The Queen v Franze

1 The accused man is charged on two counts of attempting to possess a commercial quantity of an unlawfully imported border controlled drug contrary to s 307.5(1) of the Criminal Code (Cth).[1] The border controlled drug which is the subject of the first charge is methamphetamine, and the border controlled drug which is the subject of the second charge is cocaine.

2 The prosecution intends to put its case against the accused on the basis that he was a party to a joint criminal enterprise to possess the border controlled drugs. An issue has arisen as to whether the prosecution is required to prove that the accused was a party to an agreement to possess a commercial quantity of the substance in question, or whether it is sufficient for the prosecution to prove that the accused was a party to an agreement to possess a quantity of the substance.

3 For the purpose of this ruling it is not necessary for me to set out in any detail the proposed prosecution case. In summary, the prosecution alleges that the drugs in question were imported into Australia from Mexico on the vessel Manet which arrived at the Port of Melbourne on 11 October 2011. The drugs were contained in some bottles which were included in a consignment of Cucapa beer. After the consignment was unloaded, it was searched by Customs officials and members of the Australian Federal Police. A commercial quantity of methamphetamine and a commercial quantity of cocaine were each detected in some of the bottles. Those bottles were removed from the consignment, and were placed with identical bottles which contained water.

4 Subsequently the whole consignment was transported to the premises of the shipping agent. On 24 October it was transported to premises in Laverton, and on the next day it was moved to premises in Sunshine West. On 26 October the bottles were moved to premises in Yarraville. The prosecution case is that the accused, and other parties to the joint criminal enterprise, were involved in directing and effecting the transfer of the consignment, containing the drugs. The issues which have been raised involve a consideration of a number of provisions of the Criminal Code, and in particular s 11.1 (which relates to attempts), s 11.2A (relating to the joint commission of offences), and s 307.5 (which relates to the offence of possessing commercial quantities of unlawfully imported border controlled drugs).

(a) the person possesses a substance; and

(b) the substance was unlawfully imported; and

(c) the substance is a border controlled drug or border controlled plant; and

(d) the quantity possessed is a commercial quantity.

...

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug or border controlled plant was unlawfully imported.

6 Methamphetamine and cocaine are each defined as border controlled drugs. A commercial quantity of methamphetamine comprises 0.75 kilograms or more of that drug. A commercial quantity of cocaine comprises 2 kilograms or more of that drug.

7 Section 11.1 of the Criminal Code relates to attempts. The relevant provisions are as follows:

(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. ...

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

(3A) Subsection (3) has effect subject to subsection (6A).

...

(6A) Any special liability provisions that apply to an offence apply also to the offence of attempting to commit that offence.

8 The dictionary to the Criminal Code defines a "special liability provision" to mean (inter alia) a provision that provides that absolute liability applies to one or more (but not all) of the physical elements of an offence. Section 6.2 of the Criminal Code provides that if a law that creates an offence provides that the offence is an offence of absolute liability, there are no fault elements for any of the physical elements of the offence, and the defence of mistake of fact (under s 9.2) is unavailable.

9 Section 11.2A contains provisions relating to joint offences. The relevant provisions are as follows:

(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 ...

the person is taken to have committed the joint offence referred to in whichever of subsection (2) or (3) applies and is punishable accordingly.

(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; ...

...

(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.

...

(8) Any special liability provisions that apply to the joint offence apply also for the purposes of determining whether a person is guilty of that offence because of the operation of this section.

10 It was submitted on behalf of the accused, that in order to prove the guilt of the accused on the two counts, the prosecution must prove that the accused entered into an agreement to possess a commercial quantity of the particular border controlled drug specified in each count. It was submitted that that was so because of the principles relating both to the proof of an attempt, and to the proof of a joint criminal enterprise. Mr Tovey QC, who appeared with Ms Boston for the accused, relied on the principle that a person cannot be found guilty of an attempt to commit an offence, unless the accused intended to perform all the acts necessary for the commission of the completed offence. Thus it was submitted that an accused could not be guilty of attempting to possess a commercial quantity of a drug, unless the accused intended to have possession of an amount of that drug which was equivalent to a commercial quantity of it. It was submitted that notwithstanding s 11.1(6A), the prosecution must prove intentional conduct by the accused of attempting to possess such a quantity of the substance. Otherwise it was submitted the accused could not have intended to commit the completed offence, but, rather, a lesser offence.

