R v Quagliata [2019] QCA 45

SUPREME COURT OF QUEENSLAND

CITATION: R v Quagliata [2019] QCA 45

PARTIES: R v QUAGLIATA, Troy Anthony (appellant)

FILE NO/S: CA No 67 of 2018 / DC No 306 of 2017

DIVISION: Court of Appeal

PROCEEDING: Appeal against Conviction

ORIGINATING COURT: District Court at Townsville – Date of Conviction: 12 March 2018 (Durward SC DCJ)

DELIVERED ON: 19 March 2019

DELIVERED AT: Brisbane

HEARING DATE: 1 August 2018

JUDGES: Sofronoff P and Henry and Bond JJ

ORDER: The conviction on count 1 of the indictment should be quashed.There should be a re-trial of count 1 of the indictment.Otherwise: the appeal should be adjourned to permit the appellant and the respondent to file and serve submissions as to the orders which should be made in relation to counts 2, 4 and 5 of the indictment;each party must file and serve written submissions as to those orders within 7 days of the date of these reasons; andthe determination on the question of the orders which should be made in final disposition of the appeal will be made on the papers.

CATCHWORDS: CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTION AND NON-DIRECTION – REVIEW OF EVIDENCE – where the appellant was charged with one count of trafficking and three counts of supply – where the particulars for those counts were presented on alternative bases – where it was alleged that the defendant was engaged in carrying on the business of unlawfully trafficking a dangerous drug either directly or in partnership with others – where there were 20 events which constituted the evidence for all counts on the indictment – where the trial judge did not identify which events were relevant to each alternative case as particularised – whether the primary judge erred in failing to direct the jury as to the evidence relevant to each alternative / CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – MISDIRECTIO AND NON-DIRECTION – OTHER MATTERS – where the particulars did not refer to s 7 of the Criminal Code – where the particulars referred to a “common unlawful purpose” – where particulars did not identify how the alleged common purpose demonstrated a proper basis of criminal responsibility – whether the trial judge erred in directing the jury that “joint criminal enterprise” and “common unlawful purpose” were interchangeable / Criminal Code (Qld), s 7, s 668F / L v Western Australia (2016) 49 WAR 545; [2016] WASCA 101, considered / R v O'Dempsey [2018] QCA 364, considered / R v Palmer [2005] QCA 2, considered / R v Richards [2017] QCA 299, considered

COUNSEL: J A Greggery QC for the appellant / D L Meredith for the respondent

SOLICITORS: Anderson Telford Lawyers for the appellant / Director of Public Prosecutions (Queensland) for the respondent

1. SOFRONOFF P: I agree with the reasons of Bond J and the orders his Honour proposes.

2. HENRY J: I agree with the reasons of Bond J and the orders proposed.

3. BOND J:

Introduction

4. Over 13 days commencing on 20 February 2018, the appellant faced trial in respect of a four count indictment, as follows:(a)count 1, trafficking in the dangerous drug Cannabis between 12 January 2014 and 25 October 2014 at Townsville and elsewhere in Queensland; and(b)counts 2, 4 and 5, supplying the dangerous drug Cannabis to another person, namely:on 11 June 2014 at Toomulla in Queensland (count 2);on or about 29 September 2014 at Townsville (count 4); andon 24 October 2014 at Townsville (count 5).

5. On 12 March 2018, the appellant was convicted on all counts of the indictment. The trial judge sentenced the appellant to 6 years imprisonment on the trafficking count, with a declaration that he had already served 22 days in pre-sentence custody. On each of the three supply counts, the appellant was convicted and not further punished.

6. The appellant, by an amended notice of appeal, appealed his conviction for trafficking in dangerous drugs, but not his sentence on that count. There was no appeal in relation to either the conviction or the sentence for the supply counts.

7. For the reasons which follow, the appeal in relation to the trafficking count should succeed, such that the conviction on count 1 should be quashed and an order made for re-trial on that count.

8. If those orders were made, the sentences that the appellant should not be “further punished” for the three counts of supplying a dangerous drug could not stand, because the appellant would be left with no punishment for those counts. This question was not addressed at the hearing of the appeal, whether orally or in writing. The further disposition of the appeal should be adjourned to permit the appellant and the respondent to make submissions as to the orders which should be made in relation to those counts, it being noted that in R v Richards [2017] QCA 299, this Court held that s 668F of the Criminal Code confers on it power to resentence in similar circumstances.

The conduct of the case at trial

The indictment and the particulars

9. The trafficking count as expressed on the indictment did not allege anything other than that it was the appellant who carried on the business of trafficking. Count 1 on the indictment stated:

that between the twelfth day of January, 2014 and the twenty-fifth day of October 2014 at Townsville and elsewhere in Queensland, [the appellant] carried on the business of unlawfully trafficking in the dangerous drug Cannabis.

10. The Crown particularized the trafficking count in this way (in a document which became exhibit 1, copies of which were provided to the jury):¹

[The appellant] had a close association with Morrow.

[The appellant] was involved in the movement of cannabis either directly or in partnership with Morrow and/or Flavell. He either:

–moved drugs himself; and/or

–leaving drugs for collection; and/or

–arranging for, or encouraging, drugs to be moved / collected; and/or

–packaged, or arranged the drugs to be packaged; and/or

–leaving equipment to facilitate packaging; and/or

–encouraging the movement of drugs by his presence with others and knowledge of the common unlawful purpose; and/or

–being a party to the same acts listed above completed by Morrow which are part of the same common unlawful purpose.

[The appellant’s] involvement is demonstrated on, but is not limited to, the following days:

–19 May 2014

–23 May 2014

–26 May 2014

–3 June 2014

–8 July 2014

–19 July 2014

–21-22 July 2014

–12-13 August 2014

[The appellant’s] involvement was for profit.

On the following occasions [the appellant] supplied cannabis for profit (as a particular of his trafficking):

–11 June 2014

–On or about 29 September 2014

–24 October 2014

11. The Crown case, as so particularized at least, revealed that the Crown sought to attribute criminal responsibility to the appellant for the trafficking count on alternative bases, namely by evidence which demonstrate that he was engaged in carrying on the business of unlawfully trafficking in Cannabis, either –(a)directly; or (b)in partnership with Morrow and/or Flavelle.

12. However, the particulars also revealed other alternative bases by which the Crown sought to attribute criminal responsibility to the appellant for the trafficking count, namely on the basis that he was a party to the offence of trafficking, even if he was not one of the principal offenders. Although the particulars make no reference to s 7, it was evident that reliance was placed on each of ss 7(1)(a), (b) and (c) of the Criminal Code:

Principal offenders

(1)When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say—

(a)every person who actually does the act or makes the omission which constitutes the offence;

(b)every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(c)every person who aids another person in committing the offence.

The inadequacy of the particulars

13. It is appropriate to pause in the identification of the relevant aspects of the conduct of the case at trial, to observe that the particulars were inadequate. The inadequacy of the particulars did not form a ground of appeal, but the text of the particulars was one of the exhibits given to the jury and, as will appear, many of the inadequacies contained in the particulars were reflected in the directions given to the jury, and complaint was made on appeal about the directions in this respect.

