Romolo v R

Whether a new trial should be directed

1. The applicant submitted that if (as I consider should occur) his conviction is quashed, the Court should direct the entry of a judgment and verdict of acquittal. This is the order for which s 6(2) of the Criminal Appeal Act provides, subject to "the special provisions" of that Act. Section 8(1) is such a special provision. It empowers the Court to order a new trial if "a miscarriage of justice has occurred, and, … having regard to all the circumstances, such miscarriage of justice can be more adequately remedied by an order of a new trial than by any other order which the court is empowered to make".
2. As the plurality of the High Court pointed out in R v Taufahema (2007) 228 CLR 232; [2007] HCA 11 at [51] and [52], whilst it is ordinarily desirable that the guilt or innocence of an accused be finally determined by a jury, "[i]t would conflict with basic principle to order a new trial in a case in which the evidence at the original trial was insufficient to justify a conviction". Their Honours nevertheless concluded that an order for a new trial, rather than an acquittal, was appropriate in that case because: "[w]hat the prosecution proposes to do at the second trial of the accused is not to advance any factual allegation inconsistent with what the jury or the Court of Criminal Appeal have already found, and not to advance any factual allegation inconsistent with the case advanced at the first trial … but to seek to characterise the facts which that evidence may establish in a different way, but not a radically different way" (at [68]).
3. In so concluding, at [66] their Honours referred with approval to Parker v The Queen (1997) 186 CLR 494; [1997] HCA 15, observing that the plurality in that case: "refused to order a new trial to enable the prosecution to present a fresh case which would require 'a substantial amendment to the indictment', including a change in the persons from whom the property allegedly was stolen."
4. In Taufahema, the plurality noted that no amendment to the Indictment was called for in that case. Likewise, no amendment to the Indictment was contemplated in Gilham v R [2012] NSWCCA 131. In that case, a majority of the Court declined to direct a retrial after a conviction was set aside, notwithstanding that the Indictment did not need to be amended and that the Crown proposed to rely at a retrial on substantially the same evidence as was called at the first trial.
5. In the present case, the Crown submitted on appeal that a new trial should be ordered because the evidence at a further trial would be the same and that the "only change would be as to the nature of the charge" (transcript p 30). However, this change would involve an amendment to the Indictment. To order a re-trial in such circumstances would conflict with Parker and its approval in Taufahema. The change to the "nature of the charge" in this case would necessitate the Indictment being amended either to charge a different drug importation offence, or to delete the reference to Hamzy and therefore leave the charge as one that the applicant committed the offence jointly with an unknown person or persons. As in Parker, both alternatives would involve "a substantial amendment to the indictment" (see [39] above), and not merely seek "to characterise the facts … in a different way (see Taufahema at [38] above).
6. The Crown submitted in the alternative that it could put "the particulars of the joint criminal enterprise in a different way" (transcript p 30). Absent an amendment to the Indictment, it would however remain necessary for the Crown to prove beyond reasonable doubt that the applicant and Hamzy entered into an agreement to progress the drug importation. This would be so because the present Indictment alleges that the offence was jointly committed. In order for an offence to be jointly committed, s 11.2A(1) of the Code requires, inter alia, that there be an agreement between the accused and at least one other person to commit the offence. Even if there were some variation in the way in which the Crown put its case concerning the existence of an agreement, in my view it would not be open to a jury at a further trial to convict the applicant, assuming (as is necessary) that the evidence at the re-trial would be the same as that adduced at the first trial. On a re-trial on an unamended Indictment there would remain the same reasonable possibility that existed at the first trial, namely that the applicant and Hamzy were independently instructed by a third person or persons, and did not communicate with each other.
7. In these circumstances, a new trial should not be ordered. Instead, the applicant should be acquitted of the specific offence particularised in the Indictment. Whether, independently of these proceedings, it is open to the Crown to prosecute the applicant for a different drug importation offence arising out of the facts established by the evidence in the present proceedings is not a matter upon which it is necessary or appropriate for this Court to opine.

Orders

1. For these reasons, I propose the following orders: 1. Grant leave to appeal. 2. Allow the appeal. 3. Quash the applicant's conviction of the offence charged in the Indictment filed in relation to him on 21 July 2016. 4. Direct a judgment and verdict of acquittal on that charge. 5. Direct that the applicant be released from custody forthwith.
