ALFRED KOLA v THE KING [2023] SASCA 50

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA (HER HONOUR JUDGE KUDELKA) DCCRM-19-1044 Applicant: ALFRED KOLA Counsel: MR A CULSHAW - Solicitor: DADDS JANDY LAWYERS Respondent: THE KING Counsel: MR S HENCHLIFFE KC WITH MS J DAVEY - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Hearing Date/s: 21/03/2023 File No/s: SCCRM-22-006599 B SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. KOLA v THE KING [2023] SASCA 50 Judgment of the Court of Appeal (The Honourable Chief Justice Kourakis, the Honourable Justice Nicholson and the Honourable Justice Stein) 19 May 2023 CRIMINAL LAW - APPEAL AND NEW TRIAL CRIMINAL LAW - PARTICULAR OFFENCES - DRUG OFFENCES - IMPORT- EXPORT OFFENCES CRIMINAL LAW - GENERAL MATTERS - ANCILLARY LIABILITY - CONSPIRACY - SCOPE OF CONSPIRACY CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - PARTICULAR CASES - WHERE APPEAL ALLOWED Appeal against conviction. The appellant was charged on Information in the District Court with the offence of conspiracy to import a commercial quantity of a border controlled drug contrary to sections 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth). The appellant was convicted of the offence on a trial by jury. The appellant relies on five grounds of appeal: 1. The trial Judge erred in failing to direct the jury that it was an element of the offence of conspiracy that the appellant had agreed with others to import a shipment of cocaine which, if the agreement were executed, would have been a commercial quantity. 2. The appellant’s trial miscarried as a result of the wrongful admission of certain intercepted telephone calls by reason of s 34P of the Evidence Act 1929 (SA). -- 1 of 27 -- 3. The trial Judge’s direction on the use of the intercepted telephone calls was inadequate. 4. The trial miscarried as a result of the wrongful admission of evidence of the prosecution’s expert witness. 5. The trial miscarried as a result of the wrongful admission of evidence of a witness that he had assisted the appellant’s co-conspirator in the cultivation of cannabis. Held (by Kourakis CJ, Nicholson and Stein AJJA agreeing): 1. The appeal is allowed on Ground 1. 2. It is an element of the offence of conspiracy to import a commercial quantity of cocaine that the conspirators agreed to engage in conduct which, if executed, would have resulted in the importation of a commercial quantity of cocaine, whether the conspirators knew, or intended, the execution of their agreement would result in product of that weight being imported. The trial Judge failed to so direct the jury. 3. The remaining grounds of appeal are dismissed. 4. Conviction set aside. 5. The matter is remitted for re-trial. Criminal Code Act 1995 (Cth) ss 11.5, 307.1; Evidence Act 1929 (SA) s 34(P); Criminal Procedure Act 1921 (SA) s 160(2), referred to. R v LK (2010) 241 CLR 177; Standen v The Queen (2015) 298 FLR 35; Standen v Director of Public Prosecutions (Cth) (2011) 254 FLR 467; Le v The Queen (2016) 308 FLR 486; Spies v The Queen (2000) 201 CLR 603, considered. -- 2 of 27 -- KOLA v THE KING [2023] SASCA 50 Court of Appeal - Criminal: Kourakis CJ, Nicholson and Stein AJJA 1 KOURAKIS CJ: The appellant, Alfred Kola, was convicted in the District Court on a charge of conspiracy to import a commercial quantity of a border controlled drug contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) (the Code). His co-accused, Ibrahim Yavuz and Juan Londono-Gomez, were convicted of the offence on their pleas of guilty. The prosecution case was that Mr Kola and Mr Yavuz recruited an acquaintance of Mr Yavuz, to whom I will refer by the pseudonym James, to travel to Panama to accompany a shipment of cocaine back to Australia on a boat. Mr Londono-Gomez’s role was to make arrangements to source the cocaine and to secure a crewed boat to sail to Australia. 2 Mr Kola appeals on the following grounds: (1) The failure of the Judge to direct the jury that it was an element of the offence of conspiracy that Mr Kola had agreed with others to import a shipment of cocaine which, if the agreement were executed, would have been a commercial quantity. (2) Evidence of certain phone calls between Mr Kola and others was inadmissible by reason of s 34P of the Evidence Act 1929 (SA) (the Evidence Act). (3) In the alternative to Ground 2, the direction on the use of that evidence was inadequate. (4) The evidence of an Australian Federal Police Officer as to the meaning of certain words used in conversations between Mr Kola and others was inadmissible. (5) The evidence that James had assisted Mr Yavuz in a cultivation of cannabis was inadmissible because it was more prejudicial than probative. 3 I would allow the appeal on the first ground. It is an element of the offence of conspiracy to import a commercial quantity of cocaine that the conspirators agreed to engage in conduct which, if executed, would have resulted in the importation of a commercial quantity of cocaine, whether the conspirators knew, or intended, the execution of their agreement would result in product of that weight being imported. The Judge failed to so direct the jury; the directions which were given by the Judge allowed for the conviction of Mr Kola if the jury was satisfied that the acts in which James and others had engaged in Central America would have resulted in the importation of a commercial quantity of cocaine, even if that were not the agreement entered into by the conspirators. -- 3 of 27 -- [2023] SASCA 50 Kourakis CJ 2 4 I would grant permission to appeal on Grounds 2 to 5 but dismiss those grounds of appeal. There was no objection to the admission of the telephone conversations, but they were admissible in any event. The Judge’s directions warned the jury against any propensity or bad character use, and explained how the evidence might properly be used. There was no objection to the evidence as to the meaning of the words used by the conspirators and, in any event, a proper foundation for the admission of that evidence as expert evidence was established. 5 The evidence of James’ participation in the cultivation of cannabis by Mr Yavuz was relevant to explain why Mr Yavuz had nominated James as the person whom could be trusted to accompany the cocaine from Central America. Such prejudice as there might have been to Mr Kola by reason of his association with Mr Yavuz was minimal having regard to all of the other evidence. The Judge warned the jury against any impermissible use. No miscarriage of justice has been occasioned by the admission of that evidence. The evidence 6 Mr Kola’s co-accused, Mr Londono-Gomez, is a Columbian national who in early 2014 was residing in Australia. He was referred to by his co-conspirators as ‘Mono’. Mr Yavuz was a meat retailer and wholesaler who had, some time before the alleged conspiracy, cultivated cannabis plants. James had assisted Mr Yavuz in that cultivation. 7 On 21 March 2014 Mr Londono-Gomez told Mr Kola that he was going to return to Columbia because his father was ill. Mr Kola arranged to speak to Mr Londono-Gomez before he left and, as part of that arrangement, phoned Mr Yavuz to inform him that Mr Londono-Gomez wanted some ‘paper’ before he left. The prosecution adduced evidence from an Australian Federal Police Officer, Mr Feeney, that the word ‘paper’ was code for money. 8 In early April 2014 Mr Londono-Gomez travelled to Adelaide and met Mr Kola on several occasions. On 3 April 2014 Mr Kola, Mr Yavuz, Mr Londono-Gomez and James had lunch at the Mawson Lakes Hotel. On 10 April 2014 Mr Kola spoke to a male referred to as Julio who was in Columbia. Julio asked ‘so I’m going to see you, uh in couple weeks ok?’ Mr Kola replied ‘yes … I’ll call you back and let you know because I haven’t done the ticket yet.’ Julio told Mr Kola that he wanted to meet him. On 2 May 2014 Mr Londono-Gomez travelled from Australia to Columbia. 9 Between 13 and 14 May 2014, Mr Kola spoke to Julio and Mr Londono-Gomez about arranging for someone to travel to Panama City to go with the ‘lady’. In another conversation Mr Londono-Gomez said of someone that ‘he’s got the door open’ and later repeated that ‘the door [it’s] opened for us.’ It was the prosecution’s evidence that the word ‘lady’ was a code commonly used for cocaine in conversation and that ‘door’ was code for an importation opportunity. -- 4 of 27 -- [2023] SASCA 50 Kourakis CJ 3 10 James testified that Mr Kola and Mr Yavuz agreed to pay him $250,000 to travel to Central America and return on the boat with the cocaine. On 16 May 2014 James accompanied Mr Yavuz and Mr Kola to the Mawson Lakes office of Flight Centre and booked airfares for James to travel to Panama City. James left for Panama City on 19 May 2014. James gave evidence that he met Mr Londono-Gomez in Panama and that Mr Londono-Gomez introduced him to Marco who would captain the boat to Australia. James, Mr Londono-Gomez and Marco spent several days together. 