14. I identify four reasons for expressing my conclusion concerning the particulars, all of which are related.

15. First, the Crown’s shotgun approach to formulating the particulars blurred (or, more accurately, ignored) the existence of dividing lines between the alternative cases advanced by the Crown. If, as is trite, the purpose of particulars is to give an accused sufficient indication of the nature of the case he or she is called on to meet,² then there must be clarity as to how each of the alternative cases is advanced. An important reason why that is significant is that evidence admissible on one alternative case might not be admissible on another, and the accused is entitled to have the cases sufficiently clarified so that appropriate objection can be taken, appropriate directions given and appropriate forensic decisions made. The absence of clarity in the particulars was exacerbated by the fact that the way they were formulated gave rise to an unwieldy (and, arguably, oppressive) number of logical alternatives.³

16. Second, the particulars contained three references to concepts which suggest the existence of some form of preconcert or arrangement to which the appellant may have been a party or about which he may have known, namely the reference to “partnership”, and the two references to a “common unlawful purpose”. But the precise nature of the alleged preconcert, what the appellant was said to have known and how it all related to each of the alternative cases was unclear. I make the following observations on the many questions which the appellant should have had answered by appropriate particulars:(a)If partnership is thought of as a relationship between one or more persons carrying on business in common with a view to profit, what was the business alleged to be? Or to put it another way, what was the scope of the alleged partnership to which the appellant was a party? Presumably the case was that the existence of the partnership was to be inferred, but from what?(b)What was the relationship between the alleged “partnership” and the alleged “common unlawful purpose”? What was the alleged “common unlawful purpose” and its scope, if it was different from the partnership? Which persons were alleged to have had the unlawful purpose in common? Presumably the case was that the existence of the common unlawful purpose was also to be inferred, but from what?(c)To which of the alternative cases was the preconcert or arrangement - whatever it was - alleged to be relevant? In this case, that issue was important because, as will appear, the Crown adduced evidence in the form of words uttered and acts done and by Morrow, Flavell and others, outside the presence of the appellant. To the extent that this evidence formed part of one or more of the alternative cases that the appellant and others had bound together in the pursuit of an unlawful purpose, and that the things said and done were said and done in furtherance of that purpose, that course could be legitimate. But to the extent that one of the alternative cases did not involve any allegation of preconcert, some of the evidence would be inadmissible hearsay. And, given the wording of the indictment, and the differentiation in the particulars between “directly” and “in partnership”, it seemed that at least one of the alternatives must not have involved any allegation of preconcert.

[16] The criticism of these directions is that to direct in terms of joint criminal enterprise could lead to error by the jury as to what had to be proved; and that it may have done so here. It is that criticism that I now turn to.

[17] It is submitted, correctly in my opinion, that the phrase "joint criminal enterprise" is not used in the Criminal Code and adds nothing to the provisions which are there contained. If an accused's conduct comes within the operation of any of the subsections of s 7(1) or within s 8 then she is deemed to have committed the offence whether or not she was a party to a joint criminal enterprise. And if she was a party to a joint criminal enterprise, as defined by the learned trial judge, but her conduct does not come within any of the subsections of s 7(1) or within s 8 then she is not deemed to have committed the offence.

[18] Thomas JA and Jones J pointed out in R v Walton and Harman that the language of joint criminal enterprise is not usually helpful when discussing criminal liability under s 7(1)(b) or s 7(1)(c). To that I would add that it may lead to confusion. It may describe an agreement to carry out an offence, participation in which may constitute counselling or procuring within s 7(1)(d) but even here it is not helpful to so describe it. In all these cases, as already mentioned, the question is not whether the accused was a party to a joint criminal enterprise but whether she did something which brought herself within one of the paragraphs of s 7(1). The language of joint criminal enterprise may be more appropriate to s 8 because that section requires a common intention to prosecute an unlawful purpose in conjunction with one another. That is the sense in which that or a similar phrase appears to be used in common law cases. However, because of the risk, even with respect to s 8, that its use may lead to confusion, in my opinion the phrase should be avoided in directions with respect to s 8 as well as in directions with respect to s 7.

(c)In L v Western Australia (2016) 49 WAR 545, the Court of Appeal of Western Australia expressed agreement with the observations of Davies JA in R v Palmer and emphasized that the criminal responsibility of an accused was to be determined by reference to the relevant provisions of the Criminal Code and not otherwise.⁷ The Court observed:⁸

Joint criminal enterprise at common law

[25] At common law, criminal liability of a party to an offence may be established by reason of a common purpose shared with others. In McAuliffe v The Queen,⁹ the court described the elements of liability on the basis of a joint criminal enterprise in the following terms (at 114):

Such a common purpose arises where a person reaches an understanding or arrangement amounting to an agreement between that person and another or others that they will commit a crime. The understanding or arrangement need not be express and may be inferred from all the circumstances. If one or other of the parties to the understanding or arrangement does, or they do between them, in accordance with the continuing understanding or arrangement, all those things which are necessary to constitute the crime, they are all equally guilty of the crime regardless of the part played by each in its commission.

[26] The court went on to describe the secondary liability that can arise at common law on the basis of extended joint criminal enterprise. The principle of extended joint criminal enterprise makes each of the parties to the arrangement or understanding guilty “of any other crime falling within the scope of the common purpose which is committed in carrying out that purpose”.¹⁰ The scope of the common purpose is determined by reference to the possible consequences of the criminal venture which were subjectively within the contemplation of the parties to the understanding or arrangement.¹¹

[Their Honours then referred to the development of the discussion of principle in the High Court and to differences between the common law of Australia and that of the United Kingdom.]

Criminal liability under the Criminal Code

[31] These debates as to the basis for accessorial liability at common law are irrelevant to the determination of whether the appellants committed the charged offence in this case. The appellants’ criminal responsibility was to be determined by reference to ss 7 to 9 of the Criminal Code, and not otherwise.¹²

Sections 7 and 9 of the Criminal Code

[32] Section 7(a) of the Criminal Code identifies the criminal liability of “[e]very person who actually does the act or makes the omission which constitutes the offence”. For reasons explained by Franklyn J in Warren and Ireland v The Queen,¹³ the reference to every person who actually does “the act” includes all persons who do the act or one or more of the acts in a series of acts which constitutes or constitute the offence. In that manner, s 7(a) provides for criminal liability of several persons, acting in concert, each doing some act which, in aggregate, would constitute an offence if done by one person.¹⁴

[33] The operation of s 7(a) differs from the common law of joint criminal enterprise in that, under s 7(a) of the Code, it is necessary for the accused to have done at least one act in a series of acts which constitutes the offence. As the formulation in McAuliffe indicates, under the common law, all participating parties to the arrangement or understanding are liable even if only one does the relevant act. For this purpose, participation in a joint criminal enterprise at common law may be constituted by mere presence when the crime is committed pursuant to the arrangement or understanding.¹⁵

[34] Section 7(b) and (c) of the Criminal Code extend criminal liability to a person who aids another in the commission of the offence, or who does or omits to do any act for that purpose.

