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- Unreported Judgment
SUPREME COURT OF QUEENSLAND
R v Hilton  QSCPR 2
HILTON, Matthew Maximillian
SC No 97 of 2019
Supreme Court at Cairns
DELIVERED EX TEMPORE ON:
6 February 2020
5 February 2020; 6 February 2020
CRIMINAL LAW – PROCEDURE – ADJOURNMENT, STAY OF PROCEEDINGS OR ORDER RESTRAINING PROCEEDINGS – STAY OF PROCEEDINGS – where the applicant was charged with drug trafficking with a circumstance of aggravation of being a participant in a criminal organisation – where the applicant was a ‘wholesale customer’ of a person that the applicant knew, or ought reasonably have known, was a participant in a criminal organisation – whether the applicant was a ‘participant’ in the criminal organisation for the purposes of s 161Q(1)(a) Penalties and Sentences Act 1992
Penalties and Sentences Act 1992 (Qld), s 161O(1), s 161P(1), s 161P(1)(f), s 161Q(1)
R v Gesa & Nona  2 Qd R 7; (2000) 111 A Crim R 507;  QCA 111, applied
R v Stasiak; R v Turkyilmaz  QSC 260, cited
M Dalton for the applicant
N Crane for the respondent
Legal Aid Queensland for the applicant
Director of Public Prosecutions for the respondent
HIS HONOUR: The accused is charged with others with carrying on the business of unlawfully trafficking in methylamphetamine, cocaine and MDA. That charge is a prescribed offence mentioned in Sch 1C Penalties and Sentences Act, which enlivens the potential application of a serious organised crime circumstance of aggravation stipulated in s 161Q(1) Penalties and Sentences Act.
Such a circumstance of aggravation is alleged in the charge against the accused. It alleges two limbs to the circumstance of aggravation, each of which must be proved to sustain it. They are that he and the other named accused persons were participants in a criminal organisation, and that he and the other accused persons 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 being committed, or at any time during the commission of the offence, participants in a criminal organisation.
The other defendants charged with this offence in the current indictment have all pleaded guilty. The accused has pleaded guilty to trafficking simpliciter but not guilty to the circumstance of aggravation. He made an application for the permanent stay of the prosecution of him on the circumstance of aggravation. The application was filed so close to the listed start date of the trial that it could not be heard until that date.
To avoid inconveniencing the panel, I commenced the trial yesterday morning to the extent of empanelling the jury. Argument on the application then ensued throughout the day in the jury’s absence. The applicant accused contended that, taking the evidence to be advanced by the prosecution at the highest, the facts are incapable of supporting a guilty verdict inclusive of the circumstance of aggravation.
The argument was, in substance, a no case submission. It was, however, contended that the accused ought not wait until the close of the prosecution case to run the argument; that it would be an abuse of process to subject the accused to what would be a lengthy trial in respect of the circumstance of aggravation when the case pertaining to the circumstance of aggravation is destined to fail.
The law permits such an application when the prosecution facts are agreed and the prosecution concedes those facts represent the highest the Crown case can be put – see R v Gesa & Nona (2000) 110 A Crim R 507, 511.
Self-evidently, the cooperation of the prosecution in identifying the facts and inferences relied upon is necessary for such an application. The prosecution here properly cooperated, consenting to the timing of the hearing of the application. I note that consent made it unnecessary for me to reach a concluded view about the relevance to the abuse of process aspect of the argument of the accused’s failure to have brought his application much earlier, for instance, on 9 or 10 October last year, the dates which I set aside back on 7 August last year for the hearing of any such pre-trial argument.
The twin circumstances of aggravation alleged in the charge derive from s 161Q(1) Penalties and Sentences Act, which provides:
“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––
- was a participant in a criminal organisation; and
- knew, or ought reasonably to have known, the offence was being committed—
- at the direction of a criminal organisation or a participant in a criminal organisation; or
- 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
- for the benefit of a criminal organisation.”
A criminal organisation is defined in s 161O(1) as follows:
“A criminal organisation is a group of 3 or more persons, whether arranged formally or informally––
- who engage in, or have as their purpose (or 1 of their purposes) engaging in, serious criminal activity; and
- who, by their association, represent an unacceptable risk to the safety, welfare or order of the community.”
