R v Moran & Mokbel [1998] VSCA 64

Court of Appeal (Vic)|1998-10-09|Before: PHILLIPS, C.J., BATT and KENNY, JJ.A.

Criminal law - Conspiracy to traffic in a drug of dependence - Evidence - Construction of audio-taped conversation - Failure of accused to give evidence - Whether jury ought to have had a reasonable doubt - Sentence - Non-parole period fixed in respect of total period of imprisonment under three sentences - Whether lower non-parole period to be fixed upon quashing of one conviction.

I have had the benefit of reading the judgment of Kenny, J.A. in draft form. I concur in the conclusions Her Honour has reached and I would subscribe to her reasons therefor.

I have had the benefit of reading in draft the reasons for judgment of Kenny, J.A. I agree with her Honour's conclusions on conviction and on sentence. I agree in her reasons as to sentence and also as to conviction, except, perhaps, for a difference of emphasis on the matters discussed by her Honour in paragraph 28. Because of that, I set out the essential reasoning leading me to the same conclusion as her Honour reaches in that paragraph, adding some comments on Weissensteiner v. The Queen [1993] HCA 65; (1993) 178 C.L.R. 217. In doing so, I gratefully adopt her Honour's statement of the facts, though I find it necessary to set out a little of the critical conversation.

The question which this Court is called upon to decide is whether it was open to the jury to be satisfied beyond reasonable doubt that the two applicants had in the course of the second applicant's visit to the first applicant in his unit in Lonsdale Street, Melbourne, conspired together to traffic in methylamphetamine in the sense (as the Crown case was opened and closed and left by the judge to the jury) of agreeing together to manufacture methylamphetamine. Apart from expert evidence as to the constituents and method of manufacture of that drug and police evidence as to the meaning of certain expressions used by the applicants in their conversation, the sole evidence before the jury was that of the audio tape-recorded conversation. There was no evidence as to the course of trade in illicit drugs. Nor was there a video recording of the second applicant's visit to enable the jury (and this Court) to observe facial expressions or "body language" of the applicants.

Although a considerable part of the argument was devoted to the inferences that were said to be open or not open to the jury, to my mind the task is rather, once the words spoken by the applicants are ascertained so far as that is possible, to construe and interpret those words in order to determine whether the applicants, intending to do so, made an agreement which was the agreement contended for by the Crown. The interpretation is to be made in the context of the whole conversation and, in particular, of facts revealed by that conversation. In performing that task, the making of implications, if warranted, is permissible, but the drawing of inferences is not, for, the Crown case was not a circumstantial one, as it was in R. v. Sienczuk (1981) 5 A.Crim.R. 243, R. v. McCaul & Palmer [1983] VicRp 102; [1983] 2 V.R. 419, R. v. Trudgeon (1988) 39 A.Crim.R. 252 and Gebert, Haley & Black v. R. [1992] SASC 3637; (1992) 60 S.A.S.R. 110, since, by hypothesis, the whole text of the putative oral agreement was available and no conduct could be adduced: Merchant Service Guild of Australia v. Newcastle and Hunter River Steamship Co. Ltd. [No. 1] [1913] HCA 76; (1913) 16 C.L.R. 591 at 624, cited in R. v. Rigby [1956] HCA 38; (1956) 100 C.L.R. 146 at 151; and Rose v. Hvric [1963] HCA 13; (1963) 108 C.L.R. 353 at 358, which make clear the difference between implication and inference. In short the question is, What did the applicants mean by their words? More precisely, in view of the onus and standard of proof, it is whether it was open to the jury to be satisfied beyond reasonable doubt that their words bore no other meaning than that the applicants were agreeing together to manufacture methylamphetamine.

Despite the able argument of Mr. McArdle, who appeared for the respondent, I have concluded that it was not open to the jury to be satisfied beyond reasonable doubt that the applicants were so agreeing. I accept Mr. McArdle's submission that this was not a chance meeting, but was a business or commercial meeting. I accept, too, that the subject matter of the conversation was the ingredients for manufacturing, and the manufacture of, methylamphetamine. It is clear also that, although the first applicant was able to "cook", it was the second applicant who was currently a "cook" and that the first applicant had access to pseudoephedrine in 25 kilogram barrels, though the second applicant also seems to have had some of that chemical. I further consider that it was open to the jury to be satisfied beyond reasonable doubt that in the conversation the first applicant was informing the second applicant that he had been let down by the "cook" in an earlier venture for the manufacture of methylamphetamine, in which the liabilities (and profits) were to have been shared equally between the three participants, and was also informing him that he was thinking of substituting the second applicant as cook in place of the former cook. (The second applicant had expressed interest in "having a go" at "cooking".)