[35] …

[36] …

[37] Aiding … the commission of an offence requires intentional participation by conduct aimed at encouraging or assisting something which goes to make up the facts which constitute the commission of the relevant offence.¹⁶A person cannot be an aider through an act which unwittingly assists the principal offender. Nor does a person aid another in the commission of an offence unless some support for the commission of the offence is actually provided.¹⁷Presence at the commission of an offence may, but need not, constitute wilful encouragement or support of the offending. Whether an accused’s presence constitutes aiding … for the purposes of s 7 will depend on the proven circumstances of the case.¹⁸

(d)Notably their Honours subsequently made observations which are just as apposite to an allegation of having a “common unlawful purpose” as they are to participation in a joint criminal enterprise, explaining that such an allegation may well have evidentiary significance to one or more of the bases for attribution of criminal responsibility under the Code, but is not itself a basis for such attribution:¹⁹

[41] Sections 7 to 9 of the Criminal Code do not refer to “joint criminal enterprise”, or define criminal liability by reference to entry into an understanding or arrangement to commit a crime. Participation in a joint criminal enterprise may be relevant in giving rise to, or assisting the drawing of, an inference that a person aided, counselled or procured the commission of an offence. However, it is the aiding, counselling or procuring of an offence, rather than an unlawful agreement or arrangement, which gives rise to criminal liability. ….

(e)If, contrary to the instruction given by this Court in R v Palmer, the impugned expressions are used, it would be particularly important that somehow clarity was provided as to the way in which the allegation as to purpose did have significance to demonstrating an actual bases of attribution of criminal responsibility provided under the Code. In this case it was entirely unclear as to how (and in relation to which of the alleged alternative bases identified in the particulars) the alleged common purpose was to be relied on to demonstrate a proper basis of attribution of criminal responsibility under the Criminal Code.

18. Fourth, the use of the phrase “being a party to the same acts listed above completed by Morrow which are part of the same common unlawful purpose” did not actually particularize anything at all. The reference to “party” could not possibly clarify the basis for attribution of criminal responsibility as a “party”. And, as reference to s 7 makes clear, there are alternative ways in which a person may be regarded as a “party”.

The evidence relied on at trial

19. The Crown case was based on evidence obtained through an investigation conducted by the Townsville District Drug Squad. The purpose of the operation was to target persons who were involved in the trafficking of cannabis in the Townsville area. The targeted area of the operation was an area of bushland near Toomulla Beach and Ollera Creek.

20. The investigation, called Operation Mike Zambezi, commenced in January 2014 with the initial target of the operation being Mr Caleb Morrow, who was referred to in the particulars. During the course of the operation, other targets were identified as persons of interest, including the appellant, Ms Yazmin Flavelle, and Mr Clarence Dilger.

21. The operation uncovered fourteen plastic drums of various sizes buried in the bushland, which were alleged to have been used by the appellant, together with Mr Morrow, Ms Flavelle and Mr Dilger, to grow, store, package and supply cannabis. On 24 October 2014, the appellant was arrested following a search of his residence. Operation Mike Zambezi came to an end on 29 October 2014 when officers retrieved several of the buried drums from the bushland.

22. The Crown presented evidence against the appellant divided into 20 “events”. The Crown’s evidence was lengthy, comprising of seventeen witnesses who each gave oral testimony; telephone intercept recordings; hand-held video camera recordings; and photographs. Exhibit 2 was a schedule which identified for the jury which telephone intercepts were relevant to which event, which witness was relevant to which event and which video recordings and photographs related to which event. All 20 of the events were said to be related to the trafficking count. Events 10, 16 and 18 were said to relate specifically to the three counts of supply and were relied on as particulars of the alleged trafficking by the appellant.

23. I summarize the evidence adduced by the Crown – at least so far as it was revealed in the appeal record²⁰ – under separate headings below, identifying what the evidence was said to convey to the jury. As I have mentioned, some of the evidence adduced by the Crown comprised evidence of words uttered and acts done and by Morrow, Flavell and others, outside the presence of the appellant. It is impossible to be exhaustive as to the extent to which this occurred, because not all of the evidence received by the jury was contained in the appeal record, but under each heading I have attempted to identify the extent to which that course occurred.

Events 1 to 5

24. Events 1 to 5 comprised of telephone intercept recordings taken over the period from 24 April 2014 to 13 May 2014, together with some evidence by Detective Acting Sergeant Bye, the principal investigator for Operation Mike Zambezi.

25. Exhibit 2 identified the evidence relied on as follows:(a)Event 1: Date: 24 – 25 April 2014;Telephone intercepts: 36, 44, 47, 49, 56, 132 and 177;²¹Witnesses: Bye;(b)Event 2:Date: 28 April 2014;Telephone intercepts: 604;Witnesses: Bye;(c)Event 3:Date: 2 – 3 May 2014;Telephone intercepts: 878 and 980;Witnesses: Bye;(d)Event 4:Date: 5 May 2014;Telephone intercepts: 1154;Witnesses: Bye;(e)Event 5:Date: 13 May 2014;Telephone intercepts: 1798;Witnesses: Bye.

26. The recordings were authorised by a warrant which allowed monitoring of incoming and outgoing calls to Mr Morrow’s registered phone number. Detective Bye gave evidence that in his experience the language used in telephone intercepts such as these was often coded to avoid police detection. For example, the parties here would talk in terms of fishing activity when in truth the parties were talking about dangerous drugs (though it was conceded that at least some of the conversations involved genuine fishing talk). Extracts from the telephone intercepts reveal the following language:

Hey the prawns are on the bite a bit tonight so there won’t be much fish around. We’ll have to go out tomorrow afternoon.²²

Well I gotta go out in the morning and catch some prawns with the boys.²³

Yeah no I’m just goin’ for a quick ride and I was gonna flick a line ‘cause the fuckin’ Macerkel’s on the run at the moment.²⁴

27. The evidence for events 1 – 5 involved several phone intercepts between Mr Morrow and the appellant, Mr Morrow and Ms Flavelle, and Mr Morrow and an unidentified person. Mr Morrow and the appellant arranged to “go for a cruise” and “go for a ride”²⁵and arranged to leave “a couple of plans”²⁶behind for Mr Morrow’s defacto partner, Samantha Jerkic. Mr Morrow and Ms Jerkic had a conversation in which Ms Jerkic told Mr Morrow that the appellant has been over and “told me everything I need to tell ya”. These conversations were suggested to relate to drug activity and it was suggested that after the communications occurred the parties would ride their quad bikes into the bushland to access the buried drums. However, there was no evidence that the appellant went into the bushland areas over the time period covering events 1 – 5. A conversation between Mr Morrow and the appellant in which the appellant stated he “was trying to see what-his-name but he’s gone fishing”²⁷was also said to relate to drug activity. In cross-examination, Detective Bye conceded that there was no actual evidence of supply or exchange of dangerous drugs, and no other indicia of drug activity in relation to events 1 – 5.²⁸

Event 6

28. Exhibit 2 identified the evidence relied on as follows:(a)Date: 19 May 2014;(b)Telephone intercepts: 2306, 2320, 2337 to 2339, 2350, 2369, 2374, 2376, 2383, 2384, 2390 and 2391;(c)Videos: videos 65, 66, 75 and 78 to 80 from exhibit 8;(d)Witnesses: Bye and Squire.