Sometimes, the requisite of a minimum of three persons in the group may be in issue – see, for example, R v Stasiak and Turkyilmaz  QSC 260. However, that is not in issue here.
Of the three alternative states of offender knowledge listed in s 161Q(1)(b), the charge alleges that which appears in sub-s (b)(ii). That allegation is that the accused knew or ought reasonably to have known that his trafficking offence was being committed in association with one or more persons who were participants in a criminal organisation.
The prosecution facts, taken at their highest, clearly show the accused was associating with one Ryan Hill. The facts show it was through Hill that the accused purchased the wholesale drugs in which he in turn trafficked in Cairns.
It appears another Cairns based wholesale trafficker, Keiren Wilson, also purchased drugs through Hill. The drugs were conveyed by post and later by Toll from Sydney. In Sydney, one Khalid Kanj used another Sydney man, Sandeep Dharan, as the person who would, at his direction, package and post boxes of wholesale quantities of dangerous drugs to various addresses and named persons or entities in Cairns. This included addresses and names which were inferentially those of or linked with the accused.
Kanj, and his Cairns based agent, Hill, would communicate. There is enough evidence of their communication to show a pattern whereby Hill would email Kanj the drug amounts and the Cairns based destination particulars to which the drugs were to be sent. Kanj would forward such communications to Dharan, who would send off the drugs from Sydney. Dharan would also receive packages of money sent back from Cairns, apparently by Hill, for Kanj.
The shift from the use of Australia Post to Toll occurred after some posted items were not received, the authorities having intercepted them. Hill recruited the manager of Toll at Cairns, Jamie Payet, who was paid per shipment to oversee the deliveries so as to minimise detection. He would, on occasion, deliver the packages himself, including, on occasion, to the accused. The added cost of the Toll process was apparently added to the cost of the drugs sold to the accused.
It would be open to the jury to infer that the accused was aware of that and that a person in Toll at Cairns was a knowing servant of those who were shipping the drugs to Cairns. It would likewise be open to a jury to infer that those persons included Hill, based in Cairns, and at least one person based in Sydney.
That would mean, as a matter of inference about the accused’s own state of awareness, that he would have appreciated Hill was one of a group of at least three engaging, in admittedly different roles, in the serious criminal activity of carrying on the business of trafficking dangerous drugs from Sydney into Cairns. A jury could properly conclude in these circumstances that group was a criminal organisation and therefore that the accused, in his association with Hill, knew, or ought reasonably have known, that Hill was a participant in a criminal organisation.
Thus, it appears uncontroversial that there would be a case to answer on the second limb of the circumstance of aggravation. The accused’s counsel, in due course, conceded as much. However, to prove the circumstance of aggravation it is necessary for the prosecution case to also prove the first limb of the circumstance of aggravation; that the accused was a participant in a criminal organisation.
That is a very important qualification. It is not enough merely for an accused to offend in association with a criminal organisation in order that the circumstance of aggravation is present. If it were, then all customers of criminal organisations selling drugs supplied to them by the organisation could be caught by the circumstance of aggravation.
The first limb must not be overlooked. Such customers would only be caught by the circumstance of aggravation if they were themselves participants in a criminal organisation. Thus, it can be seen that the first limb, which requires that the offender was a participant in a criminal organisation, is an important protection inserted against the potentially unjust punishment of those who are not, in point of fact, participants in a criminal organisation.
Section 161Q(3) Penalties and Sentences Act permits of the possibility in proof of the circumstance of aggravation that the charged person is a participant in a different criminal organisation than the criminal organisation referred to in the second limb. However, there is no suggestion of two organisations in play here. The prosecution case is that the accused was a participant in the same criminal organisation which Hill was a participant in.
In hereafter referring to the criminal organisation, I am referring to the group which consisted of at least Hill, Payet, Dharan and Kanj. That is, the group which was engaging in the serious criminal activity of carrying on the business of unlawfully trafficking dangerous drugs from Sydney into Cairns.
