aid to the jury. He may be a temporary expert in the sense that by repeated listening to the tapes he has qualified himself ad hoc. And we see no compelling reason why his evidence should not take the form of production of a transcript which can be admitted as an exhibit. Whether the Judge allows the jury to have copies of the transcript, as distinct from merely hearing it read, must be a matter for his discretion in the particular case, bearing in mind the requirements of justice and any risk of unfairness to the accused."
[55]
[19] In their judgment, Mason CJ, Brennan and Deane JJ discussed the advantages of the usual procedure of adducing trial evidence orally. They raised this possible objection to the provision of transcripts:
[56]
"If the general body of evidence is given orally, a written transcript of a part of the evidence available in the jury room tends to give an emphasis and perhaps an undue air of credibility to that part."[7]
[57]
The problem was akin, they said, to that identified by Gibbs J in Driscoll v The Queen[8] in relation to unsigned records of interview,
[58]
"that a jury may erroneously regard the written record as in some way strengthening or corroborating the oral testimony. Moreover the record, if admitted, will be taken into the jury room when the jury retire to consider their verdict, and by its very availability may have an influence upon their deliberations which is out of all proportion to its real weight."[9]
[59]
But they went on to discuss the possibility that a written transcript of a witness's oral evidence might be admitted in order to facilitate the jury's task on the basis that it could provide -
[60]
"a valuable aide-memoire for the jury in a case where precise recollection of words is important. In every case, even when an accused consents to the admission of the document, the trial judge should bear in mind the overriding consideration of fairness to the accused and the risk involved in allowing the document to be taken into the jury room."[10]
[61]
Dawson J, in his separate judgment, observed that where tapes were lengthy, or there was some difficulty understanding the recorded conversation, the production of a transcript "provides a ready form of reference to the contents of the tape and avoids unnecessary playing and replaying of the tape."[11]
[62]
[20] Butera was applied in R v Watts.[12] In that case the jury had, over objection, been permitted to take transcripts of audio tapes into the jury room. The tapes were long and indistinct. The court held that the jury was properly allowed to have the transcript in the jury room, Williams J (as he then was) observing
[63]
"It is difficult to justify refusing to allow a juror to take into the jury room a transcript of the taped conversation on which notations have been made during the course of hearing the tape played during the trial."[13]
[64]
[21] Applying, then, the considerations identified in the cases extracted above, it is clear that there were sound practical reasons for allowing the jury to retain the transcripts. It had some 209 telephone conversations to contend with. The prospect of its playing the tapes repeatedly in order to get a clear picture of their content was not practicable. The precise wording of the phone conversations was of vital importance, because each of the appellants developed an argument that the content of the calls demonstrated something other than an agreement to import cocaine.
[65]
[22] The potency of the appellants' contentions is very much diluted by the fact that there was no challenge made to the content of the conversations as recorded in the transcripts, nor was it suggested that there was any error in the attribution of voices to particular individuals. (Given that there was no point taken as to voice identification, it is not surprising that there was neither a direction on the issue, nor any request for one.) The one area of challenge and the one piece of evidence emerging from the defence was the Telstra account; but it also was put before the jury, and was available to them during their deliberations, in document form. In a case in which very little evidence was given orally, and it was essentially unchallenged, there was no risk that the transcripts would overshadow other evidence. The case was thus rather different from those involving the evidence of child complainants.
[66]
[23] As to the submission that his Honour dealt with the transcripts as though they were evidence of their contents, it would, of course, be an error so to regard a transcript which, it is well established, is no more than an aid.[14] However, the learned trial judge made it abundantly clear to the jury that the transcripts did not have that status. When they were first provided, he advised them in these terms:
[67]
"What constitutes the evidence is the words that were actually used between the speakers and that is what you hear, what you hear from the recording. That is the evidence. The transcript is really what someone else heard, whether it be what Mr Prichard heard or the person who typed it up heard. That's not evidence. The evidence is what you, yourself, hear".
[68]
He went on to advise them if they heard something different from what was typed as the tape was played they should change the transcript to make it an accurate record of what was heard. The effect of that caution was repeated in the course of the trial when a passage of inaudible conversation was played. His Honour told the jury to cross out anything on the corresponding page of transcript that they did not hear, because "the evidence is what all of us hear in this courtroom here".
[69]
[24] Although some of the references in the transcripts may have been unfavourable to Carstein, they were not objected to, and were not of great moment. Insofar as the defence for Carstein was based on the premise that he was a small-time confidence trickster, swindling a pair of gullible would-be importers, his counsel may actually have thought it advantageous to leave in the material suggestions of low level criminality on his part. At any rate, the learned trial judge was not in error in failing to exclude those references in the absence of any application; and their remaining in the material was not of such significance as to produce any miscarriage of justice.
[70]
[25] There was ample justification for permitting the jury to retain the transcripts and they were appropriately directed as to how they should be used. There was no unfairness to the appellants in that course of action.
