- Notable Unreported Decision
- Appeal Determined - Special Leave Refused (HCA)
SUPREME COURT OF QUEENSLAND
R v Schmidt  QCA 59
CA No 357 of 2016
SC No 128 of 2015
Court of Appeal
Appeal against Conviction & Sentence (Extension Granted)
Supreme Court at Brisbane – Date of Conviction: 9 August 2016; Date of Sentence: 14 December 2016 (Douglas J)
29 March 2018
18 October 2017 (further materials filed 20 & 27 October 2017)
Fraser and McMurdo JJA and Jackson J
CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – where the indictment charged the appellant and two other defendants of conspiring with others to traffic in a commercial quantity of a controlled drug contrary to s 11.5(1) and s 302.2(1) of the Criminal Code (Cth) – where the prosecution case against the appellant was based upon evidence of five meetings between the appellant and undercover operatives from the Australian Federal Police – where the physical element of the offence under s 11.5 Criminal Code (Cth) is the conduct of entry into an agreement – where one other party to that agreement must have intended that an offence would be committed pursuant to the agreement – whether the jury could have been mistaken as to what was required to be proved to establish the elements of the offence – whether it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – OTHER MATTERS – where the undercover operatives gave evidence in closed court and behind a screen – where the trial judge gave clear instructions about the need for such measures to protect the identity of the undercover operatives – whether the erection of the screen was to the prejudice of a fair trial – where the appellant submitted that evidence wrongly withheld by the prosecution emerged after the trial – where a federal agent of the Australian Federal Police swore an affidavit deposing that the evidence was provided to the appellant’s trial lawyers – whether there was a miscarriage of justice by relevant material not being disclosed to the appellant’s trial lawyers – where material had been redacted from the transcript but not the audio recording of a meeting between the appellant and an undercover operative that was played to the jury – where defence counsel made no application to discharge the jury – where the trial judge and defence counsel agreed on an appropriate direction for the jury about redacted material – whether the jury hearing material that ought to have been redacted resulted in a miscarriage of justice – where defence counsel were not allowed to cross-examine an undercover operative about dealings with a police informant – where the undercover operative claimed public interest privilege – whether there was a miscarriage of justice because the cross-examination was disallowed
CRIMINAL LAW – APPEAL AND NEW TRIAL – PARTICULAR GROUNDS OF APPEAL – FRESH EVIDENCE – OTHER MATTERS – where after the trial the appellant procured an affidavit from a witness who was not available at the trial – where the appellant could have but did not give the evidence given by the witness – where the appellant’s trial counsel made a forensic choice for the appellant not to give the evidence – whether the choice for the appellant to not give evidence was irrational and resulted in a miscarriage of justice
CRIMINAL LAW – GENERAL MATTERS – CRIMINAL LIABILITY AND CAPACITY – DEFENCE MATTERS – ENTRAPMENT – where the undercover operatives were working pursuant to Major Controlled Operation Authorities – where a condition of those authorities was that the controlled operation was not to be conducted in such a way that a person was likely to be induced to commit an offence that the person would not otherwise have intended to commit – whether the undercover operatives breached that condition of their authorities – whether evidence against the appellant obtained in the course of the controlled operation ought to have been excluded on public policy grounds
CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the appellant was convicted by a jury of conspiring with others to traffic in a commercial quantity of a controlled drug contrary to s 11.5(1) and s 302.2(1) of the Criminal Code (Cth) – where the appellant’s two alleged co-conspirators each pleaded guilty to the same offence – where the appellant was sentenced to 12 years’ imprisonment with a fixed non-parole period of seven years and six months – where a period of 1,055 days of pre-sentence custody was declared to be time already served under that sentence – where the appellant was on bail at the time of the offence – where the appellant’s involvement in the conspiracy was at a higher level than his co-conspirators – whether the appellant’s sentence was manifestly excessive
Crimes Act 1914 (Cth), s 15GH, s 16A, s 19AB
Criminal Code (Cth), s 11.5, s 301.1, s 302.1, s 302.2
Anderson v The Queen (2010) 202 A Crim R 68;  NSWCCA 130, considered
Director of Public Prosecutions (DPP) (Cth) v Blackman; DPP (Cth) v Jomaa  NSWCCA 90, considered
M v The Queen (1994) 181 CLR 487;  HCA 63, cited
R v Cardona-Ossa, unreported, District Court of New South Wales, 10 November 2011, considered
R v Lake; R v Carstein; R v Geerlings (2007) 174 A Crim R 491;  QCA 209, cited
R v LK (2010) 241 CLR 177;  HCA 17, applied
R v N (1999) 106 A Crim R 493;  NSWCCA 187, considered
R v Raptis, Lilimbakis & Sinclair (1988) 36 A Crim R 362;  VicSC 169, considered
R v Schelvis; R v Hildebrand  QCA 294, considered
R v Taouk (1992) 65 A Crim R 387, considered
Ridgeway v The Queen (1995) 184 CLR 19;  HCA 66, cited
SKA v The Queen (2011) 243 CLR 400;  HCA 13, cited
The appellant/applicant appeared on his own behalf
B H P Mumford for the respondent
The appellant/applicant appeared on his own behalf
Director of Public Prosecutions (Commonwealth) for the respondent
- FRASER JA: I agree with the reasons for judgment of McMurdo JA and the orders proposed by his Honour.
- McMURDO JA: On 9 August 2016, the appellant was convicted by a jury of an offence of conspiring with others to traffic in a commercial quantity of a controlled drug, namely cocaine, contrary to s 11.5(1) and s 302.2(1) of the Criminal Code (Cth) (“the Code”). The indictment charged the appellant and two others with conspiring together to traffic in a commercial quantity of cocaine, in a period between 9 November 2012 and 6 February 2013. The other defendants, Nicholas Heilbronn and Van Cuong Le, each pleaded guilty to the charge before trial.
- By s 302.1 of the Code, a person traffics in a substance if the person sells it, or does other acts of certain kinds with the substance, such as possessing the substance with the intention of selling it. A person commits an offence under s 302.2 of the Code if the person traffics in a substance, the substance is a controlled drug and the quantity trafficked is a commercial quantity. By s 301.1(1)(a), a controlled drug includes a substance that is listed by a regulation as a controlled drug and cocaine is such a substance. A commercial quantity of that drug is prescribed to be quantity of two kilograms or more.
- The appellant was sentenced to a term of imprisonment of 12 years with a non-parole period, fixed under s 19AB of the Crimes Act 1914 (Cth), of seven years and six months. A period of 1,055 days of pre-sentence custody was declared to be time already served under that sentence. He appeals against his conviction and applies for leave to appeal against his sentence.
- For the reasons that follow, his appeal against conviction should be dismissed and his application to appeal his sentence should be refused.
- As I will discuss, there are very many arguments now made by the appellant, who was represented by counsel at the trial but unrepresented in this Court, for challenging his conviction. The first of those arguments which must be considered is that the verdict of the jury was unreasonable, for which this Court must make its own independent assessment of the evidence at the trial and determine whether it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
The evidence at the trial
- The prosecution case was based upon the evidence of five occasions when the appellant met with undercover operatives from the Australian Federal Police (“AFP”) who were pretending to be large scale distributors of cocaine. The first of those meetings was on 9 November 2012 at a park at Broadbeach. The appellant there met an undercover officer who gave his evidence under the name “Frank”. Immediately before meeting the appellant, Frank had met the alleged co-conspirators, Heilbronn and Le, in a nearby café. Heilbronn and Le were charged together with the appellant, but each pleaded guilty and the trial proceeded against the appellant only. After meeting them in the café, Frank was taken by them to meet the appellant.
- Frank had a recording device on him. Frank gave evidence of the meeting by reference to the recording of it and the jury was assisted with a transcript. Frank also gave evidence by reference to what he and the appellant had written on a newspaper which Frank had with him in the meeting. A document examiner testified about what could be discerned as having been written on the newspaper. Frank described an incident during the meeting, in which the appellant tore up and ate a piece of paper from the newspaper which had some writing on it, which Frank said was some meaningless scribbling by him.
- At the beginning of the meeting, the appellant asked him if he knew why the appellant was there and pointed to his nose. Frank said “yes”, making a noise with his nose. The jury was asked to infer that each man was indicating that the subject of their meeting was cocaine. Frank’s evidence was that at this meeting, the appellant indicated that he wished to purchase between 50 and 100 kilograms of cocaine per month, writing on the newspaper: “roughly 50-100 a month as a start.” Frank wrote on the newspaper “$150 – 160 K”, meaning a suggested price per kilogram, and the appellant responded by pointing to the figure “150” as written, thereby indicating that this was the price that he was prepared to pay. There were exchanges between them as to where the cocaine would be sold by the appellant’s side, Frank saying that he did not want the cocaine sold in Victoria (Frank had pretended to be a supplier based in Melbourne). The appellant wrote: “we every last Sunday” to indicate that he did not wish to pay cash on delivery, but instead wished to pay for each month of supplies on the last Sunday of that month.