11 James testified that he remained in Panama waiting for a shipment of cocaine to be loaded onto a boat on which James would travel with others to Australia. James remained in Panama for several weeks whilst the boat was repaired. Eventually the boat captained by Marco sailed through the Panama Canal with James on board. 12 James testified that on one night he became drunk and told some of the other persons on the boat that he was ‘doing a job’ with Marco. Marco became angry when he heard of the conversation. He refused to sail any further with James. The conspiracy alleged by the prosecution was thereby frustrated and no cocaine was imported into Australia. James testified that he flew back to Australia from Panama City. James did not claim to have seen the cocaine, or any containers which might have held it, loaded onto the boat. There was no other evidence of the amount of cocaine, if any, which was on the boat. 13 The prosecution case was that the amount of cocaine which Mr Kola had agreed with the others to import was two kilograms or more, thus, a commercial quantity by way of inference from the fact that James was to receive $250,000 for sailing on the boat that was to be used to convey the cocaine to Australia. 14 Mr Kola did not give evidence. His defence was that the prosecution had failed to prove that there was an agreement to import cocaine, or that it was agreed to import a commercial quantity of cocaine, or that the destination was Australia. 15 The prosecution relied on 62 conversations or texts between the participants in the conspiracy. 16 Mr Kola contends that the conversations numbered as calls 53 and 62 were wrongly admitted. I set out the relevant extracts from those calls below: Conversation 53 – 06.06.2014 … Julio: Okay, okay my friend. Aaah, listen, aah Mono, Mono, Mono call, call you now or, or? Kola: No. Julio: Last night? -- 5 of 27 -- [2023] SASCA 50 Kourakis CJ 4 Kola: No. Julio: No? Okay. So he’s supposed to call you and explain better and ah, why he, he is very important aaand your person here with your partner because we, we have a, a, a very nice project in the future we are ready I think its better, better if you have a chance to come. The time the boys gone and you here and maybe ah, we, we, we have a, a very, very nice project and we are ready. More immedieately [sic] to do here or a couple of weeks or something is the time perfect because the boys gone and big project is ah on the road. You, you know. Kola: Okay, yes. Julio: It’s very important you present okay? Kola: Okay, yep. Julio: With your partners. Kola: Yep. Julio: So, try, try the, the, the thing with your partner and in, in, in three or four days let me know when, when it’s possible you, you here. Okay? Kola: Okay, Julio. When. Julio: Yeah. Kola: When, when the boy leaves you tell me and then I be there, I be there one week later. (long pause) Julio: Aaaah, what, what, what? Repeat please. Repeat. Kola: Once, once the boy leaves. Julio: Yeah, no the, the, the boy, he’s, he’s, he’s very close, very close. Kola: Okay. Julio: They, they, yes, they yes, wait for the, the (indecipherable) the passport the other guy’s passport and couple of weeks couple weeks, I think we have everything ready. Kola: Okay. Soon as, soon as the boy, soon as the boy leaves, I’ll be there. Julio: Aah, yeah, yeah but, but, the other one, the other project is bigger and I think most, most important, the, the, the, the, the boy but, but ah. Kola: I understand. Julio: I want, I want to, to be here, to be here because aah, I don’t want my friends looking for another people. I want to work with you, you, you understand me? Kola: Yes, yes. Okay. -- 6 of 27 -- [2023] SASCA 50 Kourakis CJ 5 Julio: I’m your partner and your partners the, the - Kola: Okay, tell, tell Mono, tell Mono to call me. Julio. Julio: Yeah, yeah come to you in couple of hours or something okay? Kola: I’ll be there, I’ll be there. … Conversation 62 - 24.06.2014 … Londono-Gomez: Ahh, man it’s, it’s, it’s, it’s a small problem between the capy and the, and the, and the small guy you know. Like a. Kola: Woah, woah, woah. Londono-Gomez: They are not getting along quite well and yeah they are not happy to each other you know, so fuck, a little bit - Kola: Alright man. Londono-Gomez: I know, I, I, I, I get, I get, I get, I get a get a have to got there and next week or so. Kola: Yeah. Londono-Gomez: And trying to sort the situation and see what is happening and (indecipherable). Kola: Are you gonna, are you gonna send, are you gonna send, are you gonna send him back or you gonna, you gonna keep him there? (pause) Londono-Gomez: I think, I, I think like it, it depends how, how, how, how big the problem with the capy. You know because he doesn’t want to travel together you know, he, he might have to send him back you know. Kola: Oh, okay. If you, ay Mono, if you do send him back just try and give. Londono-Gomez: Yeah. Kola: Just try and give him something, alright? Like, like. Londono-Gomez: Yeah, alright. Kola: Like you don’t have. Londono-Gomez: (indecipherable). -- 7 of 27 -- [2023] SASCA 50 Kourakis CJ 6 Kola: You don’t have, you don’t have to, you don’t have to tell him You don’t have to tell him, you know. Londono-Gomez: Pardon? Kola: Give him. Londono-Gomez: Alright, alright. Kola: Try, give him something then you don’t have to tell him, you know. (pause) Londono-Gomez: Yeah, I got it, I got it. Kola: Okay. … Grounds 2 and 3 – Calls 53 and 62 - Inadmissibility/ inadequate direction 17 The Judge gave the following extracted directions on the use of the phone conversations generally in calls 53 and 62. Can I just turn to a different topic in relation to the transcripts and that relates to the early phone calls numbers 1-9. You might have realised that those phone calls take place before 2 April 2014 is the beginning of the period during which the prosecution must prove that there was a relevant agreement in existence. I need to direct you about how those phone calls may be used and how they must not be used. They may be used first as evidence of the voices you hear in those calls which is relevant to your assessment of voices you hear during later calls. Second, they may be used as evidence that at that early stage there was a relationship between the accused and Londono-Gomez. In other words, they knew each other. Third, you may use it as evidence that there was relationship between the accused and Yavuz. That is, that they knew each other in March 2014. Fourth, you may use it as evidence by that stage Yavuz and the accused knew James. Fifth, you may use I as evidence of the degree of trust that the accused and Yavuz had in James as at March 2014. I also need to direct you about a reference that seems to have been made during phone calls 53 and 62, particularly phone call 53 which is, by its very number, towards the end of the phone calls when on the Crown case Julio says to Kola something to the effect of having a very nice project in the future, ‘I think it is better if you have a chance to come, we have a very, very nice project and we are ready’. I need to direct that you there is no evidence about what that ‘very nice project’ might be so please do not speculate in relation to what it might be, it really has no weight and will not assist you in determining whether Mr Kola is guilty of committing this offence as charged. I also need to direct you about call 62 in another respect. That is said on the prosecution case to be a call between Londono-Gomez and Mr Kola. From reading the transcript and from listening to the intercept you might find that there is a suggestion by Londono-Gomez that he might have to send James back. The person said to be Kola in that phone call says: ‘If you do send him back just try and give him something. You don't have to tell him’. And Londono-Gomez says: ‘Yeah, that could be a chance’. -- 8 of 27 -- [2023] SASCA 50 Kourakis CJ 7 Now members of the jury, if that is to be interpreted as a suggestion by Mr Kola that Londono-Gomez give James a product to bring back on the plane then you cannot use that as evidence of an agreement which would satisfy this charge. I think that is obvious but I need to say it. On the prosecution case the agreement to which