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R v Simpson[2024] QSC 295

R v Simpson[2024] QSC 295

SUPREME COURT OF QUEENSLAND

CITATION:

R v Jarryd Kenneth Simpson [2024] QSC 295

PARTIES:

R

v

JARRYD KENNETH SIMPSON

(Defendant)

FILE NO/S:

Indictment No 196 of 2021

DIVISION:

Trial Division

PROCEEDING:

Trial (Judge alone)

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

29 November 2024

DELIVERED AT:

Brisbane

HEARING DATE:

18 to 22 November 2024

JUDGE:

Williams J

VERDICT:

  1. Count 1 on Indictment 196 of 2021 (trafficking in dangerous drugs, serious organised crime circumstance of aggravation):  Not guilty.
  2. Alternative count (trafficking in dangerous drugs): Guilty.

CATCHWORDS:

CRIMINAL LAW – PARTICULAR OFFENCES – DRUG OFFENCES – DEALING AND DISTRIBUTION OF DRUGS – TRAFFICKING OR SALE AND SUPPLY –  where the trial proceeded without a jury – where the defendant pleaded not guilty to trafficking with the serious organised crime circumstance of aggravation, but pleaded guilty to carrying on the business of unlawfully trafficking in dangerous drugs – whether or not a third particularised person was a participant in the criminal organisation for the purposes of s 161Q of the Penalties and Sentences Act 1992 (Qld) – whether the particularised individuals were a “criminal organisation” as defined by s 161O – whether the defendant knew or reasonably ought to have known the offence was being committed in association with one or more persons who were participants in a criminal organisation – whether the prosecution has proven beyond reasonable doubt the circumstance of aggravation

Criminal Code 1899 (Qld) s 615C

Drugs Misuse Act 1986 (Qld) s 5

Penalties and Sentences Act 1992 (Qld) s 161Q, s 161P, s 161O, 161R, s 251

Beckwith v The Queen (1976) 135 CLR 569, cited

R v A2; R v Magennis; R v Vaziri (2019) 373 ALR 214; [2019] HCA 35, cited

R v Hill (2020) 5 QR 225; [2020] QSCPR 14, cited

R v Hill (No 2) (2020) 6 QR 1; [2020] QSC 309, applied

R v Hilton (2020) 3 QR 260; [2020] QSCPR 2, cited

R v Nguyen [2023] QCA 168, cited

R v Pentland [2020] QSC 231, applied

R v Stasiak and Turkyilmaz (2019) 2 QR 533; [2019] QSC 260, applied

COUNSEL:

ZA Kaplan for the prosecution

AJ Kimmins for the defendant

SOLICITORS:

Office of the Director of Public Prosecutions for the prosecution

AW Bale & Son Solicitors for the defendant

  1. [1]
    The Defendant, Jarryd Kenneth Simpson, is charged in Count 1 on Indictment 196 of 2021 that between 1 August 2016 and 9 October 2017 he carried on the business of unlawfully trafficking in dangerous drugs, with a serious organised crime circumstance of aggravation pursuant to s 161Q of the Penalties and Sentences Act 1992 (Qld) (Penalties and Sentences Act).
  2. [2]
    The Defendant pleaded not guilty to trafficking with the serious organised crime circumstance of aggravation,[1] but pleaded guilty to carrying on the business of unlawfully trafficking in dangerous drugs.[2]  The plea was not accepted by the Crown in discharge of Count 1 on the Indictment.  The matter proceeded to trial.
  3. [3]
    The issue for determination is whether the prosecution has proven beyond reasonable doubt the circumstance of aggravation.  That is, the prosecution must prove beyond reasonable doubt that the Defendant was a participant in a criminal organisation and knew or reasonably ought to have known that the offence was being committed in association with one or more persons who were, at the time the offence was committed, or at any time during the course of the commission of the offence, participants in a criminal organisation.
  4. [4]
    The prosecution’s case is that the “criminal organisation” was constituted by the Defendant, Dean Scott (Scott) and Reece Ryan (Ryan).
  5. [5]
    The Defendant submits that these individuals were not a “criminal organisation” because they were not a “group of 3 or more persons” within the meaning of s 161O of the Penalties and Sentences Act.  Further, the Defendant submits that Scott was not a “participant” for the purposes of s 161P and 161Q of the Penalties and Sentences Act and s 161O(1)(b) is not established.[3]
  6. [6]
    The critical issue is whether the prosecution has proved beyond reasonable doubt that the Defendant, Scott and Ryan were a “criminal organisation” within the meaning of Part 9D of the Act.  The determination of this issue involves the first step of:
    1. the interpretation of s 161O of the Penalties and Sentences Act; and
    2. the application of that interpretation to the evidence.
  1. [7]
    That then informs:
    1. whether or not Scott was a participant in the criminal organisation for the purposes of s 161P of the Penalties and Sentences Act; and
    2. whether the circumstance of aggravation in s 161Q of the Penalties and Sentences Act is established.
  2. [8]
    Pursuant to the order of Martin SJA on 26 March 2024, the trial proceeded without a jury under s 615 of the Criminal Code 1899 (Qld) (Criminal Code).
  3. [9]
    As required by s 615C of the Criminal Code, these reasons contain:
    1. the principles of law I have applied; and
    2. the findings of fact on which I have relied.

Alternative verdict

  1. [10]
    Section 575 of the Criminal Code provides as follows:

“Except as hereinafter stated, upon an indictment charging a person with an offence committed with circumstances of aggravation, the person may be convicted of any offence which is established by the evidence, and which is constituted by any act or omission which is an element of the offence charged, with or without any of the circumstances of aggravation charged in the indictment.”

  1. [11]
    Accordingly, the offence of trafficking in dangerous drugs[4] is an alternative to the offence of trafficking in dangerous drugs with a serious organised crime circumstance of aggravation.
  2. [12]
    I am required to give my verdict first on Count 1 on the Indictment, namely trafficking in dangerous drugs with a serious organised crime circumstance of aggravation. It is only if I return a verdict of not guilty on that count that I will need to consider, and return, a verdict on the alternative offence of trafficking in dangerous drugs.

Relevant provisions

  1. [13]
    Section 5 of the Drugs Misuse Act 1986 (Qld) (Drugs Misuse Act) relevantly provides:

“(1) A person who carries on the business of unlawfully trafficking in a dangerous drug is guilty of a crime.

…

  1. The [Penalties and Sentences Act], section 161Q states a circumstance of aggravation for an offence against this section.
  1. An indictment charging an offence against this section with the circumstance of aggravation stated in the [Penalties and Sentences Act], section 161Q may not be presented without the consent of a Crown Law Officer.”
  1. [14]
    The serious organised crime circumstance of aggravation is dealt with in Part 9D, Division 1 of the Penalties and Sentences Act.
  2. [15]
    Section 161Q provides:

“161Q Meaning of serious organised crime circumstance of aggravation

  1. It is a circumstance of aggravation (a serious organised crime circumstance of aggravation) for a prescribed offence of which an offender is convicted that, at the time the offence was committed, or at any time during the course of the commission of the offence, the offender –
  1. was a participant in a criminal organisation; and
  2. knew, or ought reasonably to have known, the offence was being committed –
  1. at the direction of a criminal organisation or a participant in a criminal organisation;  or
  2. in association with 1 or more persons who were, at the time the offence was committed, or at any time during the course of the commission of the offence, participants in a criminal organisation;  or
  3. for the benefit of a criminal organisation.
  1. For subsection (1)(b), an offence is committed for the benefit of a criminal organisation if the organisation obtains a benefit, directly or indirectly, from the commission of the offence.
  1. To remove any doubt, it is declared that a criminal organisation mentioned in subsection (1)(b) need not be the criminal organisation in which the offender was a participant.” 
  1. [16]
    Schedule 1C of the Penalties and Sentences Act sets out the prescribed offences for the purposes of s 161N of the Penalties and Sentences Act.  Section 5 of the Drugs Misuse Act in respect of trafficking in dangerous drugs is prescribed in Schedule 1C.
  1. [17]
    Section 161O of the Penalties and Sentences Act defines a “criminal organisation” as follows:

“161O Meaning of criminal organisation

  1. A criminal organisation is a group of 3 or more persons, whether arranged formally or informally –
  1. who engage in, or have as their purpose (or 1 of their purposes) engaging in, serious criminal activity; and
  1. who, by their association, represent an unacceptable risk to the safety, welfare or order of the community.
  1. For subsection (1), it does not matter whether –
  1. the group of persons –
  1. has a name; or
  1. is capable of being recognised by the public as a group; or
  1. has ongoing existence as a group beyond the serious criminal activity in which the group engages or has as a purpose; or
  1. has a legal personality; or
  1. the persons comprising the group –
  1. have different roles in relation to the serous criminal activity; or

Example –

Of the persons comprising a methylamphetamine syndicate, different persons are responsible for supplying the cold and flu tablets, extracting the  pseudoephedrine from the tablets, supplying other necessary ingredients, and cooking the ingredients to produce methylamphetamine.

  1. have different interests in, or obtain different benefits from, the serious criminal activity; or

Example –

Of the 3 persons comprising a group that engages in serious criminal activity, 1 person obtains the profit from the activity and pays the other 2 persons an amount for engaging in the activity.

  1. change from time to time.

Example –

a networked online child exploitation forum

  1. In this section–

engage, in serious criminal activity, includes each of the following–

  1. organise, plan, facilitate, support, or otherwise conspire to engage in, serious criminal activity;
  1. obtain a material benefit, directly or indirectly, from serious criminal activity.”
  1. [18]
    The meaning of “participant” is defined by s 161P as follows:

“161P Meaning of participant

  1. A person is a participant, in a criminal organisation, if–
  1. the person has been accepted as a member of the organisation and has not ceased to be a member of the organisation; or
  1. the person is an honorary member of the organisation; or
  1. the person is a prospective member of the organisation; or
  1. the person is an office holder of the organisation; or
  1. the person identifies himself or herself in any way as belonging to the organisation; or

Examples –

  • using a theme-based naming convention or icon to establish a screen name or profile for an online child exploitation forum
  • wearing or displaying the patches or insignia, or a version of the patches or insignia, of a criminal organisation
  1. the person’s conduct in relation to the organisation would reasonably lead someone else to consider the person to be a participant in the organisation.

Example of conduct for paragraph (f) –

  doing any of the following for a criminal organisation involved in the production and sale of cannabis –

  • tending the cannabis plants
  • packaging the cannabis for sale
  • selling the cannabis
  • laundering the profits from the sale of the cannabis
  • managing the day-to-day business of the organisation
  1. For subsection (1)(a), a person may be accepted as a member of a criminal organisation –
  1. informally; or
  1. through a process set by the organisation, including, for example, by paying a fee or levy.”
  1. [19]
    Division 2 deals with the term of imprisonment for particular offenders. If an offender is convicted of a prescribed offence committed with a “serious organised crime circumstance of aggravation” then the Court must impose on the offender a term of imprisonment consisting of the “base component” and the “mandatory component” provided for in s 161R.
  2. [20]
    At the outset there is a matter that I must direct myself in respect of the circumstance of aggravation.
  3. [21]
    The Indictment sets out the period of trafficking in dangerous drugs as 1 August 2016 to 9 October 2017.  Section 161Q of the Penalties and Sentences Act and s 5(2) of the Drugs Misuse Act were inserted in 2016 by the Serious and Organised Crime Legislation Amendment Act 2016 (Qld) and commenced from 9 December 2016.[5]
  4. [22]
    Consequently, the circumstance of aggravation only became part of the law over four months into the trafficking period.
  5. [23]
    Accordingly, it is necessary to consider the transitional provision, being s 251 of the Penalties and Sentences Act. Section 251 states:

“(1) This section applies if –

  1. an offender is convicted of an offence against …. The [Drugs Misuse Act], section 5 …; and
  1. the offence is committed partly, but not wholly, after the commencement.
  1. Section 161Q applies in relation to the offence only if, at a time after the commencement, the offender –
  1. was a participant in a criminal organisation; and
  1. knew, or ought reasonably to have known, a matter mentioned in section 161Q(1)(b).”
  1. [24]
    The Court of Appeal in R v Nguyen[6] considered the operation of s 251 of the Penalties and Sentences Act and concluded that:

“The effect of s 251 is that while it was permissible for the appellant to be charged as he was,[7] it was necessary before the jury could convict on the circumstance of aggravation for the jury to be satisfied beyond reasonable doubt that:

  1. the offence of trafficking was, in fact, committed wholly or partly between 9 December 2016, when the circumstance of aggravation provisions commenced, and 2 March 2018 (the end date charged); and
  1. that at any time in that period the offender was a participant in a criminal organisation and knew or ought reasonably to have known one of the matters mentioned in s 161Q(1)(b).”
  1. [25]
    Accordingly, I direct myself that I must consider whether the relevant elements of the circumstance of aggravation in s 161Q of the Penalties and Sentences Act are proved after 9 December 2016.  That is, I need to be satisfied beyond reasonable doubt that:
    1. the offence of trafficking was committed wholly or partly between 9 December 2016 (when the circumstance of aggravation provisions commenced) and 9 October 2017 (the end date charged on the Indictment); and
    2. that at any time in that period the Defendant was a participant in a criminal organisation and knew or ought reasonably to have known one of the matters mentioned in s 161Q(1)(b).
  2. [26]
    Before turning to consider the way the prosecution particularises the case against the Defendant and the facts, it is convenient to deal with the applicable general principles that I have to take into account.

General principles

  1. [27]
    I have had the benefit of considering the principles identified by Martin J (as the SJA then was) in R v Pentland[8] and respectfully adopt his Honour’s statement of the principles which are set out below.  I also expand on some of these matters.
  2. [28]
    Further, there are some additional principles to which I must have regard and I deal with them in the relevant parts of these reasons.
  3. [29]
    The relevant general principles include:
    1. The prosecution has the onus of establishing the offence charged beyond reasonable doubt. There is no onus on the Defendant.
    2. In arriving at a verdict, I must act impartially and dispassionately and only on the evidence received at the trial.  I should dismiss all feelings of sympathy or prejudice, whether it be sympathy for or prejudice against the Defendant or anyone else. No such emotion has any part to play in my decision.
    3. The issues that exist must be resolved by taking into account all of the evidence, but that does not mean that I have to resolve all of the questions or inconsistencies which may have been raised by the evidence or which may arise about the facts.
    4. The evidence which I accept and that which I reject may be based on a number of things, including what a witness had to say in the witness box, the manner in which the witness gave evidence, the general impression which he or she made when giving evidence, statements which a witness may have made at an earlier time, such as in a statement to the police or at the committal, and my assessment of other evidence including documents and other material.
    5. It is for me to decide whether I accept the whole of what a witness says, or only part of it, or none of it. The fact that I might not accept a portion of the evidence of a witness does not mean that I must necessarily reject the whole of that witness’s evidence. I may accept parts of it if I think it is worthy of acceptance.
    6. In drawing any inferences, I must be satisfied that they are reasonable ones to draw from the facts that I find have been established by the evidence. I must not engage in speculation or conjecture to fill in any gaps in the evidence, but it is up to me to decide whether I accept particular evidence and, if I do, what weight or significance it should have.
    7. I also bear in mind that there is a difference between honesty and reliability. A person might honestly believe what he or she says about what he or she heard or saw and yet not be reliable in recollection, perhaps because of errors in observation, or of recall, or because of an inability to describe what they heard or saw. In this case, the passage of time between the events surrounding the charge and the giving of evidence in this trial is of particular importance.
    8. The Defendant has not given or called evidence. That is his right. He is not bound to do so. The burden on the prosecution does not change and the fact that the Defendant did not give evidence is not evidence against him. It proves nothing at all.
    9. When the case against an accused person rests substantially upon circumstantial evidence a verdict of guilty cannot be returned unless the circumstances are such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused.
    10. To be satisfied beyond reasonable doubt of the guilt of the Defendant it is necessary not only that guilt should be a rational inference, but also that it should be the only rational inference that the circumstances would enable to be drawn.
    11. For an inference to be reasonable, it must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a finding of guilt, if the inference of guilt is the only inference open to a reasonable person upon a consideration of all the facts in evidence. 
    12. Further, in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence.
    13. The evidence is not to be looked at in a piecemeal fashion. But, a single circumstance inconsistent with a conclusion of guilt may be of more importance than all the rest inasmuch as it destroys the hypothesis of guilt.
  4. [30]
    I apply the general principles of law which are applicable to all criminal prosecutions.
  5. [31]
    In the particular circumstances of this matter, I expand on some of those principles.