- There were exchanges between Frank and the appellant as to how the parties would communicate following this meeting. Frank was to communicate by coded emails, the first to notify the appellant’s group that cocaine had been ordered by him from overseas suppliers, the next to notify them that a cocaine shipment was in transit to Australia and a third to notify them that the cocaine had arrived in Australia. Frank and the appellant agreed that they should meet in the same place on the first Friday after that last notification. They agreed to each bring another person to that meeting who would be responsible for arranging the exchange of cocaine for money. Heilbronn and Le were with the appellant throughout this meeting.
- The group then left the park and went to lunch, where the recording of their conversation continued. Towards the end of that meeting, there was further discussion as to how the parties would communicate with each other. The appellant proposed that in an emergency, a postcard could be sent to a particular address, which the appellant wrote down on a white napkin which he handed to Frank. The appellant also instructed Heilbronn to set up an email account, which Heilbronn did immediately at an internet kiosk in a nearby shopping centre, after which Heilbronn returned and gave to Frank a napkin on which he had written the email address. Each side thereby had access to that account, through which they were to communicate by typing and saving a draft message.
- What followed was a series of exchanges by the use of that email account. Frank’s evidence was that on 30 November 2012, there was a message indicating that Frank’s side had (supposedly) placed an order for the cocaine. A second message, sent on 19 December 2012, indicated that the drugs had arrived in Australia. It was acknowledged as received on the following day. A third message was sent on 22 January 2013, using the code “I love you”, which was acknowledged with the response: “I love you more”. According to Frank’s evidence, that indicated that the parties should meet on the following Friday, which is what they did, on 25 January 2013.
- On that day, Heilbronn and Le met Frank and another undercover officer, who gave evidence under the name “Dane”, before taking them to a nearby beach, where they met the appellant. Frank and the appellant walked on the beach together, while Dane, Heilbronn and Le together walked behind them. There was a recording of the conversations, mainly that between the appellant and Frank during which the two men discussed arrangements for delivery of the drug and for payment. Frank said to the appellant: “Ok. Let’s get straight to it. How much are you willing to take?” There was discussion of a proposal that initially 20 kilograms would be exchanged for a $1 million down payment, with a balance of $2 million to be paid later. The appellant explained to Frank that most of his money was in real estate and that his ability to raise cash was limited. Frank said to the appellant he was answerable to other people who would want to be paid their money.
- After further discussion, Frank and the appellant agreed that there would be an initial supply of 20 kilograms of cocaine for an immediate payment of $1 million, with a further $2 million to be paid on the last Sunday of the month after delivery.
- Dane, Heilbronn and Le then joined the conversation between the appellant and Frank, and there was discussion as to how the money for the cocaine was to be packed. There was also discussion as to when the parties were to meet to effect that delivery and how the exchange of cocaine for cash could take place by exchanging the vehicles in which the parties would arrive at the meeting when the exchange was to occur. The appellant then said that after this initial transaction, he would be looking to purchase 50 kilograms in the following month and 100 kilograms in the month after that. It was agreed that Heilbronn would meet Dane on 5 February 2013.
- On 5 February, Dane went to a café at Broadbeach where he was approached by Heilbronn, who was wearing a blonde wig and a baseball cap. They walked around the street corner where they met the appellant, who was wearing a black wig and a baseball cap. Again, this conversation was recorded. The appellant told Dane that he had to see “his guy” later that day in order to show him a sample prior to any money being paid for the cocaine. Dane said that this was not what had been agreed and that a payment was to be made upon delivery. The appellant asked Dane if they “grab the 150, you can bring us one?”, which was a proposal that initially one kilogram would be supplied as a sample to be tested, in exchange for $150,000. Dane said that he and Frank would have to discuss the matter and it was agreed that the three would meet later in the day.
- That afternoon, Dane again met the appellant and Heilbronn at the same café. Again the appellant and Heilbronn were wearing wigs. The conversation was recorded. The appellant said: “He’s goin’ to have coin for one sittin’ on the table. He wants to crack that one. He wants to cook it, and then he’s goin’ to give a green light and they’ll buy the rest”. This was an apparent reference to the appellant initially purchasing one kilogram of cocaine, to be tested by his associates, with those persons to purchase the remaining 19 kilograms if the sample was satisfactory.
- Dane’s evidence, by reference to his recording of the conversation, was that he told the appellant that he had discussed that proposal with Frank and that the appellant would have to pay $180,000 up front for a one kilogram sample. A discussion then ensued between Dane, the appellant and Heilbronn as to the details of the proposed exchange (of the 19 kilogramss of cocaine) and how money was to be stacked inside boxes. They agreed that they would meet again on the following morning at a carpark in Broadbeach, where one kilogram would be exchanged for $180,000.
- On the morning of 6 February 2013, Dane met the appellant at that carpark. Again the conversation was recorded. The appellant said that “his guy” was worried that the appellant was being “set up with undercovers” and that “his guy” had said that “if there’s no sample don’t even go near them”. The appellant did not have the $180,000 to be paid for the one kilogram of cocaine. Dane agreed to hand over a one kilogram block of cocaine without any immediate payment. Dane asked the appellant how long it would take to test the cocaine, saying that he was expecting to be paid the $180,000 later that day.
- There was a discussion as to how the cocaine was to be delivered. Dane agreed to leave the cocaine in a black bag, like a computer bag, in the back of the van which he was using. Dane said that he would take the appellant’s car and that the appellant would drive away the van. Dane proposed that when they met again later that day, the further 19 kilograms of cocaine would then be in the appellant’s car. There was then a further discussion about what vehicles could be used for the exchange of money and cocaine.
- Dane had arranged for a one kilogram block of an inert substance, which would be represented to be cocaine, to be placed in a bag in his van. One of Dane’s colleagues had driven the van to this meeting. The appellant gave Dane the keys to his car and he was given the keys to the van. The appellant drove the van away and police kept it under surveillance at various locations on the Gold Coast. Also in the van were cardboard boxes containing apples into which the appellant had been told to pack the $1 million to be paid on the proposed delivery, later that day, of the remaining 19 kilograms.
- A camera had been installed by the AFP officers inside the van. After the van stopped in Currumbin Valley, the camera recorded the appellant entering the van from the rear, unzipping the bag and removing the one kilogram block which had been inside it.
- On that afternoon, police executed a search warrant at 489 Piggabeen Drive, Currumbin Valley, the place to which the appellant had driven. They seized a box trailer there, which when examined was shown to contain a concealed internal cavity which was accessible by removing a bolt inside a tool box attached to the trailer. At the meeting of 25 January, the appellant had told Frank that he had such a trailer.
- The one kilogram block of purported cocaine was found by police in long grass on an adjoining property. The block was in an undamaged state.
The offence charged
- Section 11.5 of the Code relevantly provides as follows:
- 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.
Note: Penalty units are defined in section 4AA of the Crimes Act 1914.
- For the person to be guilty:
- the person must have entered into an agreement with one or more other persons; and
- 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
- the person or at least one other party to the agreement must have committed an overt act pursuant to the agreement.
- A person may be found guilty of conspiracy to commit an offence even if:
- committing the offence is impossible; or
- A person cannot be found guilty of conspiracy to commit an offence if, before the commission of an overt act pursuant to the agreement, the person:
- withdrew from the agreement; and
- took all reasonable steps to prevent the commission of the offence.”
- The Code contains no definition of “conspires” or “conspiracy”. In R v LK, the plurality (Gummow, Hayne, Crennan, Kiefel and Bell JJ) said that those words, as used in s 11.5(1), have their established meaning within the criminal law at the time the Code was enacted.
- The plurality said that the physical element of the offence is that specified in s 11.5(1), namely the conduct of entry into the agreement. Paragraphs (a) and (b) of s 11.5(2), their Honours said, are epexegetical of what it is to “conspire” with another person to commit an offence within the meaning of s 11.5(1). And the relevant fault element is intention, so that the prosecution must prove that a defendant meant to conspire with another person to commit the offence particularised as being the object of the conspiracy.
The arguments to the jury
- At this point it is necessary to discuss the arguments which were put to the jury about the application of s 11.5 in the present case. This Court has the transcript of the prosecutor’s argument but not that of the final argument of defence counsel. Nevertheless, the effect of the defence address can be seen from the trial judge’s summary of it in his summing up. Curiously, the prosecutor, and at times defence counsel, argued that the relevant agreement was that made (or apparently made) with the AFP officers, rather than an agreement as allegedly made between the co-conspirators.
- The prosecutor’s argument began by stating correctly the requirements for an offence of conspiracy, according to s 11.5(2). But in addressing the jury about whether the necessary agreement had been proved, the prosecutor consistently described the relevant agreement as one between the appellant and Frank or Dane, rather than an agreement between the appellant and Heilbronn and/or Le. The prosecutor described the progress of the negotiations (as the AFP officers made them appear to be) between Frank and the appellant. He described the discussion between Frank and the appellant on 9 November 2012, about when the drugs were to be paid for, as a “sticking point” in those negotiations. He argued to the jury that:
“And by the 9th of November – there’s an agreement about a number of things, but the question of payment was in issue, because, as I have already mentioned, Mr Schmidt wanted to deal with it on credit.”