2. FULLERTON J: I have read the draft judgment of Macfarlan JA and agree with the orders his Honour proposes.
3. In applying my own analysis of the evidence adduced at trial and the issues that were engaged by the way the Crown conducted its case, including the way the issues were left to the jury under direction from the trial judge, my reasons for agreeing that the applicant is entitled to be acquitted will be clear. That same analysis will also reveal why it is my view that the appeal has succeeded, not because of any underlying deficiency in the probative weight of the evidence supporting the allegation of the applicant's complicity in the importation of a commercial quantity of a border controlled drug, but because of the way the Crown elected to make its case against the applicant and the way the issues in dispute were ultimately left for the jury under the direction of the trial judge with the concurrence of the Crown.
4. The charge upon which the applicant was arraigned was particularised as follows: Between about 17 October 2012 and about 28 October 2012 at Sydney in New South Wales, [the applicant] did jointly commit an offence with Mejid Hamzy, in that they did import a substance, the substance being a border controlled drug, namely methamphetamine, and the quantity imported being a commercial quantity.
5. It is an offence contrary to s 307.1(1) of the Criminal Code if: (a) the person imports or exports a substance; and (b) the substance is a border controlled drug or border controlled plant; and (c) the quantity imported or exported is a commercial quantity.
6. Section 11.2A of the Code (in reliance upon which the Crown sought to make out its case against the applicant) provides for the circumstances in which an offence contrary to s 307.1(1) may be committed with another person or other people.
7. Section 11.2A provides as follows: Joint commission (1) If: (a) a person and at least one other party enter into an agreement to commit an offence; and (b) either: (i) an offence is committed in accordance with the agreement (within the meaning of subsection (2)); or (ii) an offence is committed in the course of carrying out the agreement (within the meaning of subsection (3)); the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly. Offence committed in accordance with the agreement (2) An offence is committed in accordance with the agreement if: (a) the conduct of one or more parties in accordance with the agreement makes up the physical elements consisting of conduct of an offence (the joint offence) of the same type as the offence agreed to; and (b) to the extent that a physical element of the joint offence consists of a result of conduct - that result arises from the conduct engaged in; and (c) to the extent that a physical element of the joint offence consists of a circumstance - the conduct engaged in, or a result of the conduct engaged in, occurs in that circumstance. (3) … Intention to commit an offence (4) For a person to be guilty of an offence because of the operation of this section, the person and at least one other party to the agreement must have intended that an offence would be committed under the agreement. Agreement may be non‑verbal etc. (5) The agreement: (a) may consist of a non‑verbal understanding; and (b) may be entered into before, or at the same time as, the conduct constituting any of the physical elements of the joint offence was engaged in. (6) … Person may be found guilty even if another party not prosecuted etc. (7) A person may be found guilty of an offence because of the operation of this section even if: (a) another party to the agreement has not been prosecuted or has not been found guilty; or (b) the person was not present when any of the conduct constituting the physical elements of the joint offence was engaged in. (8) …
8. As Simpson J observed in Masri v R [2015] NSWCCA 243 at [1], where an offence against Commonwealth law is alleged, s 11.2A is the statutory adoption of the common law doctrine of a joint criminal enterprise.
9. The essential features of an offender's liability in a joint enterprise to commit a criminal offence at common law (as with the essential elements for joint liability under ss 11.2A(1), (2) and (4) of the Criminal Code) are the making of an agreement (whether it be tacit or express) by two or more people that they will commit a crime. Accordingly, proof of the existence of an agreement or arrangement is essential to proof of an offender's liability in a joint criminal enterprise to commit a crime. In addition, while the agreement is on foot, the Crown is obliged to prove an offender's participation in the commission of that crime with those who were party to the agreement that it be committed. The existence of the common understanding or arrangement that a crime should be committed, and the time the agreement was reached, may be inferred from all the circumstances, including the commission of the offence itself or the acts of those participating in its commission.
10. Where the Crown proves beyond reasonable doubt that the crime that was the subject of the agreement was in fact committed, each of those who participated in the joint enterprise to commit that offence is personally responsible for the acts of each of the other participants in carrying it out (see IL v The Queen (2017) 91 ALJR 764; [2017] HCA 27 per Kiefel CJ, Keane and Edelman JJ at [40] and Gageler at [106] confirming the operation of the principle for which Osland v The Queen (1998) 197 CLR 316; [1998] HCA 75 is authority, whereby the criminal acts of those who are participants in a joint criminal enterprise are attributed to each other participant).