The first applicant said that he was still debating whether to give the second applicant "that run" or not, and he asked the second applicant when he could get "it" done if he gave "it" to him. He received a satisfactory answer, prompting him to say, "Well, I could give it to ya". He later concluded by saying (as I would understand his words) that "... if you don't get this one you'll get the other one that comes through ... 'cause I'll get ten on the way and you are going to get half of them", to which the second applicant assented. (The "it" and "ten" in the last exchange at least are barrels of pseudoephedrine.) It might be said that these concluding exchanges constituted the appointment by the first applicant of the second as cook in a bipartite manufacturing joint venture. But until that stage the first applicant had been undecided and, whilst acknowledging that in the demi-monde in which the applicants apparently moved precision and directness are not to be expected, I do not think it was open to the jury to be satisfied beyond reasonable doubt either that the first applicant then made up his mind or that they were agreeing on such a joint venture. The more likely interpretation, and certainly one reasonably open, is that the first applicant was in fact simply saying that he would make available to the second applicant one barrel of pseudoephedrine that he was bringing down, or might bring down, from interstate and, in any event, he would make available to him, that is supply to him, five of the ten other barrels that he was going to get, and that the second applicant agreed to that.

Mr. McArdle submitted that agreement, which, he contended, was reached, was unlikely to be for the supply of pseudoephedrine, since there was no agreement as to the price; and, because the ingredient was not supplied in the course of lawful trade, it would not be possible to imply a "reasonable" price. I do not, however, regard the absence of agreement on price as significant. I see no reason, for instance, why the applicants might not each have considered that they would strike a price when delivery was imminent. (They, it is true, might fall out.) Moreover, a like point may be made against the Crown: the agreement was unlikely to be a joint venture for manufacture, since there was no agreement as to the proportions in which they should share profits or losses. I acknowledge that such agreement is not necessary for the criminal conspiracy alleged. But its absence is a factor bearing on interpretation. Of course the applicants say that any agreement was of neither of those types.

Mr. McArdle was forced, in the end, as it seems to me, to contend that a person who agrees to supply an ingredient for a drug to a person who says that he wants to manufacture the drug on his own account is a party to an agreement or conspiracy to manufacture the drug. That was not the way the Crown went to the jury or the way the judge charged the jury, and there is no reason here for our agreeing to consider whether it would have been open to the jury to uphold such a case. In any event, I do not accept the proposition: the manufacture would not be being done on behalf of the supplier as well as the recipient. In other words, it would not be a term of the agreement that the recipient should manufacture on behalf of both nor would the agreement be that they should jointly procure or cause the manufacture. At the least, mutual intention that the recipient should manufacture is required. (Mr. Redlich Q.C. for the second applicant at one stage was prepared to accept that proposition.) But, in my view, it was not open to the jury to find beyond reasonable doubt that the first applicant intended, rather than merely expected, that the second applicant should manufacture, or that the latter was bound by agreement to the former to manufacture. See R. v. Trudgeon. In Kenny, J.A.'s expressive phrase the first applicant had no stake in what the second applicant was to do with the pseudoephedrine to be supplied to him.

Mr. McArdle sought to rely upon Weissensteiner in relation to the failure of either applicant to give evidence. He said that, if this was not an agreement to manufacture, it was not difficult for the applicants to give evidence explaining that that was so. But if it was not such an agreement, there was no need for them to give evidence at all. He then said that, by application of the Weissensteiner principle, what "looks like" an agreement for manufacture is confirmed as such. But "looks like" brings to mind an analogy with cases on identification, such as Pitkin v. R. [1995] HCA 30; (1995) 130 A.L.R. 35. Something stronger than "looks like" is, I think, required before the Weissensteiner principle, if otherwise applicable, can be called in aid. But, as I have indicated earlier, I do not think that this is really a case about inferences that may be drawn from the evidence. In any event, Mr. McArdle accepted that if there were two competing inferences or hypotheses Weissensteiner would not carry the Crown home. In that regard, as will have appeared, I do not consider that the construction of the conversation favourable to the Crown is even equally likely to that unfavourable to it.