- The prosecutor then extensively referred to the evidence of the discussion between Frank and the appellant on 25 January 2013, culminating in Frank’s statement that initially 20 kilograms of cocaine could be supplied, at a price of $3 million to be paid by $1 million on delivery with a subsequent payment for the remainder. The prosecutor then said to the jury:
“So at that point, you might conclude, ladies and gentlemen, that what’s being agreed is 20 kilos, a million up front and then further business, 50 kilos paid on the last Sunday of every month …”
After referring to further exchanges in that conversation between Frank and the appellant, the prosecutor said to the jury:
“At that point – and that’s a matter for you, of course – but it sounds as though there is an agreement.  kilos, one million because he says “okay. That sounds good.””
After further references to the conversation between the appellant and Frank, the prosecutor said:
“So it’s a matter for you, but in my submission to you it’s clear that the defendant understands that the agreement is 20 kilos for a million, from then on 50 or 100 kilos.”
- The prosecutor then detailed what was said after the five men (the appellant, Heilbronn, Le, Frank and Dane) came together on the beach. The prosecutor described the effect of what was then said as:
“Another indicator, if one was ever needed, that Mr Schmidt understood what was being offered to him and had accepted what was being offered to him.”
He then said to the jury that:
“But what can be seen is there’s an agreement between them [the appellant and Frank].”
- Turning to the first of the meetings on 5 February 2013, the prosecutor noted that both the appellant and Mr Heilbronn had come to the meeting. The prosecutor had particularised the overt acts upon which his case relied as including the attendance by the appellant and Heilbronn at that meeting. A second particular was their attendance at the second meeting with Dane on the same day. The third act was said to have been the appellant’s attendance to meet Dane on the morning of 6 February and the fourth act was the appellant’s driving of the van away from that meeting.
- After extensive reference to the evidence of what occurred on 5 and 6 February 2013, the prosecutor completed his address as follows:
“At the end of the day, my ultimate submission to you … is you’d be satisfied beyond reasonable doubt that the agreement entered into by the defendant on the 25th of January was for 20 kilograms in exchange for $1 million – 20 kilograms of cocaine in exchange for $1 million, with there being some business in the future. All of his actions point to him and Mr Heilbronn for that matter, intending that the offence would be committed – or that an offence would be committed – and that he had committed at least one overt act.”
- In that last passage, there was a reference to Mr Heilbronn’s intention that an offence be committed. There was also the reference earlier in the address to Mr Heilbronn’s attendance at the meetings of 5 February. But otherwise there was no reference by the prosecutor to the need for the jury to be satisfied that there was an agreement between the appellant and Heilbronn or between the appellant and Le. Rather, throughout the prosecutor’s address, what was said to have been the relevant agreement was that made with the undercover officers, and in particular an agreement said to have been made with Frank on 25 January. Of course, that was not the agreement which was the subject of the charge. Nor could it have been, because as was said in R v LK:
“The reach of [this] offence does not extend to an agreement to which the only parties are a single accused person and an agent provocateur.” (footnote omitted)
- At times, the address by defence counsel apparently referred to an agreement between the appellant and Frank and at other times, an agreement as alleged on the indictment. In his summary of the defence argument, the judge described counsel saying, as to the elements of the offence, that “there wasn’t a concluded agreement about the amount of the drug, the price, how and when it was to be paid or the time and place of delivery.” The judge said that counsel had “pointed to the conditional nature of the agreement, depending upon the ability of Mr Schmidt to pay and on those behind him accepting the quality of the product being offered to them, as arguing that there was too little certainty in the alleged agreement to amount to one which you should treat as an agreement for the purposes of the conspiracy alleged.”
- Similarly, there was this submission, as the judge summarised it:
“[Defence counsel] then spoke to you about the quantity of the drug involved, reminding you that the commercial quantity was two kilograms or more and that what was supplied on the 6th was a block of one kilogram. He argued that if there was a concluded agreement on the 6th of February, Dane expected $180,000 back for the block and that if there were a concluded agreement, Mr Schmidt had been given the block for no money in return from him so that the only agreement was for an exchange of one kilogram of cocaine which was not a commercial quantity.”
The judge referred to a further submission by defence counsel that on 25 January 2013, what had been said was “not equivalent to a concluded agreement because there was not meeting of the minds about all of the important terms.” The judge reminded the jury of a submission that “Frank had represented that he had limited authority and needed approval from the people behind him”, which, it was argued, would lead the jury to conclude that “there was no concluded agreement”. However the judge then referred to a further submission by defence counsel as follows:
“He then reminded you, as I have, of the need for the conspiracy to be amongst Mr Schmidt, Mr Heilbronn and Mr Le conspiring together and that no expressed agreement between Frank and Mr Schmidt or Dane and Mr Schmidt was sufficient to establish the conspiracy alleged. It had to be an agreement amongst the alleged co-conspirators, Schmidt, Heilbronn and Le, and that in that context the agreement between Dane and Schmidt on the 6th February 2013 for the exchange of one kilogram for $180,000, and then for one kilogram for no money, did not involve Mr Heilbronn or Mr Le.”
- Notwithstanding those addresses, the trial judge clearly and consistently directed the jury as to what the prosecution had to prove. More than once, his Honour identified the relevant agreement as that which was alleged on the indictment, namely an agreement with Heilbronn or Le. The jury was told that they had to be unanimous in their finding as to the person with whom the appellant had made the relevant agreement. No criticism is made of his Honour’s directions as to the elements of the offence and of the requirements as set out in s 11.5(2) of the Code. The jury was also shown slides in which the judge had helpfully summarised the matters to be proved. Despite the ways in which the case was described by the addresses of counsel, I am satisfied that the jury could not have been mistaken as to what was required to be proved.
A reasonable verdict
- Although much of the discussion in these meetings was in coded language, the evidence was able to be understood in the way for which the prosecutor contended. Subject to the arguments of which I am about to discuss, it was open to the jury to find that in these meetings, there had been negotiations for the supply by Frank, Dane and their interests to the appellant and his associates, of cocaine in quantities that exceeded the two kilogram threshold of a commercial quantity of that drug. There was no argument at the trial, nor did there appear to be an argument in this Court, that the jury could attribute no meaning and effect to what they had heard on the recordings, augmented by the testimony of Frank and Dane and the record of what had been written on the newspaper in the first meeting.
- Of course, it was not enough for the prosecution to prove that the appellant was meaning to acquire commercial quantities of cocaine and to traffic in it. An agreement between the appellant and at least one of Heilbronn and Le had to be proved. That was to be proved by inference from the participation of those individuals in the meetings.
- It is sufficient to refer to the case that the appellant conspired with Heilbronn, who was present at each of the meetings, save for that on 6 February 2013. As should appear from the above summary of the evidence, Heilbronn did certain things to assist the appellant in meeting Frank and then Dane. He was present for all of the discussions which the appellant had with them, except perhaps for the discussion on the beach whilst the appellant and Frank were walking ahead of the others. But on that occasion, there was the further discussion between the five men, to which I have referred at .
- From this evidence, it was open to the jury to infer, beyond reasonable doubt, that the appellant and Heilbronn had agreed with each other to acquire, in a commercial quantity, cocaine from the interests represented by Frank and Dane, with the intention of then supplying that drug. The jury was able to exclude any hypothesis (which was not raised by defence counsel) that the appellant was acting alone, rather than having conspired with Heilbronn (or Le).
- I have earlier referred to the overt acts upon which the prosecutor relied. The first and second of those acts were the attendances by the appellant and Heilbronn at the meetings of 5 February 2013. The third overt act was the appellant’s attendance with Dane on the following morning and the fourth of the acts was the appellant’s driving of the van away from that meeting. In my view, it was open to the jury to find, beyond reasonable doubt, that the appellant did each of those things pursuant to the agreement which he had made with Heilbronn. Equally, it was open to the jury to conclude that Heilbronn participated in the meetings of 5 February, pursuant to the agreement which he had made with the appellant. The purpose of those meetings was to progress the supply of cocaine by Frank and Dane, so as to facilitate the trafficking in that drug which was the subject of their agreement. It was open to the jury to conclude that by 5 February, the appellant and Heilbronn had reached the relevant agreement between them. Indeed, it was open to the jury to conclude that they had done so at the time of the first meeting in November 2012.
- I have discussed the address by defence counsel to the jury. The argument in that address that there was not a concluded agreement because the parties had not agreed “the amount of the drug, the price, how and when it was to be paid or the time and place of delivery”, was beside the point. Again, the question was whether the appellant and Heilbronn (or Le) had reached the agreement alleged on the indictment. If certain terms were not agreed with Frank and Dane, that did not indicate the absence of a conspiracy between the appellant and Heilbronn.