11. In this case there was no deficiency in the evidence capable of proving the existence of a joint criminal enterprise to import a commercial quantity of methamphetamine into Australia from San Jose, California concealed in a consignment of clothing. Neither was there any deficiency in the evidence capable of proving the nature and extent of the arrangements that had been made to facilitate the clearance of the consignment upon its arrival in Australia. Those arrangements included the attribution of the name "Peter Suca" as a false identity for the consignee and the setting up of an email address in that name in the event that documents relating to the consignment needed to be sent or received in the process of the consignment being cleared by customs agents who were engaged as part of those arrangements.
12. Finally, there was an abundance of evidence that in using the name Peter Suca on multiple occasions in his dealings with FedEx International Security, the applicant represented himself to be the consignee and therefore the person entitled to possession of the consignment, and that he used a mobile telephone that could not be traced to him in his dealings with them and a generic email address for the same purpose.
13. Leaving to one side the Crown's obligation to prove beyond reasonable doubt the applicant's knowledge of the drugs in the consignment, in the way the Crown particularised the charge in the indictment and, ultimately, in the way it sought to prove the applicant's complicity in a joint criminal enterprise to import the drugs, it elected to nominate only one person with whom the applicant was in agreement to commit that offence, namely Mejid Hamzy. It follows that by taking that approach the Crown assumed the burden of proving that particular agreement beyond reasonable doubt as foundational to seeking a verdict.
14. The Crown case as opened to the jury was circumstantial and much of it was not in dispute. It included a Statement of Agreed Facts signed by the applicant to the following effect: 1. The total net weight of the methamphetamine was 5939 grams with the total pure weight being 4691.8 grams. 2. A person by the name of Peter Suca who was in fact the Operations Manager of Espirit Toll at 15B, 29-33 Carter Street Lidcombe, had never used the mobile number 0415506978 ("the 978 phone"). Neither had he used any of the following email addresses: peter.suca@yahoo.com; peta.suca@yahoo.com; or p_suca@yahoo.com. Peter Suca did not know of any person by the name of Anil Kumar and had no knowledge of the address 2740 Zanker Road, San Jose, California, USA. 3. The York Express Convenience Store at 4/33 York Street Sydney, the SBS Variety Shop at 460 Jones Street Ultimo, the Bligh Convenience Store at 6/6 O'Connell Street Sydney, the Sunbrai Internet Café at 63 Oxford Street Darlinghurst, the Go Internet Café at 2/60A The Boulevard Lakemba, the City Convenience Store at 1/189 Kent Street Sydney and the E Bluetooth Café at 126 Liverpool Street Sydney (each with related IP addresses) provided internet services to their customers. 4. The applicant's fingerprint was so identified on the Melt Chocolate Bar tax invoice dated 7 October 2012. 5. The applicant was the person communicating with FedEx International Security in an intercepted call on 22 October 2012 at 14.06.56, in a further intercepted call on 23 October 2012 at 17.08.31 and in a further intercepted call on 23 October 2012 at 17.06 09. In each call he said his name was Peter Suca and was using the "978 phone". 6. The applicant retrieved a phone message from FedEx left on the 978 phone on 23 October 2012 at 17.01.25.
15. In the Crown's opening address, a number of further matters were said by the Crown prosecutor not to be in dispute. They remained uncontentious in counsel's closing addresses. They included the fact that three boxes which contained the drugs and were said to contain "shirts, pants and clothes" were identified on an international airway bill addressed to Peter Suca, Operations Manager of Espirit Toll, 15B, 29-33 Carter Street, Lidcombe as consignee with the sender (or consignor) identified as Anil Kumar.
16. Further, in the Crown's opening address, FedEx International Security, an international air freight company involved in the import and export of goods from Australia, was nominated as the entity with whom the applicant and Mr Hamzy communicated and corresponded after the arrival of the consignment in Australia by air on 20 October 2012. FedEx have the authority to hold imported goods on behalf of consignees pending clearance by Australian customs. The goods are identified by a unique airway bill number.
17. The following matters were also referred to in the Crown's opening address as uncontentious: 1. During the execution of a search warrant on the applicant's apartment in Millers Point Sydney, police located the tax invoice from the Melt Chocolate Bar in the back trouser pocket of a pair of the applicant's jeans. The consignee's details were written in handwriting on the back of the invoice. The Melt Chocolate Bar was a business associated with Mr Hamzy. 2. A pink exercise book was also located in which names and amounts of money (in what the Crown submitted were thousand dollar amounts) were recorded. Cash in various denominations totalling $12,270 was also seized.
18. The exercise book and the cash were part of the evidence adduced by the Crown to establish that the applicant had been involved in the supply of drugs in the weeks and months preceding the importation, in support of the Crown case that he was involved in the importation of the methamphetamine.