The prosecution case as to the first limb of the circumstance of aggravation is obviously circumstantial. The critical question is whether, taking the prosecution case at its highest, that case is capable of sustaining the inference that the accused was a participant in the criminal organisation. I emphasise the word “in”. As to the meaning of “participant”, s 161P(1) provides:
“A person is a participant in a criminal organisation, if––
- the person has been accepted as a member of the organisation and has not ceased to be a member of the organisation; or
- the person is an honorary member of the organisation; or
- the person is a prospective member of the organisation; or
- the person is an office holder of the organisation; or
- the person identifies himself or herself in any way as belonging to the organisation; or
- 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.”
The prosecution accept there is no evidence of the participation described in sub-ss (a) through (e) inclusive. The prosecution relies on sub-s (f), namely, that the accused’s conduct in relation to the criminal organisation would reasonably lead someone else to consider him to be a participant in the organisation.
It is noteworthy that sub-s (f) uses the term “participant”. The defendant’s counsel submits the term “participant” there ought be given a meaning confined by the range of participants referred to in s 161P(1)(a) through (e) inclusive. That submission should be rejected. If that is what the legislature intended, sub-s (f) would presumably read, “the person’s conduct in relation to the organisation would reasonably lead someone else to consider the person to be a person defined within sub-ss (a) through (e) above”. Further, if that is what the legislature intended, it would not have listed the example, which it did, at the conclusion of s 161P(1)(f). That example is:
“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”
These are all examples of persons participating in the organisation by serving it, that is, by doing work for it. In short, they are examples within the ordinary conceptual meaning of “participation”. They are examples potentially beyond the confined categories of persons mentioned in sub-ss (a) through (e). Considered in context, it appears obvious that the word “participant” in s 161P(1)(f) ought carry its ordinary meaning.
I have had regard to the definitions of “participate” and “participant” as the case may be in the Oxford English Dictionary (Oxford University Press, 2nd ed, 1989) vol XI, 268 (definition of “participate”) and the Macquarie Concise Dictionary (Macquarie, 4th ed. 2006) 883 (definition of “participate”). In summary, those definitions have the effect that a participant is a person who partakes in something, that is, who takes part in something. The definitions contemplate the partaking may be in respect of an activity or in respect of property, for example, sharing in property.
I record for completeness, I also consulted Black’s Law Dictionary (Thomson Reuters, 11th ed, 2019) 1347 (definition of “participation”) and the LexisNexis Concise Australian Legal Dictionary (LexisNexis, 4th ed, 2011) 427 (definition of “participate”). Their definitions are consistent with the meaning just mentioned. In the present context, there is no suggestion of a relevant special legal meaning which departs from the ordinary meaning just referred to.
I find the ordinary meaning of “participant” is a person who takes part in something.
While I perceive no ambiguity requiring recourse to extrinsic material, I note for completeness the passage in the explanatory notes to the Serious and Organised Crime Legislation Amendment Bill 2016 to which I was referred, page 19. That bill introduced the relevant sections in their present form. The passage states:
“The new definition of ‘participant’ is focused on individuals who are actively involved in the affairs of criminal organisation or who identify and promote themselves as being associated with a criminal organisation.”
The second aspect of that passage seems to relate to s 161P(1)(a) through (e), and the first part of the passage seems to relate to sub-s (f). The notion of active involvement in the affairs of criminal organisations is consistent with the aforementioned ordinary meaning, that is, someone who takes part in such organisations.
While the prosecution case sustains the inference that there was, as discussed, a criminal organisation, it has no evidence of any precision as to how the accused was taking part in that organisation.
There is, of course, evidence sustaining the inference that the accused was a customer of that organisation, that is, that he was, through Hill, buying large amounts of the dangerous drugs that the organisation trafficked to Cairns. A participant in a criminal organisation may also happen to be a customer of the organisation, however proof only that the person was a customer of an organisation would not, without more, prove the person was “taking part in” the organisation. That is because buying a product from an organisation is activity external to the organisation. Selling a product on behalf of an organisation, for example as its paid agent or employee, would in all probability amount to participating in the organisation. But such evidence as there is of the basis upon which the accused was selling what he acquired from the organisation is that he did so in his own right. There is no evidence that his onselling was controlled or directed by the organisation, or that he was selling as an employee or paid agent of the organisation. To the contrary, the evidence suggests he was paying the organisation for what he bought from it.