11 It was further submitted that the accused could only be liable for the offence charged, on the basis that he was a party to a joint criminal enterprise, if the agreed enterprise was directed to possession of a commercial quantity of the substance. Otherwise, it was submitted, an accused might be found liable for an offence against s 307.5, notwithstanding that the accused only agreed, with his co-offenders, to obtain possession of a significantly smaller amount of the substance.

12 In response, Mr D Gurvich, who appears on behalf of the prosecution, submitted that the prosecution is not required to establish that the accused intended, or entered into an arrangement, to obtain a commercial quantity of the border controlled drug. Mr Gurvich pointed out that s 307.5(2) provided that absolute liability applies to the element of the principal offence that the quantity possessed is a commercial quantity. He submitted that s 11.1(3A) and (6A) are unambiguously directed to ensuring that, notwithstanding the common law principles of proof of an attempt to commit a crime, the prosecution is not required to prove any knowledge or intent in relation to that element. Mr Gurvich referred, in that respect, to the judgment of the plurality in The Queen v LK.[2] Thus Mr Gurvich submitted that, in order to prove an accused guilty of such an offence on the basis that he was a party to a joint criminal enterprise, it is not necessary for the prosecution to prove that the agreement or enterprise was directed to the possession of a commercial quantity of the particular border controlled drug. In that connection Mr Gurvich relied on s 11.2A(8) of the Code.

13 It is well established, at common law, that where the prosecution alleges that an accused has attempted to commit an offence, the prosecution must prove an intention by the accused to commit the completed offence.[3] Thus, if not for s 11.1(3A) and s 11.1(6A), the prosecution would be required to prove an intention by the accused in respect of each constituent element of the completed offence alleged, including an intention to possess a commercial quantity of the border controlled drug. However, s 11.1(3A) and s 11.1(6A) are clear. Those two provisions specifically state that, in order to prove an attempt to commit an offence under s 11.1 of the Code, the prosecution does not need to establish intention or knowledge on behalf of the accused in respect of any element of an offence to which a "special liability provision" applies. As I have already stated, the effect of s 307.5(2) is that, in order to prove the completed offence, the prosecution need not prove an intention by an accused to possess a commercial quantity of the border controlled substance. It follows that, in order to prove an attempt to commit that offence, the prosecution is not required to prove that the accused intended to possess a commercial quantity of the drug.

14 If support were required for the above proposition, it is to be found in the judgment of the plurality in The Queen v LK.[4] In that case, the accused was charged with conspiring to commit an offence against s 400.3(2) of the Criminal Code, which provided that a person is guilty of an offence if the person dealt with money of the value of $1,000,000 or more and the money was the proceeds of crime, and the accused was reckless as to the fact that the money was the proceeds of crime. Section 400.3(4) has the effect that the prosecution is not required to prove that the accused knew that the value of the money, dealt with, was $1,000,000 or more. Section 11.5 of the Code provides for the offence of conspiracy. Section 11.5(7A) is in identical form to s 11.2(6A), and provides that any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence.

15 In R v LK, the judge directed the jury to acquit the accused, because on the Crown case presented, the Crown had not proven that the accused knew that the money, which he conspired to deal with, was the proceeds of crime. The High Court held that the judge was correct in so ruling. In their joint judgment, Gummow, Hayne, Crennan, Keifel and Bell JJ stated:

The offence of conspiracy under the Code is confined to agreements that an offence be committed. A person who conspires with another to commit an offence is guilty of conspiring to commit that offence. It was incumbent on the prosecution to prove that LK and RK intentionally entered an agreement to commit the offence that it averred was the subject of the conspiracy. This required proof that each meant to enter into an agreement to commit that offence. As a matter of ordinary English it may be thought that a person does not agree to commit an offence without knowledge of, or belief in, the existence of the facts that make the conduct that is the subject of the agreement and offence ... This is consistent with authority with respect to liability for the offence of conspiracy under the common law. Subject to one reservation, it is how the fault element of the offence created in section 11.5(1) operates. The reservation concerns the application of section 11.5(2)(b). As these reasons will show, this provision informs the meaning of 'conspires' in subsection (1) by making clear that at least one other party to the agreement must have intended that an offence be committed pursuant to the agreement. It also speaks to proof of the accused's intention. The reservation arises because section 11.5(2)(b) is subject to section 11.5(7A), which applies any special liability provisions of the substantive offence to the offence of conspiring to commit that offence. A special liability provision includes a provision that absolute liability applies to one or more ... of the physical elements of the offence. Proof of the intention to commit an offence does not require proof of knowledge of, or belief in, a matter that is the subject of a special liability provision.[5]

16 Thus, it is clear that, in order to prove an attempt to commit an offence under s 300.7(5) of the Code, the prosecution is not required to prove that the accused intended to possess a commercial quantity of the border controlled drug. The question is whether, nevertheless, where the prosecution alleges that the accused is guilty of such an offence by reason of being a party to enter into an agreement to commit the completed offence, the prosecution must prove that the relevant agreement or arrangement was to purchase a commercial quantity of the border controlled drug.

17 In my view, the answer to that question is that prosecution is not required to prove that the agreement in question was directed to the possession of a commercial quantity of the particular drug. That conclusion clearly follows from s 11.2A(8) which provides that any special liability provisions that apply to the joint offence in question also apply for the purposes of determining whether a person is guilty of that offence because of the operation of s 11.2A. As I have stated, s 307.5(2) has the effect that a "special liability provision" applies to s 307.5(1)(d) which specifies, as an element of the offence, that the quantity of the border controlled drug in question be a commercial quantity of that drug. To prove that the accused is liable, as a party to a joint criminal enterprise, for an offence under s 307.5 of attempting to possess a commercial unlawful imported border controlled drug, it is not necessary to prove that the accused intended the possession of a commercial quantity of that drug. That being so, it must follow that it is not necessary that the accused agree with another party or the other parties to the enterprise to possess a commercial quantity of the drug. Such a requirement would be incompatible with s 11.2A(8) and s 307.5(2) of the Code. Thus, in order to be a party to such an enterprise, it is not necessary that the relevant agreement or arrangement be directed to the possession of a commercial quantity of the drug; it is sufficient if it is proven to be directed to the possession of a quantity of the border controlled drug.

18 For those reasons I reject the submission made on behalf of the accused that the prosecution must prove that the agreement or arrangement between the accused and his alleged co-offenders was to purchase a commercial quantity of the border controlled drug.

Participation by the accused in joint enterprise

19 In the course of submissions, I raised with counsel whether the prosecution must prove some act of participation by the accused in the joint enterprise, in order to prove his liability under s 11.2A of the Code. Section 11.2A does not contain any express provision containing such a requirement. On the other hand, at common law, it is well established that, in order to prove the guilt of an accused person of a crime, by reliance on the principles of joint criminal enterprise, the prosecution must prove (inter alia) an act of participation by the accused in the commission of that crime. As the Full Court stated in R v Clarke & Johnstone:[6]

The offence ... in this case truly was a 'joint venture'. ... The gist of the offence was actual participation in some aspect of the trafficking - not merely an agreement to traffick.[7]

20 It is surprising that such a requirement is not expressed in s 11.2A of the Code. There are two possible explanations for that omission. First, the legislature might have intended that the common law requirement of participation not be a necessary aspect of the concept of joint commission under s 11.2A. The alternative explanation is that the section does intend to incorporate common law principles, subject, of course, to any contrary expression of those principles contained in s 11.2A. In the present case, I do not consider it is necessary to resolve the matter. As Mr Gurvich properly conceded, the question is somewhat academic. The prosecution intends to prove the existence of the relevant agreement by proving acts of the accused which, it contends, constitutes participation by him in the commission of the offence. In those circumstances, and as a matter of prudence, I intend to direct the jury that it is necessary for the prosecution to prove an act or acts of participation by the accused in the attempt to possess the particular border controlled drug.