The applicants, Joseph Moran and Antonios Saijh Mokbel, pleaded not guilty in the County Court to an amended presentment, numbered ZB493B, containing one count of conspiracy to traffic in a drug of dependence (namely, methylamphetamine) contrary to s.79(1) of the Drugs, Poisons and Controlled Substances Act 1981 . The offence was alleged to have been committed between 3 April and 13 July 1993.

On 27 April 1998 the jury returned a verdict of guilty against each applicant. Moran admitted 32 prior convictions from 15 court appearances between 1964 and 1991, including one count of conspiracy to supply a prohibited substance. Mokbel admitted 19 prior convictions from 12 court appearances between 1983 and 1992, including one count of conspiracy to pervert the course of justice.

On 28 April 1998 Moran and another co-offender, Brett Norman Hall, pleaded guilty to an amended presentment, numbered ZB493A, containing one count of conspiracy to possess a drug of dependence (namely, pseudoephedrine) contrary to s.79(1) of the Drugs, Poisons and Controlled Substances Act 1981. (The matter of Hall did not, however, proceed that day.) The offence was alleged to have been committed between 3 April 1993 and 13 July 1993. The Crown's case against Moran was that, on 17 June 1993, Moran had had a conversation at his flat with Hall in which Moran had said that he had access to two barrels containing 25 kilograms of pseudoephedrine and that Hall had agreed with Moran to go to Sydney the next day, 18 June, to obtain possession of the pseudoephedrine. Also on 28 April 1998, Moran pleaded guilty to presentment J00972927B containing one count of conspiring (with John Rigon) between 3 June 1993 and 29 June 1993 to traffic in a drug of dependence (namely, methylamphetamine). (Rigon had earlier been dealt with by another judge.) The Crown case against Moran on that presentment was that, on 3 June 1993, Moran and Rigon had had a conversation at Moran's flat in which they had discussed the availability of pseudoephedrine and that Moran and Rigon had agreed together to manufacture methylamphetamine, once they had obtained pseudoephedrine.

Pleas in mitigation of penalty were made on 28 April 1998 on behalf of the applicants, Moran and Mokbel. On 6 May 1998, the learned judge sentenced Moran to 3 years and 6 months' imprisonment for the conspiracy alleged on amended presentment ZB493B; 3 years' imprisonment for the conspiracy alleged on presentment J00972927B; and 9 months' imprisonment for the conspiracy alleged on amended presentment ZB493A. As the sentences were to be served concurrently, Moran received a total effective sentence of 3 years and 6 months. His Honour fixed a non-parole period of 18 months. On 6 May, his Honour also sentenced Mokbel to imprisonment for 3 years and 6 months for the conspiracy alleged on amended presentment ZB493B, fixing in respect of Mokbel a non-parole period of 15 months.

Moran and Mokbel seek leave to appeal against conviction upon the sole ground that the verdict is unsafe and unsatisfactory. Each alleges, by way of particulars, that:

"(i) there was insufficient evidence upon which a properly instructed jury, acting reasonably, could convict. (ii) the Crown case could not, and did not, exclude an hypothesis consistent within innocence."

Applications to add a ground were not pursued. Both Moran and Mokbel also seek leave to appeal against sentence upon the ground of manifest excess. In addition, Mokbel seeks leave to appeal against sentence on three further grounds: insufficient disparity vis a vis Moran; a failure "to find as a fact that [Mokbel] agreed only to manufacture the smallest quantity possible of Methylamphetamine"; and a failure to accord sufficient weight to the delay "between the commission of the offence and the imposition of sentence".

(i) Application for leave to appeal against conviction

The facts relating to amended presentment ZB493B can be briefly stated. On 6 April 1993, the police observed Mokbel go to Moran's city flat. Mokbel and Moran had a conversation there. That conversation was recorded by means of a listening device which had been installed in Moran's flat three days previously. The evidence relied on by the Crown to prove the offence was contained in an audio-tape recording of the conversation.