[71]
[26] At first instance, counsel for Geerlings and Lake addressed the jury to the effect that their clients' actions were merely preparatory, an attempt to explore whether it was possible to obtain cocaine; the jury would not be satisfied that the Crown had proved the existence of an agreement to import cocaine. A large part of their submissions turned on the ineptitude and lack of means of the defendants, and it was said that Lake and Geerlings were "scammed" by the people they dealt with. Counsel for Lake, in his address, expounded on the stupidity and bluster involved and suggested that the appellants were merely "big-noters".
[72]
[27] Counsel for Carstein contended that the proper inference was that Carstein was merely running a scam in order to extract money from the others involved, and had no intention or capacity to import cocaine. He referred to some of the intercepted conversations as supporting that thesis: those in which Geerlings complained of his loss of money; the instance in which Carstein offered Wosomo double the amount proposed by Lake and Geerlings and represented to Geerlings that it was Wosomo's idea; Carstein's attempts, in talking to Geerlings, to discredit Manuel and Samai; and Geerling's and Lake's criticisms of Carstein in their conversations. (Of those, it might be thought that only the second lent any real weight to the argument.) It was also suggested that the tapes played did not give the full picture and that conversations not heard might have some bearing.
[73]
[28] The learned judge directed the jury in conventional terms as to the burden of proof and the need, in a circumstantial case, to give the accused persons the benefit of any reasonable inference consistent with innocence. After identifying the elements of the offence of conspiracy under the Criminal Code, he went on to explain that the existence of any agreement and its subject matter were questions of inference from what the defendants had said. He suggested that from the conversations it was open to conclude that there was an intention to move something from Papua New Guinea to Australia, that there was a common understanding that there would be a cost of $60,000, and that whatever was to be obtained would be got from Wosomo and delivered to the appellants or their helpers, Charlie, Manuel and Samai.
[74]
[29] His Honour pointed out that no cocaine had ever been identified in the course of the investigation. He went on to say that counsel for the appellants had argued that their clients were the victims of a scam, because there was never any drug there, and made the observation "that is an argument that they're entitled to make but it is not evidence". He referred to the argument for Carstein that he was the "head scammer" and pointed out again that there was no evidence as to Carstein's state of mind. At that point he reminded the jury that Carstein was not bound to give evidence and there was no adverse inference to be drawn from his failure to do so. He continued:
[75]
"But such an argument from the Bar table is not the substitute for evidence. Again, it's a matter like other questions which can only be answered by your drawing inference[s] from the evidence which is before you."
[76]
[30] The learned trial judge went on to observe that if there were such a scam, Carstein would have required the complicity of others, particularly Wosomo and perhaps the other islanders; that it was necessary, therefore, to look at the evidence about the relationship between Carstein and Wosomo. In that context, he pointed to some conversations between Carstein and Wosomo in which there was mention of the "five", of selling for $12,000 a kilo and of Wosomo's going "across". He then suggested that the jury itself go through each of the conversations to decide for itself what force was in the argument that Carstein, knowing there was no drug, engaged in a scam. He concluded by saying "it's a matter for you to make your mind up, drawing inferences from what was said."
[77]
[31] In respect of Geerlings, his Honour referred to the defence argument that what was heard on the tapes was merely preparatory discussion which had not evolved into an agreement, an argument which, he said, was relevant to each of the defendants. The jury's focus, he instructed, should be on the conduct of each of the defendants and the belief each held. He reminded the jury that counsel had described the calls as involving bluster, self-deception, lying and stupidity; that the defendants had no money and wanted to find out if there was an opportunity to make some quick money. He repeated that it was a matter for the jury how the telephone discussions were interpreted and that it was a matter for them what was in the minds of the defendants.
[78]
[32] His Honour proceeded then to identify the actions relied upon by the prosecution and pointed out there was no denial of the conduct but instead an argument that it was not pursuant to any agreement to import cocaine. He reminded the jury that counsel for Lake and Geerlings said that their clients were victims of a scam, victims of their own stupidity. Stupidity, he pointed out, was not a defence; but it was necessary in relation to each defendant to consider whether he had entered into an agreement with the others by which they intended to import cocaine into Australia.
[79]
[33] Counsel for Lake and Geerlings at the trial, at the close of the summing up, submitted that not enough had been said about whether the agreement was merely preparatory. His Honour re-directed the jury, reminding them of the argument that the defendants were simply looking for an opportunity to make money, wanting to see if the drug was there without having reached any agreement to bring it into Australia. He suggested, as counsel for Lake had asked him to do, that the jury take into account the people involved and their conversations and whether what was involved was a "comedy of errors", rather than an agreement to import.
[80]
The appellants' submissions as to lack of balance
[81]
[34] Counsel for the appellants submitted, accurately, that since the Crown evidence was not significantly challenged, the essential issue for the jury was as to what inference should be drawn from it. They complained that the learned trial judge did not fairly direct the jury as to the inferences contended for by the defence, as opposed to those argued for by the Crown.