Evidence

  1. [32]
    I must reach my verdict on the evidence, and only on the evidence.  The evidence is what the witnesses said from the witness box, the exhibits and the admissions made. I must treat the admitted facts as proved.
  2. [33]
    If I have heard, or read, or otherwise learned anything about this case outside the courtroom, I must exclude that information from my consideration. Have regard only to the testimony and the exhibits put before me and the admissions made in the courtroom since the trial began.  I must ensure that no external influence plays a part in my deliberations.
  3. [34]
    A few things are not evidence: statements, arguments, questions and comments by Counsel are not evidence. The purpose of the opening of the case by the prosecutor was to outline the nature of the evidence intended to be put before me.  Nor were Counsel’s final addresses evidence. They were their arguments, which I may properly take into account when evaluating the evidence, but the extent to which I do is a matter for me.
  4. [35]
    Some evidence may directly prove a thing. A person who saw, or heard, or did something, may have told me about that from the witness box. The document and other things put into evidence as exhibits may also tend directly to prove facts. But in addition to facts directly proved by the evidence, I may also draw inferences from facts which I find to be established by the evidence.
  5. [36]
    If I am satisfied that a certain thing happened, it may be right to infer that something else occurred. That will be the process of drawing an inference from facts. However, I may only draw reasonable inferences; and the inferences must be based on facts I find proved by the evidence. There must be a logical and rational connection between the facts I find and the inferences. I am not to indulge in intuition or in guessing.
  6. [37]
    Importantly, if there is an inference reasonably open which is adverse to the Defendant (i.e. one pointing to his guilt) and an inference in his favour (i.e. one consistent with innocence), I may only draw an inference of guilt if it so overcomes any other possible inference as to leave no reasonable doubt in my mind.

Beyond reasonable doubt

  1. [38]
    For the prosecution to discharge its burden of proving the guilt of the Defendant, it is required to prove beyond reasonable doubt that he is guilty. This means that in order to convict I must be satisfied beyond reasonable doubt of every element that goes to make up the offence charged.
  2. [39]
    Proof beyond reasonable doubt is the highest standard of proof known to the law. It can be contrasted with the lower standard of proof that is required in a civil case where matters need only be proved on the “balance of probabilities.” That is, the case must be proved to be more likely than not.
  3. [40]
    In a criminal trial, the standard of satisfaction is much higher; the prosecution must prove the guilt of the Defendant beyond reasonable doubt.
  4. [41]
    It is for me to decide whether I am satisfied beyond reasonable doubt that the prosecution has proved the elements of the offence. If I am left with a reasonable doubt about guilt, my duty is to acquit: that is, to find the Defendant not guilty. If I am not left with any such doubt, my duty is to convict: that is, to find the Defendant guilty.

Trial transcript

  1. [42]
    I have the transcript of the evidence in the trial.  It is important that I keep in mind that a transcript is not evidence. It is merely an aid for my use. The evidence is what I heard the witnesses say when they gave evidence in the trial. The transcript is to help me recall the evidence of the witnesses.
  2. [43]
    A transcript is only ever at best another person’s opinion of what can be heard on the recording. It is what the person typing up the transcript believed he or she could hear.  That does not mean that the transcript is perfectly accurate – so some caution is required. 
  3. [44]
    If I see something in the transcript which is different to what I heard a witness say, I must act on what I heard the witness say, not on the transcript.  Also, I am not restricted to the transcript. I may decide that I would like to hear again the audio recording of a witness’s evidence or part of a witness’s evidence.
  4. [45]
    I should not give any evidence more weight than it deserves merely because there is an aid to my recall of the evidence which is in written form. It is important to recall the evidence as it was given during the trial and what, if anything, I thought about the reliability of the evidence as I heard it.

Particulars

  1. [46]
    The prosecution provided particulars which were marked for identification (MFI) “A”.
  2. [47]
    The key aspects of the prosecution’s particulars of the circumstance of aggravation are summarised as follows:[9]
    1. The offence committed was a prescribed offence (s 161Q(1) of the Penalties and Sentences Act):
      1. Trafficking in dangerous drugs is a prescribed offence (Schedule 1C of the Penalties and Sentences Act).
      2. The Defendant has been convicted of the prescribed offence on his own plea of guilty.[10]
    2. The Defendant was a participant (s 161Q(1)(a) of the Penalties and Sentences Act):
      1. At the time the offence was committed, the Defendant was the head of the criminal organisation comprising Scott and Ryan (s 161P(1)(f) of the Penalties and Sentences Act).
      2. The following acts are relied upon to establish that the Defendant was the head of a criminal organisation:
        1. The Defendant employed Scott.
        2. The Defendant employed Ryan.
        3. The Defendant organised the business and set business meetings with potential clients.
        4. The Defendant had oversight of the operations the business conducted, he set price points for the dangerous drugs and organised for all cash and property obtained from the business to be paid to him.
        5. The Defendant ordered Scott and Ryan to conduct their duties.
        6. The Defendant paid Ryan and Scott a salary for their role as employees.
    3. The Defendant knew that the offence was being committed as a participant in a criminal organisation (s 161Q(1)(b)(ii)[11] of the Penalties and Sentences Act):
      1. The Defendant, Scott and Ryan engaged in serious criminal activity (s 161O(1)(a) of the Penalties and Sentences Act).
      2. The serious criminal activity the Defendant engaged in was the trafficking of dangerous drugs, and associated behaviour in the running of that business.
      3. Scott was the enforcer and/or debt collector for the criminal organisation and his central roles in the criminal organisation were to:
        1. Recover money owed to the criminal organisation from customers, at the direction of the Defendant, and deliver the recovered money to the Defendant.
        2. Threaten to use violence in order to obtain that money owed.
        3. Repossess cars on behalf of the criminal organisation at the direction of the Defendant and deliver them at the Defendant’s direction to the Defendant or elsewhere.
        4. Use hire cars as directed by the Defendant, leased by the Defendant, to carry out these tasks.
        5. At the Defendant’s direction, attend meetings with the criminal organisation’s suppliers with the Defendant.
        6. Drive the defendant to business meetings and otherwise attend his home while drugs and cash were present.
      4. Ryan was the bookkeeper and courier for the criminal organisation and Ryan’s central roles in the criminal organisation were:
        1. At the Defendant’s direction keep a detailed record of the business, including amounts delivered, money outstanding and product sold on credit.  These records were reported back to the Defendant.
        2. Transport money and drugs on behalf of and at the direction of the Defendant either to customers or to the Defendant.
        3. Collecting money owed and depositing it into a safe controlled by the Defendant, either while the Defendant was present or not.
        4. To use hire cars, leased by the Defendant, to carry out these tasks.
        5. Undertaken administrative tasks such as assist Scott in the creation and maintenance of an encrypted messaging account.
      5. Scott and Ryan were aware of the other’s role, in working for the Defendant:
        1. Ryan and Scott attended an address together for the delivery of drugs and the recovery of money from the same customer, at the direction of the Defendant.
        2. Ryan would assist Scott in the creation of his encrypted messaging device for the criminal organisation to communicate with each other.
        3. On a trip to Sydney, Ryan organised for Scott’s return flights and transportation from the airport.
      6. The association of the Defendant, Scott and Ryan represented an unacceptable risk to the safety and/or welfare and/or order of the community (s 161O(1)(b) of the Penalties and Sentences Act).
  1. [48]
    The document MFI “A” and headed “Particulars – circumstance of aggravation” does not constitute evidence.  The document sets out the basis in law on which the prosecution puts the case in relation to Count 1.
  2. [49]
    Next, it is necessary to consider the admitted facts.

The agreed facts

  1. [50]
    A number of joint admissions were made by the prosecution and the Defendant.  For the purposes of s 644 of the Criminal Code:
    1. The admissions made by the prosecution were consented to by the Defendant; and
    2. The admissions were made by the Defendant.
  2. [51]
    The admissions are set out in Exhibit 1 and I rely on the full statement of the admissions and treat the facts set out in Exhibit 1 as proved.
  3. [52]
    Following is a summary of the admissions for the purpose of these reasons:
    1. The Defendant unlawfully operated in the business of trafficking in the dangerous drugs 3,4-Methylenedioxymethamphetamine (MDMA), cocaine and cannabis between 1 August 2016 and 9 October 2017 (Trafficking Business).
    2. The Trafficking Business included:
      1. A customer base of at least 30 people.
      2. Operated from the Gold Coast to Maroochydore.
      3. Between 1 August 2017[12] and 9 October 2017, the Trafficking Business supplied at least:
        1. 2112 pounds (958.7 kg) of cannabis.
        2. 2.0865kg of cocaine.
        3. 4.6978kg and 16,210 pills of MDMA.
      4. Revenue of at least $4,209,010, although the total profit is unknown.
    3. To hide the activities of the Trafficking Business the Defendant created a fictitious cleaning business “Sunny Coast Cleaning”, including a website and vehicle with insignia.
    4. The Defendant required those associated with him to have the phone application ‘Wickr’ installed, which allows for messages to be deleted within a specified timeframe and the deleted messages are unrecoverable.
    5. The Defendant used more than one courier to transport drugs and collect money from customers.
    6. Some customers had their own independent trafficking operations.
    7. The Defendant knowingly sold MDMA, cocaine and cannabis to those who operated their own drug-businesses.
  4. [53]
    There are further admissions under the headings:
    1. Cannabis.
    2. MDMA.
    3. Cocaine.
    4. Ryan.
    5. Money.
    6. End of operation.
  5. [54]
    The key aspects of these admissions are summarised below.
  6. [55]
    In respect of cannabis:
    1. The Defendant sourced cannabis from Quan Tam Tu.
    2. The Defendant would obtain 40 to 100 pounds (18kg to 45kg) twice per week, with the most common transaction that occurred being 50 pounds of cannabis for $100,000 to $120,000.
    3. The Defendant would sell the cannabis to customers:
      1. in amounts ranging from 1 to 2 pounds, to 10 to 15 pounds at a time; and
      2. for between $2450 to $2800 per pound, and would offer lower prices for the more pounds purchased per transaction.
  7. [56]
    In respect of MDMA:
    1. The Defendant would obtain MDMA in both powder and pill form, with powder being bought in 30 to 40 ounces (850g to 1.13kg) per transaction.
    2. Purchases from one supplier were $5.50 per pill and $1,500 per ounce (28g).
    3. The pills were on-sold at a higher price.
    4. The powder was repackaged at the Defendant’s direction (at times by Ryan), by use of a capsule machine or pressed or poured into gelatine capsules.
    5. 10,000 empty capsules were purchased and at least 7,000 were filled with MDMA powder.
    6. The cost was $3 per tablet to make but were sold to customers for between $5 and $10.
  8. [57]
    In respect of cocaine:
    1. The Defendant had multiple cocaine suppliers throughout Queensland and some in New South Wales.
    2. Between June and October 2017, the Defendant was provided with 1.25kg of cocaine from a single Queensland supplier over eight transactions, for a total payment of $184,500.
    3. The defendant purchased cocaine for between $5,000 to $5,500 per ounce and would sell to customers for between $6,000 to $6,500 per ounce.
    4. The Defendant directed that the cocaine be “cut” with calcium powder, which “grew” the amount of drug purchased and reduced the purity level, allowing more substance to be sold at a lesser quality.
    5. On at least six occasions the Defendant travelled to Sydney to source cocaine from an interstate contact.
    6. The Defendant directed Ryan to distribute cocaine at least once every two weeks.
    7. On average the Trafficking Business sold 5 ounces (140 grams) of cocaine per week.
    8. Between April and October 2017, the Defendant personally supplied cocaine on 71 occasions to approximately 15 different people, with the average amount supplied being one ounce (28g).
  9. [58]
    In respect of Ryan:
    1. The Defendant employed Ryan as a courier until 9 October 2017.
    2. Ryan’s role gradually expanded to him being the business record keeper.
    3. On 21 July 2017 police fixed a listening device in the Defendant’s apartment in Admiralty Towers.
    4. Between 24 July and 8 October 2017, the Defendant was recorded having numerous conversations, including with Ryan, discussing the Trafficking Business and issuing orders.
    5. In April 2017 the Defendant tasked Ryan with documenting the Trafficking Business’ records, including deliveries, amounts purchased, and debts outstanding.
    6. A typical delivery for Ryan was 100 pounds of cannabis, 6000 MDMA capsules and 10 ounces of cocaine for approximately $100,000.
    7. The Defendant paid Ryan a weekly salary of between $1,500 and $2,000, being approximately $60,000 during the course of his employment.
    8. The Defendant provided Ryan with a business phone and laptop to conduct services.
    9. On 15 January 2017, Ryan delivered a quantity of MDMA, cocaine and cannabis to an apartment complex in Alexandra Headlands.  A further delivery was made to the same address on 16 January 2017.
    10. On 18 January 2017 police searched the apartment and located 16 pounds (7.25kg) of cannabis, 237.354g of pure MDMA in 627g of substance and 22.677g of pure cocaine in 59.076g of substance.
    11. The telephone intercepts include the Defendant referring to the police seizing “his drugs” on the 18 January 2017 search.
    12. Ryan’s use of hire cars was done at the direction of the Defendant.
  10. [59]
    In respect of money:
    1. Throughout the trafficking period:
      1. The Defendant was not employed.
      2. The Defendant spent hundreds of thousands of dollars with no explanation as to how he obtained the money.
    2. The Defendant told another person on 6 September 2017 he was worth “just under a million dollars”.
    3. The total revenue from the Trafficking Business in the trafficking period is not known.
    4. Between 5 April and 22 October 2017, the Trafficking Business generated in excess of $4.2 million.
  11. [60]
    In respect of the end of the operation:
    1. On 8 October 2017 police searched the “Admiralty Towers Safe House”.
    2. The Defendant and his interstate cocaine supplier Miguel Guevara were present.
    3. Police located:
      1. 19 individual one-ounce (28 g) bags of pure cocaine, being 770g of substance containing 290.04g of pure cocaine, with an average purity of 38%.
      2. One bag containing 400.975g of lidocaine, being a ‘cutting agent’ for cocaine.
      3. Two bags containing 103 capsules weighing a total of 10.784g containing a total of 6.617g of pure MDMA.
      4. Two bags containing 18.277g of powder-substance containing 7.650g of pure MDMA.
      5. Seven vials of testosterone weighing a total of 55.568g.
      6. Three bags and one plastic container containing a total of 20 grams of cannabis.
      7. AUD$30,952.
      8. An industrial sized cocaine machine press and cryovac machine, used for repacking and resealing drugs for the Trafficking Business.
      9. Five mobile phones, containing some details of the Trafficking Business.  This included locked and password protected “notes”, for which Ryan provided the password.  These “notes” included a spreadsheet detailing the Defendant’s Trafficking Business.
      10. A USB containing further spreadsheets detailing the Trafficking Business.
  12. [61]
    I direct myself that:
    1. There is nothing unusual about the fact that admissions are made in this way.
    2. The making of admissions shortens the trial as it saves evidence having to be heard on matters that are not in dispute.
    3. I must not read anything more into the making of admissions, and in particular nothing adverse to the Defendant.