29. In relation to event 6, there were several telephone intercepts where Mr Morrow and Ms Flavelle arranged to meet in the bushland where the drums were located.²⁹Telephone intercepts received over the course of 19 May 2014 revealed Mr Morrow had arranged to meet with two other males on that day.³⁰Again, there was no explicit reference to drug activity in these telephone intercepts and it was alleged coded language was used. None of the telephone intercepts comprising event 6 involved the appellant.

30. The officers involved in Operation Mike Zambezi had assigned identifying numbers to each buried drum. Mr Morrow and Ms Flavelle referred to drum locations simply as the “first place or second” or “the swimmer spot” or “the closest one where we go swimming”. Detective Bye and Detective Squire conducted surveillance while dressed in camouflage in the bushland area near drum 1.

31. On 19 May 2014, Detective Bye observed two black and yellow quadbikes, one with racks on the front and back, the other without racks. Detective Bye identified that the quadbike with racks was being driven by the appellant with his wife, Kerry Quagliata, on the back. The quadbike without racks was driven by Mr Morrow with Ms Flavelle on the back. The quadbikes came to a stop on a dirt track a short distance away from drum 1. The appellant got off his bike, walked into the bushland towards drum 1 and returned shortly after. After the quadbikes left, Detective Bye and Detective Squire entered the same bushland area where they found freshly disturbed dirt. Digging in this area yielded an empty buried drum covered with brown vinyl. A search of another area with freshly disturbed earth revealed drums 1 and 2.

Event 7

32. Exhibit 2 identified the evidence relied on as follows:(a)Date: 22 – 23 May 2014;(b)Telephone intercepts: 2463, 2469, 2488, 2491, 2493, 2502, 2506, 2532, 2535 and 2536;(c)Videos: videos 1 and 2 from exhibit 21, videos 1 and 2 from exhibit 23-26 and videos 99 to 102 from exhibit 58;(d)Witnesses: Bye, Squire and Anderson.

33. Event 7 was the first event to involve direct evidence of drug activity. On 22 May 2014, officers uncovered drum 2 which was filled with approximately nine or ten cryovac bags containing cannabis. On 23 May 2014, only 7 cryovac bags remained in that drum.

34. Telephone intercepts were made on 22 May 2014 between Mr Morrow and Ms Flavelle, and between Mr Morrow and an unidentified male, where Mr Morrow advised he was going “fishing” in the morning. Instead, in the morning on 23 May 2014, there were several calls between Mr Morrow and Ms Flavelle attempting to arrange to meet in the bushland. Mr Morrow attended the bushland but they were unable to meet as Ms Flavelle had to leave to attend to her sick child. At 9:19am, Officer Squire observed the appellant riding a quadbike in the vicinity of the drum sites. Later, at 10:25am Mr Morrow and Ms Jerkic were observed driving past. Mr Morrow then walked near the drum 2 site and remained there for four minutes. Mr Morrow had difficulty starting his bike, and then departed. Officers Andersen and Squire investigated the area where Mr Morrow had visited and found 13 cryovac bags containing cannabis in total in drums 1 to 4.

35. In the afternoon on 23 May 2014, Mr Morrow called the unidentified male again to arrange when he would come see Mr Morrow. That same afternoon, Mr Morrow called another unidentified male to advise he had gone fishing and “got a couple of fuckin’ decent fish”.³¹

36. The appellant was not a party to any of the telephone intercepts relevant to event 7.

Event 8

37. Exhibit 2 identified the evidence relied on as follows:(a)Date: 25 – 27 May 2014;(b)Telephone intercepts: 2648 and 2659;(c)Videos: videos 1 to 5 from exhibit 57 and videos 83, 84 and 86 from exhibit 9;(d)Witnesses: Bye, Squire, Phelps, Carter, SERT³²Officer 99 and SERT Officer 155.

38. On 25 May 2014, Detective Phelps and Detective Squire uncovered drum 5, finding it contained a single one-pound cryovac bag of cannabis.

39. On the morning of 26 May 2014, a telephone intercept between Mr Morrow and Ms Flavelle revealed they were organizing to go “fishing” that afternoon.³³The appellant was not a party to this conversation. SERT officers, positioned near the drums, witnessed the appellant in the vicinity of drums 1 – 5 at approximately 12:20pm wearing a long sleeve black and white jersey. The officers then heard the noise of a quad bike starting up. Detective Bye, located in the bushland near Toomulla beach, observed a black and yellow quad bike with racks on it entering the bushland area at 12:25pm. The rider was wearing a red and white coloured helmet and could not be identified. However, the quad bike was the same as that which the appellant had previously ridden. The rider was also wearing a grey and black shirt similar to that which the appellant was wearing on 19 May 2014. The quad bike entered the dirt road near drum 7, stopped at the end of the road, was turned off for approximately 15 minutes and then exited the way it came in. There was no evidence where the appellant went during the 15 minutes. The appellant was then seen again by SERT officers running towards drums 1 – 5. He was observed to be concealing a large bulky item under his shirt.

40. At approximately 1:25pm, a black Nissan Navara drove down the same dirt road, stopped at the end of the road near drum 7, stayed there for a short time and then exited the way it came in. The driver could not be identified. After the vehicle had left, the officers followed the freshly disturbed dirt in the bushland area and located drum 6. Drum 6 was empty, clean and appeared new. Later that day at 3:45pm, the appellant called Mr Morrow and said that Mr Morrow needed to come and see the appellant straight away, and that it was important.³⁴

41. The next day, 27 May 2014, SERT officers checked the area and found that drums 1 to 3 and 5 had been dug up and removed. Drum 4 remained buried and contained one cryovac bag of cannabis. The jury was asked to infer that the appellant had been exercising control over the drugs in the bush.

Event 9

42. Exhibit 2 identified the evidence relied on as follows:(a)Date: 3 June 2014;(b)Telephone intercepts: 3091, 3110, 3119, 3120 and 3126;(c)Witnesses: Bye, Andersen, Carter and Pritchard.(d)Other exhibits: photos of text messages from exhibit 10, photos of cannabis seized from exhibit 11 and drug analysis certificate from exhibit 12.

43. This event involved the interception and search of Ms Flavelle’s vehicle. A series of telephone intercepts revealed Ms Flavelle and Mr Morrow arranged to meet in the bushland.³⁵ The appellant was not a party to these conversations. Detective Bye, Officer Andersen, Constable Carter and Officer Pritchard followed Ms Flavelle and Mr Morrow’s vehicles as they exited the Toomulla Beach road area. As the vehicles headed back to Townsville, they headed in different directions. Detective Bye and Officer Andersen continued to followed Ms Flavelle’s vehicle. Ms Flavelle’s vehicle drove to Mr Morrow’s residence, parked in the front lawn for 15 – 20 minutes and then drove out. There was no evidence where Ms Flavelle went during the 15 – 20 minutes. Detective Bye then instructed Constable Carter and Officer Pritchard to intercept Ms Flavelle’s vehicle for a search. The search of the vehicle revealed a one-pound cryovac bag containing cannabis hidden in the front passenger footwell. Ms Flavelle was taken to the police station.