[82]
[35] A number of complaints was made by counsel for Lake and Geerlings about what was said to be the lack of balance in the summing up: that the Crown case was put to the jury more forcefully and coherently than the defence cases; that there was a failure to summarise all the arguments made by counsel for the appellants[15] and that, particularly in the case of Lake, the learned trial judge had merely referred to an argument that he was the victim of a scam and then noted that the arguments made for Geerlings were relevant to him; that the judge had put the issue to the jury as a choice between competing inferences, without directing it that it could convict only if satisfied beyond reasonable doubt that the Crown inference was the correct one; and that he did not indicate to the jury evidence in the transcripts to support the argument that there were merely preparatory acts, rather than an actual agreement to import.
[83]
[36] Counsel for Lake and Geerlings also suggested, although there was no hint of this in the addresses at trial, that the learned trial judge should have explained to the jury that they had to be satisfied that the appellants' conversations were to do with the single agreement relied on by the prosecution rather than multiple different agreements of a preparatory nature; "a moving feast", as it was described. Carstein's dropping out of arrangements, Geerlings' lack of active involvement over a period, and the general failure of a number of reported trips to achieve anything provided evidence for the proposition that there was perhaps a number of different, evolving agreements. But it was a difficult concept for the defence to urge on the jury at trial, counsel submitted, so the trial judge should have done so.
[84]
[37] For Carstein, it was said that the learned trial judge failed to identify the inferences the defence said could be drawn from the evidence. Section 5.1 of the Criminal Code explains that a fault element for a particular physical element of an offence may be "intention, knowledge, recklessness or negligence". Here, it was said, the learned trial judge ought to have directed, in terms of s 5.1, that there was a difference between the intention to import narcotics, recklessness and, by extension, intention to perform a confidence trick.
[85]
[38] The judge's comment that the defence arguments were not evidence and his observation that if Carstein were planning to dupe the others, he would have needed the complicity of Wosomo and possibly the other islanders, because they were the ones who were to get the money, were, it was submitted, designed to refute the defence case rather than fairly placing it before the jury. They were errors of the kind dealt with by this Court R v Zurek.[16] Complaint was also made of the trial judge's having pointed out to the jury, in respect of the selection of telephone calls, that if there were any question that relevant calls had been omitted or that those included meant something other than appeared, that would have been raised with Mr Prichard in evidence. It was suggested that that direction was contrary to the rule in Azzopardi v The Queen[17] and amounted to a judicial comment on the failure of the defendants to explain Crown evidence.
[86]
[39] The learned judge, it was said, had failed to remind the jury of the fact that the appellant's role occurred at the earlier stages of events, which itself indicated that he did not mean to import cocaine. And he ought to have pointed out those parts of the transcript of the conversation which supported the argument that Carstein was involved in a scam of the others. Counsel, invited to do so by the court, identified in subsequent written submissions some such passages of conversation, which took place between Lake, Geerlings, Carstein and Wosomo on 23 and 25 January 2003.
[87]
[40] They began with the call in which Carstein was instructed to offer Wosomo an extra $10,000 but later in his conversation with Wosomo offered him $20,000 and then, talking to Geerlings, professed that it was Wosomo who had asked for the extra money. In the Carstein-Wosomo conversation, Wosomo had told Carstein he had no transport and Carstein had told him "don't leave tomorrow this time because if they're listening just in case"; but in his subsequent conversation with Geerlings, counsel said, he had not revealed that Wosomo had no transport and had said that he was "leaving tomorrow". He also said that Wosomo was bringing "five" although, counsel submitted, Wosomo had not said how many kilos would be brought. Finally, reference was made to some telephone conversations on 25 January in which Carstein told Geerlings that Wosomo was "in transit" or "gone over", presumably to Papua New Guinea.
[88]
[41] His Honour's explanation to the jury in that counsel's submissions were not evidence, and that it was necessary to look to the evidence before them in the form of the various recorded conversations in order to determine what inference ought to be drawn, did not amount to a slight on the defence cases. It was correct and appropriate. If it be the case that the Crown case was put by his Honour more coherently than the defence case, that is likely a product of the fact that the Crown could clearly point to various acts and invite a single inference from them. The defence, in contrast, made rather more sweeping submissions, less grounded in the actual evidence in the case. It would not be surprising, therefore, if the points for the Crown, reiterated by the learned judge, had more apparent force.
[89]
[42] His Honour appropriately pointed to the undisputed conduct relied on by the prosecution and identified the case advanced by Geerlings and Lake: that that conduct was not pursuant to an agreement to import cocaine but instead was no more than preparatory discussion. The case was put in very similar terms by counsel for Lake and Geerlings at trial, counsel for Lake saying expressly that he relied on the submissions already made by counsel for Geerlings. It was not unreasonable, therefore, for his Honour to summarise the defence case for both at once.
[90]
[43] It was not suggested by counsel for Geerlings and Lake at trial that there were multiple embryonic agreements, simply that the appellants had not advanced beyond the preparatory stage of an agreement. It was not, therefore, incumbent on his Honour to put to the jury a submission not made by counsel or thus to complicate matters. Nor was it incumbent on him to scan the transcripts in order to find any line he could to support the notion that the agreement was no more than preparatory when neither of the counsel representing Lake and Geerlings at trial had done so. The jury was properly directed as to the case put by those appellants and was reminded of it by way of redirection.