Of course, a customer may be a wholesale customer whose existence may be very vital to the viability of the relevant organisation. For instance, without wholesale purchases in Cairns, the criminal organisation in this case may not have found it viable to traffic wholesale quantities of drugs into Cairns. But that is just another way of saying that businesses, even illicit businesses, cannot survive without customers. That an organisation’s customers may be vital to it does not make those customers participants in the organisation.
In the examination during submissions of what evidence there is about the accused’s relationship and conduct vis a vis the organisation beyond buying wholesale drugs from it, it became apparent that the prosecution do not seek to make much of the miscellaneous evidence I was taken to and pursue a broader approach. That is an argument turning heavily on conceptualising the accused’s alleged participation as a distributor for a sophisticated network. Accordingly, I do not propose to recite the entire miscellany of the evidence to which I was referred, though I touch on some of it to illustrate its collective limitations.
There is, for example, evidence of intercepted phone conversations between the accused and one Little, apparently a person the accused would supply drugs to, on 18 and 19 May 2017. Part of the transcribed passage to which I was referred involved Hilton telling Little to make sure he would be home on Thursday all day, the inference being that that is where Hilton, as the buyer of drugs, had made arrangements with the organisation for them to be sent to. The following day, 19 May, Hilton told Little, “It will be today, bro.” He later said, “Told you, bro. We don’t muck around, brother.”
Plainly enough, the reference to “we” might potentially suggest an arguable representation of more than one person being involved with the accused, but absent any particular further detail about that, it seems simply to be a generic way of putting things.
I was also referred to communications between Hilton and Hill on 1 September 2017, and communications on 15 September 2017 between Hilton and Burnett. On the 1st, the accused Hilton communicated with Hill. The transcribed passage is:
“Here is your delivery, hey bro, $1100. I said bro I’m sick of paying extra. So if you want business to keep happening, that’s my go…”
Once again, such language or perhaps to use a more apt term, lingo, is difficult to draw any inferences from. The reference to the $1100 and the reference to paying extra seems to be a reference to the uplifting of price as a result of the shift from Australia Post to Toll. Though of course there may be other potential inferences, that seems the more obvious one. As for the communications on the 15th, and in support of the aforementioned inference, Hilton said to one Burnett, presumably someone who was a prospective buyer from him:
“I’ve got to pay delivery now. I usually get it through Australia Post. I don’t know if you saw the news about it three weeks ago…They are cracking down on Australia Post and they are scanning every single parcel. I’ve lost about 35 grand over the last four weeks so I’ve got to get “toll” couriers. I have someone on the inside but I have to pay them about $1100 each way…”
Well, this tends to verify the earlier mentioned inference. Again, an imaginative mind might point out that language such as “I have someone on the inside” might suggest that the accused was representing he himself was a maker of the arrangement. Yet the evidence, which would include evidence from Payet at Toll, does not support that inference. As for the reference to having to pay them about $1100 each way, again, the broader evidence I was informed of suggests that this refers to the kind of mark-up on the purchase price which the accused had to pay Hill. In other words, there is no actual evidence to suggest that the accused was engaged in somehow or other paying Payet in some direct way as if he was within the arrangements as opposed to simply a customer benefiting from the arrangements, ensuring that the drugs would get through to Cairns.
I was referred to another intercept passage from 21 September 2017. It is sufficient to indicate that it made a vague reference to Hilton referring to someone called “old mate” down in Sydney. I was taken in argument to broader further aspects of the same conversation. Considering all of those additional passages, it became muddier, not clearer, as to exactly what was being meant. Suffice to indicate that on a review of that material, which neither party suggested I needed to play in order to hear the actual words and emphasis, the best that can be said of it is that Hilton had an awareness that Hill was engaging in activity with some form of accomplice or other closely linked offender who was Sydney based. All of that is helpful, of course, in proof of the second limb, but it does not particularly assist with the first.
One final example of the miscellaneous evidence to which I was taken relates to evidence about particular mobile phones. The evidence shows that three mobile phones were bought on different dates from an entity called MobileCiti in Paramatta, Sydney. One such phone, purchased on 23 February 2017, was seized from Hill on 6 April 2018. Another such phone, purchased on 18 October 2017, was seized from Mr Payet on 9 January 2018 and more relevantly, one such phone sold on 26 September 2017, was seized from the accused Hilton on 3 January 2018.