Trafficking in dangerous drugs

  1. [62]
    An element of the offence in Count 1 is trafficking in dangerous drugs.
  2. [63]
    It is a crime to carry on a business of unlawfully trafficking in a dangerous drug. MDMA, cocaine and cannabis are dangerous drugs. “Trafficking” includes selling. Here there is no suggestion that the Defendant was selling MDMA, cocaine and cannabis lawfully.
  3. [64]
    “Carrying on a business” connotes a continuous course of conduct engaged in to obtain a reward of a commercial character. Proof of the carrying on of a business requires the prosecution to establish several transactions done for gain over more than a brief interval. Repetition of acts, and activities of a commercial nature possessing something of a permanent character, are hallmarks of a business being carried on.
  4. [65]
    The Defendant, by the admissions and his plea of guilty,[13] accepts that he unlawfully carried on the Trafficking Business: namely, the business of trafficking in the dangerous drugs MDMA, cocaine and cannabis between 1 August 2016 and 9 October 2017.
  5. [66]
    Accordingly, the element of trafficking in dangerous drugs is proved beyond reasonable doubt.
  6. [67]
    I will consider further the alternative offence of trafficking in dangerous drugs if it is necessary to consider an alternate verdict.

The key issue

  1. [68]
    The key issue is whether I am satisfied beyond reasonable doubt that the Defendant, Scott, and Ryan were a “criminal organisation” within the meaning of Part 9D of the Penalties and Sentences Act. 
  2. [69]
    If they were, then further issues will arise as to whether the Defendant:
    1. was a participant in that “criminal organisation”; and
    2. knew, or ought reasonably to have known, the offence was being committed in association with one or more persons who were, at the time the offence was committed, or at any time during the course of the commission of the offence, participants in a criminal organisation.
  3. [70]
    The issue of whether the particularised individuals were a “criminal organisation” as defined by s 161O depends on:
    1. the interpretation of s 161O and, in particular, the meaning of “group”; and
    2. the application of that provision to the facts.

The interpretation of s 161O, including the meaning of “group”

Principles of interpretation

  1. [71]
    The principles of statutory interpretation are well-established and were summarised by Applegarth J in R v Hill (No 2)[14] as including the following:[15]
    1. In Beckwith v The Queen,[16] Gibbs J stated:

“In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences.”

  1. In R v A2, Kiefel CJ and Keane J stated:

“The method to be applied in construing a statute to ascertain the intended meaning of the words used is well settled. It commences with a consideration of the words of the provision itself, but it does not end there. A literal approach to construction, which requires the courts to obey the ordinary meaning or usage of the words of a provision, even if the result is improbable, has long been eschewed by this Court. It is now accepted that even words having an apparently clear ordinary or grammatical meaning may be ascribed a different legal meaning after the process of construction is complete. This is because consideration of the context for the provision may point to factors that tend against the ordinary usage of the words of the provision.

Consideration of the context for the provision is undertaken at the first stage of the process of construction. Context is to be understood in its widest sense. It includes surrounding statutory provisions, what may be drawn from other aspects of the statute and the statute as a whole. It extends to the mischief which it may be seen that the statute is intended to remedy… The mischief may point most clearly to what it is that the statute seeks to achieve.

This is not to suggest that a very general purpose of a statute will necessarily provide much context for a particular provision or that the words of the provision should be lost sight of in the process of construction.”[17]

  1. The language which is actually used in the text is an important guide to the statute’s purpose:  that is, “the text of a statute is important, for it contains the words being construed, and that a very general purpose may not detract from the meaning of those words.”[18] 
  2. Kiefel CJ and Keane J also observed:

“As always with statutory construction, much depends upon the terms of the particular statute and what may be drawn from the context for and purpose of the provision.”[19]

  1. The interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation.[20]
  2. The meaning of the relevant provision requires consideration of the text of the provision, not resort to paraphrases of the statutory language in extrinsic materials.[21]
  3. Consideration may be given to extrinsic material capable of assisting the interpretation:
    1. if the provision is ambiguous or obscure – to provide an interpretation of it;
    2. if the ordinary meaning of the provision leads to a result that is manifestly absurd or is unreasonable – to provide an interpretation that avoids such a result; or
    3. in any other case – to confirm the interpretation conveyed by the ordinary meaning of the provision.[22]
  4. Consistent with an interpretation of the text of a statute in its context (being an interpretation which will best achieve the provision’s purpose) regard may be had to the consequences of competing interpretations.

Relevant dictionary definitions of the word “group”

  1. [72]
    Applying these methods of interpretation, I am to look to the text of s 161O(1) and the ordinary meaning of the word “group”.
  2. [73]
    Dictionary definitions may be of some assistance.
  3. [74]
    The Macquarie Dictionary[23] includes the following definitions:

“1.  any assemblage of persons or things; cluster; aggregation.

  1. a number of persons or things ranged, or considered together, as being related in some way.”
  1. [75]
    The Shorter Oxford English Dictionary[24] defines “group” to include:

“1.   Two or more people … standing or positioned close together so as to form a collective unity; …

  1. A number of people … regarded as forming a unity or whole on the grounds of some mutual or common relation or purpose, or classed together because of a degree of similarity …”

Context – s 161O(1)

  1. [76]
    Consistent with the text of s 161O(1), not every three or more persons who are associated with each other in some way and who engage in “serious criminal activity” will be a “criminal organisation”. 
  2. [77]
    Something more is required, namely:
    1. they must constitute a “group”; and
    2. the group must be “arranged” formally or informally.
  3. [78]
    Section 161O(1)(b) provides further context: The persons who constitute the group must “by their association” represent an unacceptable risk to the safety, welfare or order of the community. 
  4. [79]
    This context:
    1. Suggests that the persons who constitute the group have an “association”.  This is in contrast to simply having something in common, which permits them to be classified or categorised together. 
    2. Necessitates evidence capable of sustaining the inference that there was association as between the three members of the group.
    3. Suggests that acts of association can occur without there necessarily being evidence of direct contact between two persons alleged to be associating.
  1. [80]
    In R v Stasiak and Turkyilmaz[25] Henry J observed that:

“[28] Broadly speaking there is evidence of persons here engaging in serious criminal activity.  No one could sensibly argue to the contrary.  Nor could anyone argue that carrying on the business of trafficking in methylamphetamine does not represent an unacceptable risk to the safety, welfare or order of the community.  The pivotal question, though, relates to the words “by their association”.  The use of such language in s 161O(1) inevitably gives rise to the requirement that there exists association between the persons who are alleged, for the purpose of the circumstances of aggravation, to be a part of a criminal organisation.

…

[30] There is ample evidence of the association of Bryan and Wieslaw.  There is ample evidence of the association of Bryan and Gokhan.  The apparently fatal obstacle to the prosecution evidence … is that there is no direct evidence of any association as between Wieslaw Stasiak and Gokhan Turkyilmaz.  I, of course, accept that evidence of association can be indirect, that is to say circumstantial, but there must be some evidence capable of sustaining the inference that there was association as between the three members of the group.

[31] It is tolerably clear that the words in s 161O(1), “by their association”, are not a reference to the entity or organisation and, rather, are a reference to the act of associating (as to which different meaning, see, for example, the definition of association in the Macquarie Concise Dictionary, 4th ed).  I readily accept that acts of association can occur without necessarily there being evidence of direct contact between two persons alleged to be associating.  …”

  1. [81]
    I agree with and adopt those comments.

Context – s 161O(2)

  1. [82]
    Further, s 161O(2) expressly provides that for the purposes of s 161O(1), “it does not matter” whether:
    1. the group of persons has a name, is capable of being recognised by the public as a group, has an ongoing existence as a group beyond the serious criminal activity in which the group engages or has a purpose or has a legal personality; or
    2. the persons comprising the group have different roles in relation to the serious criminal activity, have different interests in it or obtain different benefits from the serious criminal activity or change from time to time.
  1. [83]
    Accordingly, s 161O(2) is relevant to the meaning of “group” by clarifying the kind of group which may comprise a “criminal organisation”. 
  2. [84]
    The subsection does not contain a formal definition of “group” but provides, in effect, that a group is not required to have certain features or may have certain other features and still qualify as a “group”. 
  3. [85]
    As Applegarth J observed in R v Hill,[26] the effect of s 161O(2) is that a group may be arranged so informally and in various ways, but it nevertheless is a “group” which may constitute a criminal organisation. 
  4. [86]
    Consequently, as recognised by Applegarth J, s 161O(2) may:
    1. narrow the available ordinary meaning of the word “group”; or
    2. operate to indicate a preference for an ordinary meaning of “group” which does not require certain features, such as a name or a capacity to be recognised by the public as a group. 
  1. [87]
    If there is any ambiguity about the purpose of s 161O, and s 161O(2) in particular, regard may be had to the Explanatory Notes to the Serious and Organised Crime Legislation Amendment Bill 2016, which states as follows:

“The new definition of ‘criminal organisation’ is intended to be sufficiently broad enough to capture both traditional and hierarchically structured criminal groups; as well as shape-shifting, opportunistically formed and flexible criminal groups. This enhancement acknowledges that while [outlaw motorcycle gangs] have traditionally favoured hierarchical and highly visible models of organisation, other crime groups are now frequently informally arranged and adaptable in their structure … In framing the new definitions, the Bill takes into account the recent decision of the Honourable Justice Peter Lyons in R v Hannan, Hannan, Gills, Murrell & Hannan [2016] QSC 161; to ensure the scenario illustrated by that case is captured by the definition.”[27]

  1. [88]
    Applegarth J observed that this statement suggests that the section did not intend to adopt an artificial meaning of the word “group”, but to ensure that an available meaning of “group” is not adopted which prevents the section from applying to criminal groups which are “shape-shifting, opportunistically formed and flexible”. 
  2. [89]
    That is, it still must be a group, but it may be “informally arranged and adaptable” in its structure and as a result may not be capable of being recognised by the public as a group.
  1. [90]
    I agree with Applegarth J’s conclusion that in any case, and without reference to the Explanatory Notes, s 161O(2) is not a mandate to give the word “group” some unusual or technical meaning not associated with its ordinary usage.
  2. [91]
    Rather, s 161O(2) guides the choice of relevant ordinary meanings and emphasises that, in the present context, a group may lack things like a name or other features which enable it to be recognised by the public as a group. 

Context – s 161O(3)

  1. [92]
    Consideration also needs to be given to the context provided by s 161O(3) of the Penalties and Sentences Act.
  2. [93]
    The statutory definition of the word “engage” in s 161O(3) does little to assist with the construction of the meaning of the word “group” in s 161O. 
  3. [94]
    That is:
    1. A person who obtains a material benefit from serious criminal activity may be found to “engage” in that serious criminal activity and to do so as part of a “group”. 
    2. But not every person who obtains a material benefit from serious criminal activity undertaken by a group will thereby be a part of that group and part of a “criminal organisation”.

Context – s 161P – meaning of “participant”

  1. [95]
    The key issue requires the construction of the meaning of “group” in the context of the definition of “criminal organisation” in s 161O.  This does not require consideration at this point of the meaning of “participant”. 
  2. [96]
    However, the definition of who is a “participant” in a criminal organisation in s 161P does form part of the context. 
  3. [97]
    Relevantly, s 161P(1) identifies six circumstances in which a person may be a “participant” in a criminal organisation:
    1. One to five relate to a person who is a member, prospective member, or officer-holder of the organisation or who identifies himself or herself in any way as belonging to the organisation. 
    2. Six is if the person’s conduct in relation to the organisation would “reasonably lead someone else to consider the person to be a participant in the organisation”[28] and sets out an example. 
  4. [98]
    In R v Hilton:[29]
    1. Henry J rejected a submission that s 161P(1)(f) ought to be given a meaning confined by the range of participants referred to in subparagraphs (a) to (e) inclusive. 
    2. His Honour held that the word “participant” in s 161P(1)(f) ought carry its ordinary meaning. 
  1. [99]
    In relation to the statutory example, Henry J also observed that the example concerns persons “participating in the organisation by serving it, that is, by doing work for it”.  The examples conform to the ordinary meaning of “participation”.
  2. [100]
    I agree with and adopt Henry J’s interpretation in considering the context which s 161P provides for the proper interpretation of s 161O. 
  1. [101]
    To the extent that the statutory example provides further context,[30] as observed by Applegarth J:
    1. The example speaks of a person doing certain things “for a criminal organisation” involved in the production and sale of cannabis. 
    2. The example is apposite for a case in which A employs B and C as part of his group, and B and C do work “for” the group. 
    3. The example is not concerned with a person who does certain things “in relation to”, but not “for”, a criminal organisation.
  1. [102]
    I agree with and adopt Applegarth J’s statement in respect of the statutory example as context.

Context – s 161Q and s 161R consequences

  1. [103]
    Where there are a number of available ordinary meanings of a word such as “group”:
    1. account may be taken of the provision’s purpose and its context; and
    2. a meaning which avoids apparently unintended consequences may be adopted.
  2. [104]
    It is relevant that s 161Q creates a circumstance of aggravation.
  3. [105]
    This is relevant as:
    1. The consequences of the circumstance of aggravation being found are significant, as in addition to the sentence of imprisonment (“base component”), there is ordinarily a substantial “mandatory component”. 
    2. The general purpose of these provisions is to combat serious organised crime.
    3. Further, the circumstance of aggravation applies to a prescribed list of serious offences, often associated with organised criminal activity. 
    4. A statutory purpose is for these consequences to apply to a “participant in a criminal organisation” in defined circumstances. 
  4. [106]
    In accordance with the statutory definition of “criminal organisation”, an essential element is that the person be a participant in a “group” which qualifies as a “criminal organisation”. 
  5. [107]
    It is not sufficient to attract these consequences that three or more persons associate together in serious criminal activity.  They must constitute a “group” and “by their association” represent an unacceptable risk to the safety, welfare or order of the community.
  6. [108]
    I agree with the reasoning of Applegarth J in R v Hill (No 2)[31] that the consequences of a “serious organised crime circumstance of aggravation” were not intended to be visited upon persons who do not comprise a “group” according to a meaning of that word which does not find support in the text and context of the section.