44. There was no evidence to suggest the appellant was involved in event 9.

Event 10

45. Exhibit 2 identified the evidence relied on as follows:(a)Date: 11 June 2014;(b)Witnesses: Bye, Phelps and Andersen;(c)Videos: videos 1 to 6 from exhibit 13;(d)Other exhibits: screen shot of video from exhibit 13A, DVD from exhibit 42 and DVD from exhibit 50.

46. This was the first count of supply. At 3.02pm on 11 June 2014, Detective Phelps and Detective Bye uncovered drum 6 and found it was empty. At 3.11pm, the detectives heard a quad bike approaching so they took cover in the bushland. Detective Phelps observed the appellant walking towards drum 6 carrying a small black backpack and a large blue backpack. The appellant knelt on the ground, uncovered the drum and moved items from the large backpack into the drum. Due to the surrounding vegetation, Detective Phelps was not able to see what items were being unpacked. The appellant then walked further into the bushland, away from his quad bike. At 3.37pm, the appellant must have returned as the quad bike started up again and departed. The quad bike was black and yellow with racks on it, the same as the appellant had ridden on previous occasions. At 3.46pm, the detectives uncovered to drum 6 and found two one-pound cryovac bags containing cannabis. The detectives returned the drum to how they found it and continued to surveil the surrounding area. At 4.05pm, a vehicle approached and stopped directly opposite drum 6. Two males exited the vehicle and proceeded directly to drum 6. One male started digging while the other held a black plastic garbage bag. The first transferred items into the garbage bag from the drum. The vehicle left a short time after. The detectives then went to inspect the contents of drum 6 and found it was empty.

Event 11

47. Exhibit 2 identified the evidence relied on as follows:(a)Date: 12 June, 7 July and 23 July 2014;(b)Videos: videos 1 and 2 from exhibit 44 and videos 139 to 143 from exhibit 45;(c)Witnesses: Bye, Phelps, Andersen and Carter.

48. Event 11 occurred over several days. On 12 June 2014, drum 7 was located and it contained five cryovac bags each containing one pound of cannabis. On 7 July 2014, drum 7 was empty, and drum 8 contained two cryovac bag containing cannabis. That same day, drum 9 was located and it contained a number of items consistent with the packaging of drugs, including: one silver tarpaulin, one black tarpaulin, one set of scales, two cryovac machines, one power lead, one power box, one green bucket containing gloves, and a plastic container containing a number of leads. On 23 July 2014, the drums were inspected again. Drums 7 and 8 were now empty. The contents of drum 9 had changed and now included digital scales and black canvas. A further drum, drum 13, was also located and contained canvas, rubber bands and small clipseal bags.

Event 12

49. Exhibit 2 identified the evidence relied on as follows:(a)Date: 8 – 9 July 2014;(b)Telephone intercepts: 5258 and 5279;(c)Witnesses: Bye.

50. Event 12 consisted of two telephone intercepts. The first, on 8 July 2014, was between Mr Morrow and a person he referred to as “bro”. There was a discussion between them about pricing in the sale of an item which was suspected to be a reference to cannabis. The Crown alleged that the ‘mate’ Mr Morrow was referring to in that discussion, who would be the one making the sale, was the appellant:

M2: Yeah I want ten, ten for three, three a piece

M1: No deal

…

M2: What? Ten at a time

M1: Yeah, even, even then I’ll have to have a yarn to me mate I’m pretty sure he’d probably go around the fuckin’ the uh four point two or fuckin’ something like that

M2: Nah he’s dreaming

…

M2: That’s, that’s thirty large

M1: Yeah but I highly doubt it brother aye

M2: Alright well have a word to him, there’s thirty cash if he wants it

M1: Yeah, yeah no all good but I highly doubt he will ‘cause I, I kinda know the bloke really well

M2: Righto then well have a word see what he comes up with

M1: He might, he might even the forty mark but I highly doubt the thirty mark

M2: Righto well have a word to him and see what he reckons³⁶

51. The second telephone intercept, on 9 July 2014, was between Mr Morrow and the appellant, revealing they were arranging to meet up.³⁷

Event 13

52. Exhibit 2 identified the evidence relied on as follows:(a)Date: 18 – 19 July 2014;(b)Telephone intercepts: 5861, 5885, 5896, 19574, 5935, 5936, 5941 and 5945;(c)Witnesses: Bye and Phelps.

53. Event 13 involved an occasion where an investigating officer in the bushland area was seen by Ms Flavelle.

54. On 18 July 2014, police intercepted a phone call between Mr Morrow and Ms Flavelle in which they arrange to meet up in the afternoon.³⁸Later that day, Detective Bye and Detective Phelps were in the bushland area. Detective Bye observed a silver Nissan Pathfinder driven by Ms Flavelle and a white Nissan Patrol driven by Mr Morrow arrive in an area of the bushland. Mr Morrow removed the quadbike that was in the utility tray of his vehicle and drove it into the dry creek area. Mr Morrow was carrying a black backpack. Ms Flavelle remained by the vehicles. At one stage, Ms Flavelle was looking down the dirt track they drove in on. As Detective Bye moved to obtain a better view, he had crossed a portion of this dirt track. Detective Bye suspected he had been compromised.

55. Ms Flavelle walked down near the creek area, returned after a short time and subsequently drove away. She returned a few minutes later. Telephone intercepts subsequently reveal that in this time, Ms Flavelle had made a call to Mr Morrow’s mobile.³⁹Mr Morrow’s partner, Samantha Jerkic, answered the phone as he had left it at home. The conversation reveals that Ms Flavelle did in fact see Detective Bye in his camouflage gear.

56. Approximately five minutes after she returned, Mr Morrow returned from the creek area. A short conversation took place before Mr Morrow rode away on the quadbike. Approximately 20 minutes later, Mr Morrow returns to the vehicles without his backpack. Mr Morrow and Ms Flavelle load the quadbike onto the Nissan Patrol in a hurry. Both vehicles then exited the area. Detective Bye and Detective Phelps went into the creek area and found drum 12 which was empty.

57. On 19 July 2014, Mr Morrow received an email from the appellant displaying a newspaper article reporting that a man in camouflage clothing had been seen loitering in the Ollera Creek area, raising suspicions of the police.⁴⁰Mr Morrow responds by text message saying “fuck”.⁴¹Mr Morrow and the appellant then exchanged text messages discussing whether the newspaper article was placed by the police to avoid suspicion.⁴²

Event 14

58. Exhibit 2 identified the evidence relied on as follows:(a)Date: 21 – 22 July 2014;(b)Telephone intercepts: 6081, 6088, 6100 and 6101;(c)Witnesses: Bye.