Kola is a party was formed long before this call and that was an agreement to import a border controlled drug, namely cocaine, into Australia via boat. If you find that there was this last-minute conversation about another plan to bring something else into Australia with (James) via plane then that cannot be used as evidence to satisfy this charge; it is not evidence that could prove this offence. So members of the jury, that is what I have to say about the telephone intercepts and as I said, it is circumstantial evidence that may be considered by you when deciding whether the prosecution has proved that the accused committed this offence. (Underlining added) 18 The defence did not object to the admission of calls 53 and 62 into evidence by reference to s 34P of the Evidence Act or at all. It follows that there was no error of law in respect of the admission of that evidence because the Judge was not asked to rule on the admissibility of the evidence.1 This is not a case in which the admission of the evidence resulted in a failure to address the forensic issues joined by Mr Kola’s plea of not guilty or in the joining of false issues. Nor has there been a miscarriage of justice. Mr Kola is bound by the forensic decision made by his counsel not to challenge the admissibility of the evidence. In any event, having regard to the nature of the charge against Mr Kola, and the evidence in support of it, the rather cryptic references to other potential incidental offending could not have materially prejudiced him. 19 The appellant also submits that the impugned passages of the calls were irrelevant and that the Judge ought to have directed the jury to ignore them all together. That submission must be rejected for five reasons. 20 First, the evidence was admitted without objection and was before the jury for its consideration. Secondly, the calls had the circumstantial use described in the first two paragraphs of the directions I have reproduced above. In particular the calls show that Mr Londono-Gomez was keeping Mr Kola informed about James’ activities and conduct in Panama. The Judge was therefore bound to give the jury directions on how the evidence could properly be used, like those given in the first two paragraphs. It was not the Judge’s function to second guess the forensic decision of Mr Kola’s counsel not to object to the prosecution adducing the evidence. Thirdly, Mr Kola’s counsel did not seek any such direction. Fourthly, the underlined passages were, for all practical purposes, to the same effect as the direction which Mr Kola now contends ought to have been given in respect of their part of the conversation concerning James bringing in product by plane. Fifthly, the prejudicial effect of the references was marginal. Therefore there has been no miscarriage of justice. 1 R v C, CA [2013] SASCFC 137 at [54] (Kourakis CJ). -- 9 of 27 -- [2023] SASCA 50 Kourakis CJ 8 Ground 4 – Terminology in the illicit drug trade 21 Mr Kola contends that evidence that the word ‘lady’ used in call 20 meant cocaine, and that the word ‘door’ in call 22 meant an entry point through which drugs might be imported, was wrongly admitted. 22 There was no objection at trial to Mr Feeney giving evidence as to the meanings of the terms ‘lady’ and ‘door’ in the context of unlawful drug trafficking. An early application to exclude Mr Feeney’s evidence was based on the inadmissibility of the summary of evidence he was given. However, Mr Feeney was later given the full transcript of the telephone calls and that application was abandoned. It was not contended in the first application that Mr Feeney’s evidence was not the proper subject of expert evidence nor that he did not have the relevant expertise to give that evidence. 23 A later application objected to the admission of Mr Feeney’s evidence because the telephone calls themselves were unlawfully obtained. The trial Judge ruled against that latter contention and the application to exclude Mr Feeney’s evidence was subsequently, and properly, withdrawn. 24 The applications to exclude Mr Feeney’s evidence were never renewed. 25 There being no objection to Mr Feeney’s evidence when he was called to testify on the trial, there has not been any error of law in the admission of his evidence. Nor is there any reason to suspect that there has been a miscarriage of justice. There is no reason in this case to do other than to hold Mr Kola, on this appeal, to the forensic decisions of his counsel. 26 In any event, Mr Feeney’s evidence was properly admitted. He gave evidence of his extensive covert and overt operational experience in policing drug trafficking. He was a coordinator of other police officers and had listened to many conversations and read many text messages sent between participants in the unlawful drug trafficking trade. He provided training to other police officers in relation to drug terminology. He worked with Customs in the border targeting team for about one year after he left Queensland police in 2008. He became familiar with common methods of importation of illegal drugs. He re-joined the Australian Federal Police in 2010 as a subject matter expert on drugs. 27 In the course of his evidence-in-chief Mr Feeney was taken to call 20 in which the word ‘the lady’ was used. He testified that in his opinion the reference was to cocaine because the term ‘the lady’ was a very common street term for cocaine. In cross-examination he said: Q You would accept though the word lady has a meaning other than cocaine; correct. A Can do, yes. Q When you are analysing these transcripts is it important that you know the context or do you in order to maintain your impartiality consider them devoid of the context. -- 10 of 27 -- [2023] SASCA 50 Kourakis CJ 9 A I’d look at each transcript as one complete unit because depending on the language around it and wherever that word is used or a term is used, you look at everything around it to see what they are talking about because otherwise its different from saying the lady went with me and we got lunch as opposed to our policy is, if you want to utilise it that way. Q So context is important. A That’s correct, yes. Q Although you look at each communication as a single unit, do you accept that context beyond the single unit is important. A It can be. Q For example. A Each transcript, for example, as I was saying, so if you looked at something whereby someone used a very common term for – I’m trying to think of an example, where in one matter that I did for example, I think a person used chocolate cake for ephedrine. Ephedrine is used in the manufacture or methylamphetamine. On some occasion where it appeared the individual was in fact talking about chocolate cake as a food as opposed to the ephedrine. You would have to look at each piece of the conversation to work out exactly what is it they are talking about because at times people can confuse themselves when they are talking in code as well. So each conversation should be looked at on its merits. Q Just on the code point, are you able to say how long lady has been a code for cocaine. A Years. Q How many. A 10, 15, 20 years, it has been around forever. Q Well-known to law enforcement. A Well-known. Q Sorry. A Yeah, it’s well-known, it’s a very common term. I’m sure if you got up and typed in lady as a street term in Google, cocaine would come up. It’s a very old term. Q Sorry, it’s a very old term. A Yeah, it’s been around for years. Q You would accept the purpose of talking in code is to mask I think you said the meaning of your communications from law enforcement; correct. A That’s correct. Q You would accept that if code word is well-known to law enforcement being around for years it wouldn’t discharge that purpose; would it. -- 11 of 27 -- [2023] SASCA 50 Kourakis CJ 10 A No, I think again you’d have to take the code word each time on its merit that it’s utilised Q What I am putting to you is that a code that everyone knows ceases to be a code, you would accept that wouldn’t you. A But they’re talking about door so it’s not – sometimes they can talk about a big project like in this scenario where it is quite obvious that they are talking about an illegal matter and we can’t talk about this now and so you look at it each in each and every context around that scenario. Q Let’s focus on lady. It is the case as a general proposition, once a code word is known it ceases to be a code, do you accept that. A No, they can continue utilising it because they don’t know that their phones are monitored, unless they know that their phones are off – monitored, they might change the code so why change what they don’t believe is not broken. 