Interpretation task

  1. [109]
    In accordance with the principles of statutory interpretation, the word “group” in s 161O should be given an ordinary meaning in context, namely:
  1. the immediate statutory context, including “arranged” and “by their association”;
  2. s 161O(2), that a group may lack or have certain features and be a “criminal organisation”; and
  3. its broader context.
  1. [110]
    Further, the word is to be applied in respect of a group of three or more persons who engage in, or have as their purpose engaging in, serious criminal activity.
  1. [111]
    In context the word “group” in s 161O is capable of applying to a group of associated criminals, arranged informally, and lacking the features of a legitimate business arrangement. 
  2. [112]
    This conclusion is based on:
    1. the context of a group of persons which engage in, or have a purpose of engaging in, serious criminal activity;
    2. the reference to them being “arranged formally or informally”; and
    3. the contents of s 161O(2).
  1. [113]
    Accordingly, it is not necessary for a “group” to have a formal organisational structure or the processes and procedures that might often be associated with a legitimate group, such as business reports and accounts.
  1. [114]
    I also agree with the words of caution expressed by Applegarth J, namely:
    1. Care is required to test the existence of an alleged “group” for the purposes of s 161O by reference to the features of non-criminal groups. 
    2. Care is also required to not undertake artificial comparisons with individuals who associate for the purpose of non-criminal activities. 
  2. [115]
    The word “group” in s 161O must be read in the context of serious criminal activity and with regard to the terms of s 161O(2).  The word is to be applied according to its ordinary meaning in its context, not given an artificial meaning.
  3. [116]
    The word “group” in its statutory context connotes some association of persons to form “a collective unity”.[32]  This interpretation accords with the meaning adopted by Henry J that there “must be some unifying combination or relation between persons for them to constitute a group.”[33]
  1. [117]
    I direct myself to apply the interpretation of s 161O and the meaning of “group’.

Evidence

  1. [118]
    The evidence is:
    1. Exhibit 1 being the admissions (which I have summarised above).
    2. Exhibit 2 being a USB containing 24 recordings of telephone intercepts.
    3. Exhibit 3 being a USB containing a single recording of a telephone intercept.
    4. Exhibit 4 being a USB containing a spreadsheet maintained by Ryan in relation to the Trafficking Business.
    5. The oral evidence of Scott.
    6. The oral evidence of Ryan.
  2. [119]
    I have been provided with a copy of transcripts of the recordings contained in Exhibit 2 and Exhibit 3[34] and an index to the recordings in Exhibit 2.[35]
  3. [120]
    I remind myself that it is important to remember that it is the sounds I hear on the recordings that constitutes the evidence. The transcript itself is not evidence: it is merely an aid to my understanding. If I hear something different from what appears in the transcript, I should act on what I have heard, and not on the transcript.
  4. [121]
    I may notice, as I listen to the recordings, that they have been edited in some respects. That may have been done to remove parts of the recording that are irrelevant to the issues I must decide. It is very common for recordings to require editing in this way before they are used in a trial. I direct myself that I am not to speculate about the parts that have been edited out. I also direct myself not to draw any inference adverse to the Defendant merely because irrelevant material has not been placed before me. To do so would be wrong and unfair.
  5. [122]
    I have not had regard to the transcripts of Items 4 and 26[36] which were not included in the recordings included in Exhibit 2.

Particular directions in respect of witnesses

  1. [123]
    The prosecution called Scott and Ryan to give evidence as part of the prosecution’s case.  Prior to considering the evidence, it is necessary to direct myself on some specific issues arising in respect of the evidence of Scott and Ryan.
  2. [124]
    In respect of Scott:
    1. I heard evidence that Scott was a drug addict at the time of the offending and may have been intoxicated on drugs at the time of the recording of the telephone calls. This is one of the things I may take into account when assessing the credibility of the witness and deciding if I accept his evidence.
    2. The prosecution relies on the evidence of Scott, who gave a statement to the police pursuant to s 13A of the Penalties and Sentences Act, which had the effect of reducing his own sentence. Further,
      1. Under that section a sentence may be reduced by the Court where the offender undertakes to co-operate with law enforcement authorities by giving evidence against someone else.
      2. If an offender receives a reduced sentence because of that sort of co-operation, and then does not co-operate in accordance with his undertaking, the sentence may be re-opened and a different sentence imposed.
      3. In these circumstances, there may be a strong incentive for a person in that position to implicate the Defendant when giving evidence.

I may take this into account when assessing the credibility of the witness and deciding if I accept his evidence.

  1. It became apparent during the trial that Scott also was convicted on his own plea of perjury.  That is, Scott took an oath or affirmation to tell the truth and failed to do so.  It is a matter for me, but this may be a further feature impacting on the credibility of Scott’s evidence.
  2. Evidence has been given that Scott has previous convictions. That is something I can take into account when considering his credibility and the weight to be given to his evidence.  Further:
    1. The fact that someone has previous convictions does not necessarily mean his evidence has to be rejected out of hand.  It is a matter for me what weight I give to the fact that he has been previously convicted.
    2. In deciding that, I look at the rest of the evidence, including any evidence that supports his evidence independently, and weigh his evidence and the fact that he has convictions in that context.
    3. If after I have done that, I am satisfied that he is a truthful and accurate witness I can act on his evidence notwithstanding that he has previous convictions.
    4. The fact that someone has a history of criminal behaviour does not necessarily mean he is lying on this occasion.  But I should keep in mind the dangers in accepting him as a truthful witness.  I have to exercise caution before I act on his evidence.
    5. But, if I am satisfied he is a truthful witness after having seen him give evidence and having considered his evidence in conjunction with the other evidence, and given due weight to the dangers about acting on his evidence, I can act on the version of facts he has given.
  1. [125]
    In respect of Ryan:
    1. I heard evidence that Ryan was a drug addict at the time of the offending and may have been intoxicated on drugs at the time of the recording of the telephone calls, and potentially preparing the spreadsheet. This is one of the things I may take into account when assessing the credibility of the witness and deciding if I accept his evidence.
    2. The prosecution relies on the evidence of Ryan, who gave a statement to the police pursuant to s 13A of the Penalties and Sentences Act, which had the effect of reducing his sentence. Further,
      1. Under that section a sentence may be reduced by the Court where the offender undertakes to co-operate with law enforcement authorities by giving evidence against someone else.
      2. If an offender receives a reduced sentence because of that sort of co-operation, and then does not co-operate in accordance with his undertaking, the sentence may be re-opened and a different sentence imposed.
      3. In these circumstances, there may be a strong incentive for a person in that position to implicate the Defendant when giving evidence.

I may take this into account when assessing the credibility of the witness and deciding if I accept his evidence.

  1. Evidence has been given that Ryan has previous convictions. That is something I can take into account when considering his credibility and the weight to be given to his evidence.  Further:
    1. The fact that someone has previous convictions does not necessarily mean his evidence has to be rejected out of hand.  It is a matter for me what weight I give to the fact that he has been previously convicted.
    2. In deciding that, I look at the rest of the evidence, including any evidence that supports his evidence independently, and weigh his evidence and the fact that he has convictions in that context.
    3. If after I have done that, I am satisfied that he is a truthful and accurate witness I can act on his evidence notwithstanding that he has previous convictions.
    4. The fact that someone has a history of criminal behaviour does not necessarily mean he is lying on this occasion.  But I should keep in mind the dangers in accepting him as a truthful witness.  I have to exercise caution before I act on his evidence.
    5. But, if I am satisfied he is a truthful witness after having seen him give evidence and having considered his evidence in conjunction with the other evidence and given due weight to the dangers about acting on his evidence, I can act on the version of facts he has given.
  1. [126]
    It was also raised in addresses whether Scott and Ryan were “accomplices” and whether a direction should be given that I should exercise caution in relying on the evidence of an accomplice that is not supported by other evidence.
  1. [127]
    It is at least arguable that Scott and Ryan are “accomplices”[37] to some extent.  Accordingly, I direct myself that:
    1. I should approach the assessment of the evidence of Scott and Ryan with caution. A person who has been involved in an offence may have reasons of self-interest to lie or to falsely implicate another in the commission of the offence.  I should scrutinise the evidence of Scott and Ryan carefully before acting on it.   
    2. It would be dangerous to convict the Defendant on the evidence of Ryan or Scott unless I find that the evidence is supported in a material way by independent evidence implicating the Defendant in the offence.
  1. [128]
    In the evidence of Scott there was reference to the mechanic at Landsborough who was visited by Scott.[38]  The prosecution could have called the mechanic to give evidence, but it did not do so.  Since there is no explanation of his absence, I may infer that nothing he could have said would have assisted the prosecution case.  I cannot infer that he would have given evidence damaging to the prosecution case.  I may find that I can accept more readily the evidence given by Scott since it is not contradicted by anything the mechanic might have said.
  2. [129]
    The Defendant has not given or called evidence.  I direct myself that:
    1. That is his right.  He is not bound to give or to call evidence.  The Defendant is entitled to insist that the prosecution prove the case against him, if it can. 
    2. The prosecution bears the burden of proving the guilt of the Defendant beyond reasonable doubt, and the fact that the Defendant did not give evidence is not evidence against him. 
    3. It does not constitute an admission of guilt by conduct, and it may not be used to fill any gaps in the evidence led by the prosecution.
    4. It proves nothing at all, and I must not assume that because he did not give evidence that adds in some way to the case against him. 
    5. It cannot be considered at all when deciding whether the prosecution has proved its case beyond reasonable doubt, and most certainly does not make the task confronting the prosecution any easier. 
    6. It cannot change the fact that the prosecution retains the responsibility to prove guilt of the Defendant beyond reasonable doubt.

Summary of evidence

  1. [130]
    This is not a case where there is evidence in respect of specific acts constituting the offence that need to be considered: such as a series of particularised drugs deals. Rather, the focus is on:
    1. the relationship and interactions between the Defendant, Scott and Ryan at the relevant time; and
    2. their knowledge at the relevant time.
  2. [131]
    In turn, the focus is on what evidence is accepted by the Court (or not) and whether the prosecution has discharged the onus.
  3. [132]
    The evidence relied upon by the prosecution (in addition to the admissions) is quite contained, being:
    1. 25 recordings of telephone calls from various dates in 2017.[39]
    2. A spreadsheet that is a record of the Trafficking Business.
  4. [133]
    Whilst the prosecution did call Scott and Ryan to give evidence at the trial, that was primarily in respect of tendering the recordings of the telephone calls, identifying the persons on the recordings of the telephone calls and asking a few clarifying questions. 
  5. [134]
    The prosecution’s position is that the witnesses were called as the prosecutor was satisfied that they were witnesses of truth.  However, the prosecution submits that I may accept parts or not accept parts of their evidence, particularly taking into account the directions in respect of the witnesses.[40]
  6. [135]
    The prosecution also accepts that there is an obvious tension between the recordings and the evidence of the witnesses given in Court. Ultimately, the prosecution submits that I should accept the “objective” evidence in the recordings over the “subjective” evidence given by the witnesses in Court. 
  7. [136]
    It is submitted that the recordings are “objective” in that the Defendant, Scott and Ryan did not know they were being recorded at the time and they were over a significant period of time.  The prosecution contends that as a consequence their statements on the recordings were unguarded and reflect the “true position” at the time.  It is submitted that the recordings are in effect a “time machine” that establishes what was the position in 2017.
  8. [137]
    It is submitted that the evidence given by the witnesses in Court is “subjective” and is given seven and a half years after their involvement. 
  9. [138]
    The prosecution submits that I need to weigh up the evidence keeping in mind the features going to credit and reliability of both Scott and Ryan, namely:
    1. co-operation pursuant to s 13A of the Penalties and Sentences Act;
    2. both were heavily addicted to drugs at the time; and
    3. both have problems with their memory.
  10. [139]
    Scott has the additional feature of a perjury conviction.  Further, the prosecution submits that Scott’s evidence in Court seemed to maintain the version of his evidence given to the Crime and Corruption Commission, so some circumspection also needs to be given to that factor.
  11. [140]
    The prosecution also points to the following:
    1. The Defendant’s and Scott’s relationship was more than just friends as evidenced in the recordings and there is a basis to conclude it was a “professional” relationship.  Their personal and professional relationships were “interconnected and intertwined”.
    2. The Defendant held Scott as a person who would use violence when needed and it does not matter whether actual violence was used in respect of the issue of whether a “group” existed or not.
    3. The Defendant kept going back to Scott, which tends to suggest Scott was “fulfilling his needs”.
    4. Scott can be an enforcer and debt collector without knowing it himself.  That is how he was described by the Defendant in the recordings.
    5. Scott could be an enforcer and debt collector without using violence.
  12. [141]
    The prosecution also recognises that if I accept the evidence of the witnesses given in Court, that evidence demonstrates that no group existed.  Which has the consequence that a criminal organisation cannot be proved.
  13. [142]
    The Defendant contends that in respect of the recordings of the telephone calls in 2017:
    1. the statements were not made under oath; and
    2. the statements were made by the Defendant, Scott and Ryan who were at various stages of intoxication.
  14. [143]
    Further, whilst the prosecution casts doubt on the witnesses, the Defendant contends:
    1. Scott gave evidence under oath and the prosecution did not make an application to have him declared “hostile”. 
    2. Ryan was never really challenged.[41]
  15. [144]
    Ultimately, the Defendant submits that the prosecution’s position urging the Court to accept the recordings as establishing beyond reasonable doubt the existence of a “criminal organisation” can only be understood as asking the Court to find the Defendant guilty on the basis of the utterances of a dishonest, drug addicted criminal.
  16. [145]
    The Defendant’s position is that Scott’s evidence at trial should be accepted as it is consistent with the progression of his “version” that was given to authorities over a period of time, including on oath.  This progression of his “version” was accepted by Scott in cross-examination at the trial.
  17. [146]
    Further, the Defendant contends that the requirements in s 161Q of the Penalties and Sentences Act are not met in three respects:
    1. The evidence does not establish a “group”,[42] in that two[43] are established but not three.[44]
    2. The evidence does not establish that Scott was a “participant”.[45]
    3. The evidence does not establish, to the extent that an association may be established, that “by their association, represent an unacceptable risk to the safety, welfare or order of the community”.[46]
  18. [147]
    The Defendant also submits that the prosecution has not established the particularised case that Scott was “the” enforcer and debt collector for “the criminal organisation”.[47]  In this respect the Defendant contends that the only debt that the evidence establishes that Scott collected was passing on some money from his associate Eli to Ryan and Scott never considered himself to be an enforcer.
  19. [148]
    It is necessary to consider the recordings, the evidence of Scott and Ryan at the trial and the spreadsheet in more detail.
  20. [149]
    The prosecution helpfully provided a summary of the specific parts of the recordings relied upon and propositions sought to be established by that evidence.[48]  This is cross-referenced back to the index to the recordings.[49]
  21. [150]
    The prosecution’s case seeks to establish a “triangle” (representing the group) constituting the criminal organisation with the Defendant at the apex and Scott and Ryan at the other two corners.  The Defendant does not contest that the Defendant and Ryan were both involved in the Trafficking Business, consistent with the admitted facts.  The prosecution relies upon the recordings to establish the “group” and accordingly relies on telephone calls between:
    1. the Defendant and Ryan;
    2. the Defendant and Scott; and
    3. Scott and Ryan.
  22. [151]
    It is convenient to consider each of these separately.