[91]
[44] His Honour's comment that if there were a scam, Carstein would have required the complicity of others was not necessarily adverse to Carstein's defence. It did no more than identify something which was self-evident and drew the jury's attention to the need to examine the conversations in order to establish what was occurring between Carstein and Wosomo. That was an important focus of the case as put for Carstein, and it was appropriately emphasised to the jury by the trial judge with the reminder that it was for them to decide what inferences they drew.
[92]
[45] The case was not one which called for a direction in terms of s 5.4 of the Criminal Code. No question of recklessness arose. It was a straightforward question of whether intention - to enter the agreement and to commit the offence of importation pursuant to it - was proved or not, and there was simply no need to complicate the matter in the way suggested by counsel for Carstein on appeal. His Honour's comment, to the effect that if there were any missing telephone conversations or debate about meanings, one might have expected that to be raised with Mr Prichard, simply made the point that no such issue had been raised in the course of the trial. It did not suggest any obligation to adduce evidence; to the contrary, his Honour emphasised, more than once, that the appellants bore no onus of proof.
[93]
[46] It was not suggested by counsel for Carstein at trial that his active role having been at the earlier stages of the activities in some way diminished the prospect that he intended to import cocaine; so it is not surprising his Honour did not give any direction along those lines. In any event, the proposition is by no means logical. The reason for Carstein's return to Cairns from Horn Island is obvious from the conversations with Geerlings: his increasingly hostile relationship with Manuel and Samai to the point where one of them, he claimed, tried to stab him. The fact that he was subsequently excluded from involvement did not mean that he did not form an agreement with the others, however short-lived. It is of the nature of conspiracy that roles will vary and some actors will be involved for longer than others[18].
[94]
[47] Some of counsel's contentions as to the effect of the conversations of the 23 and 25 January in suggesting duplicity on Carstein's part are not, in fact, borne out by a close examination of the transcripts. As to amount, Carstein asks Wosomo "you got five on you" but Wosomo says, no, he "was siga'im [presumably seeking that amount] I got no transport to go for brother ... Yeah go over but I try make it on this Friday here", to which Carstein says "Tomorrow". Later in that conversation Carstein says "you reckon you go across tomorrow" and Wosomo says "Yeah". It seems, therefore, that there was an indication that the relevant amount was five kilograms and that Wosomo was representing that he had some means of making the trip and did intend to go the next day. The statement relied on to show that Wosomo was not going to leave then is made by Carstein towards the close of the conversation. It is, in full, "Yeah you ring me on my phone an' brother don't leave tomorrow this time because if they're listening just in case". What Carstein is saying there is difficult to understand; it might refer to travel or to telephoning, but it certainly does not make it clear that the suggestion Wosomo was going to leave on the following day was false. The transport concern is in fact disclosed to Geerlings: Carstein says that Wosomo should be back by Monday but "he's stuck for transport as well mate". Nothing is pointed to which would indicate that Carstein was being untruthful when he told Geerlings Wosomo was in transit.
[95]
[48] The only set of conversations identified, both at first instance and on appeal, which clearly has the flavour of double-dealing is that in which Carstein represented to Wosomo that he was being offered $20,000 and subsequently claimed to Geerlings that Wosomo had demanded that amount. His Honour's failure specifically to remind the jury of it hardly amounts to manifestation of a lack of balance. It was not incumbent on him to report every point counsel made on the evidence.[19] He had clearly identified to the jury members the defence argument that Carstein knew that there was no cocaine to be imported and had engaged in a scam, and told them that it was for them to make their minds up, drawing inferences from the conversation.
[96]
[49] Counsel for Carstein referred to the decision of this Court in R v Zurek.[20] This case, however, has little in common with Zurek. The case was not presented to the jury as a choice between versions. His Honour at the end of his summing up made it clear that what the jury had to be satisfied of was that each of the defendants entered into an agreement with others to import cocaine into Australia and that if they did not reach that state of satisfaction they could not convict the defendants. The defences were adequately put to the jury. There is nothing in this ground.
[97]
[50] At the start of the trial, after a detailed opening by the Crown prosecutor, counsel for Geerlings sought particulars of overt acts alleged against him by the Crown. The Crown responded by providing a separate schedule for each defendant headed "Particulars of involvement". Copies of those schedules are annexed to this judgment. They set out the defendants' alleged activities with accompanying references to page numbers identifying the particular conversations relied on. Counsel for Geerlings pointed out that what was contained in the schedules was more in the nature of generalised descriptions of activity than specific acts. Counsel for the Crown explained that each telephone call referred to constituted an overt act, and the associated description indicated the activity being effected by it.
