HIS HONOUR: On 12 February 2018, the Crown presented an indictment against the accused in the following terms:
"Between about 15 July 2014 and 21 August 2014 at Sydney in the State of New South Wales, did attempt to possess a substance, the substance having been unlawfully imported, the substance being a border controlled drug, namely heroin, and the quantity attempted to be possessed being a marketable quantity."
The accused pleaded "not guilty" on 12 February 2018 and again pleaded "not guilty" when the same indictment was presented in the presence of a jury panel on 13 February 2018 when the current trial began.
This morning the Crown closed its case. The accused, by his counsel, has made an application for a verdict by direction on the grounds that the only activity which might be described as the "actus reus" was merely preparatory to the commission of the offence and, therefore, was not of sufficient proximity to the offence to constitute an attempt. In that regard one must have regard to s 11.1(2) of the Criminal Code Act 1995 (Cth) which provides this:
"For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact."
As has been submitted by Mr Wendler, for the accused, the question which I am currently determining is not merely one of fact, but one of mixed law and fact.
The evidence discloses that a Korean speaker named Chang Min, who has not been brought to justice for his activities, recruited Michael Sangsu Kim to obtain to names and addresses and telephone numbers of persons who were prepared to receive parcels posted from overseas, which parcels were intended by Chang Min to contain border controlled drugs, but where there was to be no formal disclosure to those supplying their names, address and telephone numbers to Michael Kim, that they were to receive border controlled drugs in parcels sent to them by post, or courier, or the like. The accused provided his details, that is his name, address and telephone number to Michael Kim on the basis that he would be paid $1,000 for each delivery to be made to him. The accused was not the only person to be involved in the scheme proposed by Chang Min for which Michael Kim was the recruiting agent. Also involved were Ayush Sharma, Anoj Jayadevan and Jasmeet Singh Brar.
On 15 July 2014 at 7.51pm Anoj Jayadevan inquired of the accused on Kakao Talk whether he wished to earn $1,000. The accused asked Anoj whether that required him to accept delivery at his home and if so whether that was not a risky proposition or activity. Anoj's reply was a, "Yes and no", and then he advised the accused that the accused could tell anybody who inquired about any goods delivered to him that he did not know what the delivery was. He also pointed out to the accused that under the scheme that was involved, the delivery was supposed to be collected from the consignee by Michael Kim on the evening that it arrived, on the basis the delivery had been misdelivered to the consignee and that Michael Kim was somehow involved with the postal service and was returning the misdelivered item to the post office. There were conversations to the same effect between the accused and Michael Kim commencing at 7.38pm on the same day. Eventually the conversations between the accused and Michael Kim can be found in section (vi) of exhibit D.
On 23 July 2014, Michael Kim advised the accused that a package would be coming to his home on the following day, Thursday 24 July, or on Friday 25 July, or on Monday 28 July. Michael Kim sent this message to the accused "You can stay at home tomorrow, Friday and Monday just till package comes from like 7am 4pm please". In other words the accused was directed by Michael Kim to stay at his home on Thursday the 24th, Friday the 25th and Monday 28 July 2014. The accused did so. He stayed there for the purpose of taking delivery of the consignment that was being sent from overseas, in order to earn for himself a fee of $1,000 for taking possession of the consignment.
The accused, to put it in short form, stayed at home waiting for the consignment to arrive or recruited one of his parents to stay at home and take delivery of the consignment, if the accused himself was not at home. The consignment was in fact intercepted by the Customs service on 4 August 2014 and contained the border controlled drug, heroin. The consignment that was addressed to the accused contained 2,031 grams of an off white powder which was found to be heroin with a purity of 70.4% which gave a total pure weight of heroin of 1,429.8 grams, a marketable quantity of that drug.
The accused by his counsel submits that the evidence does not disclose any act done by the accused which was other than preparatory, and he also points out that there could be no proximity because the drugs had been intercepted and they were not to be delivered to the accused at his home. Mr Wendler referred me to the decision of the Court of Criminal Appeal in Steer v R [2014] NSWCCA 338.
Steer was charged with attempting to escape from lawful custody, an offence contrary to s 310D(a) of the Crimes Act 1900. The decision of the Court of Criminal Appeal was given by Hidden J with whom Hoeben CJ at CL and Davies J agreed. His Honour said this,
"10. Mr Wendler relied upon the exposition of the law of attempt by Lord Diplock in DPP v Stonehouse [1978] AC 55 at 68:
The constituent elements of the inchoate crime of an attempt are a physical act by the offender sufficiently proximate to the complete offence and an intention on the part of the offender to commit the complete offence. Acts that are merely preparatory to the commission of the offence...are not sufficiently proximate to constitute an attempt. They do not indicate a fixed irrevocable intention to go on to commit the complete offence unless involuntarily prevented from doing so. As it was put in the locus classicus, R v Eagleton [1855] ER 35.