The relationship between the Defendant and Ryan

  1. [152]
    The relationship between the Defendant and Ryan is set out in the admissions, which I have previously summarised.  It is proved that Ryan was employed by the Defendant in the Trafficking Business.  Ryan was a courier and his role expanded to a record keeper for the Trafficking Business.
  2. [153]
    In respect of the relationship between the Defendant and Ryan the prosecution also relies on the recordings of telephone calls as follows:
    1. Number 7 on Exhibit 2: a call on 26 June 2017 where the Defendant said to Scott that Ryan had disrespected him (“last night gave me a bit of lip”) and the Defendant said to Scott that he told Ryan that the Defendant would use violence (“gonna give you a tune up”).[50]
    2. Exhibit 3: a call on 26 July 2017 where Ryan calls Scott at the Defendant’s request and asks Scott to go to Landsborough “tonight”.[51]
    3. Number 18 on Exhibit 2: a call on 19 September 2017 where the Defendant requests Ryan get “forms” and “paperwork” signed up[52] and for Ryan to inform him if “any dramas”.[53]
    4. Number 19 on Exhibit 2:  a call on 20 September 2017 where the Defendant calls Scott and confirms that Ryan is the Defendant’s subordinate and does what he is told: “[Ryan] doesn’t really ... have a choice… he didn’t have a choice … he’s doing what he is … told”.[54]
  3. [154]
    The Defendant submits:
    1. In respect to recording Number 18, there was no reference at all in the conversation to “Kiwi” (as Scott was referred to).  The conversation was about money in relation to drug trafficking between the Defendant and Ryan.  I note that this is consistent with the admissions.
    2. In a period of 233 days, Ryan spoke to the Defendant or Scott on 8 occasions,[55] over six days.  The conversations lasted for eleven and a half minutes or 14 pages of transcript.
    3. Ryan spoke to authorities for approximately 17 hours, over four days.  There is 986 pages of transcript and a 43-page statement of Ryan which has 333 paragraphs.  Only 10 paragraphs refer to “Kiwi” (being Scott).  Only two of those paragraphs could be considered to touch on the matters in the prosecution’s particulars in respect of “enforcer/debt collector”.
    4. Ryan described the Defendant and Scott as friends. And when asked if it was more, Ryan said, “probably a partnership” and “I guess Kiwi would be used as the heavyweight if it come down to it”.[56] I note the use of “probably” and “if it come down to it”, which are not definitive and are consistent with a level of uncertainty as to the position.
    5. In Ryan’s previous interview with police on 20 December 2017, Ryan:
      1. Had agreed with the statement that “Kiwi was one of [the Defendant’s] heavy hitters, and more towards the end he would collect debts for [the Defendant]”;
      2. Had agreed “I don’t believe Kiwi, Yeah”.  Ryan was unable to explain what he meant by this comment.[57]

This may tend to suggest that Ryan had a level of uncertainty about this statement about Scott.

  1. Ryan’s evidence was he never saw any violent or intimidatory acts.[58]
  2. Ryan in oral evidence was taken to two paragraphs of his statement to police:
    1. [163] – “Kiwi was basically, at the start [the Defendant’s] go-to guy for a bit of heavy weight and intimidation.  Kiwi sorted the issues we had with the mechanic who was working on my Mercedes-Benz.  Kiwi was told by [the Defendant] to go around to the mechanic’s house and intimidate him to speed up the process of fixing my car”; and
    2. [167] – “I don’t believe Kiwi was supplying drugs to others other than Eli.  Kiwi was one of [the Defendant’s] heavy hitters, and more so, towards the end, he would collect debts for [the Defendant].  Kiwi always had to pay for the drugs delivered.  None of it was given on tick like it was for Straz.  I never personally witnessed Kiwi committing any violent act, but I was told about them by [the Defendant] and himself”.

Ryan’s evidence was he knew he could not hold back any information in speaking to the police and the “sum total” of examples he could give of Scott acting as an enforcer/debt collector was in respect of the Landsborough mechanic.[59]  The Defendant relies on this evidence.

  1. The Defendant relies on the oral evidence of Ryan that:
    1. At no stage did he ever witness Scott threatening anyone with violence.
    2. At no stage did he ever witness any act of actual violence by Scott.
    3. The only money he ever got from Scott in his position of “running the books” was in relation to Eli’s cannabis.
    4. As best he could recall, any money that was given to him to the payment of debts would have been noted in the spreadsheet.  For the most part, money received from a person was noted in the spreadsheet.
    5. The only money that he was aware of that Scott took from the business was the loan of $500 that he gave to Scott.
    6. He cannot think of ever being aware of Scott repossessing a person’s vehicle as payment for a drug debt.
    7. Any drugs that Scott got from him, Scott had to pay for, or it would be put into the spreadsheet as owing.
    8. Scott was not his mate.  Scott was his boss’s mate.
    9. Whatever Scott and the Defendant did, he was not necessarily privy to.
    10. He physically saw Scott on a handful of occasions.
    11. There was a limited number of telephone or text contacts between him and Scott in the relevant period.
    12. Six telephone conversations between him and Scott were played to him at the trial[60] and he cannot remember other telephone contacts.
    13. In his previous discussions with the authorities, he had not described the relationship between the Defendant and Scott as a “partnership”.  Further, he had not used the words “enforcer” or “debt collector” in relation to anyone.
    14. He was primarily responsible for taking money off people.
    15. In respect of [163] and [167] of his previous statement, he was not present when Scott visited the Landsborough mechanic.
    16. Apart from the Landsborough mechanic, he was not able to identify any other particular example or instance of Scott being a “bit of a heavyweight”.
    17. It was what he had been told by Scott or the Defendant that led him to that conclusion, but he had no way of knowing whether it was true.
    18. He was the Defendant’s employee and was on a wage.  He did everything for the Defendant.  This included some of the Defendant’s personal affairs.  In respect of the business, this included delivering drugs and collecting money.
    19. Scott was the Defendant’s mate and not on a wage.
    20. Scott and the Defendant would quite often get on the drugs together.[61]
  2. The Defendant also relies on the concerns raised in respect of Ryan’s problems with his memory, his co-operation under s 13A of the Penalties and Sentences Act and the impact of the “but for” sentence on his testimony.[62]

The relationship between the Defendant and Scott

  1. [155]
    In respect of the relationship between the Defendant and Scott, the prosecution relies on the recordings of telephone calls as follows:
    1. Number 5 on Exhibit 2: a call on 19 June 2017 between the Defendant and Scott where:
      1. The Defendant complained about not being able to get hold of Scott: including “I’ve been messaging you heaps …. You’re not getting em”.[63]
      2. They discussed money that is owing, and the Defendant gives Scott permission to “go nuts”:  including “I thought I’d speak with you first ... go nuts mate”.[64]
    2. Number 6 on Exhibit 2: a call on 20 June 2017 between the Defendant and Scott where:
      1. There is a discussion about how the Defendant will be using violence and Scott requests to be collected.[65] 
      2. Scott confirms he will be going to use violence (“if you wanna come get me … I’m with you”).[66]
      3. The Defendant says, “go to war with me… gonna get blood …tonight” and Scott replies again to come get him.[67]
      4. Scott says he “won’t stand there like a dickhead” when the Defendant is using violence towards people.[68]
      5. The Defendant states he is going to be recovering cars.[69]
      6. The Defendant tells Scott he is going to get “3 cars in 3 days”.[70]
      7. Scott confirms to the Defendant that he will come with him, he does not have to be alone.[71]
      8. The Defendant tells Scott that the Defendant will be a “better debt collector” than Scott.[72]
    3. Number 7 on Exhibit 2: a call on 26 June 2017 between the Defendant and Scott where:
      1. The Defendant offers Scott a job, offering $500 for “one at Landsborough” and to “punch [him] up”.  The Defendant tells Scott his stance on violence and to enforce using violence.[73]
      2. Scott confirms he checks his Wickr communication from the Defendant.[74]
    4. Number 8 on Exhibit 2: a call on 6 July 2017 between the Defendant and Scott where they discuss a large police presence in the Noosa area.[75]
    5. Number 9 on Exhibit 2: a call on 15 July 2017 between the Defendant and Scott where Scott asks the Defendant if he had sent any Wickr messages.[76]
    6. Number 10 on Exhibit 2:  a call on 19 July 2017 between the Defendant and Scott where the Defendant offers Scott a job first before anyone else and overtly directs him to use violence (“he gets bashed today”).[77]
    7. Number 12 on exhibit 2:  a call on 19 August 2017 between the Defendant and Scott where the Defendant and Scott are in transit to a house (“Strazza’s mate”)[78] and discuss police presence in unmarked cars.[79]
    8. Number 13 on Exhibit 2:  a call on 28 August 2017 between the Defendant and Scott where:
      1. Scott tells the Defendant that he is the boss, but he might have to pay overtime.[80]
      2. The Defendant and Scott joke about Ryan, and not joke about other people.[81]
    9. Number 14 on Exhibit 2:  a call on 2 September 2017 between the Defendant and Scott where:
      1. The Defendant offers Scott work.[82]
      2. The work would be in Kawana.[83]
      3. Scott confirms the Subaru vehicle[84] is accumulating tolls.[85]
    10. Number 15 on exhibit 2: a call on 8 September 2017 between the Defendant and Scott where:
      1. The Defendant confirms to Scott that he cannot do anything about the vehicle[86] until Ryan returns from the Gold Coast.[87]/[88]
      2. The Defendant confirms to Scott to leave the fines for the tolls and he will pay them.[89]/[90]
    11. Number 16 on exhibit 2:  a call on 9 September 2017 between the Defendant and Scott where:
      1. The Defendant tells Scott that Scott is the only one who has told the Defendant to calm down in the past 5 years.[91]/[92]
      2. The Defendant tells Scott that he will give him an address for violence to be used (“… if you want … happy for you to go …” and agrees to “hurt people”).[93]/[94]
    12. Number 19 on exhibit 2:  a call on 20 September 2017 between the Defendant and Scott where:
      1. The Defendant and Scott discuss showing Ryan something the other day.[95]
      2. Scott confirming that he is not working on two days and offers his vehicle to the Defendant.[96]
      3. The Defendant says that he does not need anything other than “honesty, loyalty and good friends”, does not need the debts he is owed by Scott to be paid.  The Defendant acknowledges this is what Scott gives him.[97]
      4. The Defendant confirms that the $500 does not need to be repaid.[98]
      5. Scott confirms that irrespective of the $500 not needing to be repaid, he is good for it which the Defendant acknowledges.[99]
      6. The Defendant confirms to Scott that Ryan does not have a choice, he does what he is told.[100]
      7. The Defendant and Scott discuss Ryan’s birthday.  The Defendant does not care that it is Ryan’s birthday and won’t give him the day off work.  Scott confirms that he and Ryan discussed the Defendant’s ability to give him the day off.[101]
    13. Number 20 on Exhibit 2:  a call on 27 September 2017 between the Defendant and Scott where the Defendant offers Scott a “bug sweeping device” to avoid[102] police (“to make sure your place is …not bugged out”).[103]
    14. Number 24 on Exhibit 2: a call on 1 October 2017 between the Defendant and Scott where:
      1. The Defendant confirms that he went back to Deception Bay.[104]
      2. It was confirmed that the Defendant sent Scott to do a story check.[105]
      3. The Defendant confirms that Scott was sent to confirm the story.[106]
      4. Scott apologised for the poor results that he achieved (“I know mate and I apologise … you can ask him I said no mate I’ve got to sort this out’).[107]
      5. The Defendant setting out the role that Scott has and why he can achieve different outcomes to others that he could send to do the task (“sending you like you’re a friendly … you can blend in like a chameleon”).[108]
      6. Concluded that police reports are required.[109]
      7. Scott remarks that he wishes they came back with a car (“I wanted to come back with a car for ya”).[110]/[111]
      8. Scott confirms he has been injured (“sore shoulder ... bit of damage … I’ve got a … bruise on me”.[112]/[113]
    15. Number 25 on Exhibit 2: a call on 1 October 2017 between the Defendant and Scott where:
      1. When Scott needed to get in touch, he got the Defendant’s and Ryan’s number from “Tone”.[114]/[115]
      2. The Defendant confirms he does not do business around Caloundra and confirms from Mooloolaba to Caloundra is a “no go-zone”.[116]/[117]
  2. [156]
    The Defendant submits:
    1. All of the interviews with Scott by various authorities were over seven days, with at least 12 and a half hours of interviews and 654 pages of transcript.
    2. A large part of the recordings is “rambling conversations” between mates.
    3. Recording Number 19 on Exhibit 2 includes the statement “even though you haven’t come back with anything, you’ve at least done the legwork.” Scott’s evidence was that he had never collected or recovered any money and given it to the Defendant, except for the Eli money which he had given to Ryan.[118]
    4. The Defendant relies on Scott’s evidence at the commencement of his cross-examination, including:
      1. He and the Defendant were mates and they talked about things “close to [their] hearts and in [their] lives”.
      2. A lot of the times he and the Defendant were both affected by drugs.
      3. There were a lot of rambling conversations between him and the Defendant as they were both under the influence of drugs.
      4. Despite what was in the recordings, he only collected money once through Ryan for the Defendant which was about $3,500 for his associate, Eli.  Eli came to his house to drop off $3,500 to give back to Ryan.  He was not tasked to collect the money by Ryan or the Defendant.  The money was handed to him to hand to Ryan.
      5. Never once did he lay a finger on any person he met or had to speak to.  He never assaulted any person.
      6. He never on any occasions went out to collect debts from any person who allegedly owed money to Ryan or the Defendant.
      7. On a number of occasions, he went with the Defendant in his car when the Defendant went to see people.  He never got out of the car and did not take part in any conversations between the Defendant and the other person.[119]  He did not step in and act like the Defendant’s security.[120]
    5. Further, the Defendant relies on Scott’s answers in cross-examination, including:
      1. Scott told police in a previous interview that he had not belted anyone for nearly 20 years.  He also said that the Defendant “just call[ed] the suicide squad bikies for his intimidation, thankfully”.[121]  Scott confirmed that was true at the trial.
      2. Scott was questioned about the roles of various persons, and he accepted that Ryan was the secretary and on a wage.  Further Scott agreed with the description of his relationship with the Defendant as mates, the Defendant “haphazardly requested him to help [the Defendant] out” and for his help he would primarily get drugs.[122]
      3. Further on 2 August 2022 Scott spoke to police and in the 106-page transcript he was asked about his knowledge of Ryan. Scott’s evidence was that Ryan was the money collector for the business.[123]
      4. In relation to visiting the Landsborough mechanic, when Scott previously spoke with the police, he said he was supposed to “put the wind up the mechanic”. Scott’s evidence was that he never did.[124]
      5. In a previous interview with the police, Scott had given further details in respect of the Landsborough mechanic, including that when he went there he “smoked some crack, some methylamphetamine [with the guy] and basically left”.  That was the first time he went there with the Defendant.[125]  Another time he just sat in the vehicle, as the mechanic was fixing a vehicle.[126]  On the third occasion he went there as there were issues with the Mercedes-Benz.  The Defendant had earlier sent the “suicide squad” and asked him to follow-up.  Scott said he was giving the mechanic a warning as his whole family was there.  The mechanic hugged and thanked him.[127]  He lied to the Defendant and said it was taken care of.[128]  Scott confirmed this in his evidence at trial.
      6. Scott did not collect any money or debts owed to the Defendant from anyone (except for the one occasion involving money from Eli).[129]
      7. Nor did he seize any motor vehicles from customers.[130]
      8. His previous evidence[131] was that he could not recall any specific jobs that he undertook as a debt collector or an enforcer.  But he did go to a couple of people’s places, but nothing happened.  Scott confirmed this at trial.[132]
      9. He spent a lot of time hanging out with the Defendant and using a “tonne of drugs, getting high”.  He was keeping company with the Defendant for the reason of getting drugs.[133]
      10. His previous evidence[134] when asked about whether he had acted as an “enforcer” was “I stood there and looked pretty; that’s about it … I didn’t actually harm anyone … and didn’t threaten anyone”.[135]
    6. Out of the period of 233 days, there were 17 instances of contact between the Defendant and Scott, over 16 days.  There are a number of sizable gaps.  For example:
      1. Between recording Number 1 and 5 there was a two-and-a-half-month gap.[136]
      2. Recordings Number 5 to 10 occur between 19 June and 19 July 2017.  Then a month gap before recording Number 12 on 19 August 2017.  Then a number of recordings from then up to 1 October 2017.
      3. There is not daily contact.  If Scott was integral to the Trafficking Business you would expect to see more contact.
    7. Scott also had a job at the Noosa Council.
    8. The Defendant also relies on the concerns raised in respect of Scott’s drug addiction, problems with his memory, his co-operation under s 13A of the Penalties and Sentences Act and the impact of the “but for” sentence on his testimony.[137]
    9. Scott is facing possible deportation to New Zealand and his giving evidence may be considered in respect of his application for revocation of the cancellation of his visa.[138]
  3. [157]
    Further, the Defendant relies on the evidence of Scott as to the submission made by Scott’s lawyer[139] in respect of recording Numbers 6, 7, 9, 10, 14, 17, 20 and 24 on Exhibit 2.[140] The submission provided an explanation of some of the telephone calls on instructions from Scott.
  4. [158]
    In particular, in respect of the following recordings:
    1. Number 6 on Exhibit 2 on 20 June 2017:
      1. “It is alleged that this TI indicates that [the Defendant] told [Scott] he would drive with him to collect debts provided [Scott] would hit some [people] to which [Scott] allegedly responded ‘I’m going hard at [them] tonight’.”
      2. “Firstly, we note that at 1.52 [the Defendant] states that he is paying three other crews, including [Scott], however, then says ‘not our client yet’. We submit that this clearly demonstrates the date range of the alleged offending is incorrect, as [the Defendant] clearly indicates that he isn’t paying [Scott] as at 20 June 2017.  [The Defendant] had already left for the Sunshine Coast and was ‘smashing down the highway’ to attempt to collect debts at the time of the phone call.  [Scott] offers to attend with [the Defendant] and states that if [the Defendant] goes off, he’s going to as well as he isn’t going to stand there like a fucking dickhead.  We submit that there is no evidence to suggest that [Scott] attended these collections with [the Defendant] and there is no evidence that the conversation went any further beyond the simple offer by [Scott] which could simply be construed as puffery.”
      3. This was confirmed by Scott at the trial.[141]
    2. Number 7 on Exhibit 2 on 26 June 2017:
      1. “It is alleged that this TI conversation between [the Defendant] and [Scott] whereby [the Defendant] states that he would give [Scott] a cash bonus of $500 if he attends [the Defendant’s] uncle’s mate in Landsborough and ‘punches’ [him] up as he owed [the Defendant] about $2000.”
      2. “We submit that this payment is not an extra.  It’s simply a fee for our client to attend the residence as requested.  We submit that there is no evidence that our client actually attended, nor that our client was actually paid a salary as alleged, or that this even relates to a drug debt.”
      3. This was confirmed by Scott at the trial.[142]
    3. Number 9 on Exhibit 2 on 15 July 2017:
      1. “It is alleged that the TI demonstrates [the Defendant] enlisting [Scott’s] help with organising and facilitating the sales of cars that they repossessed from delinquent customers.”
      2. “We submit that this conversation is actually in relation to [the Defendant] purchasing a car from a friend of [Scott]. [The Defendant] asked [Scott] if his mate is ‘still keen on selling that fourbie’.  Further, [the Defendant] makes mention of [Scott] arranging for [Scott’s] mate to bring the vehicle over to [the Defendant] so he can have a look at it.”
      3. “We submit that this TI does not relate to the sale of repossessed cars but, in fact, a car that [the Defendant] was considering buying.”
      4. This was confirmed by Scott at the trial.[143]
    4. Number 10 on Exhibit 2 on 19 July 2017:
      1. “It is alleged that this TI is a conversation between [the Defendant] and [Scott] where [the Defendant] gives [Scott] the first attempt at collecting a $10,000 debt from Landsborough.  It is alleged that [the Defendant] states that he will alienate him and wants [Scott] to ‘Boot in his door, kick [him] down; do whatever you want’.”
      2. “We accept [Scott] agreed to do this; however, submit that there is no evidence that the collection actually took place.  Again, this is simply puffery on [Scott’s] behalf.”
      3. This was confirmed by Scott at the trial.[144]
    5. Numbers 14 and 17 on Exhibit 2 on 2 and 11 September 2017:
      1. “It is alleged that these TIs relate to [the Defendant] paying [Scott’s] toll fines that he incurred when he was on the job collecting debts.  We submit that these conversations are in relation to Ryan using the vehicle that was registered in [Scott’s] name and incurring toll notices that [Scott] was not responsible for.  In fact, Ryan specifically contacts [Scott] [Number 17] and apologises for the tolls and ‘all that shit on the car’. Finally, Ryan mentions the toll notices in his statement to police.  At paragraph 166, he states that he used the Subaru that was registered in [Scott’s] name for months and that he attended the Department of Transport with [Scott] to put the registration in his name to stop the tolls going into [Scott’s] name.  We submit that the TIs do not demonstrate that [the Defendant] was paying toll fines that [Scott] had accrued while he was on the job, but rather the toll fines [were] that Ryan had accrued while driving the Subaru that was registered in [Scott’s] name.”
      2. This was confirmed by Scott at the trial.[145]
    6. Number 20 on Exhibit 2 on 27 September 2017:
      1. “It is alleged that during this TI, [Scott] expresses to [the Defendant] a suspicion that he was being followed.  It is alleged that [the Defendant] told [Scott] that he had a scanning device at home that would detect any bugs and encouraged [Scott] to purchase one.  It is alleged that [the Defendant] indicated they cost $3,500.  We submit that there is no encouragement by [the Defendant] to [Scott] to purchase the scanning device.  [The Defendant] simply states that he had one at home that [Scott] can borrow if he ever requires.  This is not evidence of his involvement in the trafficking/supplying, but may simply be due to [Scott] being a drug user.”
      2. This was confirmed by Scott at the trial.
      3. Further, Scott never purchased a bug detector.[146]
    7. Number 24 on Exhibit 2 on 1 October 2017:
      1. “It is alleged that this TI is a conversation between [Scott] and [the Defendant] in relation to a story check on a customer.  It is alleged that [the Defendant] demanded that [Scott] get the customer to produce police records.  We submit that this conversation makes it clear that [Scott] was a user of methylamphetamine. [The Defendant] discussed sending [Scott] to do a story check, however, appears unsatisfied at the job [Scott] did due to his level of intoxication.”
      2. This was confirmed by Scott at the trial.[147]
  5. [159]
    Further, the Defendant submits:
    1. In respect of recording Number 8 on Exhibit 2, this job was in relation to the Landsborough mechanic (which has been considered previously).  This was not in relation to a drug debt but in respect of repairs to a vehicle.
    2. In respect of recording number 13 on Exhibit 2, this is properly characterised as a long, drug fuelled raving.
    3. In respect of recording Number 19 on Exhibit 2, this is properly characterised as a tirade from the Defendant who was obviously affected by drugs about people not paying for drugs.
    4. There is no evidence that any customers were assaulted or terrorized by the Defendant or Scott.
    5. There was no “group” but, if anything, it was haphazard.
    6. If there was an association between the Defendant, Scott and Ryan it does not meet the statutory requirement and the prosecution has not proven beyond reasonable doubt they were a “group”. 
    7. There was no “collective unity”.