- However there were two further arguments made by defence counsel which were relevant, and are repeated here by the appellant. The first is that the evidence did not prove a conspiracy to traffic in cocaine in a commercial quantity. Instead, it was and is argued that at its highest, the evidence showed only an intention to traffic in an amount of one kilogram, being the quantity of the substance which was left by Dane in the van. That argument was able to be easily rejected by the jury. The fact that only one kilogram of a substance was delivered to the appellant did not indicate that the appellant and Heilbronn intended to traffic only in that quantity or in a quantity under two kilograms. In the course of the meetings, the appellant had always discussed his intention to acquire quantities that well exceeded two kilograms. When he took delivery of the one kilogram of a substance, he was proposing to take delivery of another 19 kilograms later in the day.
- The other argument to the jury, which is repeated here, is that there was an innocent explanation for all of these events, which was that the appellant (and his co-conspirators) were engaging in something of a game with the AFP officers, by pretending to Frank and Dane that they meant to acquire cocaine from them to lead them on and ultimately make the officers appear foolish. Of course, no evidence was given by the appellant to raise that hypothesis. But it was and is said that it was able to be inferred from the facts that the appellant and Heilbronn wore obvious wigs to the meetings of 5 February, the appellant immediately disposed of the one kilogram of substance by throwing it into long grass on an adjoining property and the statement by the appellant to Dane, on the morning of 6 February, about the possibility that Frank and Dane were undercover police officers. The argument to the jury also relied upon the video footage of the appellant’s actions in the van, after he had removed the bag and the substance. There were apple boxes in the rear of the van which the appellant was re-arranging. Defence counsel pointed out that the appellant was not then wearing gloves or attempting in any way to conceal his identity, which counsel said was another indicator that he was “not a man who was … intending to enter into the crime of trafficking in cocaine.”
- In the hearing in this Court, the appellant argued that this exercise in the deception of the AFP could be explained by his sense of grievance about the way in which the AFP had treated some members of his family. He suggested that it was to avenge that conduct that he set about trying to ridicule the AFP officers, by leading them on to believe that they were entrapping him. That particular hypothesis was not put to the jury, and nor could it have been because there was no evidence to indicate, let alone to support it.
- The appellant may have had an imperfect understanding of the criminal law and he may not have appreciated that his conduct, over the course of these meetings culminating in the exchange on 6 February 2013, would become the evidentiary basis for a charge such as this one. Still, it is unlikely that he would run the risk of a charge of some kind by falsely pretending to police that he meant to traffic in drugs. The facts and circumstances, insofar as they appear from the evidence, provided little support of this defence.
- The wearing of wigs on 5 February provided no real support for it: that conduct was at least equally consistent with an intention by the appellant and Heilbronn to disguise themselves, in case they were seen or filmed at that location to be meeting a person whom they believed to be a drug dealer.
- The appellant’s act of throwing the one kilogram block on to the adjoining land could be explained in other ways which were consistent with his guilt. For example, he may have been leaving it there for others who were to collect it.
- The statement by the appellant to Dane on 6 February, about his associate suggesting that Frank and Dane were undercover operatives, was equally consistent with the appellant meaning to transact with two men who he believed to be true drug dealers.
- The fact that the appellant took no steps to prevent his fingerprints or DNA in the van was also consistent with a belief that he was dealing with real drug dealers. In any case, at that stage, the appellant had not finished with the van. Remarkably, in this Court the appellant asserted, without reference to any evidence, that he had taken steps to remove any trace of his DNA from the van, as an indication that he believed that Frank and Dane were undercover operatives.
- In my conclusion, it was open to the jury to reject that hypothesis. The jury’s consideration of it, of course, was informed not only by their listening to the recorded conversations, but also by their assessment of the witnesses Frank and Dane and of the likelihood that they would have been fooled by the appellant, Heilbronn and Le in this way.
- In this Court, the appellant argued that the jury could not have excluded the possibility that the appellant had withdrawn from the conspiracy. By s 11.5(5), a person cannot be found guilty of conspiracy to commit an offence, if before the commission of an overt act pursuant to the agreement, the person withdrew from the agreement and took all reasonable steps to prevent the commission of the offence. The appellant argues that he withdrew on 6 February 2013 by throwing away the one kilogram block. However the block was not damaged and that action would not have prevented the commission of the offence of trafficking, had that been, in truth, cocaine. But in any case, as I have discussed, there were overt acts by the appellant and Heilbronn pursuant to their conspiracy at least on 5 February, so that it was too late for the appellant to have withdrawn on 6 February.
- For these reasons, it was open to the jury to find, beyond reasonable doubt that the appellant was guilty of the offence which was charged.
Other grounds of appeal
- The appellant complains that the undercover operatives gave evidence in closed court and behind a screen. The witnesses were able to be seen by the jury and by counsel, but, it would appear, not by the appellant in the dock. The appellant’s complaint is not that he could not see the witnesses, but that the erection of this screen in some way was to the prejudice of a fair trial, upon the basis that the jury could have thought that there was something about the appellant and this case which warranted these extraordinary measures.
- However, the judge gave clear instructions which would have prevented any such prejudice. The judge discussed those directions with counsel before they were given and there was no objection to them. Immediately prior to the commencement of Frank’s evidence, the trial judge said to the jury:
“Ladies and gentlemen, you’ll observe that a screen has been set up in front of the witness box, and the courtroom has been closed to the public. That’s because the witness whose evidence you’re about to hear is an undercover officer of the Australian Federal Police, whose identity and appearance should not be revealed to the general public. In that context, I instruct you as follows. First, do not describe the appearance of this witness to anybody else not a member of the jury. Secondly, these measures are routine practices of the court for taking evidence of undercover officers such as this witness. You must not draw any inference as to the defendant’s guilt because these measures were used.
Thirdly, the probative value of the evidence is not increased or decreased because these measures were used. To say that the probative value of the evidence is not increased or decreased because these measures were used means it is not better evidence or worse evidence than if the evidence had been given before you without the screen. The evidence is not to be given any greater or lesser weight because these routine measures were used.”
In his summing up, the trial judge gave the same direction.
Further evidence – The Higgins affidavit
- In his oral submissions to this Court, the appellant claimed that at some time which was relevant to these events, he had undertaken some “counter surveillance on the AFP” and had located a camera which the AFP had installed at the corner of Piggabeen Road and Currumbin Creek Road, from which he knew he was under surveillance by the AFP. This was said to be relevant to his defence that he did not intend to traffic in the cocaine which he was discussing with Frank and Dane. He said that another person had been with him when he had discovered this camera, but that this person could not be found by him before the trial and that the appellant had been hampered in his efforts by then being in custody. When it was pointed out in argument that the appellant himself could have given this evidence at the trial, the appellant said that he had been advised by his lawyers not to do so.
- The appellant referred to an affidavit by a Mr Higgins, sworn on 5 October 2017 and said that it was this man who was the witness whom he was unable to locate for his trial. The affidavit of Mr Higgins was simply in these terms:
“I … can confirm that Andreas Schmidt was fully aware that he was under investigation and surveillance by the AFP and then he started conducting his own counter surveillance on the AFP shortly before he was arrested on 06/02/2013.”
- Had Mr Higgins been available at the trial (assuming he was not), he could not have given evidence in those terms. No facts are offered in the affidavit to ground the deponent’s belief that the appellant was aware that he was under investigation. No facts are given to support the general assertion that the appellant had conducted “his own counter surveillance”.
- In any case, evidence of that kind from Mr Higgins, if admitted, would have counted for little in the absence of evidence from the appellant. The difficulty in this argument remains that the appellant chose not to testify, and to say that not only did he know that he was under investigation, but also that at all relevant times, he knew that Frank and Dane were undercover operatives.
- A forensic choice was made that he not give that evidence. It is far from demonstrated that that was an irrational choice and that a miscarriage of justice resulted from it. Had the evidence been given by the appellant, with or without that of Mr Higgins, the jury may have thought that the appellant suspected that he was being watched by the AFP. The jury may even have thought that it was this suspicion which had caused the appellant to leave the one kilogram block in the long grass next door to his property. Nevertheless, the difficulty for the appellant would have been in explaining his dealings with Frank and Dane. The appellant’s argument does not reveal a credible explanation for his dealings with Frank and Dane, if he knew that they were part of the AFP team which was investigating him, apart from what he said in argument to this Court, namely that he was looking to belittle and embarrass the AFP because of some unspecified wrong which someone from the AFP had done to someone in his family.
- In his oral submissions, the appellant objected to statements in the respondent’s outline of argument in this Court, that a warrant had been obtained which authorised the recording of the meetings and that a Controlled Operation Authority had been obtained, which permitted the undercover operatives to act as they did. Those statements were challenged upon the apparent basis that the warrants had been challenged (unsuccessfully) at a pre-trial hearing under s 590AA of the Criminal Code (Qld).
- It is correct that the warrants were challenged in a pre-trial hearing. The challenge was upon the basis that they were issued illegally. It was also then argued that in the exercise of the Court’s discretion, the evidence obtained by reason of them, should be excluded. That challenge was dismissed by the trial judge by a ruling on 27 November 2015. The correctness of that ruling was not questioned by the appellant’s opposed grounds of appeal or his outline of submissions in this Court. And the appellant offered no oral argument as to why that ruling was incorrect.