19. The Crown also adduced evidence, over objection, from John Tan that he purchased drugs from the applicant utilising the 978 phone, the same phone number that was utilised by the applicant and Mr Hamzy in making contact with FedEx. The Crown led evidence that the 978 number was first activated in mid-August 2012, in a false name, and it was first used by the applicant to contact Mr Tan. Mr Tan gave evidence that he would use the message service related to the 978 phone to purchase drugs and identified the applicant (a person he knew as "Marcos") as the seller. He said he would sometimes buy drugs on credit, spending up to $3000-$6000 on each occasion. There was an entry in the pink book which read "Tan Man 8,100K". Mr Tan last made contact with the 978 phone on 30 September 2012 when he left the following message, "Reading the old fella Marcos - give us a call mate".
20. The evidence did not connect Mr Hamzy with supply of drugs to Mr Tan.
21. The following matters of fact were also established by the evidence at trial, none of which were in contest and none of which were the subject of contention on the hearing of the appeal. It is the combination of these facts and circumstances upon which the Crown relied to prove the existence of the agreement to import the drugs and the participation of the applicant in that agreement as evidenced by his dealings with the imported goods in his communications with FedEx and, the Crown submitted, the necessary inference that he acted in concert with Mr Hamzy in doing so. 1. Between 2.06pm on 22 October 2012 and 9.43am on 27 October 2012 the applicant and Mr Hamzy were in telephone contact with FedEx on a total of nine occasions, on each occasion falsely representing that they were Peter Suca. 2. The first person to make contact with FedEx was the applicant. In the call he placed at 2.06pm on 22 October 2012, he initially said he was enquiring about a consignment from the United States and was calling on behalf of the consignee. He quoted the airway bill number and provided the delivery address. The address is recorded on the back of the Melt Chocolate Bar invoice, the airway bill number is not. 3. The applicant was advised that the consignment had not been cleared by customs and that he would need to be through-connected to the Customs Clearance Department. When he was speaking to that operator he identified himself as the consignee Peter Suca. He was then advised that there was a "clearance delayed" notification on the file. He told the operator that "we have spoken to the consignor … we thought it should have cleared already" [emphasis added]. He was advised by the operator that he may have "the paperwork" (for example an invoice) in his possession and, were that the case, he should scan it and send it by email, on receipt of which clearance of the consignment could be arranged very promptly. 4. The call was then through-connected by the FedEx operator to another operator to identify what additional paperwork might be needed. The applicant terminated the call before speaking to the next operator. 5. At 9.55pm that evening, the p_suca@yahoo.com email account was set up by the applicant at the Bluetooth Internet café. 6. Between 3.45am and 4.40am on 23 October 2012 the account was accessed from an unknown location and a number of invoices relating to jeans, shirts and sweaters (samples) from Anil Kumar to the consignee's address were attached to a draft email on that account in jpeg and pdf format. The invoices bore the date 17 October 2012 and invoice number 0537226. It was the Crown case at trial that the applicant logged into the p_suca@yahoo.com email account with a view to confirming from the overseas consignors of the drugs that the false invoices were available online, after having been told by FedEx that afternoon that the invoices would need to be scanned or otherwise provided to facilitate clearance of the consignment. 7. The same Yahoo email account was accessed between 8.08 and 8.16 later that morning at the City Convenience Store located one minute from the applicant's home and within seven minutes of him being seen to leave his home. It was the Crown case the account was accessed by the applicant. The evidence does not reveal the purpose for which access was made at that time. 8. At 9.07am a call was placed by Mr Hamzy from an unknown location to FedEx using the 978 phone. He also identified himself as Peter Suca and provided the airway bill number. The operator informed him that the clearance team need to have the "import number and a value breakdown". Mr Hamzy said, "yeah I know I've got it all here … The supplier sent it to me … I can email it to you ...". The FedEx operator supplied an email address and Mr Hamzy provided the email account as the means by which he could be contacted. He provided a false mobile number. 9. At 9.49am emails were sent to FedEx from the Go Internet café on the email account, attached to which were the jpeg and pdf files of the invoices purported to be in relation to the consignment of clothing. 10. At 9.50am Mr Hamzy, representing himself as Peter Suca, telephoned FedEx on the 978 phone to notify them that the invoices had been sent. 11. Between 9.50am and 12.31am, whilst in and around the Go Internet Café in Lakemba, Mr Hamzy was either in telephone contact (using the 978 phone) or email contact (utilising the email account) with an operator from FedEx seeking confirmation that the consignment would be cleared and delivered "on Friday" (being 27 October 2012). He was in company with an unknown male whilst in the café and at times apparently took instruction or direction from that person. 12. Mr Hamzy had no further dealings with FedEx by telephone or by email after his last contact at 12.31pm on 23 October 2012. The Crown case was that Mr Hamzy's involvement was limited to his dealings with FedEx that day and that involvement evidenced his agreement with the applicant that they should act in concert to obtain clearance of the consignment which contained the drugs. 