The Queen v Franze

2 The summary, which I prepared, states that in order that the prosecution prove that the accused attempted to possess a commercial quantity of a border controlled substance that was unlawfully imported, on the basis that he was a party to a joint criminal enterprise to commit that offence, the prosecution must prove, beyond reasonable doubt:

(1) The accused entered into an agreement, with another person or other persons, to possess a quantity of the border controlled drug (count 1 - methamphetamine; count 2 - cocaine); and that agreement remained in existence when the offence was committed.

(2) In accordance with the agreement, one or more of the parties to the agreement performed all the acts necessary to commit the offence of attempting to possess a commercial quantity of the border controlled drug that was unlawfully imported. (The summary then expands upon this element, but I shall not repeat it for the purposes of brevity).

(3) The accused participated in the agreement by taking a step or steps to possess a commercial quantity of the border controlled drug that had been unlawfully imported (count 1 - 0.75 kilograms methamphetamine; count 2 - 2 kilograms cocaine).

(4) The accused and at least one other party to the agreement intended to possess a quantity of the border controlled drug (count 1 - methamphetamine; count 2 - cocaine).

3 The issue which has arisen concerning the first element is whether the prosecution is required to prove that the relevant agreement was to possess a quantity of the border controlled drug specified in the particulars to the counts on the indictment, or whether, on the other hand, it is sufficient for the prosecution to prove that the agreement related to the possession of any border controlled drug. Mr D Gurvich, who appears on behalf of the prosecution, has contended that it is not necessary for the prosecution to prove an agreement to possess the particular border controlled drug which is the subject of the charge brought against the accused; rather, he submitted, it is sufficient for the jury to be satisfied beyond reasonable doubt that there was in existence an agreement, to which the accused was a party, to possess a border controlled drug.

4 Similarly, Mr Gurvich submitted, in respect of the fourth element, that it is not necessary for the prosecution to prove that the accused intended to possess a quantity of the border controlled drug which is specified in the charge on the indictment. Rather, he submitted, it is sufficient that the prosecution proves that the accused intended to possess a quantity of a border controlled drug.

5 In support of that submission, Mr Gurvich contended, first, that the charge brought against the accused is that of attempted possession of a border controlled drug. The specification, in each count, of the particular drug is not a necessary element of the charge; rather it is stated as a particular of the offence. In other words, the offences charged are not attempted possession of a commercial quantity of unlawfully imported methamphetamine and cocaine; rather the offence, charged in each count, is of attempted possession of a commercial quantity of an unlawfully imported border controlled drug.

6 In support of that submission, Mr Gurvich has referred to a recent ruling of King J in R v Karam Higgs Agresta & Sergi, a copy of which he provided to myself and to counsel for the accused.

7 In that case, the four accused were charged with conspiring to possess a commercial quantity of a border controlled drug contrary to s 11.5 of the Commonwealth Criminal Code. The drug specified in the indictment was MDMA. An issue arose as to whether reasonable evidence had been adduced by the prosecution as to the existence of the conspiracy, so as to entitle the prosecution to rely on the acts and declarations of one particular conspirator as evidence against another, for the purposes of the principles stated by the High Court in Ahern v The Queen[1]. King J held that it was not necessary for the prosecution to prove a conspiracy to possess the particular drug specified in the indictment. Her Honour stated that the crime, with which the accused were charged, was conspiring to obtain possession of a border controlled drug in a commercial quantity. It was not necessary for the co-conspirators to know the particular drug which was to be the subject of the intended possession. The offence was not that of conspiring to possess a commercial quantity of MDMA; rather, her Honour held, the offence was of conspiring to possess a commercial quantity of a border controlled drug.

8 In support of his submission, Mr Gurvich relied, also, on s 300.5 of the Criminal Code (Commonwealth). That section provides:

"If, in a prosecution for an offence against this part, it is necessary for the prosecution to prove that a person knew, or was reckless as to whether, a substance ... was ... a border controlled drug ... it is not necessary for the prosecution to prove that the person knew, or was reckless as to, the particular identity of the ... border controlled drug."

9 Mr Gurvich submitted that s 300.5 applies to an offence under s 11.1 of the Code because of the operation of s 11.6(2) or alternatively s 11.1(6) of the Code.