[98]
[51] The learned trial judge observed that the overt acts as provided in that form could be broken down into hundreds of individual acts, and there was not much to be gained by doing so. He did not make any final ruling on the matter but told counsel that he would -
[99]
"allow the evidence to unfold a little bit further before we see whether there is sufficient particularity in that to allow you to meet the case that's put before you, and for each of the defendants to identify precisely what is alleged against him."
[100]
No further mention of overt acts or particulars was made by counsel during the rest of the trial.
[101]
[52] In his summing up, the learned trial judge drew the jury's attention to the requirements of s 11.5(2) of the Criminal Code. He told the jury that it would have to be satisfied of the elements set out in that sub-section in respect of each of the defendants, and, having explained what an overt act was, told them what was entailed in s 11.5(2)(c). In doing so he set the test for the Crown higher than the section requires: he told the jury that it had to be
[102]
"satisfied beyond reasonable doubt that the particular defendant whose case you are considering has done some act pursuant to the agreement."
The sub-section only requires, however, that a party to the agreement, not necessarily any particular defendant, have committed an overt act.
[103]
[53] The learned trial judge identified, in a general way, the actions on which the prosecution relied as overt acts:
[104]
"speaking to persons who are thought to be a source of the drug, shared planning about picking it up, arranging finance, arranging travel and accommodation, making appointments with persons intended to be doing the transfer of the drug, shared problem solving, telephone calls".
[105]
Later in the summing up, he returned to the question of overt acts and again told the jury it would have to find an overt act performed by each defendant. He went on to list a catalogue of actions by the defendants:
[106]
"You have the contacting of Wosomo, if you find that he was the supplier, by Carstein and Geerlings, and each of them had spoken to Wosomo at different times. There was the arranging of finance, particularly with Mr Aitken, and Mr Lake, for example, travelling to Hervey Bay to pick it up with Mr Aitken. There is the transfer of funds to various bank accounts in the Torres Strait Islands which was done by both Mr Lake and Mr Geerlings. The purpose of those transfers was revealed you might think by the terms of the conversation which accompanied the action of transferring. The making of travel arrangements with Flight Centre was done by both Mr Lake and Mr Geerlings, and the actual travelling to Horn Island was done at different times by Mr Carstein and Mr Lake."
[107]
Submissions in relation to the particulars of, and directions on, overt acts
[108]
[54] Counsel for the appellants submitted, as is beyond argument, that the appellants were entitled to precise particulars of the overt acts relied on by the Crown to establish the conspiracy: R v Weaver;[21]Moore v The Queen;[22]Mok v The Queen.[23] The purpose of particulars of the overt acts was explained in R v Weaver: to ensure that there were "clearly defined issues before the Court and the jury".[24] Counsel relied on this passage from Mok:[25]
[109]
"An accused person is entitled to have identified with precision the transaction upon which the Crown relies; he is entitled to be apprised not only of the overt acts alleged but also the legal nature of the charge against him and the particular act, matter or thing alleged as the foundation of the charge: Johnson v Miller[1937] HCA 77; (1937) 59 CLR 467 at 489, 495, 501-502. A charge of conspiracy does not differ in this respect from any other charge. The accused is unable properly to plead to a charge unless he knows what is the precise case which is the basis for the charge preferred against him: Ex parte Graham: Re Dowling (1968) 88 WN (Pt 1) (NSW) 270 at 280-281. He can hardly plead to a charge of conspiracy unless he knows precisely with whom it is going to be alleged that he conspired and the scope of the conspiracy alleged."
[110]
[55] The risk which arose from the particulars as formulated in the present case, it was submitted, was that of duplicity. Counsel relied on Murphy J's expression of the danger in Gerakiteys v The Queen[26]-
[111]
"Conspiracy must not be allowed to become so amorphous that it will create a real danger of concealed duplicity of charges, so that the accused may be convicted despite the lack of unanimity among the jury members."[27]
[112]
Here, the jury might have concluded there was more than one agreement, and been in doubt as to which it was being left to convict upon. Upon being questioned as to what different agreements were disclosed by the evidence in this case, counsel pointed to the variation in roles of the parties: that early in the scheme of things, Geerlings seemed to be the financier, whereas later that role devolved upon Lake; that Geerlings was inactive in the arrangements for a period; and that Carstein eventually dropped out.
[113]
[56] His Honour's summaries of the actions relied on by the Crown were, counsel said, general interpretive descriptions of the evidence rather than overt acts identified in respect of each appellant. The judge ought to have directed the members of the jury that they had to agree on the same overt act or acts as against each appellant before they could convict. For this proposition, counsel argued by analogy with KBT v The Queen,[28] in which it was held that the offence of maintaining a sexual relationship with a child could not be made out unless the jury were unanimous as to the same three acts constituting offences of a sexual nature.