13. At 1.11pm FedEx placed a call to the 978 phone number which was diverted to voicemail. The message inquired as to whether the consignment was for "new or used business goods". 14. At 5.01pm the applicant retrieved that voice message. At 5.08pm he returned the FedEx call utilising the 978 phone number. In the interim, the applicant was seen at the Sunbrai Internet Café, also with another unknown male, for about ten minutes where the email account was accessed. The reason for access at that time is not known. There were no surveillance cameras inside the café. In the course of the conversation with the FedEx operator at 5.08pm the applicant asked, as an aside to a person who he was with, whether the duties and taxes on what he had earlier confirmed as "samples from another company" should be billed to the company at the company tax rate or whether they should be paid as personal tax. At one stage the applicant referred to the unknown male as "sir" and later as "mate". 15. At 5.32pm FedEx emailed the email account and confirmed receipt of the invoice. The writer requested further information to verify the price paid for the clothing and invited Mr Suca to forward a receipt. 16. There was no evidence adduced at trial as to how the 978 phone passed from the applicant, who was last known to use it at 2.06pm on 22 October 2012, to Mr Hamzy, who was first known to use it at 9.27am on 23 October 2012, or how the phone was returned to the applicant for his use in retrieving the voicemail message and making contact with FedEx that afternoon at 5.01pm after Mr Hamzy was last known to use the phone at 12.27pm. Further, there was no evidence adduced at trial as to how the information that the applicant was provided by FedEx in his telephone conversation with them at 2.06pm on 22 October 2017, in particular the need for the provision of invoices and that they were available to be provided as requested, was notified to Mr Hamzy such as to enable him forward them. 17. At 9.41am on 24 October 2012 the applicant accessed the email account from the Bligh Convenience Store and replied to FedEx's email of 5.32 the previous evening in the following terms: Hi Paul, The invoice I have provided states that the 300 items of clothing are commercial samples provided by supplier for free, they are samples only and not for further resale. This is why we have not provided a copy of payment. Please forward me our payment options so we can finalize customs clearance. [Emphasis added.] It is clear that the applicant did not supply the invoices to FedEx. Rather, they were provided as attachments to an email sent from the Go Internet Café the previous day by Mr Hamzy. There was no direct evidence as to how the applicant came to learn that the invoices had been provided by Mr Hamzy. The applicant did however represent to the FedEx operator that "he" was the person who had "provided" that information. 1. Upon receipt of the email, FedEx contacted the applicant on the 978 phone at 10.07am querying some of the details on the invoice. In that conversation the applicant assured FedEx that he could get the US consignor to contact FedEx to confirm that the goods were samples. When he was pressed by the operator as to whether he had anything available in an email with the overseas consignor that could be forwarded onto FedEx immediately, the applicant said he would need to check through his emails but confirmed, "it's definitely not a sale, it's even listed on the invoice as samples". This telephone call was followed up with an email from the FedEx operator at 10.21am where the operator noted that the supplier's name and address was "from Nimble Storage which is not a clothing supplier / manufacturer. Can you please clarify these details for customs clearance". 2. At 2.10pm, an email was sent from the email account to the consignee's email address as shown on the airway bill (being ) forwarding the email for FedEx which reads "Did you forward everything needed how come he's still asking for details??". The place from which the email was sent (and the place at which the FedEx email was received) was not known. The Crown submitted that the overwhelming inference was that it was the applicant who was in correspondence with the consignor or purported consignor. Similarly, with a succession of emails between 3.08pm and 4.35pm, the first of which says "Thanks Anil. Got it". That email includes what looks like a chain of four emails dated 14 and 17 October 2012 between and the email account with the subject matter the sending samples of clothing. The Crown submitted these must be false as the email account had not been created as at that date. As the Crown pointed out in its opening submissions and closing submissions, those emails, together with access to the email account that evening when the applicant was seen at the SBS Variety Café, could have had no other purpose than to check the sufficiency of the documents which had been made available to him from others to satisfy the request made of him by FedEx that day for further documentary evidence concerning the legitimacy of the consignment, again with the ultimate objective of ensuring that there would be no further delay in clearing of the packages. 1. On 25 October 2012 at 9.43am FedEx left a voice message on the 978 phone advising that the consignment had been seized by customs and that Mr Suca should give them a call quoting a nominated seizure number. At 9.51am an email to the same effect was forwarded by FedEx. 2. At 10.35am the applicant accessed the email account from the York Express Convenience Store. It was the Crown's submission that the irresistible inference is that the applicant did not receive the voice message, either because he did not have the 978 phone or because he left it at his home before leaving to go to the convenience store but, believing he had all of the requisite documents and that FedEx was in receipt of them, he went to check on the progress of the shipment upon being advised of the interest of customs. 3. No further contact was made with FedEx from that time.