The mere intention to commit a misdemeanour is not criminal some act is required, and we do not think that all acts towards committing a misdemeanour are indictable. Acts remotely leading towards the commission of the offence are not to be considered as attempts to commit it, but acts immediately connected with it are;
…
In other words, the offender must have crossed the Rubicon and burnt his boats."
Hidden J went on to refer to the decisions of R v Campbell (1991) 93 Cr App R 350 and R v Jones (1990) 91 Cr App R 351. However, how one categorises the relevant acts, that is whether they are sufficient to constitute an attempt or whether they are merely preparatory to the attempt is a question of fact to be determined individually in every case.
The Crown has drawn to my attention the decisions of Situ v R [2008] NSWCCA 161, Onuorah v R [2009] NSWCCA 238, and Inegbedion v R [2013] NSWCCA 291. Section 11.1(4)(a) of the Criminal Code makes it clear that a person may be found guilty of an attempt to commit a crime even though committing the offence attempted is physically impossible. Committing the current offence, may have been physically impossible as the drugs never left the custody of the Customs Service/AFP. However, such was the factual situation in Onuorah where the cocaine was intercepted in Venezuela by the Venezuelan National Guard and was destroyed and substituted with an inert powder which was then forwarded to Australia. The appellant in that case had been convicted of attempting to possess the cocaine and the appeal against his conviction was dismissed. No clearer case of an impossibility to commit the crime could be cited. Furthermore, the case law makes it clear that where, for example, the border controlled drug is confiscated at the border by the Custom Service/Border Force/AFP and substituted with an inert substance and an attempt to possess the inert substance is made, that is a criminal offence under the Code.
The question current before me is really whether the acts of the accused were sufficiently proximate to the crime alleged to constitute the relevant actus reus. In Inegbedion, Rothman J, with whom Hoeben CJ at CL and McCallum J concurred, said this at 16:
"16. In order to prove that the accused is guilty of an attempt to commit a particular offence, the Crown must first prove, beyond reasonable doubt, that the accused intended to commit the crime, which the Crown alleges he attempted to commit. In other words, the accused must have intended to commit all the physical acts which would constitute the crime attempted in circumstances which makes those acts criminal.
17. Over and above the proof of an intention to commit a crime alleged, the Crown must also prove beyond reasonable doubt, that the accused, with that intention, performed some act that went towards the commission of the offence, which act was more than merely preparatory of the crime and was immediately connected with the commission of that crime, having no reasonable purpose other than its commission."
His Honour's last statement takes up what was said by Lord Parker CJ in Davey v Lee [1967] 2 All ER 423 at 425:
"What amounts to an attempt has been described variously in the authorities, and, for my part, I prefer to adopt the definition given in Stephen's Digest of Criminal Law (5th Edition 1894) art. 50 where it says that: 'An attempt to commit a crime is an act done with intent to commit that crime, and forming part of a series of acts which would constitute its actual commission if it were not interrupted.' As a general statement that seems to me to be right, although it does not help to define the point of time at which the series of acts begins. That, as Stephen said, depends on the facts of each case. A helpful definition is given in para 4104 in Archbold's Pleading, Evidence and Practice (36th Ed), where it is stated in this form: 'It is submitted that the actus reus necessary to constitute an attempt is complete if the prisoner does an act which is a step towards the commission of the specific crime, which is immediately and not remotely connected with the commission of it, and the doing of which cannot be reasonably be regarded as having any other purpose than the commission of the specific crime'."
The only reason that the accused stayed home at the times indicated to him by Michael Kim was to receive of a consignment. At times, when he could not stay at home to receive the consignment, he deputed one of his parents to receive it on his behalf. The only purpose of such activity was to receive the consignment. If he received the consignment, he took it into his possession. In my view, the relevant actus reus is staying at home to receive the consignment once he had been told that it had been dispatched and was on its way to him and that sufficient time had elapsed since its dispatch for it to arrive at the accused's home. It is not to the point that the consignment never proceeded further than premises occupied by the Customs Service or the AFP.
If it had have been sent further, the accused would have been there to take possession of it or one of his parents would have been there to take possession of it on his behalf, in order that he could gain the $1,000 promised reward.
The application for a verdict by direction is accordingly refused.
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Decision last updated: 02 March 2018