59. Event 14 involves an exchange of money from Ms Flavelle to Mr Morrow. On 21 July 2014, a telephone intercept revealed a conversation between Ms Flavelle and Mr Morrow:⁴³

M1: I was actually I was actually gonna throw four fourt in there and I thought oh no fuckin’ I’ll just leave it at two for now

F1: No two’s good

M1: [clears throat]

F1: Two’s good for now

M1: Yeah sweet as ‘cause I got like fuckin’ thirty eight fuckin’

F1: Well I’ll

M1: Coral trout anyway so

F1: Well I got somebody who needs three I think so

M1: Well I got thirty eight of the fuckin’ things so yeah

F1: Yep well I’ll um work out some stuff for tomorrow probably I’ll go out and then I’ll work somethin’ out after that and give you a bell

60. Another intercept on 21 July 2014 reveals Mr Morrow asking whether he can “grab that paperwork” from Ms Flavelle.⁴⁴Detective Bye gave evidence that in his experience, “paperwork” is commonly used to refer to cash. A telephone intercept on 22 July 2014 between Mr Morrow and his partner Ms Jerkic confirms that Mr Morrow saw Ms Flavelle to get money “for Troy” (the appellant) but that Ms Flavelle still needed to give him more money.⁴⁵

61. The appellant was not a party to any of the telephone intercepts relevant to event 14.

Event 15

62. Exhibit 2 identified the evidence relied on as follows:(a)Date: 12 – 14 August 2014;(b)Telephone intercepts: 7269 and 135;(c)Videos: videos 1 and 2 from exhibit 29 and videos 1, 4 and 5 from exhibit 53;(d)Witnesses: Bye, Squire, Phelps, Penrose, Smith, Brown, Blaney, Callow, Armstrong, O'Mara, Seeto and Carter.

63. On 12 August 2014, CCTV footage showed the appellant and Mr Morrow attended the Caltex Yabulu service station in separate vehicles. Mr Morrow’s vehicle had a yellow and black quad bike without racks in the utility tray. Detective Squire observed the appellant and Mr Morrow’s vehicles drive towards an area near the bushland. Mr Morrow and the appellant rode the quad bike into the bush and returned some time later. They departed in their separate vehicles onto the main road at 3.15pm. At 3.30pm, Mr Dilger arrived in the area on a blue quad bike. In the evening, Mr Morrow rings Ms Flavelle saying he wants to meet.⁴⁶ Nothing further was observed on that day.

64. On 13 August 2014, further searches of the bushland area were conducted. Detective Squire and Detective Phelps encountered Mr Dilger’s son, Andrew Dilger, walking in the bushland dressed in camouflage gear. Andrew Dilger was detained. Officers also encountered Mr Morrow and Mr Dilger dressed in camouflage gear with a yellow and black quad bike and a blue quad bike. Mr Morrow and Mr Dilger were detained. A search of Mr Morrow’s vehicle revealed $300 cash, a wallet and a mobile phone with the phone number which was the registered telephone intercept number. Warrants were prepared to search Mr Morrow’s residence at 103 Thorn Street. The search of his residence uncovered the following items: one plastic container containing a small amount of cannabis, a plastic bong in a Dare milk bottle with a green hose and cone piece attached, one Wild Turkey bottle container which smelled strongly of cannabis, one towel and cryovac bag which smelled strongly of cannabis, one brown paper bag containing 200g of cannabis, two medium clipseal bags containing a total of 60g of cannabis, one grinder containing 1g of cannabis, one set of digital scales, and two cryovac bags containing 897g of cannabis.

65. On 14 August 2014, a warrant was prepared for a telephone intercept on the appellant’s phone number. The appellant was not a party to any of the telephone intercepts relevant to event 15.

Event 16

66. Exhibit 2 identified the evidence relied on as follows:(a)Date: 21 August – 30 September 2014;(b)Telephone intercepts: 220, 221, 228, 240, 241, 515, 1207, 1266, 1446, 1474 and 1613;(c)Witnesses: Squire, Hilton and Briggs.

67. This was the second count of supply. The evidence comprised of a series of telephone intercepts between the appellant and Davin Bretherton. On 22 August 2014, a text message interchange between the appellant and Mr Bretherton revealed they were arranging to meet up.⁴⁷There were more telephone intercepts which detailed arrangements to meet up on 29 September 2014.⁴⁸On 30 September 2014, Detective Hilton attended Mr Bretherton’s address to conduct a search of the premises. Detective Hilton found one iPhone, one empty cryovac bag smelling of cannabis, one duffel bag containing a total of ten pounds of separately bagged cannabis, and 340g of cannabis in the shed freezer. Expert evidence suggested that some of the cannabis had been sealed by a machine that had been found in drum 9.

68. The appellant was a party to some but not all of the telephone intercepts relevant to event 16.

Event 17

69. Exhibit 2 identified the evidence relied on as follows:(a)Date: 7 October 2014;(b)Telephone intercepts: 1844;(c)Witnesses: Squire.

70. The event involved a single telephone intercept between the appellant and an unidentified female. The relevant exchange was as follows:⁴⁹

F1: Yeah. You need to teach me a few things

M1: What in self defence?

F1: Oh no, just other stuff if you know what I mean? You just need to have a chat with me.

M1: Yeah. Yeah it won’t, won’t be a drama

F1: I need to start making some money, so

…

F1: Yeah. So you need to have a chat to me and teach me a few things

M1: I’ll try it

F1: Pardon?

M1: I said I’ll try

F1: Yeah just, we need a good chat, ‘cause I can’t keep surviving on the way

71. The appellant agreed to meet the unidentified female at her residence. The Crown alleged that this was a request for the appellant to mentor the caller in dealing drugs.

Event 18

72. Exhibit 2 identified the evidence relied on as follows:(a)Date: 17 – 24 October 2014;(b)Telephone intercepts: 2040, 2041, 2096, 2097, 2101, 2102, 2103, 2130, 2143, 2144, 2167, 2176 and 2178;(c)Witnesses: Squire, Phelps, Hilton, Bye, Pritchard, Andersen and Jaques-Sinclair.

73. This was the third count of supply. The evidence comprised of a series of telephone intercepts between the appellant and Maxwell Rush. On 17 October 2014, the telephone intercepts reveal the appellant and Mr Rush were arranging a time to meet and discussing whether the appellant may have work for Mr Rush.⁵⁰ On 23 October 2014, the appellant arranged for Mr Rush to see him the next day. On 24 October 2014, Mr Rush sent a text message to the appellant saying “bro b there about 3.30”.⁵¹ The appellant replied “hey bro meet u down at kfc just let me know when your there so we can get a feed out my way”.⁵² As a result of these intercepts, a number of officers stationed themselves around the area near the KFC in Deeragun to conduct surveillance.