Intercepted phone calls involving Heilbronn and Le
- The appellant says that after the trial, evidence emerged of the interception by AFP officers of telephone calls involving his alleged co-conspirators. He says that this evidence was wrongly withheld by the prosecution. The appellant produced an AFP record of intercepted telephone conversations which relevantly included two conversations on 16 January 2013 between Heilbronn and Le. The conversations were recorded in a table compiled by the AFP which included a column: “To prove”, indicating the potential relevance of the evidence. Against the record of one of these conversations, there was written under that heading:
“Conversation between Nicolas Nigel Heilbronn and Van Cuong Le regarding Le being given a “tip off” to Police interest.”
Against the record of the other conversation, under the same heading was written:
“Cuong Le contacts Nicholas Heilbronn regarding meeting and that Le had just received a “tip off””.
- The appellant also referred to a record of the conversation on 17 January 2013, which was a conversation between a third party and Le, for which, under the heading “To prove”, was written:
“[The third party] contacts Cuong Le - … [the third party] wants to know if they can talk.”
- The appellant said that he understood that those records were part of the material which his lawyers were provided for the trial. But his complaint was that he should have received something else by way of evidence of these conversations.
- The appellant seemed to be attempting to make two points: the first being that more evidence of these conversations should have been disclosed to his trial lawyers and the second being that his lawyers should have sought that evidence, once they had seen these records of those conversations. The suggested relevance of that evidence was that it would have fortified the appellant’s case that, in truth, he did not intend to traffic in cocaine, but that instead, he was meaning to pretend to the AFP that he was going to do so. The effect of the argument is that the alleged conspirators would have been unlikely to have intended to traffic in cocaine, when they knew they were under surveillance.
- In response, during the hearing in this Court, the respondent tendered an affidavit by Federal Agent Deveney, sworn on 18 October 2017, which confirmed that the table which included the records of these conversations was within the Brief of Evidence which was supplied to the appellant’s trial lawyers.
- The respondent was given leave to provide a further affidavit or affidavits on the subject of the content of the Brief of Evidence which was supplied to the appellant’s trial lawyers. The court received affidavits of a Louisa Bush and Ms Deveney which were filed on 20 October 2017. According to those affidavits, audio recordings of the intercepted phone calls were within the Brief of Evidence. However that evidence was disputed by the appellant. He filed a short affidavit on 27 October 2017, disputing that his lawyers had received this material.
- The affidavit of Ms Deveney filed on 20 October 2017 exhibits a disc which she swears is a copy which she made of the Brief of Evidence. She swears that the Brief, in electronic form, was supplied on several occasions to the lawyers acting for the appellant, including his trial counsel. In the same affidavit, Ms Deveney explains how the electronic copy of the Brief of Evidence included any relevant audio and audio visual files. The particular audio recordings which were identified by the appellant in his submission are able to be heard by clicking on a hyper-link in a table which corresponds to the paper extracts of the table handed up by the appellant at the hearing in this Court. In that way, I have listened to the recordings. As it happens, what appear in the list to have been two conversations on 16 January 2013 between Heilbronn and Le are in fact the same conversation. On its face, this affidavit well proves that the audio recordings of these conversations were disclosed to the appellant’s lawyers before the trial.
- In his most recent affidavit, the appellant claims that he had spoken to his trial counsel and solicitor, each of whom, the appellant says, confirmed that the Brief of Evidence did not contain any recordings of intercepted phone calls regarding tip offs. However, it is not said that they had seen Ms Deveney’s affidavit. In his affidavit, the appellant refers to something which was said by defence counsel in his address, as summarised by the trial judge in these terms:
“Mr Thomas … spoke of the absence of certain categories of evidence … and argued that with an operation of this nature … where significant resources appear to have been devoted to it, that it is remarkable that further evidence, such as telephone intercepts or further surveillance evidence, was not available.”
Presumably, by that submission counsel meant that evidence of telephone intercepts was not available to the jury. It could not be thought that counsel understood that there had been no “telephone intercepts or further surveillance”, other than the recordings of the meetings with the appellant which were in evidence.
- Ms Deveney says in her affidavit that she made a further copy of the same disc to provide to the appellant. There is no reason to believe that the appellant did not receive it or has been prevented from listening to it. He does not say so; instead, his response, within the affidavit filed on 27 October 2017, is to “strongly reject [her] affidavit.”
- In his affidavit, the appellant seeks to fortify his rejection of her evidence by references to the appeal record book, to which, therefore, reference should be made. The appellant relies upon passages in the trial transcript of the cross-examination of Ms Deveney, the first of which was on the subject of why the one kilogram block and its packaging had not been preserved by the AFP. That passage has no apparent relevance to the present question. Later in the trial, Ms Deveney returned to the witness box where she was further cross-examined on the same subject. In that part of her evidence, she was asked about an affidavit that she had sworn “in relation to a procedural matter involved in these proceedings”, to which Ms Deveney responded by asking whether counsel was referring to a “bail affidavit”. The apparent strategy of the cross-examiner was to reveal to the jury the fact that the appellant had been originally charged with an offence of attempting to possess cocaine which was reasonably suspected of having been imported into Australia, rather than with a conspiracy. It was then suggested by counsel that the destruction of the evidence constituted by the one kilogram block was significant, because its true composition would have been relevant to that earlier charge, or proposed charge. Again, that cross-examination has no apparent relevance to the present question. The affidavit of the appellant also refers to Ms Deveney’s affidavit filed in the application for bail, which is within the appeal record as a document which had been marked for identification at the trial, but which was not admitted into evidence. Again, this is irrelevant to the present question.
- Consequently, the appellant offers no evidence which calls into question the evidence of Ms Deveney within her affidavit filed on 20 October 2017. It is for the appellant to demonstrate that there was a miscarriage of justice by relevant material not being disclosed to his trial lawyers. He has failed to do so.
- In any case, having listened to the audio tapes which were the basis for this argument, it is not difficult to imagine why those conducting the appellant’s case at the trial would have been disinclined to have the jury hear them, especially the conversation between Heilbronn and Le on the subject of their concern about an investigation by the AFP. In that recording, Le sounds worried as he tells Heilbronn that he had been given a “tip off” and he sounds anxious to meet with Heilbronn to discuss the matter. In turn, Heilbronn’s reaction to the news that there had been a tip off also sounds like that of a man who was concerned to receive it. The jury would have been unlikely to have found within this evidence any support for an argument that the appellant and his colleagues were simply playing some trick upon an unsuspecting AFP. More likely the jury would have considered that the two men were apprehensive that an investigation was being conducted, because Heilbronn and Le knew that there was conduct to be investigated. Heilbronn and Le (and by inference, the appellant) may have apprehended that there was an investigation being conducted by the AFP, although they may not have believed, at least before 6 February 2013, that Frank and Dane were from the AFP. If the appellant’s trial counsel did not listen to these audio tapes, the appellant was not thereby denied the prospect of an acquittal.
Absence of DNA evidence
- As already noted, in his oral submissions to this Court, the appellant made something of the fact, as he asserted it to be, that when removing the bag and the substance from the rear of the van, he wiped “fingerprints and DNA” from the van. For the respondent, it is said there was no evidence that he had done so. Certainly there was no argument upon that premise which is recorded in the summing up. Nor was such evidence referred to in apparently comprehensive discussion of the relevant evidence by his Honour in the summing up. Instead, as I have discussed, the address by defence counsel sought to make something of the fact that the appellant had not been wearing gloves in handling items in the rear of the van, indicating “that he wasn’t attempting to conceal his identity”.
Scribble on the newspaper
- Frank gave evidence that at one point during the first meeting, the appellant tore off part of a page of the newspaper, upon which things had been written during the meeting, and ate that piece of paper. Frank was asked what, if anything, had been written on that part of the page and said that it was “just something I scribbled down. It meant nothing at all.” The appellant suggested that this evidence was inconsistent with that of the forensic document examiner, who said that apart from the imprints which she had reproduced, there were “no other actual entries or words that I could see”. The two pieces of evidence, in my view, are not inconsistent. In any event, any such inconsistency could not have been significant.
Recording of the first meeting
- The appellant referred to a passage in the transcript of the trial, immediately prior to the prosecutor’s opening, where the prosecutor was referring to a passage in the recording of the first meeting which involved a discussion between Frank and the appellant about other drugs. The prosecutor said to the trial judge that this evidence had been raised with him by defence counsel and that the prosecutor agreed that it ought to be excluded. He told the judge that he would need to speak to Frank on that issue before he opened the prosecution case. It appears that he did so. The discussion of that subject was deleted from the recording and from the transcript that was given to the jury.
- But the appellant claims that this led to an irregularity, because the evidence which was given by Frank was what the appellant described as “a total different story from what is the truth”. That submission cannot be accepted.
- The appellant’s suggestion that Frank was in some way persuaded to change his testimony, and to give untrue evidence, in the course of this discussion with the prosecutor is without any basis. The appellant does not identify any respect in which Frank changed his testimony apart from avoiding the subject of other drugs which counsel had agreed should not be aired.