[114]
[57] Counsel for the Crown submitted that unanimity was not required. The elements under sub-ss 11.5(2)(a) and (b) of, respectively, entry into an agreement and intention that an offence be committed pursuant to it, entailed acceptance of overt acts, without any requirement for an unanimous finding as to what overt act had been committed. Consistently with that, one should conclude that the third element, in sub-s (c), did not require unanimity. He relied on this Court's decision in Morex Meat Australia Pty Ltd & Doube v The Queen.[29] One of the grounds of appeal in that case concerned a count of attempt to pervert the course of justice, particulars of which were given in the form of eight different acts. The argument was that any of the eight acts pointed to could have constituted the offence, with the attendant risk that different jurors might reach different conclusions about them and thus not arrive at unanimity, although agreeing on the verdict. That was, the Court said, a state of affairs "capable of ensuing in any case where particulars are given of circumstances said to constitute a single offence" and, by way of illustration of such cases, it gave the example of
[115]
"cases where conspiracy is charged and particulars are given of the overt acts constituting or manifesting the res gestae of the unlawful agreement".[30]
[116]
[58] This, plainly enough, was not a case like Weaver, in which the High Court rejected the notion that broad references to the depositions and to all representations and conversations on certain subject matters could serve as particulars. Here the activities of each of the appellants were identified, with references to the evidence by which they were to be proved. Some of the particulars were more general than others; for example, the first and second of the particulars alleged against Geerlings refers to his "arranging" for travel: in the first instance, by Carstein and Dorner, in the second, by Carstein and Charlie. In the first case it was probably not possible to give more specific particulars, since direct contemporary telephone conversations were not available at that stage by way of evidence. In the second instance it might have been possible to detail each telephone conversation which made up the "arranging"; but it hardly seems necessary, given that references were provided to each relevant conversation. Indeed, there would have been some peril of the appellants' being deluged by detail had every conversation which made up the involvement of each been set out. The process would have been pointless, given the availability of the transcripts.
[117]
[59] No risk of duplicity, by way of the possibility of there existing agreements other than that charged, has been demonstrated. The case has nothing in common with Gerakiteys, in which the appellant was charged with conspiracy with an insurance agent and nine insured persons to defraud divers insurance companies. The evidence showed that there were different arrangements between the appellant and the various insured persons to defraud different insurance companies, but no central arrangement, to which all of them were parties, to defraud all of the insurance companies.
[118]
[60] Brennan J in Gerakiteys canvassed the situation in which two conspirators agreed to effect several unlawful objects and a third person agreed to effect only some of those objects. Then, he said, there would be two conspiracies, one to which the original conspirators, but not the third person were parties, and the other, with the more limited objects, to which the third person was also a party. That was to be distinguished from a different situation:
[119]
"That is not to say that a person who performs one only of several overt acts of a conspiracy cannot be a party to the conspiracy: the question is whether he has agreed that effect be given to all the objects or purposes of the conspiracy (so that his overt act gives only partial effect to those objects or purposes), or whether his agreement is limited to part only of those objects or purposes."[31]
[120]
[61] Here there was only one criminal object identified: the obtaining of cocaine from Papua New Guinea and the bringing of it into Australia, although the apparent opportunities of doing so varied. Counsel did not identify any other agreement; the mere fact that the participants might, from time to time, play more or less active roles, involving more or fewer overt acts, did not constitute any departure by them from the central agreement. And unlike the situation in Mok, in which the conspiracy case deviated from a two person conspiracy as opened, to a three person conspiracy as left to the jury, the Crown case was opened, particularised and left to the jury in a consistent fashion. The opening and the particulars left no doubt as to the nature and scope of the conspiracy alleged and the part of each appellant in it. The fact that the question of particulars was not raised again after the initial submission by counsel for Geerlings suggests that the appellants encountered no difficulty in knowing the case each had to meet.
[121]
The directions as to the overt acts produced no miscarriage of justice
[122]
[62] The trial judge, as has already been mentioned, explained to the jury what an overt act was and listed matters relied on by the Crown as constituting overt acts. Section 11.5 of the Criminal Code did not in fact require that an overt act be established against each defendant, merely that a party to the agreement have committed an overt act. It follows that it was not necessary to direct the jury as to overt acts available against each particular defendant.