10 Pausing there, I should observe, first, that as I understand it, the issue raised by Mr Gurvich is, most probably, academic in this particular case. The agreement, upon which the prosecution relies as a foundation of the joint enterprise, is one which is to be wholly implied from the subsequent acts and conduct of the persons alleged to have been parties to the joint enterprise, and, in particular, the accused, Anthony Sitar and Errol Ramazanoglu. There is no suggestion that there is any direct evidence which might give a content or texture to the agreement, other than that which is proven by implication from the subsequent acts and conduct of those persons. Secondly, there is no suggestion in the evidence that the drugs, which it is alleged the accused attempted to possess, were other than the two drugs which were ultimately detected in the consignment, imported on the vessel Manet on 11 October 2011, and addressed to AAMA Pacific of 3/25 Westside Drive, Laverton North, namely, methamphetamine and cocaine. Thirdly, the amount of each drug found in the consignment was very large. On forensic examination, the National Measurement Institute Forensic Drug Laboratory found 133.3 kilograms of pure methamphetamine, which is 177 times the threshold for a commercial quantity, and 14.1 kilograms of pure cocaine, which is seven times the threshold for a commercial quantity. If the evidence demonstrates the existence of a relevant joint criminal enterprise, it would be most unlikely that it related to some other substance than the two substances detected in the consignment.

11 It is convenient to deal first with the submission by Mr Gurvich based on s 300.5 of the Code should be rejected.

12 The two charges against the accused are for offences against s 11.1 of the Criminal Code, namely, offences of attempting to commit an offence against s 307.5 of the Code. The attempt itself is the offence with which the accused is charged. While the constituent elements of the attempt are, at least in part, derived from the constituent elements of an offence against s 307.5 of the Code, nevertheless the offence is that prescribed by s 11.1 of the Code. Section 11.1 is in Part 2.4 of the Code. On the other hand, s 300.5 is to be found in Part 9.1 of the Code. Section 300.5 is expressed to apply only to a "prosecution for an offence against this Part". It follows that s 300.5 of the Code does not, of its own force, apply to a prosecution for an offence against s 11.1 of the Code.

13 Mr Gurvich submitted that s 300.5 of the Code applies to a prosecution for an offence against s 11.1, because of the operation of s 11.6(2) or alternatively 11.1(6). Section 11.6(2) provides:

"A reference in a law of the Commonwealth (including this Code) to a particular offence includes a reference to an offence against s 11.1 (attempt), 11.4 (incitement) or 11.5 (conspiracy) of this Code that relates to that particular offence.

14 In my view s 11.6(2) does not assist the prosecution. Section 300.5 is not, and does not contain, a "reference ... to a particular offence". Rather, it refers, generically, to prosecutions "... for an offence against this Part ...". The statutory provisions under consideration affect the scope and reach of particular criminal offences prescribed by the Code. For that reason it is appropriate that s 11.6(2) be construed according to its plain terms, and not in an expansive manner as contended for by the prosecution. Thus it would be inappropriate, in my view, to give to the phrase "a reference in a law ... to a particular offence ..." other than its plain meaning. Understood in that sense, it does not operate to apply s 300.5 to offences under s 11.1 of the Code.

15 I also reject the submission by Mr Gurvich that s 11.1(6) operates to apply s 300.5 to a prosecution for an attempt under s 11.1. Subsection (6) provides:

"Any defences, procedures, limitations or qualifying provisions that apply to an offence apply also to the offence of attempting to commit that offence."

16 In my view, s 300.5 does not constitute a "defence, procedure, limitation or qualifying provision" that applies to the principal offence, which it is alleged the accused attempted to commit. Rather, s 300.5 defines what the prosecution must prove in relation to particular elements of offences against Part 9.1 of the Code.

17 For those reasons, I reject the submission on behalf of the prosecution that s 300.5 of the Code applies to an offence under s 11 of the Code. That conclusion might have the consequence that the prosecution is required to prove more, in order to establish an attempt to commit an offence, than it is required to prove in order to establish the completed offence. However, that is not unusual. Rather, it is a product of the fact that, by definition, the constituent elements of an attempt to commit an offence must be different to the constituent elements of the completed offence.[2]

18 The primary submission, by Mr Gurvich, was that, in any event, the offence, with which the accused is charged, is that of attempted possession of a border controlled drug in a commercial quantity. It is that offence, he submitted, that is proscribed by s 307.5, and it is that offence, he submitted, that the accused attempted to commit in this case, not the offence of attempted possession of a commercial quantity of (in respect of count 1) methamphetamine and (in respect of count 2) cocaine.