Redacted material heard by the jury
- On the second day of the trial, Frank began to give his evidence, at 12.26 pm, by referring to the first meeting. A disc containing his recording of that meeting was tendered and a transcript was distributed to the jury. The jury then began to hear the recording played to them. It appears that only a small part of it had been played by the luncheon adjournment. When the court resumed, the trial judge was told by counsel that they had agreed to fast forward the recording to a point where a relevant discussion commenced. The jury then heard more of the recording for about an hour before counsel asked the jury to retire. Defence counsel then said that he had noticed that there was one occasion where something was said which had been redacted from the transcript, but not from the recording. Counsel described this as a “significant redaction” and reminded the judge that it had been the subject of a pre-trial ruling. He had said that when this passage was being played, he had tried to alert the prosecutor to it, but that “we couldn’t have a proper conversation about it because of the events going on in court.”
- Defence counsel did not ask for the jury to be discharged at this point. Instead, he suggested that the prosecutor should “uplift the exhibit [and] attend to the redactions ...”. The judge asked defence counsel: “Do you want me to say anything about the bit that wasn’t deleted?” Defence counsel responded: “I don’t want to – I’m not making an application, your Honour. I think it’ll get lost in … they were probably confused ….” Again defence counsel said: “I don’t have any application to make in that regard, other than it be rectified by my friend.”
- The judge and counsel then discussed what direction might be given by the judge as to redacted material more generally. The judge suggested a direction which was to the effect that it was common for such recordings to require editing before being used at the trial and that the jury should not speculate about parts which had been edited out or draw any inference adverse to the defendant, merely because irrelevant material had not been placed before the jury. Defence counsel said that he was happy with that direction. When the jury returned, they were so directed.
- After the jury retired that day, the prosecutor asked for the disc so that the part to which defence counsel had referred could be removed from the recording. Again, defence counsel agreed. At the beginning of the next day of the trial, in the absence of the jury, the prosecutor produced an edited version of the recording which was substituted as the exhibit. This was done with the apparent concurrence of defence counsel.
- In this Court, the appellant complained that the jury thereby heard “highly prejudicial” material which ought to have been redacted. But beyond that general complaint, the appellant’s argument did not identify the content of that material, let alone explain how it may have caused a miscarriage of justice. As counsel for the respondent explained, the presently relevant material is within a copy of the transcript of the recording which was in the appeal record, where parts of the original transcript which had been ruled out could be read. (Of course the jury did not see those parts in the transcripts which were given to them.) The part to which defence counsel referred, when raising this problem with the trial judge, was at a point on page 84 of the transcript. In that version of the transcript which this Court has, pages 84 and 85 are crossed through. On the copy of which this Court has of the transcript of the recording which went to the jury, all of page 84 and most of page 85 is blank. The relevant redactions can be thereby identified. In that passage of the recording, the appellant was telling Frank that he knew certain individuals in Melbourne and Sydney, who had been involved in acts of violence.
- The exclusion of that evidence was understandable. But the question is whether there was a miscarriage of justice by the jury hearing this short passage. The best indication of the insignificance of that passage is that defence counsel did not seek to have the jury discharged upon the basis of it. Nor did he ask the judge to direct the jury to disregard that passage. The appellant’s case was not that he was a person of impeccable character, who had been drawn into dealings with Frank and Dane with such a misunderstanding that he had not realised that they were negotiating a large and ongoing supply of cocaine. Further, the jury heard many hours of the recordings of these conversations. In my view, there is no realistic possibility that this passage, which was not in the transcripts which the jury had been able to retain during the trial, would have been in their minds as they considered their verdict.
- During the cross-examination of Frank, defence counsel asked about the information with which Frank had been briefed prior to his first meeting with the appellant. He was asked whether his briefing had included a reference to a man by the name of Rocko. Frank refused to answer that question, claiming a public interest privilege. In the absence of the jury, defence counsel explained the relevance of Rocko. Counsel said that Rocko was a person who was known by his client to be a police informant. Counsel said that the subject was relevant to his client’s defence, namely that he had not intended to commit an offence of trafficking in cocaine and that his dealings with Frank and Dane were not towards that end, but instead were undertaken with a knowledge that they were undercover officers.
- Frank was stood down whilst the AFP instructed lawyers to advance the claim for public interest privilege. Subsequently, that claim was argued by counsel for the AFP and the trial judge upheld the claim. His Honour said that the relevant issue here was the state of mind of the defendant at the time in issue, and that the evidence as to whether Rocko was a police informant was not particularly significant to that issue. The judge upheld the claim upon the basis that the identity of police informers should not be disclosed except where that disclosure could help to show that the defendant was innocent of the offence. In my view that ruling was clearly correct. Rocko had not been discussed in any of the meetings. There was no evidence to suggest that the appellant had known of any connection between that person and this undercover operation. If the cross-examination had been allowed to reveal the fact (if it was the fact) that Rocko was a police informant, that fact could not have had any logical bearing on the question of the appellant’s intention at any relevant time. There was no miscarriage of justice by this cross-examination being disallowed.
Evidence that the appellant was in custody
- As discussed already, during the cross-examination of Ms Deveney of the AFP, it emerged that she had provided an affidavit in response to an application by the appellant for bail. When her evidence concluded shortly afterwards, and in the absence of the jury, defence counsel said that “it is of concern that there’s a clear imputation now that my client’s in custody, but even more importantly that the police are objecting to the grant of bail.” Counsel said that “that then carries with it the imputation that there was a reasonable basis for that objection”. The judge suggested that the jury be directed that it was common for police to object to bail and that they should draw no inference about the accused’s guilt from that. Defence counsel said that he was content with that course. The appellant now says that his counsel should have applied to discharge the jury. That submission cannot be accepted. At least with the judge’s direction, there was no prospect of any relevant prejudice from the jury knowing that there had been a contested and unsuccessful application for bail.
- The appellant argued that he was “coerced and induced into the commission of the offence”, from which he says that the evidence against him ought to have been excluded on public policy grounds. However, this argument was made on a particular basis. The appellant relied upon the terms of Major Controlled Operation Authorities, which were issued to the AFP under s 15GH of the Crimes Act 1914 (Cth) and, in particular, a condition of each of those authorities that the controlled operation was not to be conducted in such a way that a person was likely to be induced to commit a Commonwealth offence or an offence against a law of a State or Territory that the person would not otherwise have intended to commit. The appellant argued that that condition was breached in his case.
- The appellant referred to evidence in the cross-examination of Frank, where the witness agreed that he was trying to “encourage, induce, influence, prompt [the appellant] into agreeing”. Frank was there admitting that he was endeavouring to have the appellant agree to acquire cocaine from him. But the offence which was charged was a conspiracy between the appellant and one or both of his co-accused to traffic in cocaine. The relevant inquiry is whether the AFP officer procured the commission of the offence with which the appellant was charged. It is far from demonstrated that the officer did so and that the appellant would not have been minded to agree with Heilbronn (and Le) to traffic in cocaine absent the conduct of the AFP officers. Therefore there was no basis for an exercise of a discretion to exclude the evidence.
An alternative verdict
- The appellant’s argument here was that the trial judge should have left an alternative verdict to the jury, namely a conspiracy to traffic in cocaine without the element that the quantity be a commercial quantity. The argument was that alternative should have been raised by the judge for the jury’s consideration because the quantity of the substance actually delivered to the appellant was only one kilogram.
- To some extent, this argument has been considered already, on the question on whether the verdict was unreasonable, although the submission here, of course, is a different one. But again, the answer to it is that the jury had to consider what the conspirators had agreed and intended rather than what was supplied, or purportedly supplied, by Dane to the appellant. On no view of the appellant’s conduct, was the appellant, together with Heilbronn or Le, intending to confine their trafficking to something less than two kilograms. There was no prospect therefore that the appellant was denied the chance of an acquittal by the jury not being directed about the alternative verdict.
Destruction of the one kilogram block
- I record here a submission by the appellant that there was some relevance in the fact that the one kilogram block, which was within the van driven away by the appellant on 6 February 2013, was destroyed by the AFP. Several times during the hearing in this Court, the appellant was asked to explain the relevance of this fact. He was unable to do so. The precise composition of this substance was irrelevant. Nor was there relevance in the question of whether another 19 similar blocks had been prepared by the AFP, as the appellant seemed to suggest.
The prosecutor’s address to the jury
- At the end of the prosecutor’s address, defence counsel applied for the jury to be discharged upon two bases.
- The first was that the prosecutor had said that there was no evidence of what the appellant thought in relation to the undercover operatives, other than what was in the recordings of the meetings. It was submitted to the trial judge that this was effectively a comment by the prosecutor about the failure of the appellant to give evidence. The judge rejected that argument, saying that he could direct the jury that the defendant was perfectly entitled to put the Crown to proof of the case without giving evidence himself.