The Crown's case was that Moran and Mokbel had conspired together to traffic in methylamphetamine by agreeing together that the drug would be manufactured by one or other, alternatively both of them. This agreement was said to be constituted by the conversation at Moran's flat on 6 April 1993. No evidence was adduced at trial of any overt acts in furtherance of the alleged agreement. It was not, of course, necessary to prove any such acts to establish the commission of the alleged offence.

It was accepted by all counsel at the trial that, in order to prove its case on the amended presentment, the Crown was required to prove beyond reasonable doubt that Moran and Mokbel: (i) intended to agree; (ii) agreed to pursue a common and unlawful design, which was to manufacture methylamphetamine; and (iii) intended to carry out the common design, i.e., to act pursuant to that agreement. See, in this regard, Crimes Act 1958 , ss.321(2)(a) and 321D and the Drugs, Poisons and Controlled Substances Act 1981 , s.79; Peters v. R. [1998] HCA 7; (1998) 151 A.L.R. 51, at 65-6, 68-9 (paras.54-5, 62 and 66)[1998] HCA 7; , 96 A.Crim.R. 250 at 265, 268-9; and R. v. Guy (1991) 57 A.Crim.R. 21 at 28. The trial judge so directed the jury and no attempt has been made on this appeal to impugn his Honour's direction in that regard.

The applicants seek to impugn the jury's verdict on the ground that it is unsafe or unsatisfactory or, perhaps, more correctly, "on the ground that it ... cannot be supported having regard to the evidence": see Crimes Act 1958 , s.568(1) and Gipp v. R. (1998) 155 A.L.R. 15, at 23 [para.24], 49 [para.127], 59 [para.167]. The Court is therefore called upon to make an independent assessment of the evidence placed before the jury to determine whether it thinks that "upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty": see M v. R. [1994] HCA 63; (1994) 181 C.L.R. 487, at 493 per Mason, C.J., Deane, Dawson and Toohey, JJ.; Jones v. R. [1997] HCA 12; (1997) 149 A.L.R. 598, at 607 per Gaudron, McHugh and Gummow, JJ.; Gipp v. R. (1998) 155 A.L.R. 15 at 21 [para.18], 28 [para.48]. In M's Case, the majority explained, at 494-5, the application of the test as follows:

"In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty."

The nature of the evidence relied upon by the Crown in this case makes it unlikely that any doubt experienced by this Court can be resolved by reference to an advantage of the kind referred to in the above passage, since the jury would not have been in a markedly better position than this Court in listening to and construing the tape of the applicants' conversation.

The main evidence before the jury at trial was the 6 April conversation between Moran and Mokbel. The jury were not provided with a transcript of that conversation but we were. In setting out part of the conversation (see below), I have set out what appears on the transcript without making amendment. Whilst there were inaccuracies in the transcription, none was said to be material.

The conversation fell into four parts. In the first part, after a greeting was exchanged and a number of personal matters mentioned, Moran referred to the fact that he was to "go back tomorrow" and to Mokbel's getting "the recipe off them". Mokbel replied by saying he had in fact "got it [the recipe] off them" but was not "that confident with that one". There was then some desultory conversation about Mokbel's and others' yields "out of a barrel" and about a number of men with whom, it seems, Moran and Mokbel were familiar. Mokbel then indicated that he might "come up with" Moran the next day on "the 2 o'clock flight".

In the second part of the conversation, Moran told Mokbel that he was "dirty" or "disappointed" with another of his associates, known to both applicants, who had left Moran to "cop the half a mill. loss". He described to Mokbel how he had first became involved with that associate. Moran and Mokbel spoke of pseudoephedrine, yields, prices, the supply of barrels and of Mokbel's need for "a big mantle" and then, again, of other associates. In the third part of the conversation, Moran said:

"I might even give ya that one I've got up there now. Might even give ya that one I've got up there now."

"Yeah, but then he's goin' to know, because he was going to give that stuff to."

"... No well I will always get it when other people can't. We will have ten barrels on the way. Ten don't worry about that."

Moran returned to his complaint about "copping the loss", observing:

"... He couldn't ... cook before he come to see me. ..."