19 As I have already stated, the case against the accused is that he was a party to a joint enterprise, with Sitar and Ramazanoglu and possibly others, to possess a commercial quantity of a border controlled drug. Section 11.2A of the Code provides for the joint commission of offences. The relevant parts of s 11.2A(1) state:

(a) a person and at least one other party entered into an agreement to commit an offence; and

(b) either

(i) an offence is committed in accordance with the agreement ... 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. ... ."

20 Section 11.2A consists of a codification (with some differences) of the common law relating to what is described as a joint criminal enterprise in this State. The basis of an accused's liability at common law, under the principles attaching to joint criminal enterprise, was recently described by the High Court in Likiardopoulos v R[3]. In that case, the accused was charged with murder committed jointly with three others. The principal case against the accused was that he was liable for the murder pursuant to the principles of joint criminal enterprise. The plurality described that basis of criminal liability as follows:

"On the principal case, the appellant was liable for the murder of the deceased under the principle of joint criminal responsibility variously described as joint criminal enterprise, common purpose or concert. On this analysis, it was necessary to prove that the appellant was a party to an understanding or arrangement, whether formed expressly or tacitly, with John Likiardopoulos, Aydin and Singh, to inflict really serious injury on the deceased and that, while that arrangement was on foot, one or more of the parties to it did the acts which caused death intending thereby to do really serious injury to him. The appellant's participation in the enterprise while possessed of the requisite intention (here to inflict really serious injury) operates to fix him with liability for the acts of the other parties carried out in pursuance of it. On the principal case, the appellant's liability is direct ... ."[4]

21 As such, the proof of the commission of a crime, pursuant to a joint criminal enterprise, requires the prosecution to prove that the accused was a party to an understanding, arrangement or agreement to commit the crime. Subject to the principles of "extended common purpose" (which is not relied on by the prosecution in this case), the offence committed must fall within the criminal purpose which was agreed by the parties, and in particular by the accused. In that way, it is clear that the agreed criminal conduct must be capable of a degree of definition, notwithstanding that it may not have the same measure of certainty as that required of a contract at common law.

22 Furthermore, in this case, the prosecution relies on the proof of a joint enterprise to establish the guilt of the accused on one count alleging attempted possession of a commercial quantity of methamphetamine, and a second count alleging attempted possession of a commercial quantity of cocaine. Thus the enterprise must relate to the attempted possession of two separate border controlled drugs. If the jury were not satisfied that the joint agreement related to more than one "border controlled drug", in the absence of the principles of extended common purpose (which are not relied on), and in the absence of the jury being satisfied as to the identity of that "border controlled drug", the jury would be left with the insoluble conundrum as to upon which count the accused would be guilty.

23 In this respect, there may be a relevant difference between the case, which was the subject of the ruling by King J in R v Karam & Ors, and the present case. In Karam, the offence, which the accuseds were alleged to have committed, was the offence of conspiracy under s 11.5 of the Code. In such a case, the agreement to commit a criminal offence is itself the crime alleged against the accused. By contrast, in this case, the prosecution alleges the accused was guilty of an attempt contrary to s 11.1 of the Code, and, to establish the accused's guilt of that charge, the prosecution relies on the principles of joint criminal enterprise, prescribed by s 11.2A of the Code. In such a case, the agreement to commit the relevant offence is not itself the offence. Rather, it is the means by which the law makes an accused criminally liable for the actions of another person. The basis upon which that liability is founded depends upon the prosecution establishing the requisite agreement, participation, and intention to commit the crime which is the subject of the agreement.