28 Mr Feeney was also taken to the transcript of call 22. He testified that ‘the door’ or ‘a door’ was a phrase that was very common in the context of the illicit drug environment: Q Now if we go to the top of p.4 I ask you to assume that the male in Australia is saying to the other male who he’s speaking to over in Columbia that ‘little guy wants to come with me because he’s back on board and he’s got the door open’; is ‘the door open’ a phrase that you’re familiar with in the context of the illicit drug environment. A ‘The door’ or ‘a door’ is really, really common. So a door is simply a means by which there is a point of entry that’s open whereby you can bring illicit commodities drugs, into the country, certainly drugs. So when a door is open quite simply that ‘Yep, we’ve got an avenue for you to bring illicit drugs into the country, border controlled drugs/illicit drugs into the country’ and a door can be either someone portside, air side, bringing in a vessel or they’ve got a vessel and which they can tranship the drugs into the country. So it’s a means by which, yep, if we’ve got a door open, yeah, we can go the gear into – sorry, the drugs into the country. 29 Mr Kola contends that the evidence was not admissible, or of negligible value, because Mr Feeney did not give evidence of the particular circumstances of the previous occasions on which he had heard those words used and/or had encountered them in the course of his work. The submission is without any merit. 30 In the absence of any challenge to the admissibility of Mr Feeney’s evidence, and of any cross-examination on the validity of the opinions he expressed, it was not necessary that he give evidence of the particular sources of his expertise in respect of the meaning of those words. At most the failure to have done so might have exposed Mr Feeney’s evidence to contradiction by other evidence, but no such evidence was adduced. Ground 5 31 Mr Kola complains by Ground 5 that his trial miscarried as a result of the wrongful admission of evidence given by James that he had helped Mr Yavuz -- 12 of 27 -- [2023] SASCA 50 Kourakis CJ 11 cultivate cannabis plants at Mr Yavuz’s property. James also testified that Mr Yavuz had showed him a gun and a substance which James believed to be a precursor to cocaine. 32 Objection was taken to the prosecution adducing that evidence at trial. The prosecution contended that the evidence showed that Mr Yavuz had previously taken James into his confidence in respect of another serious criminal enterprise. It, therefore, relevantly explained why Mr Yavuz had put forward James as the person to be sent to Panama to accompany the shipment of cocaine to Australia. In the absence of that evidence it may have been open to Mr Kola to submit that James’ account was not credible because it was improbable that Mr Yavuz would have entrusted him with the success of the substantial criminal enterprise of importation of cocaine planned by Mr Yavuz and Mr Kola. The evidence was admitted by the Judge for that purpose. The Judge gave the following direction in respect of its use: Whilst on this topic, you heard evidence from James that he helped Yavuz with the cannabis plants, that Yavuz showed him a gun and that Yavuz showed him that he thought was a precursor to cocaine. There is no evidence to link the accused to any of that evidence concerning Yavuz and so you must not do so. You must also only make use of that evidence in regard to the degree of trust that Yavuz must have had in James by that stage. You may use the degree of trust from Yavuz and the accused when considering the credibility of James’ account that he was recruited to do this job in question. So in other words, members of the jury that he was not just a stranger who they had no knowledge of but that they knew him and that he had been trusted to do something which Mr Yavuz did not want to personally do. (Underlining added) 33 I acknowledge that the evidence did not show, as the underlined words suggest, that Mr Kola trusted Mr Yavuz. However, the evidence was strongly probative, even if Mr Kola did not know of James’ involvement in Mr Yavuz’s cultivation, because it explained why Mr Yavuz trusted James enough to recommend him for the job of sailing with the shipment. In that respect, Mr Kola need not be shown to have done anything more than to accept Mr Yavuz’s recommendation. 34 The evidence was therefore properly admitted. It was not tendered for, and could have no, propensity use. It did not impugn Mr Kola’s character other than through his association with Mr Yavuz. In that respect the directly relevant admissible evidence of Mr Kola’s dealings with Mr Yavuz on the importation of cocaine showed that their association was for an improper purpose of one kind or another. On the other hand, the evidence strongly supported the prosecution case in that it buttressed James’ evidence. The trial Judge’s directions adequately explained its proper use and adequately dealt with any misuse. -- 13 of 27 -- [2023] SASCA 50 Kourakis CJ 12 The elements of conspiracy 35 The Judge directed the jury orally and provided an aide memoir which identified the elements of the offence of conspiracy to import a commercial quantity of a border controlled drug as: 1. The accused was party to an agreement with at least one other person to commit an offence, namely, to import a border controlled drug into Australia. 2. The accused intended to agree, that is, he meant to be a party to the agreement with that other person or persons. 3. The accused and at least one other party to the agreement intended to commit the offence; that is they intended to import the border controlled drug in accordance with the agreement. 4. The substance to be imported pursuant to the agreement was a commercial quantity of a border controlled drug. 5. The accused or at least one party to the agreement committed an overt act pursuant to the agreement. 36 It will be observed that the passive voice ‘to be imported pursuant to the agreement’ is used in the fourth element. In her Honour’s charge, element 4 was modified slightly such that the jury was directed that the substance to be imported pursuant to the agreement was to be a commercial quantity. I acknowledge that the adverbal phrase ‘pursuant to the agreement’ might be understood to mean something like if the agreement were successfully executed but it might also mean imported by the conduct in which one or more conspirators, did engage, or might have engaged. It follows that the elements so framed do not explicitly direct the jury that they must be satisfied that the conduct in which the conspirators agreed to engage would result in the importation of a commercial quantity. 37 Chapter 2 of the Code codifies the general principles of criminal responsibility which are to be applied to all offences against the Code.2 In particular, s 3.1 classifies the elements of offences consisting of physical and fault elements and provides that the law creating an offence may provide different fault elements for different physical elements. Section 4.1(1) explains that the physical elements of an offence may be conduct, a result of conduct, or a circumstance attending the conduct or result. Section 5.1(1) provides that the fault element may be intention, knowledge, recklessness or negligence. Recklessness is defined by s 5.4 to include a state of mind in which a person is aware of a substantial risk that a circumstance exists or will exist and that, having regard to that circumstance so known, it is unjustifiable to take the risk. 2 Criminal Code Act 1995 (Cth) ss 2.1 and s 2.2(1). -- 14 of 27 -- [2023] SASCA 50 Kourakis CJ 13 38 Section 11.5 of the Code provides: 11.5 — Conspiracy (1) A person who conspires with another person to commit an offence punishable by imprisonment for more than 12 months, or by a fine of 200 penalty units or more, commits the offence of conspiracy to commit that offence and is punishable as if the offence to which the conspiracy relates had been committed. … (2) For the person to be guilty: (a) the person must have entered into an agreement with one or more other persons; and (b) the person and at least one other party to the agreement must have intended that an offence would be committed pursuant to the agreement; and (c) the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement. … (7A) Any special liability provisions that apply to an offence apply also to the offence of conspiracy to commit that offence. 