22. In its closing address, the Crown identified as the first of three legal issues for the jury's consideration whether the Crown had proved beyond reasonable doubt that the applicant and Mr Hamzy entered into an agreement to import a border controlled drug. The Crown said: … The issue of whether there was an agreement … can be inferred from all the circumstances of the case, and the agreement can be entered into before or at the same time as doing the conduct that makes up the offence. …
23. The Crown prosecutor then proceeded to identify the evidence from which the jury would conclude there was an agreement of the kind alleged. She went through, in detail, the successive phone calls and emails that have been summarised above emphasising, in respect of some of the calls made by the applicant and the communication in which he engaged with the FedEx operator, the extent to which he gives every indication of being in control of or exercising control over the consignment and not subject to instruction or direction of others. The Crown emphasised that the p_Suca@yahoo.com email account was set up by the applicant in response to his communication with the FedEx operator on 22 October 2012 that there may need to be documents scanned and forwarded to facilitate the clearance of the consignment. The Crown also submitted that it would be open to the jury to find that the false invoices which were forwarded by Mr Hamzy the next day were also likely sourced by the applicant and viewed by him on the morning of 23 October 2012 when he accessed the email account at 8.08am and 8.16am such that they were thereafter available to Mr Hamzy for forwarding later that day with the applicant's knowledge and agreement.
24. The Crown submitted that the coincidence of the applicant and Mr Hamzy both using the same name when speaking to the FedEx operator about the drug consignment, and the coincidence of them using the same Yahoo email account and the same 978 telephone to make that contact, is evidence from which the jury could readily conclude that there was an agreement between them that they would each falsely represent themselves as entitled to the consignment at different and specific times, and that they would each use the email account to check on the progress that they were each making in facilitating its clearance. In circumstances where the Crown had no direct evidence of any face-to-face meetings between the applicant and Mr Hamzy, and no evidence of any telephone contact between them, the use by each of them of the email account and, by that means, obtaining the necessary information as to the progress of the clearance of the consignment, was relied upon by the Crown as critical evidence probative of proof of the existence of the agreement as particularised in the charge.
25. The Crown also emphasised in submissions that it was the applicant who, on 24 October 2012, asserted in his communication with FedEx that it was he who had provided the invoices by email when he must have known it was supplied by another person using the email account he had set up. From this the Crown invited the jury to conclude that the applicant was working with Mr Hamzy in effect "in tandem" as "just one person" purporting to be entitled to the consignment, not only because they both used the Peter Suca name, the same phone number, the same email address, but because the applicant responded directly after learning that Mr Hamzy had sent an email to FedEx by referring to himself as the person who sent the invoice to FedEx when it was Mr Hamzy who sent it.
26. Before defence counsel addressed the jury, the trial judge informed them that he proposed to circulate a document which would contain a number of questions the jury would need to answer in determining whether the Crown had made out its case.
27. That document, which became MFI 4 in the trial, was circulated during the course of defence counsel's closing address. It identified the issue of agreement as one of the legal issues the jury would need to resolve and the respective positions of the parties to that issue as follows: Did the accused and Mejid Hamzy enter into an agreement [to recover the methamphetamine imported from the USA]? Crown: The accused and Hamzy knew each other [the Melt Chocolate receipt] and each of them acted in accordance with an agreement to contact FedEx representing himself as Peter Suca. Accused: The accused did not know Hamzy and did not know that Hamzy had made contact with FedEx.
28. In defence counsel's closing address, he submitted that the Crown case was flawed by reason of the fact that only the applicant and Mr Hamzy had been charged in relation to the importation and that the involvement of others, including video evidence of Mr Hamzy being in the presence of another person on 23 October 2012 at Lakemba and telephone evidence that the applicant was present with another unknown person during the course of communications with FedEx at 5.08pm that same day, supported the proposition they were both "puppets" in the organisation, having been separately utilised to take the risk of sending emails and making telephone calls with FedEx with no evidence of there being any contact between them.