"Yeah, I'm still debating whether to give you that run or not. 'Cause when can you get it done if I give it to you?"

"Yeah, I can pretty well straight away. ... It would be good to have that extra."

Moran then spoke of "that other stuff I got up there" and Mokbel accepted Moran's offer of it, saying "I'll grab that too". The two men then discussed money, quantity, and other associates. Mokbel went on to say:

"I have got plenty of the red. I have got plenty. ... Yeah I have got plenty of everything it is just a matter of ... No just a matter of ... I have got a fair bit of the HI I have got three quarters of it ...".

"Yeah, I'm in two minds. ... Especially when you are coming down and right I ... waiting up there for the other one because to get the two. You know the two but I am in two ... minds 'cause I am thing I am copping that loss myself and I am not entitled to cop that loss myself it would have been three ways."

In the fourth and final part of the conversation Mokbel stated that he had "better get home ..." and again there was a desultory discussion. The discussion concluded with the following exchange:

"Moran: ... the same time as don't get this one you'll get the other one that comes through ... Mokbel: Not a problem mate. Moran: Not a problem, 'cause I'll get ten on the way and you are going to get half of them. Mokbel: Yeah, no worries. Moran: Whenever they lob. Mokbel: Alright, not a problem. Thanks Joe."

The Crown submitted that the last exchange constituted the reaching of an agreement with respect to the manufacture of methylamphetamine.

Apart from the evidence of Detective Senior Constable Banks concerning the listening device, the tape-recording and other aspects of the police operation, there were only two other witnesses for the Crown. A forensic scientist gave evidence concerning the manufacture of methylamphetamine. He testified that pseudoephedrine, when heated for a number of hours with hydriotic acid and red phosphorous, would, when appropriately processed, yield methylamphetamine. According to his evidence, pseudoephedrine was commercially packaged in 25 kilogram drums or barrels. A police officer attached to the Drug Squad gave evidence as to the significance in the drug underworld of certain words used in the taped conversation. In particular, he gave evidence that the words "barrel", "tub", or "drum" were commonly used to refer to 25 kilogram containers of pseudoephedrine; that a reference to "yield" was a reference to the quantity of amphetamine obtained from pseudoephedrine; that "HI" meant hydriotic acid; and "red", red phosphorous.

The gravamen of the case made by counsel for the applicants was that the jury, acting reasonably, ought to have entertained a reasonable doubt about the applicants' guilt, because a reasonable jury could not have found, on the evidence, that there was no reasonable hypothesis consistent with the applicants' innocence of the conspiracy as alleged and prosecuted at trial. If this submission is upheld, then the leave sought must be granted and the appeal against conviction allowed: see, for example, Knight v. R. [1992] HCA 56; (1992) 175 C.L.R. 495, at 503 per Mason, C.J., Dawson and Toohey, JJ. and 510 per Brennan and Gaudron, JJ. The applicants' counsel submitted that, although the applicants spoke of their plans and expectations concerning the supply of pseudoephedrine and other matters pertaining to the manufacture of methylamphetamine, the applicants did not conclude any agreement as to the manufacture of methylamphetamine. The evidence, so the applicants' counsel submitted, was insufficient to permit a reasonable jury to find, beyond reasonable doubt, that Moran and Mokbel intended to and did agree upon the manufacture of that drug with the common intention of carrying out the agreement. The evidence did not, so counsel for the applicants submitted, exclude the possibility that, if an agreement was reached on 6 April 1993, it was an agreement by Moran to supply pseudoephedrine to Mokbel, Moran having no more than an expectation that Mokbel would use it to manufacture methylamphetamine. If so, then the jury were not entitled to return a verdict of guilty against the applicant.

Having listened carefully to the conversation recorded on audio-tape, I am, in the end, unable to say that the jury, acting reasonably, could have excluded as a reasonable hypothesis that, at the end of the conversation on 6 April, Moran had agreed to supply Mokbel with pseudoephedrine but had not agreed upon the manufacture of methylamphetamine as alleged by the Crown in the case put to the jury. The evidence left open, as a reasonable hypothesis, that the only agreement concluded between the applicants was an agreement for the supply of pseudoephedrine by Moran with the expectation on Moran's part that Mokbel would use the pseudoephedrine to make methylamphetamine.