24 In this case, the prosecution contends that the accused man is criminally liable for the actions of Sitar and Ramazanoglu in dealing with the consignment which contained commercial quantities of the border controlled drugs methamphetamine and cocaine. The prosecution alleges that there was a joint enterprise between Ramazanoglu and Sitar to deal with the consignment containing those border controlled drugs, and that the accused man was a party to that agreement. In order to determine whether the accused is liable for the actions of Sitar and Ramazanoglu, the jury will need, first, to be satisfied as to the nature and scope of the alleged joint enterprise, to which it is alleged the accused was a party. Further, the jury will need to be satisfied that the accused participated in the commission of the offence, which was the subject of the agreement. Thirdly, the jury will need to be satisfied that the accused intended to commit the particular offence which is the subject of the agreement. As I stated, the jury will need to be satisfied that the offence committed by Sitar and Ramazanoglu was the offence which fell within the purpose agreed by the parties, was the offence in which the accused participated, and which was the offence which the accused intended be committed. In that way, as I stated, the agreed criminal conduct, which was the subject of the enterprise, must be capable of a sufficient degree of definition for those purposes.

25 In ordinary parlance, there is no such thing as a "border controlled drug". Rather, that phrase is a particular description used by the Commonwealth Criminal Code, for shorthand purposes, to denote the drugs which are either described or prescribed as belonging to that category of drugs. Section 300.2 defines a border controlled drug to mean a substance which is:

(a) listed or described as a border controlled drug in s 314.4; or

(b) prescribed by regulations under paragraph 301.3(1)(a); or

(c) specified in a determination under paragraph 301.8(1)(a).

26 Pausing there, s 314.4(1) specifies 155 different substances as a border controlled drug. Section 314.4(2) provides further that a substance is also a border controlled drug if the substance is, in relation to a border controlled drug, a drug analogue or an alkaloid of such a border controlled drug, as specified in six subparagraphs contained in subsection (2). Section 301.3(1)(a) provides that the regulations prescribe a substance (other than a growing plant) as a border controlled drug. Section 301.8(1)(a) provides that a Minister may as an emergency measure by legislative instrument determine that a particular substance is a border controlled drug.

27 In that way, it can be seen that a plethora of different substances may constitute a "border controlled drug" for the purposes of the Code. If the prosecution's argument is correct, then I only need to direct the jury that, to be satisfied of the first element, the jury must be satisfied that the accused was a party to an agreement with one or more persons to possess a border controlled drug. Such a direction would be entirely meaningless, without giving the jury some guidance as to what constitutes a "border controlled drug".

28 In particular, the jury could not be satisfied, beyond reasonable doubt, as to the existence of the alleged joint criminal enterprise, unless it could be satisfied that it was an enterprise to possess a substance proscribed by law. Thus, it would not be satisfied of an enterprise to possess a "border controlled drug", unless it were given instruction as to the meaning of that statutory term. It would be meaningless to read to the jury the statutory definition of that term. The present case is concerned only with two of the drugs specified in s 314.4. In light of the issues in this case, the most meaningful and practical method of instructing the jury, in this case, is to direct them that the enterprise should relate to the possession of those substances.

29 I accept that in some cases the evidence or issues may make it necessary or appropriate to give a direction to the jury in the wide form contended for by the prosecution. However this is not such a case. As I stated, the prosecution case is that the accused was a party to an agreement to possess the drugs, which were contained in the consignment of Cupaca beer addressed to AAMA Pacific. Two such drugs were detected. The prosecution case is that the accused was a party to an attempt to possess those drugs. The defence has not disputed that there was a joint enterprise between Sitar and Ramazanoglu to import and possess border controlled drugs. Indeed, in his preliminary opening to the jury at the commencement of the trial, Mr Tovey QC (who appears with Ms Boston for the accused) expressly conceded the existence of that enterprise. There is nothing in the evidence to suggest that the enterprise involved any other border controlled drug. The only issue is whether the prosecution has proven beyond reasonable doubt that the accused was a party to that agreement. Thus, as I have already noted, the point raised by the Crown is probably academic.

30 On the other hand, if I were to give the jury the direction sought by the prosecution, it would, as I have demonstrated, be quite meaningless. In the context of the issues in this case, it is undesirable that I give such a wide, and meaningless, direction to the jury. In those circumstances, I do not accede to the prosecution submission. Rather I intend to direct the jury as I have foreshadowed, namely, that in order to be satisfied of the first element, the jury must be satisfied beyond reasonable doubt that the accused was a party to an agreement to possess (in respect of count 1) a quantity of methamphetamine, and (in respect of count 2) a quantity of cocaine.

[1] [1988] HCA 39; (1988) 165 CLR 87.

[2] See for example Alister v R (1983) 154 CLR 404, 421-3 (Gibbs CJ).

[3] [2012] HCA 37.