[123]
[63] There remains, however, the question of whether the jury ought to have been directed that it was necessary it agree as to an overt act committed pursuant to the agreement. The argument for the Crown would be stronger were it seeking to prove a conspiracy at common law, rather than the statutory offence under the Criminal Code. At common law, overt acts were relied on to prove the consensus underlying the conspiracy, the conspiracy itself being complete once agreement to commit the offence was reached;[32] but s 11.5(2) of the Criminal Code makes the commission of an overt act pursuant to the agreement an element of the offence. Although the wording of s 11.5(2) is identical to that in s 86(3) of the Crimes Act 1914 (Cth) and thus has been applicable for a dozen years, there appears to have been no authoritative resolution of this point. The question was touched on in R v Theophanous,[33] in which the Victorian Court of Appeal commented on the departure from the common law, but added the following note:
[124]
"As this aspect was not the subject of argument in the appeal, we express no view as to whether the jury would need to be unanimous with respect to the commission of the same overt act."[34]
[125]
[64] The need for jury unanimity has been discussed, of course, in many cases dealing with offences other than conspiracy; with the distinction drawn between situations in which unanimity is required and others in which it is not essential. That distinction has been made in various terms. In R v Leivers[35] the question was said to depend on whether "the alternate bases of criminal liability do not involve materially different issues or consequences."[36] In R v Cramp[37] it was expressed as the distinction "between alternative factual bases of liability and alternative legal formulations of liability based on the same or substantially the same facts"[38] while in Fermanis v State of Western Australia[39] it was the -
[126]
"distinction between a factual conclusion as regards the existence of an essential element of an offence, on the one hand, and factual conclusions as regards the evidence which is led for the purpose of proving that essential element, on the other."[40]
[127]
[65] In KBT v The Queen the offence of maintaining a sexual relationship with a child under s 229(B)(1) of the Criminal Code required proof of commission on three occasions of an act constituting an offence of a sexual nature. A concession by the Crown, that the trial judge ought to have directed the jury that they were required to be satisfied as to the commission of the same three acts before they could convict the appellant, was held rightly made. The doing of such an act on three or more occasions was, the Court said, the actus reus of the offence of maintaining. Kirby J enlarged on the reason for the requirement: it amounted, he said, to -
[128]
"a Parliamentary recognition of the risks involved in the offence [which included] the exposure of a person to conviction upon generalised evidence which it may be difficult or impossible to disprove ...".[41]
[129]
[66] A similar rationale can be discerned for the requirement in s 11.5(2)(c). The reasoning behind the equivalent provision in the Crimes Act is discussed in R v Theophanous, in which reference is made to a Senate Report,[42] to the Explanatory Memorandum to the Crimes Amendment Bill1994 and to the Second Reading Speech as explaining the context in which the section was introduced.[43] In the Explanatory Memorandum, it was said that a simple agreement to commit a criminal offence without further action was insufficient to warrant the attention of the criminal law, while in the Second Reading Speech the Minister for Justice had said that the provision was included to avoid overuse of the offence of conspiracy.
[130]
[67] Given the obviously protective nature of the sub-section, it is difficult to conclude that identification of the relevant act need not be a matter of jury unanimity. By way of example, in a case in which there were two available overt acts, it seems improbable that the legislative intent was that the requirement would be met were half the jury satisfied of one act and the remaining six of the other, both factions being entirely unsatisfied of the act the other had accepted. The argument that satisfaction of the elements in sub-ss 11.2(a) and 11.2(b) would entail conclusions as to overt acts as to which no unanimity was required does not assist in respect of sub-s 11.2(c) which explicitly makes commission of an overt act an element of the offence. Instead, the status of the commission of an overt act as an ingredient of the offence convinces me that, as an essential element requiring proof, it also required unanimity.
[131]
[68] However, in the peculiar circumstances of this case, in which there was no dispute as to the happening of any overt act relied upon by the prosecution, it seems to me that the failure to direct is without consequence. There is no basis on which the jury might seriously be thought to have disagreed as to any of those acts. Accordingly, there is no reason to suppose that any miscarriage of justice was occasioned by the absence of direction.
[132]
[69] For the reasons given I would dismiss the appeals against conviction.
[133]
[70] The learned judge commenced his sentencing remarks with the observation that the substantive offence of cocaine importation was regarded very seriously, and he referred to the miseries of addiction. The agreement reached by the defendants was based on the belief that they could obtain five kilograms of cocaine for $60,000, thus obtaining a quick profit, but extended to the hope that they could make an ongoing business of importation. It was, in fact, unlikely that the cocaine the appellants sought to import actually existed, since the Federal Police had not been able to locate it. His Honour did not accept the submission that the three had not advanced very far in the agreement, pointing out that a great deal of energy had been expended in trying to achieve the goal, with trips to Bamaga and the Torres Strait Islands and significant amounts of money obtained and advanced. The appellants themselves clearly believed that success was imminent on several occasions.
[134]
[71] His Honour regarded each of the appellants' roles, in the reaching of the agreement and their attempts to achieve its object, as roughly the same. In particular, he did not see the role of Carstein as in any way less than that of the others. Rather he was an instigator, because he was the person who had the information which he made available to the other two for them to act on it. Geerlings and Lake had a similar level of criminal history; Carstein's criminal history warranted a higher penalty.
[135]
[72] As to the respective criminal histories, Lake had, some 15 years prior, served 18 months imprisonment for burglary and apart from that had only trafficking convictions. Geerlings had a 12-year-old conviction for defrauding the Commonwealth, for which he was sentenced to imprisonment for two and a half years imprisonment to be released on recognisance after serving eight months, and a more recent conviction for possession of dangerous drugs, which only incurred a fine. Carstein, on the other hand, had a five page criminal history dating from 1995 to 2005 which included multiple break and enter offences, an offence of robbery with violence in company and a number of offences of possessing dangerous drugs, dealt with in the Magistrates court. Notwithstanding his long criminal history, Carstein was the youngest of the three, 27 years old at the time of sentence, while Lake and Geerlings were, respectively, 45 years old and 42 years old.