The relationship between the Scott and Ryan

  1. [160]
    In respect of the relationship between the Scott and Ryan the prosecution relies on the recordings of telephone calls as follows:
    1. Number 1 on Exhibit 2:  a call on 9 April 2017 between Scott and Ryan[148] where:
      1. Scott confirms to Ryan difficulties with Wickr.[149]
      2. Scott confirms that he has had no contact with the Defendant and the Defendant was not answering his phone (“old mate’s ... not answering”).[150]
      3. Ryan queries whether Scott wants an address (“yeah, but on Wickr, I don’t want the address on my phone”).[151]
      4. Scott accepted the offer for the address and to let “him” know he was on his way.[152]/[153]
    2. Number 2 on Exhibit 2: a call on 12 April 2017 between Scott and Ryan where Scott requested $500 from Ryan.[154]/[155]
    3. Number 3 on exhibit 2: a call on 13 April 2017 between Scott and Ryan where Scott requests that Ryan not tell the Defendant about the money and comments on the Defendant’s anger/temper (“he’ll go … off’).[156]
    4. Number 7 on Exhibit 2: a call on 26 June 2017 between the Defendant and Scott where the Defendant says that Ryan has disrespected him (“give me a bit of lip”) and the Defendant confirmed to Scott that he told Ryan that he would use violence (“gonna give you a tune up”).[157]
    5. Exhibit 3: a call on 26 July 2017 between Scott and Ryan where Ryan, on behalf of the Defendant, makes a job offer to Scott and Scott confirms that violence will be used and requests parameters (“what am I … doing, terrorising them, smacking them … I know I am going to smack them, but do I have to take anything?”).[158]/[159]
    6. Number 11 on Exhibit 2:  a call on 26 July 2017 between Scott and Ryan where:
      1. Ryan gave Scott technological advice as to how to get a new Wickr account.[160]
      2. Scott lamenting Ryan for not seeing him recently and requesting that the next time Ryan is in his area to have contact (“next time you are up there call me”).[161]
    7. Number 17 on Exhibit 2:  a call on 11 September 2017 between Ryan and Scott where:[162]
      1. They discuss the tolls the vehicle was accruing.[163]/[164]
      2. Discussing violence and a personal tragedy of Scott, in what appears to be as a result of a drug debt and someone being beaten to death by eight people, including a reference to the “Mongrel Mob”.[165]/[166]
      3. Scott confirms that he is available to work and that he has two days off from his job[167] to be available.[168]
    8. Number 19 on Exhibit 2:  a call on 20 September 2017 between the Defendant and Scott where:
      1. The Defendant confirmed to Scott that Ryan does not have a choice and he does what he is told.[169]
      2. Scott being aware of when Ryan’s birthday is.[170]/[171]
      3. Scott confirms to the Defendant that he has just spoken with Ryan, and he is on his way to a location.[172]/[173]
      4. The Defendant tells Scott that he has to have a phone call with Ryan about the vehicle[174] and steps taken in relation to that and when that could occur.[175]
      5. The Defendant confirms to Scott that the Defendant will not let Ryan take time off work for his birthday, based on a conversation that Ryan and Scott had shared when the two of them met up.[176]
    9. Number 21 on Exhibit 2:  a call on 28 September 2017 between Scott and Ryan where Ryan confirms that he is not able to act until he gets approval from the Defendant.[177]/[178]
    10. Number 22 on Exhibit 2: a call on 30 September 2017 between Scott and Ryan where Ryan tells Scott that he cannot do anything until the Defendant has given approval and that the Defendant is unavailable (“I can’t do anything until I get a hold of him … I can’t get hold of him”).[179]/[180]
    11. Number 23 on Exhibit 2: a call on 30 September 2017 between Scott and Ryan where:
      1. Scott discussed a pound of cannabis he obtained that was underweight.[181]
      2. Scott speaking in code, namely that it was an “oscar” underweight.[182]/[183]
      3. Ryan informs Scott that notes are to be taken, photographs obtained so that records can be kept.[184]/[185]
  2. [161]
    The Defendant submits:
    1. Relies upon the matters identified above under the heading “The relationship between the Defendant and Ryan”.
    2. Recording Number 2 and Number 3 on Exhibit 2 deal with Scott seeking a loan of $500.  There is then no contact between them for three and a half months.  Then there is the recording Exhibit 3 with the reference to a job in Landsborough.  Then on the same day, 26 July 2017, there is a call between Scott and Ryan regarding problems with Wickr.  Then there is a gap of over 2 months before the next calls.  Recordings number 21, 22 and 23 on Exhibit 2 all happen within a couple of days and are in relation to mouldy cannabis.
    3. The call on 26 July 2017 (exhibit 3) is the only conversation possibly within the prosecution’s contention of being an enforcer and debt collector.
    4. Other than the six telephone calls played to him, Ryan’s evidence was he could not recall any other occasions when Scott and Ryan had telephone conversations between Scott and Ryan.  In re-examination his answer was it was possibly more, but he could not remember.
    5. Over a period of 233 days, Scott and Ryan spoke on seven occasions over five days.  Further, this was for a total of 10 and a half minutes or 13 pages of transcript.[186]  And there was only one conversation that could possibly come within the particulars of “enforcer/debt collector”.
    6. However, the Landsborough mechanic had nothing to do with drugs as it was in relation to a dispute over repairs to a motor vehicle.
  3. [162]
    Exhibit 4, the spreadsheet maintained by Ryan contained information consistent with business records.  That is not surprising given it is admitted, and I take as proved, that the Defendant and Ryan were undertaking the Trafficking Business.
  4. [163]
    The prosecution contends that the spreadsheet is a telling piece of evidence, but the prosecution does acknowledge it does have flaws (for example, it was not updated every day) and it may be open to be interpreted in different ways.
  5. [164]
    In particular, the prosecution points to the references to “Kiwi” (being Scott)[187] including:
    1. Line 22:  Scott had a drug debt of $3500 at 5 April 2017.
    2. Line 58: By 12 April 2017 the debt is gone.
    3. Line 482: By 1 July 2017 a debt of $500. 
    4. Line 513: By 2 July 2017 the debt is gone.
    5. No entry for $500 on 12 or 13 April 2017 consistent with the recordings Number 2 and 3 in respect of Scott borrowing $500 from Ryan on behalf of the Defendant but Scott asked this be kept from the Defendant.
  6. [165]
    The Defendant’s submissions at [154] above include consideration of the spreadsheet.

Does the evidence prove beyond reasonable doubt a “criminal organisation”?