29. Counsel also submitted that those who were apparently directing or instructing both men at these separate times would have no reason to inform them of the other, much less introduce them to each other. He submitted the coincidence of the applicant and Mr Hamzy using the same false identity was no evidence (or no sufficient evidence) of them being in agreement with each other, as distinct from them having been separately informed of the need to use that identity under instruction or direction of a third person or persons.
30. Defence counsel submitted there was: … [no] evidence that they even knew each other's name … no evidence they communicated, met, knew what the other was doing, let alone having an agreement. ... You can't have an agreement about something like this with someone you don't know, someone you've never met or someone you don't communicate with...
31. Before defence counsel concluded his closing address a note was received from the jury which read as follows: The first question on your Honour's notes to consider is confusing the jury. What does it, by definition, mean 'an agreement'? Will the accused be guilty on the grounds of indirect communication and coin that as an agreement? Will the accused be guilty even though there is a middle man passing information to both? Or is the charge based on physical/verbal agreement between Hamzy/Romolo through others? We do not understand the wording on the charge and the grounds as to how we make this judgment.
32. In dialogue with counsel as to the way in which the jury question should be answered, defence counsel submitted that even if the applicant knew that somebody else, unnamed and unidentified, was accessing the email account he set up to communicate with FedEx by that person attaching invoices to an email in reference to the same consignment, that was not enough to constitute the agreement foundational to the charge and that the jury should be instructed accordingly.
33. Defence counsel further submitted that the way in which the legal issue of agreement was posed in the document which became MFI 4 (a document which had been circulated by that time) and in the case the Crown opened and the case that he fairly anticipated he would have to meet, it was essential that the applicant and Mr Hamzy actually knew one another as distinct from knowing of the existence of one another.
34. In the result, the Crown accepted that in the way the case was framed the jury would need to be satisfied that there was: … some form of communication between [the two people]. … [it] doesn't have to be verbal and there doesn't have to be a … physical meeting but there has to be … some kind of communication between the two. There may be others involved. There may be someone even at the time that knows about this or that's talking to them. The issue is: there has to be an understanding between these two. The fact that there are others [involved] doesn't matter ... There may well have been but there has to be some kind of understanding. There has to be some kind of agreement between them whatever form it takes as opposed to a lack of anything between them ... They don't have to know the name but they have to know of the person that there is another person involved and an understanding as to what's to happen for the two people.
35. The Crown continually emphasised that in her submission the jury would need to be satisfied that there was some kind of communication between the applicant and Mr Hamzy in order for the jury to be satisfied that they agreed with each other to import the drugs.
36. In answering the jury's question a further written direction was provided with the consent of both counsel in the following terms: Legal Ingredient of the Charge: Agreement (Written Direction to be considered with the Oral Directions) Agreement An agreement involves the notion that at least two persons reach an understanding or arrangement to do something or relevantly to commit a crime. The agreement need not be expressed in words, and its existence may be inferred from all the facts and circumstances surrounding the commission of the offence that are found proved on the evidence. To establish an agreement, the Crown must prove the following matters beyond reasonable doubt: there must be some form of communication between the parties to the agreement; the agreement between the parties involved an understanding between them and that they knew each other. There is no requirement that the parties to the agreement reached the understanding face-to-face or agreed verbally or in writing. Furthermore, provided there is an agreement between the parties, there is no requirement for it to have been reached at any particular time before the crime was committed, provided that at the time the acts constituting the crime occurred, the participants had agreed that the crime should be committed by any one or both of them. The fact that persons other than the accused and Hamzy were: • involved in the criminal conduct; or • gave directions as to the conduct; or • were passing information to the accused or Hamzy is not relevant to the question of whether the accused was party to an agreement to commit the offence. In the present context, the Crown would have failed to establish an agreement between the accused and Hamzy merely by establishing that the accused accessed or sent emails adopting a false identity, knowing that another person was also accessing or sending emails adopting the same false identity. The Crown case is that the accused and Hamzy must have known each other; they formed an agreement before the conduct began and worked strategically together. [Emphasis added.]