The fact that persons said to have connections in various ways with what was going on were caught in possession of phones purchased from the same location in Sydney once again supports the inference, whoever may have been members of the organisation, that plainly included at least one significant person from Sydney.
The phone seized from Hilton evidently had a particular application that allowed for confidential communication by telephone, most relevantly with the capacity for the application and thus the record thereof contained in the phone to be remotely wiped. The accused Hilton’s phone was remotely wiped by someone after it was seized. It is not too difficult to conclude that there is a ready inference open that it must have been wiped by someone who was connected with the criminal organisation.
Of all the miscellaneous evidence I was taken to, perhaps it is this evidence that most attracted my attention during argument, albeit ultimately the Crown acknowledged limitations in respect of what could be made of the evidence. Those acknowledgements were proper. Obviously enough, it is entirely possible that if one presumes the accused was participating in the criminal organisation he may have been provided with a phone by it so that it could be remotely wiped if his phone was seized. That proposition, of course, starts with an assumption, which it remains for the prosecution to prove. Another possibility which was ventilated in argument is not a particularly remarkable one. It is that if he was not a participant in the organisation, the evidence certainly shows he was closely connected to it, in that he was the first point of on-supply in Cairns, or at least one of the first points of on-supply in Cairns. In such circumstances, it may be hardly surprising that the organisation would want to protect the detection of its activities, in particular, the dealings of its representative, inferentially Hill, with Hilton, an end achievable, or potentially achievable by having the customer use such a phone, that is to say, a phone which the organisation could subsequently wipe.
I am less concerned here, of course, with competing innocent inferences, but the difficulty is that there is so little other evidence about this particular topic that it appears inadequate in connection with any other evidence to allow the jury to infer that the first limb of s 161Q(1)(a) is sustained.
I am conscious this is a circumstantial case, and I must focus upon whether the evidence is capable of sustaining the guilty inference. Whether it is also capable of excluding innocent inferences is, in my view, a jury issue and not presently to the point. The various bits of pieces of evidence of a kind I have mentioned ultimately are of themselves either so inconsequential or so vague in their meaning and significance that, even considered collectively, they are inadequate to sustain an inference that the accused was a participant in the criminal organisation.
In fairness, the prosecution effectively acknowledged as much, but pressed the conceptual argument earlier mentioned. That argument was that the accused was a distributor for a sophisticated network, acting so proximate to that network that it would be open to the jury to conclude his conduct in relation to the organisation would lead someone to consider him a participant in the organisation. That argument should be rejected.
Care must be taken with shorthand titles such as “distributor” and “network”. As to the latter, the fact that drugs may pass from wholesale transporters and suppliers to wholesale purchasers to retail purchasers and, in that sense, may pass through a so-called network or supply chain of people, does not make them all participants in a singular organisation. As to the word “distributor”, one must look past that badge to the substance of what was actually occurring. The accused was doubtless a distributor of drugs in the sense that he was physically supplying drugs to others, but there was no evidence that he was doing so on behalf of, or as a paid agent of, or employee of the criminal organisation. Rather the evidence tends to the contrary, to the inference that he was buying the drugs from the organisation.
This brings me finally to the emphasis placed by the prosecution on proximity. Let it be accepted, as the evidence suggests, that the accused was, indeed, proximate or close to the activities of the criminal organisation. That fact might cause a jury to more readily draw an inference from other evidence suggestive of participation, that he was, in fact, a participant. But there has to be such other evidence. In its absence, the accused’s proximity to the organisation is simply an incident of him being an important wholesale customer buying the drugs the criminal organisation was shipping to Cairns. Such evidence as there is of his purported connection with, or participation in, a criminal organisation shows that he was operating very closely with Hill as a very important customer. It goes no further.
For these reasons, taking the prosecution case at its highest, the evidence that it proposed to adduce at trial would be incapable of sustaining the inference that the accused was a participant in the criminal organisation. It follows the application should be upheld. Having reached that conclusion overnight, I, this morning, discharged the jury.
1. Application upheld.
2. The further prosecution of the accused on the circumstance of aggravation in count 1 is stayed.