39 Section 11.5(2) of the Code was described in the joint judgment in R v LK3 as epexegetical of the common law offence of conspiracy which is given statutory effect by subsection (1) of the Code. The Court held that it followed that the agreement referred to in subsection (2) of the Code is the agreement to commit the offence, the subject of the conspiracy. It also followed that the intention to be proved in subparagraph 2(b) is the applicable fault element of the offence which is the subject of the agreement, but only to the extent that intention is an element of that offence. 40 The offence of importing a commercial quantity of a border controlled drug is enacted by s 307.1(1) of the Code which provides: 307.1 — Importing and exporting commercial quantities of border controlled drugs or border controlled plants (1) A person commits an offence 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. 3 (2010) 241 CLR 177 at [133] (Gummow, Hayne, Crennan, Kiefel and Bell JJ). -- 15 of 27 -- [2023] SASCA 50 Kourakis CJ 14 … (2) The fault element for paragraph (1)(b) is recklessness. (3) Absolute liability applies to paragraph (1)(c). 41 Section 307.2(1) creates the offence of importing or exporting a border controlled drug of a marketable quantity. Section 307.2(3) provides that absolute liability applies to subparagraph (1)(c) which provides that the quantity imported or exported is a marketable quantity. Section 307.3(1) creates the offence of importing or exporting a border controlled drug but does not prescribe as an element of the offence the quantity of the imported or exported drug (the basic offence). The maximum penalties for the offences against ss 307.1(1), 307.2(1) and 307.3(1) are life imprisonment, 25 years imprisonment and 10 years imprisonment respectively. 42 Subparagraph (c) of ss 307.1(1) and 307.2(1) of the Code is a circumstance which attends the result, importation, of the offence. The application of s 11.5(7A) of the Code to a charge of conspiracy to import a commercial or marketable quantity of a border controlled drug is problematic because it is in the very nature of a conspiracy that the offence may be committed before any of the physical elements of the offence, the subject of the conspiracy, have been engaged in, eventuated or come into existence. The resolution of the difficulty lies in recognising that the attendant resulting circumstance of the weight of the importation is established by proof that the weight of the border controlled drug would have been a commercial quantity if the agreement to commit the offence was successfully executed. 43 I acknowledge that the approach involves two complex factual issues. The first is an issue of past existing fact. It is the identification of the scope of the agreement. The second is in the nature of a future hypothetical fact, it assumes the execution of the acts which fall within the scope of the agreement and a finding as to the result which those acts would have produced. 44 Agreements to commit conspiracies of this kind may take many forms and what can be proved with any exactitude as to what was agreed may also vary greatly. There may be evidence of an express agreement to import a border controlled drug of a particular weight and no more, in which case no difficulty, and no further question, will be occasioned. Alternatively, the agreement may be to import a particular parcel of drugs. In that case, whether or not the imported drug would have been of a prescribed quantity might be proved in several different ways. If the shipment which is shown to be the subject of the agreement is intercepted, the weight of the controlled drug which would have been imported may be proved by weighing the drug in that shipment. For example, the shipment might be found on a particular boat chartered to come to Australia, or in a container of goods destined for Australia. If the shipment is not located, proof of the weight of the drug which would have been imported may depend on inferences which can be drawn from the conduct on which the conspirators agreed, and what they are -- 16 of 27 -- [2023] SASCA 50 Kourakis CJ 15 shown to have believed would be achieved by that conduct, given the circumstances known to them in which the conduct was to occur. There may be cases in which the agreement is to be inferred from the overt acts. Careful directions on the extent to which that conduct allows inferences to be drawn as to what was agreed or is to be treated as no more than unilateral conduct will be required. Proof of what in fact occurred is irrelevant. If what did occur fell within the scope of what was agreed, it is unnecessary. If it fell outside what was agreed, it cannot be, by definition, evidence of the agreement which was reached. 45 If it were not a necessary element of an offence of conspiracy to import a border controlled drug that at least two conspirators agreed to engage in conduct which would, if the plan came to fruition, result in the importation of a commercial or marketable quantity of a border controlled drug, then a conspiracy to commit any one of the hierarchy of importation offences could be proved by the same agreement. The conviction of an accused of one of those offences would then depend, not on the terms of the conspirators’ agreement, but on a finding of hypothetical future fact as to what the conspirators, who were actually engaged in the importation, might have achieved. In that event the conviction for conspiring to commit the offence would not be anchored in the agreement, knowledge and belief of the conspirators. It would be anchored to the preparatory conduct of the perpetrators. For example, the quantity of the drug ‘to be imported’ might be proved by evidence of such conduct and factual circumstances as happened to occur after the agreement was made, whether or not the conspirators had agreed to engage in that conduct or believed that the conduct, on which they had agreed, would be engaged in, in the circumstances which happened to prevail at the time. 46 In R v LK,4 the High Court considered the application of s 11.5 of the Code to an offence of dealing with the proceeds of crime contrary to s 400.3(2) of the Code (unlawful dealing). That section provided that a person was guilty of an offence if the person dealt with money of one million dollars’ value or more and the money was the proceeds of crime. The fault element for the unlawful dealing offence was recklessness. Absolute liability attached to the value of the money. The fourth element for conspiracy is intention. 47 Stated very briefly, the factual circumstances of the offence were that fraudulent instructions, purporting to come from the Commonwealth Superannuation Scheme’s (the Scheme) fund manager, were given to the Scheme’s banker, JP Morgan. Acting on those instructions, JP Morgan transferred $25 million to a bank account in Switzerland operated by RK. RK had agreed with LK, to allow his bank account to be used to receive the funds from JP Morgan. After the money was paid into RK’s account there were frequent communications between RK, LK and another. RK then instructed his Swiss bank to transfer 23 million Swiss Francs to a New York bank account. RK and LK were charged with conspiring with each other, and others, to deal with money to the value of $1 million or more being the proceeds of crime, where those persons who were to 4 (2010) 241 CLR 177. -- 17 of 27 -- [2023] SASCA 50 Kourakis CJ 16 deal with the money pursuant to the conspiracy were reckless as to the fact that the money was the proceeds of crime. 48 The trial Judge found that there was no case to answer on the ground that there was no evidence that RK and LK intended to deal with the proceeds of crime. The prosecution had contended that recklessness was a sufficient fault element for unlawful dealing and, therefore, a sufficient fault element for the purposes of s 11.5(2)(b) of the Code. The Judge’s dismissal of the case was upheld by the Court of Appeal of New South Wales. The prosecution’s appeal to the High Court was also dismissed. The High Court unanimously held that s 11.5(1) of the Code is to be construed as enacting the common law offence of conspiracy including the fault element of an intention to commit the crime alleged to be the subject of the conspiracy. The question of the appropriate knowledge element of the attendant circumstance that the value of the money in the Swiss bank account, namely 23 million Swiss Francs, was $1 million or more, did not directly arise. However, it was discussed in so far as it bore on the question whether the prosecution was required to prove intentional or reckless dealing with proceeds of crime. 