- The second was that the prosecutor had said to the jury that the undercover operatives had been working under a controlled operation authority and that the appellant’s trailer had been “specially designed for this sort of thing.” It was argued by defence counsel that the prosecutor had improperly raised the character and reputation of the appellant. The trial judge rejected that argument, pointing out that the existence of a controlled operation authority was revealed by defence counsel in cross-examining Dane. As to the reference to the trailer, there was no unfairness by the prosecutor in that comment. The appellant was recorded as describing this trailer and how it had been constructed so that it could be used to hide things. His intention to make use of the trailer was relevant to the appellant’s intention.
- The trial judge was therefore correct in not discharging the jury. There was no unfairness in the prosecutor’s address.
Fairness of the summing up
- The appellant claimed that “the trial judge went too far in revealing his own views” about the facts in the course of his summing up. The appellant referred to a part of the summing up in which the judge directed the jury as to the use in which they could make of things said by Heilbronn and Le out of the presence of the appellant, in furtherance of the alleged common purpose. The judge there correctly directed the jury on the use which they could make of that evidence and properly warned them that before they could use the evidence of something said outside the appellant’s presence, they should give consideration to any shortcomings in that evidence, including the fact that there had been no opportunity to cross-examine Heilbronn and Le and to the absence of corroborative evidence. There is no basis for complaint about these directions.
- The appellant complained about the directions which were given as to the use which they can make of the appellant’s statements to Frank that:
“My name is the best name in the country … I only do five or [tens] at a time … [the trailer which he had was] only for that kind of shit … You can put hundreds in there.”
The judge directed the jury that they should not reason from that evidence that he was a person with a propensity to commit an offence of the kind with which he was charged. They were directed that they could only use that evidence as relevant to whether he had formed the requisite intention. Again, there could be no proper criticism of these directions.
- The appellant also complained that the judge observed that “it does not appear to be an issue in the trial that if an agreement is proved by the prosecution, it was an agreement to traffic in cocaine [and that] [t]here is a separate issue whether any agreement was to traffic in a commercial quantity – two kilograms or more of that drug.” These were was not unfair comments. The judge was explaining that there was no issue such as whether it had been a different drug from cocaine which was the subject of any conspiracy.
- In his written submissions, the appellant seemed to assert that the judge had failed to “properly and fairly present the defence case to the jury in his summing up”. That cannot be accepted. The appellant pointed to no part of his case which the judge had omitted or misstated.
- The jury asked for redirections on the questions of what was a conspiracy, what was trafficking and what amounted to an agreement for the purposes of this offence. The appellant did not seem to criticise the redirections which were given. Rather, his point seemed to be that the fact that the jury asked for these directions showed that they were having difficulty in understanding the charge against him. From that premise, he emphasised that in conspiracy cases it is necessary for the charge to clearly identify its elements, in particular the agreement which is its foundation, and then the request for redirections demonstrated that this had not been done. In my view, the judge’s directions (and redirections) made the case sufficiently clear to the jury.
Appeal against conviction: conclusion
- None of the appellant’s grounds should be accepted. I would order that the appeal against conviction be dismissed.
Appeal against sentence
- On 14 December 2016, the trial judge sentenced the appellant, Heilbronn and Le. The appellant was sentenced to 12 years’ imprisonment, with a non-parole period of seven years and six months. A total of 1,055 days of pre-sentence custody was declared. Heilbronn was sentenced to eight years’ imprisonment, with a non-parole period of four years. Le was sentenced to seven years’ imprisonment with a non-parole period of three years.
- It is necessary to explain the circumstances of the time for which the appellant was in custody after he was arrested on 6 February 2013. The appellant was then on bail for one charge of supplying a dangerous drug, on 24 June 2010, and one charge of producing a dangerous drug methylamphetamine, on 27 July 2010. Before being granted that bail, the appellant had spent 14 days’ in pre-sentence custody on those matters, between 6 June 2011 and 20 June 2011. After he was arrested on 6 February 2013, he was returned to custody. But he was then in custody both for the 2010 offences and for the subject offence.
- He was sentenced for the 2010 offences, after pleading guilty to them, on 12 December 2013. The sentencing judge on that occasion noted that she could not treat the 309 days which he had spent in custody from 6 February 2013 as time served for the 2010 offences. But the judge said that she would take that time into account in fixing the length of the sentence. She said that she had been minded to impose a term of three years with parole after one year, but that taking into account that period of 309 days which she was unable to declare as time served, she reduced the sentence to two years and two months’ imprisonment and fixed a parole release date at 24 January 2014. She declared the 14 days’ of pre-sentence custody which was served in 2011 to be timed served under that sentence. In effect, the judge reduced both the head sentence and the non-parole period by 10 months to allow for the fact that he had been in custody for 309 days from 6 February 2013.
- In the present matter, the judge observed that the appellant had already had the benefit of that period of 309 days but said that he would accept a submission by the appellant’s counsel that he should make some allowance for that period, because of the harsh circumstances in which he had then been incarcerated.
- The period of pre-sentence custody allowed in the present case was that which commenced on 24 January 2014, the date on which he was to have been paroled for the 2010 offences.
- In his oral submissions to this Court, the appellant argued that the judge erred by not giving him credit for the 309 days that he served in 2013. In effect, his argument is that but for the present offence, he would not have been in custody in 2013, so that he should receive credit for that time served. The argument cannot be accepted. He has received the benefit of that period by a reduction in his sentence for the 2010 offences. The judge in the present case could not declare this period as time served under the subject sentence. Given the allowance made for that period in the other case, there was no error by the judge in this respect.
- At the time of his sentence, the appellant was aged 49 years, and was 45 at the time of the offence. He was born in Australia but spent part of his life in Germany. Prior to the 2010 offences, he had some criminal history but nothing of present relevance. The 2010 offences, however, were relevant as was also the fact that he was on bail at the time of the subject offence.
- Heilbronn had what the judge described as a serious criminal history. In September 2011, he had been sentenced on one count of trafficking in a dangerous drug, one count of supplying a dangerous drug, one count of producing a dangerous drug and other offences which had been committed in 2008, when he was then 26 years old. He was sentenced to periods of concurrent terms, the longest of which was eight years and he was given a parole eligibility date of 19 October 2011, a period of 946 days having been declared as pre-sentence custody.
- Le was aged 37 years at the time of this offence and was 42 when sentenced. He had a number of previous convictions of drug offences, including an offence of trafficking in heroin, for which he had been given a four year term and for which he was on parole at the time that he committed this offence. The judge accepted evidence that Le was drug dependent and had a low IQ.
- The judge considered that Schmidt’s criminality in the present matter was more serious than Heilbronn’s criminality, which was more serious than that of Le. The appellant was said to have made “the critical decisions in relation to the quantity of the drugs and the price to be paid for them”. The judge said that the appellant was “at the highest level of you three defendants”. He noted that Heilbronn had received instructions from the appellant, as had Le who had acted primarily as a driver for Heilbronn. There was no error by the judge in that description of the respective roles of the three offenders. The appellant complained that there was disparity between his sentence and the others. That argument should be rejected. The appellant’s criminality was more serious and, importantly, he did not have the substantial mitigating factor of a plea of guilty.
- The appellant argued that his sentence was manifestly excessive. For that argument, he cited the two cases to which his counsel referred the sentencing judge and which were discussed in the judge’s reasons. One of them was the decision of the New South Wales Court of Criminal Appeal in Director of Public Prosecutions (DPP) (Cth) v Blackman; DPP (Cth) v Jomaa, which was an unsuccessful Crown appeal against sentences imposed on offences of attempting to possess a commercial quantity of cocaine. Jomaa was sentenced to a term of 11 years and three months, with a non-parole period of seven years. The cocaine in question amounted to 31.92 kilograms pure, and in a powder form, 48.22 kilograms. Jomaa and his co-offender had pleaded guilty. Before the sentencing judge in this case, it was submitted that the present case was not as serious, because here there was in truth no cocaine which was to be supplied to the appellant. The sentencing judge did not consider that Jomaa was particularly relevant, with which I agree. The offence there was the attempted possession of a commercial quantity of cocaine, rather than a conspiracy to traffic in the drug. And the offender had pleaded guilty.
- The other case upon which the appellant relied is a sentence imposed in the District Court of New South Wales in R v Cardona-Ossa. Cardona-Ossa was sentenced to nine years’ imprisonment with a non-parole period of five years and six months, having pleaded guilty to a count of conspiracy to traffic in a commercial quantity of cocaine, together with one count of conspiring to deal with $340,000, intending that the money would become an instrument of crime. He was also sentenced for other offences of manufacturing cocaine and trafficking in it. The Crown alleged in that case that the conspiracy was to traffic in a quantity of up to 50 kilograms of cocaine. That was contested by the defendant and he was sentenced upon the basis that he had intended to traffic in no more than five kilograms. He did not have a previous criminal history and, as I have said, he pleaded guilty. That sentence does not indicate that the appellant’s sentence was excessive.