74. On 24 October 2014 at 3.40pm, a blue Mazda sedan parked in the carpark of KFC. A few moments later, a white Holden Rodeo utility parked four parking bays up from the Mazda. The appellant exited the Holden and approached the Mazda. Two males, Mr Rush and one Robert Campbell, exited the Mazda. The three men talked with each other in the carpark for approximately 10 minutes before returning to their respective vehicles. Both vehicles exited the carpark and proceeded onto the highway in a convoy with the appellant’s vehicle leading. They eventually head off the highway. They were later seen, still in convoy, almost 2 hours later. The appellant’s vehicle was intercepted and searched. A mobile phone and $300 was seized. Mr Rush’s vehicle was intercepted after being pursued by a marked police vehicle and a backpack containing cannabis was found in the middle of the road in circumstances from which the Crown invited the jury to conclude that Rush must have thrown the cannabis from the car, once he appreciated he was being pursued by police.⁵³

Event 19

75. Exhibit 2 identified the evidence relied on as follows:(a)Date: 24 October 2014;(b)Witnesses: Bye and Squire.

76. Event 19 involved a search of the appellant’s residence on 24 October 2014. The appellant resided with his family as well as Mr Morrow’s family. The appellant lived on the top floor and Mr Morrow on the bottom floor. The police located several items relevant to drug activity on the bottom floor of the premises, including: one black diary, one black helmet, one red and white helmet, two USB sticks, seven memory and sim cards, a blue and black mobile phone, two black backpacks, one camel pack. The police located the following items on the top floor of the premises: one black and grey long-sleeved shirt, one long-sleeved camouflage shirt, one black backpack, a quantity of documents in the upstairs kitchen, one pair of camouflage pants, one black backpack. The police also located two yellow and black quadbikes in the shed of the premises. The appellant was arrested following this search.

Event 20

77. Exhibit 2 identified the evidence relied on as follows:(a)Date: 29 October 2014;(b)Witnesses: Bye, Phelps, Squire and Piper.

78. Event 20, the final event, occurred on 29 October 2014. It involved Detective Bye, Detective Squire and Detective Phelps in the company of scenes of crime officers, attending the bushland of Toomulla Beach and Ollera Creek to retrieve the buried drums. All seven drums which were located were empty, with the exception of drum 9 which contained a cryovac machine and other equipment used to package cannabis. This concluded Operation Mike Zambezi.

After the close of the Crown case

79. Following the close of the Crown’s case at trial, the appellant made a no case submission on application based on these grounds: (1) the case of joint criminal enterprise had not been adequately particularised or established on the evidence; (2) the Crown’s case had not been conducted on any other basis of liability, for example as an aider or a person who has aided and abetted a principal offender; and (3) the case of trafficking as a principal offender in his own right had not been adequately particularised or established on the evidence.

80. The trial judge refused the application on the basis that: (1) there was evidence capable of proving a joint criminal enterprise and the particulars were adequate; (2) the prosecution was proceeding against the defendant either as a principal offender or a party to the offending and was relying on s 7(1)(a), (b) and (c) of the Code; and (3) the prosecution case that the appellant was a principal offender was sufficiently particularised to fully inform the defendant of the case to be met.

81. The appellant did not adduce any evidence.

The appellant’s argument

82. The appellant abandoned the ground of appeal that the verdicts on all counts “…were unreasonable or insupportable having regard to the evidence”. The grounds of appeal which were pressed were those which challenged the correctness or sufficiency of the trial judge’s directions to the jury.

83. The grounds of appeal on which the appellant relied each raised a case of misdirection by the trial judge. The grounds were expressed in these terms:(a)Ground 1: The trial judge misdirected the jury by referring to the unlawful purposes of possessing and supplying dangerous drugs;(b)Ground 2: The trial judge erred in failing to identify the evidence relevant to the allegation of joint criminal enterprise and to direct the jury to only take this evidence into account;(c)Ground 3: The trial judge erred in his directions to the jury by:Not identifying the facts said to aid Morrow and/or Flavelle;Not directing the jury that aiding required proof that the defendant knew the essential facts of Morrow’s offence; andThey had to be satisfied the only reasonable inference was that the appellant intended to aid Morrow’s business rather than supplying cannabis for his own benefit; and(d)Ground 4: The trial judge erred in failing to identify to the jury the evidence relevant to the allegation he was a principal [in the business of trafficking cannabis]⁵⁴ and to direct the jury to only take this evidence into account.

84. Although some aspects of those grounds were expressed poorly, the essence of the appeal was explained in the appellant’s written submissions in this way:

3.Not all evidence led in the trial was relevant and admissible in each of the alternative cases advanced by the prosecution. The nature of the alleged business carried on also differed.

4.The written particulars and the prosecutor's opening address did not distinguish between these respective grounds of liability or the different nature of the proof in each case.

5.The directions given by the learned trial judge did not require the jury to consider the bases advanced by the prosecution as alternatives, did not identify the different factual issues and evidence relevant to each scenario and did not instruct the jury to consider only the evidence relevant to each basis for conviction.

6.The omitted directions created the real risk that the jury convicted the appellant on count 1 by misapplying the law and by relying on inadmissible evidence. The appellant was deprived of a chance of an acquittal.

85. It is sufficient for the purposes of disposition of the appeal to consider the appellant’s argument cast in that way.

Discussion

86. The relevant substantive directions by the trial judge were entirely reduced to writing by him and provided to the jury. The related oral component of the directions comprised reading the relevant aspect of the written directions to the jury and providing brief oral elaboration of the written directions.

87. It may be observed that amongst the documents provided to the jury were:(a)the text of the four counts on the indictment;(b)the text of the particulars of the charges; and(c)the schedule identifying the matters relied on in relation to each of the 20 events, as presented by the Crown.

88. These and other documents were expressly identified in the written directions.

89. It may also be observed that the directions identified that the Crown case identified the alternative cases advanced by the Crown as (a) the appellant was the person who actually committed the acts constituting the offence; (b) the appellant was one of a number of persons who actually committed the acts constituting the offence; and (c) the appellant was a party in the sense of aiding other principal offenders in the way contemplated by s 7(1)(b) or (c) of the Criminal Code.

90. However, the directions suffered from the same vice which was inherent in the particulars, namely they ignored the existence of any dividing lines between the Crown’s alternative cases. The appellant was correct to submit that the directions failed to require the jury separately to consider each alternative and that they made no attempt separately to identify the evidence or issues which were referable to each alternative. The only answer of the respondent to this point was to rely on the proviso. I will return to that suggestion.

91. This error was compounded by the way in which the directions dealt with the Crown’s reliance on “common unlawful purpose”. Curiously, despite the fact that the particulars were specifically provided to by the jury and their significance reinforced by the trial judge, the directions made no mention at all of the notion of “partnership”. Presumably that was because of an unstated intention to encompass any requisite directions within the directions on “common unlawful purpose”. At all events, the learned primary judge introduced his oral recitation of the written direction he had given by the reminder that the term was “used twice in the particulars, as you will have noticed.” He then repeated the written direction, which was in these terms:⁵⁵

The expression, "unlawful common purpose" is sometimes interchangeable with the expression "joint criminal enterprise". What the expressions mean is that there is a common purpose shared between the defendant and another or other offenders in the context of an undertaking or arrangement amounting to an agreement between the defendant and another or others that they will commit the trafficking. The word 'agreement' does not mean something formal. It may be tacit or unspoken. It may be inferred from the conduct of the defendant or others. What an unlawful common purpose does is to provide a means of attaching criminal responsibility for the trafficking on all of the parties to the arrangement regardless of the part each played in its execution.