37. Defence counsel then continued his address and, in dealing with the issue of agreement, submitted as follows: Now an agreement can be formed in different ways. It can be physical; that is, it could be face to face. It could be verbal; that is, could be on the phone. It could be emails. You don't have to prove that it is physical or that it is verbal or that it is emails or that it is texts, but it'd got to be something. It could be physical, could be verbal, could be emails, could be SMS's. But there has to be communication between [the applicant] and Mr Hamzy, and with an understanding between them as to what they are doing. That is, the Crown's got to prove they knew each other. The Crown has to prove that they knew each other and they had an understanding as to what was happening; that is, the agreement. So guilt is not established simply by saying, "Well, [the applicant] was accessing Peter Suca emails and he must have known or did know that somebody else was also accessing Peter Suca and trying to achieve something with FedEx". Simply knowing that another person exists - another unknown person exists - doing something with FedEx via Peter Suca is not enough. So the Crown's position is they must have known each other and did form an agreement before the conduct began. And you remember my friend used the words, "That they were working together strategically". That's the case that they bring, that they were working together strategically. Now our case - you heard it, and I won't go through the details. But in summary there was no face to face meeting, there was no email between them, there was no SMS between them, there was no phone call between them. There was no physical, there's no verbal, there's no communication between them. They did not know each other. We say the Crown has failed to prove beyond reasonable doubt the agreement. They fail to prove they knew each other. They fail to prove there was an agreement. They fail to prove there was an understanding between the two of them. They certainly were not working together strategically. And as I said, the fact that [the applicant] was accessing Peter Suca and someone else must have also been doing that is not enough. And that's why they fail to prove element one beyond a reasonable doubt. I think I've dealt with all the others so I won't engage them with you again.
38. In directing the jury on the issue of agreement, and in summarising the respective positions of the parties, the trial judge emphasised that the Crown's submission that the existence of an agreement of the kind alleged could be established by inference from the extent to which the evidence revealed that the applicant and Mr Hamzy were working together and talking about and getting access to the same boxes and, critically, by the accused adopting the fact that Mr Hamzy sent the invoices as an act of his own. He also reminded them of the Crown's submission that the fact there was no evidence of an actual meeting between the two men was not determinative. The trial judge also directed the jury that if there were competing inferences arising from the facts that might reasonably explain the combination of those facts on some basis other than because of an agreement between the two men to import the drugs contained within the consignment, the accused was entitled to be acquitted. That is, if the jury concluded, after careful deliberation, that it was reasonably possible that there was no agreement of the kind the Crown alleged formed as the Crown alleged it must have been, the Crown case must fail.
39. For my part, it is very difficult to understand why the Crown framed the indictment as it did given the evidence available to it that, in addition to the applicant and Mr Hamzy, others must have been party to the agreement to import the drugs during the currency of the agreement, including during the course of the applicant's dealings with FedEx between 22 and 25 October 2012. Were the Crown to have alleged that the applicant "jointly committed" the offence of importing a border controlled drug with Mr Hamzy and unknown others, and to have framed the indictment accordingly, and then to have sought to prove that by his conduct, in particular his dealings with FedEx and his knowledge generally of the consignment, that the applicant was acting in concert with a number of people, including Mr Hamzy, then the trial would very likely have taken a different course and the jury would unquestionably have been directed in different terms. A charge of conspiracy to import a border controlled drug under s 11.5 of the Criminal Code with Mr Hamzy and divers others was also open. The applicant's senior counsel on the appeal conceded as much in his oral submissions.
40. In agreeing with the written direction set out in full above at [79] that it was essential to proof of guilt that the jury were satisfied beyond reasonable doubt that there was some form of communication between the applicant and Mr Hamzy and that they knew each other, the Crown assumed an onerous evidential burden. While I understand the Crown sought to prove those two interrelated facts as a matter of inference (and perhaps felt obliged to agree with the form of the written direction because the indictment alleged that the applicant and Mr Hamzy were the only parties to the agreement), neither fact is requisite for liability for a joint criminal enterprise under the s 11.2A of the Criminal Code or, for that matter, at common law.
41. In short, I wish to make it clear that the conviction appeal succeeded not because of any failure on the part of the Crown to prove that the applicant was party to a joint criminal enterprise to import a commercial quantity of border drugs, or any failure to prove that he participated in an agreement with others to commit that offence as evidenced by his proven conduct between 22 and 25 October 2012. It succeeded because the evidence was not capable of proving the particulars in the indictment, there being insufficient evidence to establish beyond reasonable doubt that the agreement between the applicant and Mr Hamzy to import the drugs was based upon actual communication between them and that they knew each other.
42. BUTTON J: I agree with the orders proposed by Macfarlan JA, for the reasons given by his Honour. I also agree with the factual and legal analysis of Fullerton J.

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