[136]
[73] Counsel for Lake and Geerlings submitted that having regard to the principles in Raptis, Lilimbakis&Sinclair v The Queen,[44] a decision of the Victorian Court of Criminal Appeal, the sentence imposed on his clients was manifestly excessive. That case deals with sentencing for conspiracy and makes these points:
[137]
"Conspiracies vary widely in seriousness and in criminality. Thus a conspiracy to murder is on its face more heinous than a conspiracy to steal a loaf of bread. Nevertheless, as with any other crime, all the surrounding circumstances may and generally must be taken into account in determining the appropriate sentence. It cannot, therefore, be said that it is irrelevant to consider the likelihood of the success of a plan agreed upon by conspirators but the fact that a particular plan is unlikely to be successful will not necessarily reduce the heinousness of the scheme. A scheme is not rendered the less criminal because, for reasons which may not be known to the conspirators, it is unlikely that they will be able to carry it out to ultimate completion; or because, though resolutely pursuing it, they bungle its execution. The criminality of a particular scheme might, however, be reduced if it were shown that the conspirators were incapable of carrying out the plan upon which they had agreed, not because of supervening events, but incapable because they had, for example, neither the equipment nor the means of obtaining it, nor the intelligence to procure what was necessary to carry out the scheme."[45]
[138]
[74] This conspiracy, counsel pointed out, was not one which was thwarted by police intervention; rather it failed for inherent reasons. None of the appellants gained anything, quite the contrary. He contrasted the case with that of R v Shahrokhey-Zadeh.[46] There, the applicant for leave to appeal against sentence was convicted of procuring the importation of almost six kilograms of cocaine of a purity of about 71 per cent. The matter went to trial; the person who actually effected the importation gave evidence that this was his sixth run from South America on the applicant's behalf. The applicant was convicted and sentenced to 12 years imprisonment with a non-parole period of six years. He was 21 years old without any prior criminal history. This Court rejected a submission that insufficient weight had been given to his youth and good character and held that the sentence was not manifestly excessive, having regard to the seriousness of the offence and the need for general deterrence. By reference to Shahrokhey-Zadeh, counsel submitted that the appropriate sentencing range in this case was five to six years. He added to his submissions a point made below that Geerlings' wife suffered from an unidentified form of progressive cancer; but no further information as to its significance could be gleaned from the record.
[139]
[75] Counsel for Carstein adopted the submissions made by counsel for Lake and Geerlings as to the appropriate range. He submitted, however, that his client should have received a lower sentence than the other two because the duration of his involvement in the conspiracy was less. He took no part after early February 2003 and was no more than a conduit for Lake and Geerlings.
[140]
[76] Counsel for the Crown argued that R v Isherwood[47] provided a better basis for comparison than Shahrokhey-Zadeh. Isherwood was convicted, after a trial, of conspiring to import a large quantity of cocaine, roughly 12.7 kilograms, in two shipments. He had procured the drugs in Brazil, and arranged for their carriage and expected secretion and transport in Australia. The shipments were intercepted by police and another substance substituted for the cocaine. Isherwood had a criminal history for offences committed a decade or so earlier, including breaking, entering and stealing charges and an offence of knowingly making a false statement for the purpose of obtaining a passport. A sentence of 18 years imprisonment was varied by this Court, but only to the extent of substituting a non-parole period of eight years for the nine years imposed at first instance.
[141]
[77] The learned sentencing judge was, in my view, correct in sentencing on the basis that the three appellants had roughly similar levels of involvement in the conspiracy. In particular, Carstein was not entitled to be sentenced as if he had a lesser role. Although the others, in effect, froze him out of the conspiracy in its latter months, his reduced involvement was not of his making, and he had played an extremely active role from December to mid-February. His criminal history was a serious one and justified the imposition of a longer sentence on him.
[142]
[78] Sentencing in this matter was undoubtedly made more difficult because of the absence of truly comparable sentences. Shahrokhey-Zadeh is of limited assistance because it involved a different offence and because, the Court not having intervened, it indicates no more than that the sentence imposed there was not outside the permissible range; not that it was necessarily the only appropriate sentence, or that a higher sentence could not have been imposed. Isherwood, as a sentence for conspiracy, provides a better context against which to test the sentences here. The obvious difference between the appellants here and Isherwood is, not that they expended any less effort or resources, but that they pursued, in a not particularly intelligent way, a futile exercise. Allowing for that distinction, sentences less than half of Isherwood's, with correspondingly lower recommendation for parole dates seem proportionate. More generally, having regard to the unashamed, commercially-inspired criminality of what was involved, the general need to deter schemes of the kind, and the fact that these were not youthful first-time offenders, it does not seem to me that the sentences imposed were excessive.
[143]
[79] I would dismiss the application for leave to appeal against sentence.
[15] A bold submission, since counsel on the appeal were not those at trial, and at the time the appeal was heard, the addresses at trial were not available. They were subsequently transcribed and were not the subject of any further submission.
[158]
[16][2006] QCA 543: the learned judge made points which should have been made by the prosecutor.