The telephone intercepts either directly involve the defendant or are statements made between others who are part of the unlawful purpose and amount to what lawyers call circumstantial evidence. That really means evidence that is relevant as being part of the surrounding circumstances that tend to prove the defendant's guilt of trafficking. To put it another way, the circumstantial evidence is something from which an element of the offence of trafficking can be inferred.

Of course, some of the phone calls (those directly involving the defendant or those that make explicit reference to him for example) may amount to direct evidence. So the circumstances are that even though some of the telephone calls or text messages are spoken or made in the absence of the defendant they may nevertheless be relevant facts in the case against him.

In this case you might think that there is other reasonable evidence, quite apart from the words spoken or texts made as between others whose participation you have heard about, which demonstrate that the defendant was also a participant in the carrying on of the business of trafficking.

92. It will be noted immediately that the direction does not identify what the alleged common purpose actually was, nor does it invite the jury to consider whether they found it to be have been proved. But, more importantly, this direction was erroneous for the reasons explained in R v Palmer and L v Western Australia. The respondent did not address those cases in its argument on appeal. I reject the respondent’s submission that the jury was told about the meaning of common unlawful purpose and being a party to an offence in a way consistent with the provisions of s 7 of the Criminal Code.

93. It must be accepted, of course, that an appellant does not establish error in a jury direction simply by pointing to the use of the phrase “joint criminal enterprise” in the directions given by the trial judge. In this context, an appellant must establish that the direction, taken as a whole, invited the jury to convict the appellant otherwise than by reference to s 7 of the Criminal Code: R v Palmer at [19], L v Western Australia at [31], [43], Sheriff v The State Of Western Australia [2017] WASCA 185 (Mazza JA) at [75].

94. In my view that was what the directions did. The form of the directions was such that the appellant lost the chance of the jury having a clear identification of -(a)the alternative bases which they could consider on which criminal responsibility for trafficking could be attributed to the appellant;(b)for each alternative basis, the extent to which, if at all, it was necessary for the jury to be persuaded that there was some form of identified partnership or common purpose; and(c)for each alternative basis, the evidence which was admissible on that case and how it related to establishing the basis on which criminal responsibility for trafficking could be attributed to the appellant, as contemplated by s 7 of the Criminal Code.

95. That point made in (c) was significant because on the identified alternative that the appellant was the person who actually “directly” committed the acts constituting the offence, the evidence of the acts done and things said outside the appellant’s presence would seem to have been inadmissible. On appeal the respondent did not advance any argument to the contrary, save for the proposition, which I do not accept, that no such alternative case was put to the jury. Perhaps of greater concern, so far as the point made in (c) is concerned, is that the form of the particulars, their reinforcement in the directions, and the directions concerning “joint criminal enterprise” and “common unlawful purpose”, operated to give rise to the real possibility that the jury regarded evidence of having such a purpose as a sufficient basis in and of itself for attribution of criminal responsibility for trafficking to the appellant. Indeed, that seems to have been the effect of the highlighted portion of the quote at [91] above.

96. The President of this Court observed in [2018] QCA 364 at [66] (Gotterson JA and Brown J agreeing), that if the relevant law has not been correctly explained to the jury and the rules of procedure and evidence not strictly followed:

… then there has been legal error in the conduct of the trial and the appellant is prima facie entitled to have the verdict quashed. However, that is only the prima facie position because there remains the question whether, nonetheless, the appellant has lost a real chance of acquittal by reason of that error. Not every departure from the applicable law or procedure results in a miscarriage of justice. If the Crown can demonstrate that the error did not result in a “substantial miscarriage of justice”, the so-called proviso, then the Court may dismiss the appeal.

97. In its oral argument, the respondent sought to rely on the proviso, submitting that there was no substantial miscarriage of justice on the trafficking count, because clarity along the lines of what was required would have made it even more obvious to the jury that the appellant was a party to the offence of trafficking. That submission was not developed by a careful examination of the admissible evidence, applicable to each or indeed any of the alternative cases advanced at trial. Indeed, as I have already explained, a significant part of the evidence before the jury had not been placed before this Court and we were not invited to have any regard to it. I am unable to accept the Crown’s submission. Without having seen and heard the relevant evidence, and in light of the absence of a developed submission of the nature of that to which I have referred, I am not persuaded that the evidence properly admitted at trial proved, beyond reasonable doubt, the accused’s guilt of the trafficking offence on which the jury returned its verdict of guilty.⁵⁶

98. Moreover, in my view the general and diffuse approach taken to (1) the particularity of the alternative cases presented to the jury, (2) the evidence in relation thereto, and (3) the directions given to the jury amounted to such fundamental irregularities that I am not persuaded that this is a proper case for the application of the proviso.⁵⁷

Conclusion

99. The orders I would make are as follows:(a)The conviction on count 1 of the indictment should be quashed.(b)There should be a re-trial of count 1 of the indictment.(c)Otherwise:the appeal should be adjourned to permit the appellant and the respondent to file and serve submissions as to the orders which should be made in relation to counts 2, 4 and 5 of the indictment;each party must file and serve written submissions as to those orders within 7 days of the date of these reasons; andthe determination on the question of the orders which should be made in final disposition of the appeal will be made on the papers.

Footnotes

1. Exhibit 1 as set out in the affidavit of Ms Murray. The formatting of the particulars has been altered slightly for ease of reading. Bold print emphasis is added. ↩

2. R v Juraszko [1967] Qd R 128 at 135 per Stable J with whom, on this point, Gibbs J agreed; R v Logan [2012] QCA 210 at [102] per White JA (with whom Margaret Wilson AJA and Atkinson J agreed). ↩

3. I observe that (1) the chapeau of the second dot point expressed four alternatives (i.e. (1) directly (2) partnership with Morrow (3) partnership with Flavelle (4) partnership with Morrow and Flavelle); (2) the subordinate dot points were apparently particulars applicable to each of those alternatives; and (3) each of the 7 subordinate dot points was connected by the notoriously imprecise “and/or”. Mathematically, there are 128 ways to combine the 7 items constituted by the 7 subordinate dot points. With 4 alternatives in the chapeau that gives rise to 512 distinct alternatives. If one takes account of the alternatives hidden in the final subordinate dot point (see my fourth reason for saying the particulars are inadequate), the position becomes even worse. ↩

4. That would be so because of the implication that each of the persons so bound together had been authorized to act or speak on behalf of the others in furtherance of the unlawful purpose: see Tripodi v The Queen (1961) 104 CLR 1 per Dixon CJ, Fullagar and Windeyer JJ at 6 – 8; Ahern v The Queen (1988) 165 CLR 87 per Mason CJ, Wilson, Deane, Dawson and Toohey JJ at 94 – 95; Falzon v State of Queensland [2016] QCA 118 per Gotterson JA (with whom McMurdo P and Morrison JA agreed) at [34]. ↩

5. Section 8 provides “When 2 or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.” No reliance was placed on s 8 at the trial or before this Court. ↩