49 French CJ explained that an intention to deal with the proceeds of crime was necessarily an element of the unlawful dealing offence:5 77 It is the second element which is the stumbling block in the way of the Crown's argument. There cannot be a conspiracy in which the parties to the agreement are reckless as to the existence of a circumstance which is a necessary element of the offence said to be the subject of the conspiracy. Such recklessness would be inconsistent with the very intention that is necessary at common law and under the Code to form the agreement alleged. In this case that intention is an intention to deal with money which is proceeds of crime. Recklessness as to whether the money is proceeds of crime is recklessness about a term of the agreement constituting the conspiracy. This is what was referred to at the commencement of these reasons as the fault line in the Crown's argument. 78 Another way of analysing the difficulty, by reference to the provisions of the Code, is as follows: 1. Section 11.5(1) provides that the offence of conspiracy is committed by a person who conspires with another person to commit an offence of the requisite character. 2. Applying the requirement of s 5.6(1) in relation to the fault element of conspiracy leads to the proposition that a conspiracy is committed by a person who (having the fault element of intention) conspires with another to commit an offence. 3. When s 11.5(2) is applied to the preceding, that person commits a conspiracy if he or she: (a) (intentionally) enters an agreement with one or more others to commit an offence; (b) intends that an offence will be committed, and at least one other party to the agreement intends that an offence will be committed; and (c) (intentionally) commits an overt act pursuant to the 5 (2010) 241 CLR 177. -- 18 of 27 -- [2023] SASCA 50 Kourakis CJ 17 agreement or, if that person does not, at least one other party to the agreement does. 4. When the offence the subject of the alleged conspiracy is an offence against s 400.3(2), step 3(b) will require that the person intends that someone will deal with money, the money is in fact proceeds of crime and the dealer is reckless as to the fact that it is proceeds of crime. 5. Bringing in the definition of recklessness from s 5.4, the preceding step requires that the person intend that: (a) someone will deal with money; (b) the money is in fact proceeds of crime (s 400.3(2)(b)(i)); and (c) the dealer will be aware of a substantial risk that it is proceeds of crime and objectively that risk is unjustifiable. These necessary steps do not support the conclusion for which the Crown contends, namely that the alleged conspirator's intention that an offence against s 400.3(2) will be committed is satisfied if he or she is reckless as to whether the money the subject of the offence is proceeds of crime. 50 Applying step 3 of paragraph [78] of the reasons of French CJ to the conspiracy alleged against Mr Kola, the prosecution was bound to prove that Mr Kola intentionally entered an agreement with at least one other person to engage in conduct which, if successfully executed, would result in the importation of a border controlled drug of the prescribed quantity. 51 To understand the judgment of Gummow, Hayne, Crennan, Kiefel and Bell JJ (the plurality) it is important to bear in mind their Honour’s reference to the Gibbs Committee Report on the offence of conspiracy:6 105 The Gibbs Committee’s understanding of the mental element of the common law offence is summarised in its Report as follows: The mental element necessary to constitute the crime of conspiracy has been said to be the intention to do the unlawful act which was the subject of the agreement, but it seems more accurate to say that what is required is an intention to be a party to an agreement to do an unlawful act and that such an intention must involve also an intention to carry out the unlawful purpose. Such an intention on the part of the alleged conspirator is required notwithstanding that the agreement is to commit a crime which may be committed recklessly or a crime of strict liability. It is not necessary that the parties to the agreement should have known that what was agreed was unlawful. If on the facts known to them what they agreed to do was an unlawful act it is no excuse that they did not know that it was unlawful; on the other hand, if on the facts known to them what they agreed would have been lawful they are not rendered guilty by the existence of other facts, of which they did not know, that gave a criminal character to the act agreed upon. 106 It may also be noted that the Gibbs Committee recommended that the criminal law of the Commonwealth should make it clear that the mental element required to 6 (2010) 241 CLR 177. -- 19 of 27 -- [2023] SASCA 50 Kourakis CJ 18 commit a crime of conspiracy is an intention on the part of the conspirators to agree to commit an offence and that the offence should be committed. (Footnotes omitted; emphasis in original) 52 I would wish to emphasise the focus of the Gibbs Committee Report on what the accused had agreed, and intended, to do and their knowledge (or on the other hand, their ignorance) of the surrounding circumstances in which the conduct was to be engaged. 53 The plurality commenced their analysis of s 11.5 of the Code with the proposition that an agreement to commit an offence implies, as a matter of the ordinary use of language, knowledge of, or belief in, facts which render the conduct in which they agree to engage criminal:7 117 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 an offence (as distinct from having knowledge of, or belief in, the legal characterisation of the conduct). 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 s 11.5(1) operates. The reservation concerns the application of s 11.5(2)(b). As these reasons will show, this provision informs the meaning of “conspires” in sub-s (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 s 11.5(2)(b) is subject to s 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 (but not all) of the physical elements of an 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. … 119 It was not necessary for the prosecution to prove that LK and RK knew or believed that the money with which they proposed to deal had a value of $1,000,000 or more. Relevantly, the offence the object of the conspiracy is one that criminalises the reckless dealing with money that is proceeds of crime. It is the second of these two physical elements of the offence to which it is necessary to attend. (Footnotes omitted; underlining added) 54 I interpolate here to make two observations. First, the underlined sentences emphasise that it is an element of the offence of conspiracy that the accused intentionally entered an agreement to commit the particular offence alleged which, 7 (2010) 241 CLR 177. -- 20 of 27 -- [2023] SASCA 50 Kourakis CJ 19 in turn, requires proof of knowledge of, or belief in, the existence of circumstances which would render the conduct on which the conspirators agreed the commission of the substantive offence particularised in the information. Secondly, the reservation made by the plurality was limited to the elaboration of the meaning of a conspiracy by s 11.5(2)(b) of the Code, concerning the intention to commit the offence. Having regard to absolute liability attaching to the monetary value element of unlawful dealing, it was not necessary to prove that the accused knew that the Swiss Francs had a value of $1 million or more. 55 The plurality rejected LK’s submission that the elements of the offence were stated in s 11.5(2), and not s 11.5(1), of the Code:8 131 The identification of the elements of an offence directs attention to “the law creating the offence”. In written submissions, LK acknowledges that the offence of conspiracy is created in s 11.5(1) but maintains that the elements of the offence are those stated in s 11.5(2). Section 11.5(1) makes it an offence to conspire with another person to commit an offence punishable by imprisonment for more than twelve months or by a fine of 200 penalty units or more (a non trivial offence). It reads naturally as the law creating the offence. It is by the adoption of the word “conspires”, with its established legal meaning, that the drafters of the Code chose to deal with questions that are not otherwise addressed in s 11.5. These may be taken to include the parties to the conspiracy and the sufficiency of their dealings to constitute the agreement. Section 11.5(1) is the specification of a physical element of the offence, namely, conspiring with another person to commit a non-trivial offence. Central to the concept of conspiring is the agreement of the conspirators. 