- In the present case, the prosecution had also referred the sentencing judge to those two cases. The prosecutor also referred to the sentence imposed by Peter Lyons J on 9 October 2013, involving defendants named Meijiaa and Hernandez. The prosecutor told the judge that they had pleaded guilty to conspiring to trafficking 3.25 kilograms of cocaine and had received sentences of seven years, with a non-parole period of three and a half years, and five and a half years, with a non-parole period of two years, respectively. Neither had any criminal history and each was relatively young.
- The prosecutor also referred the judge to a decision of the New South Wales Court of Criminal Appeal in Anderson v The Queen, where, after a trial, the defendant was convicted of conspiring to import a commercial quantity of cocaine. The quantity was about 20 kilograms. Anderson had a lengthy criminal history. In truth there was an actual quantity of cocaine to be imported in that case and Anderson had provided the money for it. The court did not interfere with the sentence imposed at first instance which was a term of 18 years with a non-parole period of 11 years.
- Lastly, the prosecutor referred the sentencing judge to a decision of this Court in R v Schelvis; R v Hildebrand. In that case, after a trial, Hildebrand was found guilty of conspiring with others to import a commercial quantity of MDMA in a liquid form, which was capable of producing over a million MDMA tablets. He was sentenced to 14 years with a non-parole period of nine years. His co-offender, Schelvis, was sentenced to 21 years with a non-parole period of 14 years. This Court did not interfere with those sentences. As the sentencing judge here remarked during the course of submissions, the analysis by Fraser JA in that case of comparable cases is helpful. But the prosecutor conceded during the sentencing hearing that those cases might be considered more serious because they involved “actual importations … of various significant amounts of drugs”. And in his sentencing reasons, the judge did not refer to them.
- In R v Raptis, Lilimbakis & Sinclair, the Victorian Court of Criminal Appeal (Young CJ, O’Bryan and Tadgell JJ) said:
“Conspiracies vary widely in seriousness and in criminality. Thus a conspiracy to murder is on its face more heinous than a conspiracy to steal a loaf of bread. Nevertheless, as with any other crime, all the surrounding circumstances may and generally must be taken into account in determining the appropriate sentence. It cannot, therefore, be said that it is irrelevant to consider the likelihood of the success of a plan agreed upon by conspirators but the fact that a particular plan is unlikely to be successful will not necessarily reduce the heinousness of the scheme. A scheme is not rendered the less criminal because, for reasons which may not be known to the conspirators, it is unlikely that they will be able to carry it out to ultimate completion …”
That passage from Raptis was cited in this Court, with apparent agreement, in R v Lake; R v Carstein; R v Geerlings. I accept, as the judge did apparently, that the impossibility of trafficking in the substance supplied by the AFP had some relevance to the sentence. However that consideration did not mean that the offence was not a serious one, requiring a sentence which would act as a strong general deterrent as well as a heavy punishment for a party who intended to traffic in large quantities of a dangerous drug.
- The appellant argues, as his counsel argued to the judge, that the sentence here was to be mitigated for what was described as an element of entrapment. The submission relied upon what was said by Badgery-Parker J in R v Taouk as follows:
“It is abundantly clear that, were it … a defence to a criminal charge to show that police officers entrapped the accused by inducing him to commit a crime which he would not otherwise have committed, the appellant would have failed to establish that defence. However, when it comes to sentence, the question is not whether the accused can show that but for the involvement, encouragement or incitement by police he would not have committed the crime, but rather, whether there is a real possibility that but for the assistance, encouragement or incitement offered by police officers he would not have [committed the crime], and whether, in all the circumstances of the case the involvement of the police in the commission of the crime was such as diminished [the defendant’s] culpability.”
- The sentencing judge in the present case said that that principle was not engaged. He said:
“While it is true that the undercover officers, in this case, laid out a structured approach to the delivery of the supposed drug to you defendants, and the process of arranging it, I did not detect any behaviour by the defendants that suggested that there was a real possibility that, but for the assistance, encouragement or incitement offered by the police officers, they would not have committed the crime. You seemed quite eager to benefit from the proceeds of the cocaine offered to you. You might not have had enough money to purchase it, but you were eager to negotiate a way by which that hurdle could be overcome.”
- That passage in R v Taouk was applied by Spigelman CJ in R v N, where the offender had been subjected to a sustained period of duress, with some threatening conduct, by an undercover police officer, all of which induced her to supply heroin. Spigelman CJ said that this misconduct was “such as to significantly diminish her culpability as offender in the very special circumstances of this particular case.” The present case does not involve circumstances of that kind. What I have said above under the heading “Entrapment” is also relevant here. It is one thing to say that the AFP officers were attempting to have the appellant agree to acquire cocaine from them. It is another to say that they procured the commission of the offence of conspiracy. The essence of that offence was the agreement between the appellant and one or both of Heilbronn and Le. The AFP’s dealings with the appellant, Heilbronn and Le provided the evidence by which the conspiracy could be proved. But that is not to say that it procured the commission of the offence. Relevantly for the sentence, in the words of Badgery-Parker J in R v Taouk, “the involvement of the police in the commission of the crime was [not] such as diminished his culpability.”
- In my conclusion, it is not demonstrated that the sentence was manifestly excessive. The appellant had a leadership role in the enterprise between the three men. On any view, he hoped to traffic in large quantities of cocaine, entirely for a commercial purpose. He was persistent in his efforts to obtain cocaine from what appeared to him to be potential suppliers. His culpability was no less for the fact that, unknown to him, they were AFP officers.
- The appellant argued that there were some considerations which the judge wrongly failed to bring into account. It was said that the judge did not consider the fact that there had been a long period between the commission of the offence and the sentence, during which, the appellant contended, he had “shown rehabilitation”. The explanation for that period, of course, was that the appellant had to be tried and convicted before he could be sentenced. The appellant was committed for trial on 6 February 2015. He was to have been tried in November 2015, but the available days were there taken up with pre-trial arguments about the admissibility of evidence. The appellant also sought material from the AFP which was the subject of a successful claim for privilege. He was eventually tried in July and August 2016.
- The appellant’s contention that he had shown signs of rehabilitation is unpersuasive. It is to be noted that the appellant advanced many grounds for appealing his conviction, all the time protesting his innocence. And a report from a psychologist which was tendered at the sentencing hearing commented that the appellant “demonstrated a surprising lack of insight into possible consequences of his behaviour” in that he “failed to consider that his behaviour was illegal and that he was engaging of behaviours of conspiracy to traffic.” In the psychologist’s view, “this poor insight and incongruent emotional response, given his extensive time in custody, is consistent with symptoms commonly seen in the context of ADHD and Antisocial Personality Disorder.”
- The appellant argued that he had endured particular hardship in the circumstances of his imprisonment. But as I have noted, the judge did take that into account.
- It is submitted that the judge failed to take into account the totality principle. In my view that argument has no substance. The judge was not required to moderate this sentence with the fact that the appellant had served a little under 12 months in custody for the 2010 offences before the present term commenced in January 2014.
- Lastly, it is said that the judge failed to take into account all of the considerations prescribed by s 16A of the Crimes Act 1914 (Cth). Other than that general assertion, that argument was not developed. It should be noted that the judge did refer to s 16A in his reasons.
Conclusions on sentence
- Each of the arguments of the appellant’s should be rejected. I would order that the application for leave to appeal against sentence be refused.
- JACKSON J: I agree with McMurdo JA.
Criminal Code Regulations 2002 (Cth), reg 5A, Schedule 3.
M v The Queen (1994) 181 CLR 487;  HCA 63; SKA v The Queen (2011) 243 CLR 400 at 405-406 -;  HCA 13.
(2010) 241 CLR 177;  HCA 17.
Ibid at 224 .
Ibid at 232 .
Ibid at 232 .
 Ibid at 235 .
 Ibid at 232 .
 Ridgeway v The Queen (1995) 184 CLR 19;  HCA 66.
 Ibid at 37 (per Mason CJ, Deane and Dawson JJ).
  NSWCCA 90 (“Jomaa”).
 unreported, District Court of New South Wales, 10 November 2011 (North DCJ).
  NSWCCA 130.
  QCA 294.
 (1988) 36 A Crim R 362 at 364 (“Raptis”).
  QCA 209 at .
 (1992) 65 A Crim R 387 at 404.
 (1999) 106 A Crim R 493 at 504;  NSWCCA 187.
 (1992) 65 A Crim R 387 at 404.
- Published Case Name:
R v Schmidt
- Shortened Case Name:
R v Schmidt
 QCA 59
Fraser JA, McMurdo JA, Jackson J
29 Mar 2018
- White Star Case:
|Event||Citation or File||Date||Notes|
|Primary Judgment||SC128/15 (No Citation)||09 Aug 2016||Date of Conviction (Douglas J).|
|Primary Judgment||SC128/15 (No Citation)||14 Dec 2016||Date of Sentence (Douglas J).|
|Appeal Determined (QCA)|| QCA 59||29 Mar 2018||Appeal against conviction dismissed; application for leave to appeal against sentence refused: Fraser and McMurdo JJA and Jackson J.|
|Special Leave Refused|| HCASL 263||12 Sep 2018||Special leave refused: Nettle and Gordon JJ.|