21 Mr Tovey QC also submitted that the prosecution had failed to properly particularise the joint enterprise upon which it relies. He submitted that the prosecution must provide particulars as to the date upon which the accused became part of the joint enterprise. Mr Tovey QC, in particular, submitted that the prosecution should specify whether it is alleged that the accused attached himself to the joint enterprise on 25 October, or whether he was a member of it before then. He also submitted that the prosecution should specify whether it is alleged that the agreement, to which the accused attached himself, was to possess the border controlled drug, or to dispose of the drugs, which were then in the possession of the other parties to the enterprise.

22 In response, Mr Gurvich submitted that it is only necessary for the prosecution to allege, in the broadest form, an agreement by the accused and others to possess a border controlled drug. He submitted that it is not necessary for the prosecution to specify the particular drug, or to give any identification of it. Mr Gurvich stated that the prosecution would be alleging that the accused was a party to the relevant agreement before 25 October. He submitted that it is not necessary for the prosecution to state whether on 26 October the purpose of the enterprise was to dispose of the drugs, or to continue to possess them.

23 It is a fundamental requirement of the criminal law that an accused be given sufficient particulars of the charge brought against him.[8] I therefore reject the submission made by Mr Gurvich, that it is not necessary for the prosecution to provide particulars of the agreement alleged, other than in the most general form. It is clear in this case that the prosecution case will be that the joint enterprise was directed to possessing the drugs which were contained in beer bottles which were part of the consignment which had been imported into Australia on 11 October. I would expect that Mr Gurvich, when he opens the case, will make that plain to the jury.

24 On the other hand, the prosecution is not required to allege precisely when the accused entered into or became a member of the joint enterprise. As is commonly the case, the prosecution will be relying on subsequent acts by the accused, and others, as a basis for an inference that the accused was a part of an enterprise with those others to perform the particular acts in question. In such a case it is not possible, nor necessary, for the prosecution to specify precisely when the accused entered into the joint arrangement with the other alleged co-offenders. Rather, all that is necessary is that the prosecution establish that the accused was a party to the joint enterprise before the particular offence in question is committed by one or more of the parties to the enterprise. In my view it is sufficient for the prosecution, in this case, to have responded in the manner in which Mr Gurvich has already responded, in respect of that matter.

25 In summary, for the reasons which I set out above, I have reached the following four conclusions:

(1) The prosecution is not required to prove that the joint enterprise, on which it relies, was directed to the possession of a commercial quantity of the particular border controlled drug.

(2) The prosecution should be required to prove that the accused participated in the relevant arrangement or understanding by taking a step or steps to possess a commercial quantity of the border controlled drug.

(3) The prosecution is required to particularise the nature of the agreement or arrangement which it alleges the accused entered into with the other alleged co-offenders, and, in particular, to specify and identify the particular border controlled drug or drugs which were the subject of the arrangement. In this respect, it is sufficient for the prosecution to confirm (as indicated by Mr Gurvich in the course of submissions) that the joint enterprise was directed to the methamphetamine and cocaine contained in some of the bottles in the consignment addressed to AAMA Pacific Pty Ltd which was imported on the vessel Manet.

(4) The prosecution is not required to provide particulars of the date on which the accused became a party to the agreement or arrangement, other than by confirming that it is alleged that the accused was a party to the agreement or arrangement before 25 October 2011.

[1] Criminal Code Act 1995 (Cth) sch 1 ('Criminal Code').

[3] See for example Alister v The Queen (1984) 154 CLR 404, 421-3 (Gibbs CJ); McGhee v The Queen [1995] HCA 69; (1995) 183 CLR 82, 85-6; Director of Public Prosecutions v Stonehouse [1978] AC 55, 68.

[5] Ibid 228 [117]; see also Barker v The Queen [2012] WASCA 51, 6-7 [26]-[27].

[6] [1986] VicRp 64; [1986] VR 643, 653.

[7] See also R v Likiardopoulos (2010) 30 VR 654, 668-9 [61]-[63]; Arafan v The Queen [2010] VSCA 356, [36] (Maxwell P and Weinberg JA).

[8] Johnson v Miller [1937] HCA 77; (1937) 59 CLR 467, 489, 495, 501-2; Mok v The Queen (1987) 27 A Crim R 438, 441.