132 The reference in s 11.5(2)(a) to “an agreement” is to the agreement that is criminalised in s 11.5(1). Once this is understood, it is clear that s 11.5(2)(a) is not the specification of a physical element of the offence. The physical element of conduct involving entry into the agreement is specified in s 11.5(1). The “agreement” to which s 11.5(2)(b) refers is, again, the agreement that is criminalised in s 11.5(1). This reading, in relation to s 11.5(2)(b), is consistent with the general scheme of the Code. Under the Code, fault elements apply to physical elements of an offence. The fault elements of intention, knowledge and recklessness are defined by reference to particular physical elements whether of conduct, circumstance or result. Part 2.2 makes no provision for the specification of a fault element that is not “for a physical element of [the] offence”. Section 11.5(2)(b) does not specify a physical element to which the intention of which it speaks applies. 133 Paragraphs (a) and (b) of s 11.5(2) are epexegetical of what it is to “conspire” with another person to commit an offence within the meaning of s 11.5(1). Section 11.5(2)(b) looks to the time at which the agreement was entered, making clear that for a person to “conspire” under s 11.5(1) it is necessary that he or she and at least one other party to the agreement “must have intended” that an offence be committed pursuant to it. Together paras (a) and (b) clarify, first, the two points made in the first sentence of the highlighted passage from the Gibbs Committee Report, extracted at [105] above, and, secondly, that the reach of the Code offence does not extend to an agreement to which the only parties are a single accused person and an agent provocateur. Neither is the specification of an element of the offence within Pt 2.2. 8 (2010) 241 CLR 177. -- 21 of 27 -- [2023] SASCA 50 Kourakis CJ 20 (Footnotes omitted) 56 The plurality’s conclusion was expressed as follows:9 141 The Court of Criminal Appeal's conclusion that the law creating the offence of conspiracy is s 11.5(1) is correct. The offence has a single physical element of conduct: conspiring with another person to commit a non-trivial offence. The (default) fault element for this physical element of conduct is intention. At the trial of a person charged with conspiracy it is incumbent on the prosecution to prove that he or she meant to conspire with another person to commit the non-trivial offence particularised as being the object of the conspiracy. In charging a jury as to the meaning of “conspiring” with another person, it is necessary to direct that the prosecution must establish that the accused entered into an agreement with one or more other persons and that he or she and at least one other party to the agreement intended that the offence particularised as the object of the conspiracy be committed pursuant to the agreement. Proof of the commission of an overt act by a party to the agreement conditions guilt and is placed on the prosecution to the criminal standard. The Code does not evince an intention in the latter respect to depart from fundamental principle with respect to proof of criminal liability. (Footnotes omitted; underlining added) 57 The underlined sentences again emphasise that the fault element is an intention to agree to commit the substantive offence particularised as the subject of the conspiracy. 58 The plurality rejected the prosecution contention that it was sufficient to prove that the accused agreed, and intended, that certain acts be performed even without knowledge of those circumstances which rendered the acts unlawful if they intended to have the acts performed ‘even if the doing of them is criminal’. 59 Heydon J agreed with the reasons of Gummow, Hayne, Crennan, Kiefel and Bell JJ. 60 In Standen v The Queen,10 the Court of Appeal of New South Wales accepted the formulation of the elements of an offence of conspiring to import a border controlled drug stated by Hodgson JA in Standen v Director of Public Prosecutions (Cth)11 however neither the appellant nor the prosecution disputed that formulation. Those elements were: 1. That the accused had entered into an agreement with one or more other persons. 2. That the accused and at least one other party to the agreement intended that an offence would be committed pursuant to the agreement, namely, 9 (2010) 241 CLR 177. 10 (2015) 298 FLR 35. 11 254 FLR 467 at [21]. -- 22 of 27 -- [2023] SASCA 50 Kourakis CJ 21 in that case, an offence under s 307.11 of the Code involving the following elements: (a) A person imports a substance; (b) The substance is a border controlled precursor; and (c) The person intends to use the substance to manufacture a controlled drug or believes that another person intends to use the substance to manufacture a controlled drug. 3. The substance would be a commercial quantity. 4. That the accused, or at least one other party to the agreement, committed an overt act pursuant to the agreement. 61 I note that the statement of the third element – that the substance would be a commercial quantity, in its application to a conspiracy in which the drug might not have been sourced, begs the question of how the element is to be proved if it stands independently of either or both of the first two elements. 62 If the agreement and intention of the parties was proved to be to import an identified container and that container was found to contain a commercial quantity of a drug, then it follows that the parties had agreed to import a commercial quantity or that the substance to be imported ‘would be a commercial quantity’. In those circumstances, the effect of the absolute liability provision as to weight is that the prosecution need not prove that the conspirators knew the weight of the drug in the container which they had conspired to import. 63 However, absent an agreement to import a particular container or receptable which is found to contain a certain weight of a drug, it is difficult to understand how there can be proof that a commercial or marketable quantity would be imported other than by reference to the conduct on which the conspirators agreed. 64 The directions approved by the Court of Appeal of Victoria in Le v The Queen12 expressly link the element of quantity to the agreement. The Judge directed the jury that the elements of the offence of conspiracy to import a border controlled drug of a commercial quantity were: 1. The accused made an agreement with at least one other person to commit the offence of importation of a commercial amount of a border controlled drug. 2. At the time the agreement was made the accused meant to enter into the agreement. 12 (2016) 308 FLR 486. -- 23 of 27 -- [2023] SASCA 50 Kourakis CJ 22 3. When the parties made the agreement, they intended that the offence of importation of a border controlled drug would be committed: this does not require proof of intention as to the quantity. 4. The accused, or one other party to the agreement, committed an overt act pursuant to the agreement. 65 It will be remembered that the direction given by the Judge in this case omitted the reference to the commercial quantity in the first element dealing with the agreement but instructed the jury, as a separate fourth element, that the substance to be imported pursuant to the agreement would be ‘a commercial quantity of that border controlled drug’. The different formulation in Le exposes the difficulty in the directions approved in Standen,13 and given by the trial Judge in this case. The directions in Le conform more closely with the holding in R v LK that it is s 11.5(1) of the Code which enacts the statutory offence of conspiracy by reference to the common law offence, and that s 11.5(2) of the Code, by way of epexegesis, provides both that the person must have entered into an agreement with other conspirators (with the attendant fault element of an intention to do so) and that, together with at least one other person, must have intended that an offence would be committed pursuant to the agreement. 66 The proviso to the third element of the formulation approved in Le makes it clear that the intention that the particularised offence be committed does not extend to an intention that the weight of the drug, which the conspirators had agreed to import, would constitute a commercial quantity. However, pursuant to the first element, the agreement must be such that, if executed, would result in the importation of a commercial quantity. 