  1. [166]
    It is necessary to consider the interpretation of s 161O of the Penalties and Sentences Act and the facts. 
  2. [167]
    The issue is whether the prosecution has proven beyond reasonable doubt that the Defendant, Scott and Ryan were a “criminal organisation” within the meaning of Part 9D of the Penalties and Sentences Act.
  3. [168]
    The prosecution must prove that the Defendant, Scott and Ryan were “a group of 3 or more persons”, whether arranged formally or informally:
    1. who engaged in, or had as their purpose (or one of their purposes) engaging in, serious criminal activity; and
    2. who, by their association, represented an unacceptable risk to the safety, welfare or order of the community.
  1. [169]
    In the current circumstances, the key issue is whether they did so as a “group” of three or more persons in light of the interpretation of s 161O outlined above.
  1. [170]
    Further, s 161O implicitly requires that the three or more persons who are alleged to constitute a group must have an “association”.  Accordingly, it is also necessary to consider whether the Defendant, Scott and Ryan have an “association” for the purposes of s 161O of the Penalties and Sentences Act.
  2. [171]
    As Henry J observed in R v Stasiak and Turkyilmaz:[188]
    1. evidence of association can be indirect (being circumstantial evidence); and
    2. acts of association can occur without there necessarily being evidence of direct contact between two persons alleged to be associating. 
  1. [172]
    Henry J also observed that there must be evidence capable of sustaining the inference that there was an association as between the three members of the group.
  2. [173]
    Section 161O(2)(a)(ii) states that for the purposes of ss 161O(1) it does not matter whether the group of persons “is capable of being recognised by the public as a group”.  I apply this provision as meaning that it does not require that kind of element in order to constitute a “group”. 
  3. [174]
    In the statutory context the persons comprising a group may have different interests in, or may obtain different benefits from, the serious criminal activity.[189] 
  1. [175]
    Accordingly, I remind myself that:
    1. A “group” may be arranged informally, that it need not have a name, that it need not be capable of being recognised by the public as a group and that it can have the features referred to in s 161O(2)(b).
    2. The individuals alleged to constitute the “group” must still qualify as a “group” of three or more persons who are arranged and have the “association” to which s 161O(1)(b) refers. 
    3. In deciding whether the particularised individuals constituted a “group” within the meaning of that section, I do not inquire whether or not they might be a “group” according to any one of many available dictionary definitions, for example, because it is possible to categorise them as having things in common, namely each being a criminal.
    4. Section 161O(2) and other statutory contexts of the word “group” provide some guidance that the word “group” in s 161O(1) connotes some association of persons to form a collective unity.
    5. As Henry J observed, “there must be some unifying combination or relation between persons for them to constitute a group”.[190]
  1. [176]
    Accordingly, it is necessary to consider whether the evidence establishes beyond reasonable doubt that the Defendant, Ryan and Scott had the collective unity to constitute a group.
  2. [177]
    There are many difficulties with the evidence in this case, including:
    1. The prosecution only relies on the recordings of telephone calls between the Defendant, Ryan and Scott (Exhibits 2 and 3) and the Exhibit 4 spreadsheet in addition to the admissions.
    2. The admissions prove that the Defendant employed Ryan in the Trafficking Business.  
    3. The prosecution relies on the recordings of the telephone calls and the spreadsheet to prove contact between the Defendant and Scott and also Ryan and Scott.  In turn, the prosecution relies on the same evidence, with inferences drawn from that evidence, to prove they were a “group” of three, “association” and that Scott was a “participant”.
    4. The Defendant, Ryan and Scott did not know their telephone calls were being recorded, so it could be inferred that they were unguarded in their statements.
    5. However, at the relevant time in 2017 the Defendant, Ryan and Scott were all drug addicts who regularly used large amounts of drugs.
    6. Listening to the recordings, on many occasions the conversations are frenetic and resemble a stream of consciousness rather than a structured conversation.  The conversations are riddled with expletives and cross-conversations, with each person often interrupting the other.  A significant part of the recordings is consistent with the indicia of drug use and a level of intoxication by the people involved in the conversations.  The recordings include hyperbole and what would commonly be described as “trash talk”.
    7. The prosecution accepts that for a finding of guilty of the circumstance of aggravation, I must accept the evidence in the recordings.  However, this assumes that the recordings are capable of being probative, cogent and persuasive evidence of the matters discussed in the conversations.
    8. The matters discussed in the conversations are often vague and/or inconsistent: both internally and across recordings.
    9. The only contemporaneous evidence outside of the recordings is the spreadsheet.  The spreadsheet is itself ambiguous. Further, the probative value of the spreadsheet must also be questioned when it was maintained by a drug addict who used drugs regularly, who had long standing memory problems and there is only very superficial evidence of the “usual process” adopted to prepare and maintain the spreadsheet.
    10. There is evidence of alternative explanations inconsistent with the contentions made by the prosecution in respect of eight of the recordings (numbers 6, 7, 9, 10, 14, 17, 20 and 24 on Exhibit 2).  These alternative explanations are supported by the witness Scott, previously in a submission made by his lawyers, and also in evidence at trial.
    11. Two of the recordings (Numbers 13 and 19 on Exhibit 2), not the subject of an alternative explanation, have clear indicia of intoxication by drugs and could be described as “ravings”, “a rant”, and contain hyperbole.[191]
    12. One recording (Number 8 on Exhibit 2) may be relevant to whether Scott acted as an enforcer, but the other evidence is that this involved work done on a motor vehicle and was not a drug debt.
    13. Ryan was a drug addict and has long term memory problems.  These factors alone would impact on his reliability and credibility as a witness given the effluxion of over seven years since the relevant events.  This is further exacerbated by the cooperation given pursuant to s 13A of the Penalties and Sentences Act and that he has a significant incentive to give evidence on behalf of the prosecution or risk the alternative sentence.
    14. Scott also was a drug addict and has some memory problems.  Again, these factors alone would impact on his reliability and credibility as a witness given the effluxion of over seven years since the relevant events.  This is further exacerbated by the cooperation given pursuant to s 13A of the Penalties and Sentences Act and that he has a significant incentive to give evidence on behalf of the prosecution or risk the alternative sentence.  Scott also has a conviction for perjury which may adversely impact his reliability and credibility as a witness, as well as his potential deportation to New Zealand which is currently hanging over him.[192]
    15. In many respects it is impossible to reconcile the evidence on the recordings with the oral evidence at trial, both of which need to be approached with considerable caution.
  3. [178]
    There is no clear evidence that Scott was employed by the Defendant and was paid a salary or wage.  At best, the evidence establishes that Scott did piecemeal work on an ad hoc basis.  But there is also no clear evidence of Scott’s role and whether any work that was done, was done for the Trafficking Business of the Defendant (or for “the criminal organisation”, if one is established).
  4. [179]
    The prosecution seeks to prove that Scott was “the enforcer and debt collector for the criminal organisation”.  Further, that he had a “central role” which was to:
    1. Recover money owed to the criminal organisation from customers, at the direction of the Defendant, and deliver the recovered money to the Defendant.
    2. Threaten to use violence in order to obtain that money owed.
    3. Repossess cars on behalf of the criminal organisation at the direction of the Defendant, and deliver them at the Defendant’s direction to the Defendant or elsewhere.
    4. Use hire cars as directed by the Defendant, leased by the Defendant, to carry out these tasks.
    5. At the Defendant’s direction, attend meetings with the criminal organisation’s suppliers with the Defendant.
    6. Drive the Defendant to business meetings and otherwise attend his home while drugs and cash were present.
  5. [180]
    For the prosecution to establish its case it would not be fatal if one or more of these particulars were not established.  However, there would need to be a sufficient level of proof that Scott had a role in association with the Defendant and Ryan, with a unity of purpose in respect of the Trafficking Business such as to constitute a “group”.
  6. [181]
    The evidence in respect of Scott actually recovering money is only in respect of one occasion when an associate of Scott, Eli, gave him money to give to Ryan.
  7. [182]
    Further, the only evidence where Scott may have “enforced” or “intimidated” someone is the mechanic at Landsborough.  This was not a drug debt but was in respect of work on a motor vehicle.  Scott’s previous evidence that he warned the mechanic and they ended up “hugging” appears unlikely but this also needs to be considered in light of the absence of any evidence of actual violence or threats being used.[193]
  8. [183]
    Despite the “big talk” in the recordings, Scott’s evidence was that he never used actual violence or threats.  Further, Ryan was unable to point to any occasion (other than the Landsborough mechanic).[194]
  9. [184]
    Scott’s evidence was that he used to lie to the Defendant and did not do what he was asked as all he wanted was the drugs that the Defendant supplied.  The prosecution contends that this does not matter.  However, it is difficult to see how there is the necessary association for the purpose of the criminal organisation if an alleged critical person is not in fact associating and/or engaging for that purpose.
  10. [185]
    There is no evidence of Scott actually repossessing cars, let alone doing so for the criminal organisation.  The recordings suggest that it had occurred but other than that there is no probative evidence of it in fact occurring.
  11. [186]
    There is some evidence that Scott travelled to Sydney on two occasions.  Further, there is some evidence that he knew the purpose was drugs.  But other than that, very general purpose, there is no evidence of Scott’s knowledge or involvement.  There is some evidence of the use of an Uber and flights.
  12. [187]
    There is also some evidence that Scott drove the Defendant to various places.  Scott had knowledge that the Defendant’s business was drugs around Brisbane and the Sunshine Coast.
  13. [188]
    However, there is also evidence that Scott and the Defendant were friends and spent time together using drugs.  Scott’s evidence was that his relationship with the Defendant was important to feed his drug habit.
  14. [189]
    There is evidence of the use of the encrypted messaging application, Wickr.  Ryan assisted Scott setting this up.  However, the use of Wickr is consistent with Scott being part of the drug culture and a regular drug user.  That in itself does not establish that Scott was part of a criminal organisation.
  15. [190]
    There is evidence of contact and a link between each of the Defendant and Ryan, the Defendant and Scott, and Scott and Ryan.  There is evidence to establish the roles of the Defendant and Ryan, and their association with the Trafficking Business.  However, there is little probative, cogent and persuasive evidence to establish a definite role of Scott in relation to either of the Defendant and Ryan or any particular association with the Trafficking Business.[195]
  16. [191]
    To the extent that there are linked relationships here between Scott and the Defendant and Ryan, there is little if anything to suggest a unified endeavour to effect anything, let alone the Trafficking Business.
  17. [192]
    The prosecution has the onus of proving the alleged circumstance of aggravation and must prove it beyond a reasonable doubt.  It is not sufficient for me to conclude that the particularised individuals probably were a group.  The prosecution must:
    1. Exclude the reasonable inference or conclusion that they were not. 
    2. Satisfy me beyond a reasonable doubt of the fact of the alleged “group”. 
  18. [193]
    I am not satisfied to that high standard.  Therefore, I am not satisfied that the circumstance of aggravation has been proven beyond reasonable doubt.

Verdict

  1. [194]
    Accordingly, in respect of Count 1 on Indictment 196 of 2021 (Trafficking in dangerous drugs with serious organised crime circumstance of aggravation), I find the Defendant not guilty.
  2. [195]
    It is then necessary to consider the alternative offence of trafficking in dangerous drugs, without the circumstance of aggravation.
  3. [196]
    On the alternative of trafficking in dangerous drugs, I find the Defendant guilty.

Footnotes

[1]  Count 1 on Indictment 196 of 2021.

[2]  The first three lines of Count 1 on Indictment 196 of 2021.

[3]  That is, “by their association, represent an unacceptable risk to the safety, welfare or order of the community”.

[4]  That is, simpliciter (being the first three lines of Count 1).

[5]  Being the date of assent.

[6]  [2023] QCA 168.

[7]  The indictment stated the trafficking period as from 1 January 2014 to 2 March 2018.  That is, a period of almost 2 years before the commencement of s 161Q, with an end date after the commencement of s 161Q.

[8]  [2020] QSC 231.

[9]  I rely on the full particulars set out in MFI “A”.

[10]  On 5 April 2023, the Defendant pleaded not guilty to Count 1 on Indictment 196 of 2021 and guilty to Counts 5, 6 and 7.  The allocutus was administered in respect of Counts 5, 6 and 7. The Defendant was arraigned on trafficking (being the first three lines of Count 1 on the Indictment), the defendant pleaded guilty.  The prosecution did not accept the plea in discharge of Count 1 on the Indictment. The allocutus was not administered in respect of Count 1.  The Defendant was arraigned again at the commencement of the trial and the same pleas were entered.  The Defendant has not been convicted of trafficking but this can be understood to be that the Defendant admits the facts establishing the elements of the offence of trafficking in dangerous drugs.

[11]  The footnote in the particulars is to (i) but in closing addresses it became apparent that the correct reference should be to (ii).  Further, the reference to s 161Q(1)(b)(i) in the note in the margin of the Indictment is also incorrect as Count 1 on the Indictment reflects s 161Q(1)(b)(ii).  The prosecution and the Defendant agreed there was no prejudice by the typographical error as the way the prosecution put the case was always understood.  It was also accepted that the note in the margin could be corrected pursuant to s 572 of the Criminal Code. However, the parties submitted that this was strictly necessary.

[12]  Exhibit 1 at [4] states “1 August 2017”, although the trafficking period in Count 1 on the Indictment commences at “1 August 2016”.

[13]  To the first three lines in respect of trafficking in dangerous drugs.

[14]  (2020) 6 QR 1; [2020] QSC 309 at [67] to [73].

[15]  Applegarth J had regard to the summary of Peter Lyons J in R v Hannan (2016) 259 A Crim R 558; [2016] QSC 161 at [35]-[43].

[16]  (1976) 135 CLR 569 at 576.

[17] R v A2; R v Magennis; R v Vaziri (“R v A2”) (2019) 373 ALR 214; [2019] HCA 35 at [32]-[34].

[18]  At [36].

[19]  Ibid.

[20] Acts Interpretation Act 1954 (Qld), s 14A.

[21] R v A2 at [35].

[22] Acts Interpretation Act 1954 (Qld), s 14B.

[23]  Ninth edition, 2023.

[24]  Fifth edition, 2002.

[25]  (2019) 2 QR 533 at 540 [28] and [30]-[31]; [2019] QSC 260 at p 7.

[26]  (2020) 6 QR 1; [2020] QSC 309 at [81].

[27]  Explanatory Notes to the Serious and Organised Crime Legislation Amendment Bill 2016, p. 19.

[28]  Section 161P(1)(f).

[29]  (2020) 3 QR 260; [2020] QSCPR 2 at pp 5-7.

[30]  As to the appropriate use of a statutory example, see Acts Interpretation Act 1954 (Qld) s 14D.  The example can be used to clarify the meaning of “participant” and, in turn, by way of context, the meaning of “criminal organisation” and the composite phrase “a participant in a criminal organisation”. 

[31]  (2020) 6 QR 1; [2020] QSC 309.

[32]  Applegarth J in R v Hill (No 2) (2020) 6 QR 1; [2020] QSC 309 at [96].

[33]  R v Hill (2020) 5 QR 225; [2020] QSCPR 14 at p 11 ll 41-42.

[34]  MFI “C” and “D”.

[35]  MFI “B”.

[36]  As described in the Index MFI “B” and which were included in the bundle of transcripts MFI “C”.