For the purpose of the law relating to conspiracy, mere "recklessness" is not sufficient to establish an intent to carry out an unlawful act said to be the subject of an alleged conspiracy: see Giorgianni v. R. [1985] HCA 29; (1985) 156 C.L.R. 473 at 506 per Wilson, Deane and Dawson, JJ. and Peters v. R. [1998] HCA 7; (1998) 151 A.L.R. 51 at 69 [para.66], [1998] HCA 7; 96 A. Crim.R. 250 at 269 per McHugh, J. with whom Gummow, J. agreed. Accordingly, it is not sufficient for this purpose to establish that Moran realised that the probable consequence of his conduct would be the illicit manufacture of methylamphetamine by Mokbel. Nor is it enough that Moran expected that, upon Moran's supplying Mokbel with pseudoephedrine, Mokbel would manufacture methylamphetamine; and this much is recognised in such cases as R. v. Trudgeon (1988) 39 A.Crim.R. 252, at 254-6 per Gleeson, C.J., 262-5 per Lee, C.J. at C.L.; R. v. Marinovich & Ors. (1990) 46 A.Crim.R. 282, at 309-10 and Krakouer v. R. [1998] H.C.A. 43, paras.30-31 per Gaudron, Gummow, Kirby and Hayne, JJ.

Counsel for the applicants submitted that the present case was truly one of conflicting hypotheses, citing R. v. Sienczuk (1981) 5 A.Crim.R. 243, R. v. McCaul & Palmer [1983] VicRp 102; [1983] 2 V.R. 419 and Gebert, Haley & Black v. R. [1992] SASC 3637; (1992) 60 S.A.S.R. 110. Perhaps, the case would be more accurately described as calling for an evaluation of conflicting possible constructions of the taped conversation, for as Batt J.A. indicates, the jury and this Court were called upon to interpret that conversation. The jury were not entitled to return a guilty verdict against the applicants unless the evidence before them excluded, as a reasonable hypothesis, any hypothesis (i.e., any explanatory conclusion to be implied from the conversation) consistent with the applicants' innocence of the conspiracy alleged and prosecuted at trial, bearing in mind that in this case there was no lesser alternative offence of which, at common law or by statute, the jury might have found them guilty. In this case, a hypothesis consistent with such innocence would exist if it was open to the jury to construe the conversation as not amounting to an agreement in the terms and to effect as that alleged by the Crown. The jury would not have been entitled to return a guilty verdict upon the basis that the only reasonable construction of the conversation of 6 April was that the applicants were party to a criminal conspiracy, although not necessarily a conspiracy of the kind alleged by the Crown at trial and put to the jury: cf. R. v. McCaul & Palmer[1983] VicRp 102; [1983] 2 V.R. 419, at 423-4.

I am inclined to think that the references by Moran in the 6 April conversation to his general modus operandi and to his "copping" a loss from a previous "cook", as well as his own description of his complaint against the associate who had left him with the loss, would have entitled the jury to conclude, on the balance of probabilities, that Moran was in the business of manufacturing methylamphetamine and that, by the end of the conversation, Moran and Mokbel had reached the agreement alleged by the Crown. It might readily have been inferred by the jury that Moran knew, or at least expected, that Mokbel would use the pseudoephedrine to manufacture methylamphetamine but, when all is said and done, I do not think that the evidence permitted the jury to find, beyond reasonable doubt, that Moran had any stake in what Mokbel was to do with the pseudoephedrine once Moran had supplied it to him. As part of its case, the Crown submitted that the agreement to manufacture methylamphetamine could be inferred from the lack of any discussion about price in the 6 April conversation. This was not the way the Crown had put its case to the jury. In any event, I accept that Mokbel's offer to pay Moran for some of the material Moran offered to supply relevantly tends against the Crown's submission.