67 The preferable course is to specify the offence by reference to the quantity in the first element as was done in Le. However, not having adopted that approach in this case, the fourth element on which the Judge directed the jury ought to have been expressed as follows: The conduct to be performed in accordance with the agreement proved in element 1, in the circumstances known, or believed, by the conspirators to exist, would have resulted in the importation of a shipment of cocaine which weighed 2 kg or more, but the accused need not have intended to import a shipment of that weight. 68 That direction would have the following effect. If the conspirators agreed to import a border controlled drug in a particular container or receptacle which is then intercepted, and the evidence shows that the drug in the container or receptacle is, or would have been, a commercial quantity, the conspirators have entered into an agreement to import a commercial quantity whether or not they intended to import the mass of border controlled drug which was found in the container receptable. If they agree to import so much of the drug by a third person, and they contemplate that the delivery will be made in circumstances which would result in the 13 (2015) 298 FLR 35. -- 24 of 27 -- [2023] SASCA 50 Kourakis CJ 23 importation of a commercial quantity, then, again, the offence of conspiracy to import a commercial quantity of a border controlled drug has been proved. 69 The use of the passive voice in element 4 of the directions given by the Judge in this case is problematic because it fails to direct the jury on the evidential material from which that inference as to a hypothetical future fact is to be drawn. On the authorities, to which I have referred, and as a matter of principle, that material must be confined to the conduct in which the accused agreed to engage and the circumstances in which the accused believed and intended that conduct to be carried out. However, the passive voice permitted the jury to have regard to evidence as to what occurred on the ground in Panama City. 70 In that respect it will be observed that no part of the aide memoir or the summing up directed the jury that the prosecution had to prove that the accused intended to import a commercial quantity of the border controlled drug. 71 Indeed, the Judge’s summary referred to that conduct in the context of element 4 without linking it back, and limiting it to, the agreement and Mr Kola’s understanding of the circumstances in Panama City. The prosecution asks you to consider various pieces of evidence, put them altogether and draw inferences to infer beyond reasonable doubt that that was the case. That evidence includes evidence that the plan was to bring cocaine in via a boat to Australia. Added onto that is that the boat was big enough to make that trip. In addition, that the boat needed repair and needed a captain. The prosecution says it is common sense that you would not bring back less than 2kg in such an enterprise. In addition, you have the evidence from James about what he was to be paid. Add to that the evidence of Detective Murray about the value of a kilo of cocaine being $180 to 220,000. The prosecution says that this would not have been done in order to give James half the money, especially after all the expenses they had paid out. So the prosecution asks you to draw from those circumstances certain inferences if you find those circumstances proved to establish that fourth element. So, members of the jury, the approach to circumstantial evidence really requires two steps. First, deciding which facts you accept as established and second, considering what inference or inferences you are prepared to draw from those facts. It is really a common sense process and we do it everyday. (Underlining added) 72 Much of the evidence to which the Judge referred was known to Mr Kola when he entered into, or affirmed, his commitment to the agreement. However, there is a fundamental difference between the question whether Mr Kola had made an agreement, with knowledge that if it were executed, it would result in the importation of a shipment of cocaine which would be a commercial quantity and the question whether the conduct engaged in by his co-conspirators in Central America would produce that result. The process of reasoning required to answer the first question must focus on Mr Kola’s state of mind. The process of reasoning called for by the second question must focus on objective probabilities. -- 25 of 27 -- [2023] SASCA 50 Kourakis CJ 24 Disposition 73 In the ordinary course my conclusion on Ground 1 would result in an order for a new trial because a finding as to the scope of the agreement depends largely on James’ challenged evidence as to what he would be paid. Against that, on the verdict of the jury, it is clear that the jury must have been satisfied that there was an agreement to import at least some quantity of cocaine. Section 160(2) of the Criminal Procedure Act 1921 (SA) (Criminal Procedure Act) provides: 160—Powers of Court in special cases (2) Where an appellant has been convicted of an offence and the jury could, on the information, have found the appellant guilty of some other offence and, on the finding of the jury, it appears to the Court of Appeal that the jury must have been satisfied of facts which proved the appellant guilty of that other offence, the Court may, instead of allowing or dismissing the appeal, substitute for the verdict found by the jury a verdict of guilty of that other offence and pass such sentence in substitution for the sentence passed at the trial as may be warranted in law for that other offence, not being a sentence of greater severity. 74 I observe that, in this case, the question is not whether an alternative verdict of guilt of a different offence to the one charged arises. There is only one offence of conspiracy. It is only as to a particular of that offence, namely the offence which the accused conspired with others to commit, that an amendment to the conviction would be required. Some doubt has been expressed on the applicability of that power, common to State criminal appeal provisions, to federal offences by the High Court in Spies v The Queen:14 47 The power conferred by s 7(2) and its counterparts in other jurisdictions is a very useful one which, in appropriate cases, will result in the saving of time and expense and avoid the inconvenience and worry of victims and witnesses having to testify once again before a jury. But it is power which must be exercised with great caution, lest the effect of s 7(2), in cases where the accused has not elected under s 16 of the Criminal Procedure Act 1986 (NSW) to be tried by judge alone, is that trial by judge is substituted for trial by jury. Moreover, there is a real question whether, given the terms of s 80 of the Constitution, s 7(2) of the Criminal Appeal Act and its Australian counterparts apply in respect of the trial in indictment of any offence against any law of the Commonwealth. Section 68(2) of the Judiciary Act 1903 (Cth) “picks up” State laws concerning appeals in respect of Commonwealth offences, but this is expressed to be subject to s 80 of the Constitution. 75 It can be accepted that there will be some cases in which s 160(2) of the Criminal Procedure Act might properly be engaged in respect of State offences but in a way which, in the case of a Commonwealth offence, might be inconsistent with s 80 of the Constitution. That is particularly so where the elements of the alternative offence are not entirely encompassed within the offence charged. However, in this case, the elements of the offence charged and the conviction would be the same, namely that Mr Kola conspired to commit an offence punishable by imprisonment for more than 12 months. It is only the 14 (2000) 201 CLR 603 (Gaudron, McHugh, Gummow and Hayne JJ). -- 26 of 27 -- [2023] SASCA 50 Kourakis CJ 25 particularisation of the offence, the subject of the conspiracy, which would be amended. 76 However, both Mr Kola and the Director contend for an order for a new trial. 77 In those circumstances, having dismissed the other grounds of appeal, I would allow the appeal and order that there be a new trial. 78 NICHOLSON AJA: I agree with the Chief Justice’s proposed disposition of the appeal and with his Honour’s reasons. 79 STEIN AJA: I agree with the Chief Justice’s reasons and his Honour’s conclusions concerning the outcome of the appeal. -- 27 of 27 --