[37]  Although there are or may be factual differences in the offences for which Scott and Ryan were convicted, being trafficking in dangerous drugs with a serious organised crime circumstance of aggravation.  Further, in the current trial the prosecution’s case is that the Defendant, Ryan and Scott were in effect accomplices in the trafficking in dangerous drugs and the circumstance of aggravation.  However, the defence’s position is that only Ryan and the Defendant were accomplices in respect of the trafficking in dangerous drugs element only: as reflected in the admissions. 

[38]  See discussion at T5-10 L30-41.  See also cross-examination of Scott at T3-23 L31-40.

[39]  These calls are after the commencement of s 161Q on 9 December 2016 so this evidence can be used in respect to the circumstance of aggravation.

[40]  Consistent with the Court of Appeal in R v FAZ [2021] QCA 16.

[41]  This is understandable given the admissions.

[42]  Pursuant to s 161O(1) of the Penalties and Sentences Act.

[43]  Being the Defendant and Ryan.

[44]  That is, the evidence does not prove Scott was part of a “group”.

[45]  Pursuant to s 161P and s 161Q of the Penalties and Sentences Act.

[46]  Pursuant to s 161O(1)(b) of the Penalties and Sentences Act.

[47]  MFI “A”, point 3, third paragraph.

[48]  MFI “H”.

[49]  MFI “B”.

[50]  See also T27 L11-14, MFI “C”.

[51]  See also MFI “D”.

[52]  From which the prosecution contends the inference can be made that this a request is to get money.

[53]  See also T136, MFI “C”.

[54]  See also T143 L41-59, MFI “C”.

[55]  Recordings 1 and 17 appear to not be included in this count.  Scott confirmed they were telephone calls between himself and Ryan:  see T2-11 L30-32 and T2-21 L31-32.  MFI “B” list these calls as between the Defendant and Scott which may explain the error in the count.

[56]  T4-23 L40 to T4-24 L5.

[57]  T4-49 L25 to T4-50 L35.

[58]  T4-50 L31-34.

[59]  T4-55 L5 to T4-56 L13.

[60]  7 were played.  This can be understood as being he cannot recall any telephone calls other than those played to him at the trial.

[61]  T4-61 L35 to T4-64 L10.

[62]  Ryan was sentenced to 7 years imprisonment (being 7 years for trafficking and concurrent 7 years for circumstance of aggravation) with eligibility for parole after 18 months.  The “but for” cooperation sentence was 15 years’ imprisonment (being 8 years base and 7 years mandatory component cumulative), with no parole eligibility date set, so an effective seven and a half years’ parole eligibility date.

[63]  See also T17 L34-36, MFI “C”.

[64]  See also T18 L 51 to T19 L5, MFI “C”.

[65]  The prosecution says there is no ambiguity that Scott will be using violence and requests to be collected.  See also T39 L7-30, MFI “C”.

[66]  See also T40 L2, MFI “C”.

[67]  See also T40 L8-10, MFI “C”.

[68]  See also T41 L8-13, MFI “C”.

[69]  See also T43 L10-20, MFI “C”.

[70]  See also T43 L29-30, MFI “C”.

[71]  See also T43 L41, MFI “C”.

[72]  See also T44 L22, MFI “C”.

[73]  See also T20 L9 to T21 L55, MFI “C”.

[74]  See also T27 L21, MFI “C”.

[75]  See also T29 L22, MFI “C”.

[76]  See also T33 L39, MFI “C”.

[77]  See also T35 L9 to T38 L23, MFI “C”.

[78]  The prosecution contends that the inference can be drawn that this is a syndicate client’s house.

[79]  See also T66 L9 and T67 L2, MFI “C”.

[80]  See also T70 L1-10, MFI “C”.

[81]  See also T79 L13, MFI “C”.

[82]  See also T113 L40, L47, MFI “C”.

[83]  See also T113 L56, MFI “C”.

[84]  The prosecution contends the inference can be drawn that this is the syndicate vehicle.

[85]  See also T114 L24-40, MFI “C”.

[86]  The prosecution contends that the inference can be drawn that this is the syndicate vehicle.

[87]  The prosecution contends that this also demonstrates the knowledge that Scott had of Ryan’s role and Ryan’s importance to the business and Ryan’s subservience to the Defendant.

[88]  See also T117 L41-44, MFI “C”.

[89]  The prosecution contends that this is further evidence of the financial backing of the business and Scott’s role was not one of equals with the Defendant.

[90]  See also T118 L27-28, MFI “C”.

[91]  The prosecution contends that this speaks to how the Defendant viewed their relationship.

[92]  See also T123 L6-13, MFI “C”.

[93]  The prosecution contends that the inference can be drawn that the violence is to be used on clients.

[94]  See also T123 L55 to T124 L1, MFI “C”.

[95]  See also T138 L49-52, MFI “C”.

[96]  See also T139 L23, MFI “C”.

[97]  See also T140 L58 to T141 L1, MFI “C”.

[98]  See also T141 L38 to T142 L39, MFI “C”.

[99]  See also T142 L58, MFI “C”.

[100]  See also T143 L42, MFI “C”.

[101]  See also T166 L58 to T167 L14, MFI “C”.

[102]  The prosecution contends to continue to avoid police.  The prosecution also refers to the evidence of Scott that they would discuss drugs and Scott’s role at his house:  T2.25 L29 to T2.26 L17.

[103]  See also T172 L21-30, MFI “C”.

[104]  See also T173 L37, MFI “C”.

[105]  See also T174 L44, MFI “C”.

[106]  See also T176 L20-29, MFI “C”.

[107]  See also T177 L3, MFI “C”.

[108]  See also T180 L30-50, MFI “C”.

[109]  See also T187 L50, MFI “C”.

[110]  The prosecution contends that this demonstrates that part of his role was one of re-possessing cars.

[111]  See also T189 L57-59, MFI “C”.

[112]  The prosecution contends that it the inference can be drawn that it is as a result of his interactions.

[113]  See also T190 L3-14, MFI “C”.

[114]  The prosecution contends that this is to be understood as “business” people.

[115]  See also T207 L44-49, MFI “C”.

[116]  The prosecution contends that the inference can be drawn that the Defendant is informing Scott of his business practices and confirming who the boss is.

[117]  See also T209 L1, MFI “C”.

[118]  T3-52 L43 to T3-53 L15.

[119]  Apart from one occasion with the Landsborough mechanic which was discussed further separately.

[120]  T2-45 to 47.

[121]  T3-36 L34.

[122]  T3-6 L35-43.

[123]  T3-38 L32.

[124]  T3-39 L9-12.

[125]  T3-40 L48 to T3-41 L10.

[126]  T3-41 L12-15.

[127]  T3-41 L17 to T3-42 L1.

[128]  T3-42 L3-5.

[129]  T3-44 L13.

[130]  T3-44 L45.

[131]  At the application hearing earlier this month.

[132]  T3-45 L3-13.

[133]  T3-57 L10-14.

[134]  At the hearing earlier this month.

[135]  T3-56 L3-5.

[136]  This incorrectly proceeds on the basis that recording Number 1 was between the Defendant and Scott, not Ryan and Scott.  Scott’s evidence was that it was between Scott and Ryan:  T2-11 L30-32.

[137]  Scott was sentenced to 7 years imprisonment for trafficking with 7 years for the circumstance of aggravation to be served concurrently, plus 12 months cumulative for perjury, with eligibility for parole after 18 months.  Therefore 8 years’ imprisonment, with parole eligibility after 18 months. The “but for” cooperation sentence was effectively 16 years’ imprisonment (8 years for base and 7 years for mandatory component, plus 1 year cumulative for perjury), with no parole eligibility date set: an effective parole eligibility date at eight and a half years’.

[138]  T3-51 L17-28.

[139]  Submission to the prosecution on 26 August 2019 by Chelsea Emery on behalf of Scott.

[140]  T3-53 L18 to T3-55 L29.

[141]  T3-54 L21-36.

[142]  T3-53 L27-40.

[143]  T 3-53 L42 to T3-54 L8.

[144]  T3-54 L10-19.

[145]  T3-54 L42 to T3-55 L6.

[146]  T3-55 L8-20.

[147]  T3-55 L22-29.

[148]  MFI “B” says the call is between “Simpson and Ryan” but Scott’s evidence at T2-11 L30-32 was the call was between him and Ryan.  This call was not played to Ryan.

[149]  See also T2 L12-16, MFI “C”.

[150]  See also T3 L9, MFI “C”.

[151]  See also T3 L37-38, MFI “C”.

[152]  The prosecution contends that the inference can be drawn that this was confirmation of Scott being aware Ryan’s role was subservient to the Defendant and Ryan’s offers were on behalf of Simpson.

[153]  See also T3 L44, MFI “C”.

[154]  Ryan gave evidence that this money would have come from the Defendant: T4-22 L35-43.

[155]  See also T6, MFI “C”.

[156]  See also T7, MFI “C”.

[157]  See also T27 L10-14, MFI “C”.

[158]  The prosecution contends that the statement “do I have to take anything” is taking property.

[159]  See also MFI “D”.

[160]  See also T46 L30-38, MFI “C”.

[161]  See also T47 L4, MFI “C”.

[162]  MFI “H” lists this as a call relevant to the Defendant and Scott.  However, the call is between Scott and Ryan:  see T2-21 L31-32 where call Number 17 was identified as between Ryan and Scott.  MFI “B” also records the call as between “Simpson and Scott” which is inconsistent with the oral evidence of Scott.  I have proceeded on the basis of the oral evidence, which is consistent with the reference to “Reece” at T48 L4, MFI “C”.  This recording was not played to Ryan.

[163]  The prosecution contends that the inference can be drawn that the vehicle was the syndicate’s vehicle.

[164]  See also T48 L17-19, MFI “C”.

[165]  The prosecution contends that there is a significant level of detail which tends to support it not being a fabrication.

[166]  See also T50 to T51, MFI “C”.

[167]  At the Noosa Council.

[168]  See also T51 L36, MFI “C”.

[169]  See also T143 L42-58, MFI “C”.

[170]  The prosecution refers to the oral evidence of both Scott and Ryan that they were not friends, yet Scott knows Ryan’s birthday.

[171]  See also T144 L30, MFI “C”.

[172]  See also T151 L34, MFI “C”.

[173]  The prosecution contends that the Defendant and Scott joke about Ryan being a homosexual and comment is made about his sexual orientation.

[174]  The prosecution contends that the inference can be drawn that it is the syndicate vehicle.

[175]  See also T166 L48, MFI “C”.

[176]  See also T167 L10-14, MFI “C”.

[177]  The prosecution contends that the inference can be drawn that this confirmed to Scott that Ryan was subordinate to the Defendant and further that Scott and Ryan were subservient to the Defendant.

[178]  See also T56 L38-59, MFI “C”.

[179]  This is the same day as the discussion about the cannabis Scott had in his possession was underweight.

[180]  See also T58 L39-41, MFI “C”.

[181]  See also T61, MFI “C”.

[182]  The prosecution contends that his terminology is consistent with the spreadsheet by Ryan recording the Defendant’s Trafficking Business.

[183]  See also T62 L50, MFI “C”.

[184]  See also T63 L23, MFI “C”.

[185]  The prosecution contends this is after a previous discussion that the Defendant is the boss.

[186]  These figures do not appear to include all the calls between Ryan and Scott.  But it can be assumed that the intention was “other than the calls played to him at the trial”.

[187]  Evidence of Ryan at T4-11 L49.

[188]  (2019) 2 QR 533 at 540 [30]-[31]; [2019] QSC 260 at p 7, ll 3-13.

[189]  Section 161O(2)(b)(ii).

[190] R v Hill (2020) 5 QR 225; [2020] QSCPR 14 at 11 ll 35-36.

[191]  This consideration particularly applies to these two recordings, but also applies more broadly to all of the recordings.

[192]  His co-operation in giving evidence at the trial may be a factor considered in respect of that application.

[193]  And the Crown not calling the mechanic to give evidence.

[194]  T4-56 L3-13.

[195]  Other than being a “mate” of the Defendant and a drug user, who used drugs with the Defendant.

Close

Editorial Notes

  • Published Case Name:

    R v Jarryd Kenneth Simpson

  • Shortened Case Name:

    R v Simpson

  • MNC:

    [2024] QSC 295

  • Court:

    QSC

  • Judge(s):

    Williams J

  • Date:

    29 Nov 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Beckwith v R (1976) 135 CLR 569
2 citations
Jump To
Cite 1 - (1976) 135 CLR 569
Cite 2 - (1976) 135 CLR 569
R v A2 [2019] HCA 35
2 citations
Jump To
Cite 1 - [2019] HCA 35
Cite 2 - [2019] HCA 35
R v A2 (2019) 373 ALR 214
2 citations
Jump To
Cite 1 - (2019) 373 ALR 214
Cite 2 - (2019) 373 ALR 214
R v FAZ [2021] QCA 16
1 citation
Jump To
Cite 1 - [2021] QCA 16
R v Hannan (2016) 259 A Crim R 558
1 citation
Jump To
Cite 1 - (2016) 259 A Crim R 558
R v Hannan, Hannan, Gillis, Murrell & Hannon [2016] QSC 161
2 citations
Jump To
Cite 1 - [2016] QSC 161
Cite 2 - [2016] QSC 161
R v Hill(2020) 5 QR 225; [2020] QSCPR 14
6 citations
Jump To
Cite 1 - [2020] QSCPR 14
Cite 2 - [2020] QSCPR 14
Cite 3 - [2020] QSCPR 14
Cite 4 - (2020) 5 QR 225
Cite 5 - (2020) 5 QR 225
Cite 6 - (2020) 5 QR 225
R v Hill(2020) 6 QR 1; [2020] QSC 309
10 citations
Jump To
Cite 1 - [2020] QSC 309
Cite 2 - [2020] QSC 309
Cite 3 - [2020] QSC 309
Cite 4 - [2020] QSC 309
Cite 5 - [2020] QSC 309
Cite 6 - (2020) 6 QR 1
Cite 7 - (2020) 6 QR 1
Cite 8 - (2020) 6 QR 1
Cite 9 - (2020) 6 QR 1
Cite 10 - (2020) 6 QR 1
R v Hilton(2020) 3 QR 260; [2020] QSCPR 2
4 citations
Jump To
Cite 1 - [2020] QSCPR 2
Cite 2 - [2020] QSCPR 2
Cite 3 - (2020) 3 QR 260
Cite 4 - (2020) 3 QR 260
R v Nguyen [2023] QCA 168
2 citations
Jump To
Cite 1 - [2023] QCA 168
Cite 2 - [2023] QCA 168
R v Pentland [2020] QSC 231
2 citations
Jump To
Cite 1 - [2020] QSC 231
Cite 2 - [2020] QSC 231
R v Stasiak & Turkyilmaz(2019) 2 QR 533; [2019] QSC 260
6 citations
Jump To
Cite 1 - [2019] QSC 260
Cite 2 - [2019] QSC 260
Cite 3 - [2019] QSC 260
Cite 4 - (2019) 2 QR 533
Cite 5 - (2019) 2 QR 533
Cite 6 - (2019) 2 QR 533

Cases Citing

Case NameFull CitationFrequency
R v Simpson(2023) 16 QR 68; [2023] QSCPR 131 citation
1

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