The respondent also relied on the failure of either accused to give evidence at trial, referring by way of support to Weissensteiner v. The Queen [1993] HCA 65; (1993) 178 C.L.R. 217. In that case, the majority said, at 228:

"Not every case calls for explanation or contradiction in the form of evidence from the accused. There may be no facts peculiarly within the accused's knowledge. Even if there are facts peculiarly within the accused's knowledge the deficiencies in the prosecution case may be sufficient to account for the accused remaining silent and relying upon the burden of proof cast upon the prosecution. Much depends upon the circumstances of the particular case and a jury should not be invited to take into account the failure of the accused to give evidence unless that failure is clearly capable of assisting them in the evaluation of the evidence before them."

The Court in Weissensteiner was discussing the effect of a failure by an accused to give evidence where the accused could have given evidence which, if it existed at all, was within his own knowledge. The Court in that case made it clear, however, that a failure on the part of an accused to give evidence would not, of itself, necessarily entitle the jury to conclude that an otherwise reasonable hypothesis consistent with innocence of the offence alleged by the Crown was to be rejected: cf. R. v. Cervelli (1997) 95 A.Crim.R. 329, at 338. The only evidence against the applicants was, in this case, the conversation of 6 April 1993. It was a conversation of uncertain significance and pregnant with possibilities, each possibility involving illicit conduct but not necessarily the conduct alleged. The deficiencies in the Crown case were, it seems to me, sufficient to explain the applicants' remaining silent. This is not a case in which the applicants' failure to give evidence permitted the jury to be satisfied that the Crown had proved its case against them beyond reasonable doubt.

For these reasons, I am of the opinion that the applicants' convictions for conspiracy to traffic in a drug of dependence, as alleged in amended presentment ZB493B, were unsafe and unsatisfactory. The applications for leave to appeal against their convictions ought to be granted, the appeals treated as being heard instanter and allowed, the convictions quashed and judgments and verdicts of acquittal directed to be entered on the count.

(ii) Application for leave to appeal against sentence

In view of the outcome of the applications for leave to appeal against conviction, there is no need to address Mokbel's application for leave to appeal against sentence. This is not, however, the case with respect to the application for leave to appeal against sentence made by Moran.

As I have already noted, Moran fell to be sentenced by the judge below on three counts, one each on presentments ZB493B, J00972927B and ZB493A. If the other members of the Court agree, the conviction sustained on the count in presentment ZB493B now falls to be quashed. In this event, Moran makes application for a new non-parole period to be fixed in respect of the remaining sentences, that is, in respect of the sentences imposed on the counts in presentments J00972927B and ZB493A. As Moran's notice of application for leave to appeal against sentence makes it plain that the applicant seeks to appeal in this Court also against those sentences, it cannot be said that the Court lacks power to deal with the application: cf. R. v. Gibb [1997] 2 V.R. 576 at 581-2 per Callaway J.A.

Moran made no complaint, on appeal, about the individual sentences passed or about the concurrency of the sentences one with the other. He submitted, by his counsel, only that there should be a new, lesser non-parole period fixed. The non-parole period of 18 months fixed by his Honour below formed part of the sentences imposed on all three of the counts on which Moran was originally convicted. That non-parole period was, therefore, fixed in respect of the aggregate period of imprisonment under all three sentences: see Sentencing Act 1991 , s.11(4); cf. also s.14. Counsel for Moran relied solely on the relation which had necessarily existed between the non-parole period fixed by the judge below and the conviction that now falls to be quashed to justify the fixing of a lesser non-parole period, the relation between a non-parole period and sentences imposed in circumstances such as the present being acknowledged in Gibb [1997] 2V.R. 576 at 581.

As already noted, Moran was sentenced to 3 years' imprisonment for the conspiracy alleged on presentment J00972927B and 9 months' imprisonment for the conspiracy alleged on presentment ZB493A. The condition as to concurrency remaining, in the event that the conviction on presentment ZB493B is quashed, Moran would then be liable to serve a total effective sentence of 3 years, and not the 3 years and 6 months he is presently liable to serve. Bearing this in mind and having regard to the nature of the offences to which Moran has pleaded guilty and his personal circumstances as disclosed on the plea, ought there now be fixed a lesser non-parole period? I do not think so: in my opinion, the matters that remain and the considerations relevant thereto warrant a non-parole period of 18 months. Accordingly, I would affirm the sentence passed at the trial and dismiss the application made by Moran for leave to appeal against sentence.

Poisons and Controlled Substances Act 1981

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Judgment (56 paragraphs)

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