Henry J considered whether the prosecution in respect of the circumstance of aggravation pursuant to s 161Q Penalties and Sentences Act 1992 should be stayed for want of evidence. The issue turned on the use of the words “by their association” in that section. His Honour concluded that although there was evidence of association between the applicant and each of his co-accused there was an absence of association as between the applicant’s two co-accused. Accordingly, the prosecution was stayed.
8 October 2019
The applicants were charged with trafficking in methylamphetamine and Bryan Stasiak sought, pre-trial, a ruling of no case to answer pursuant to s 590AA Criminal Code 1899 in respect of the serious organised crime circumstance of aggravation alleged pursuant to s 161Q Penalties and Sentences Act 1992. If the application was successful then it would warrant an order that the prosecution of Stasiak in respect of the circumstance of aggravation be stayed.
The Crown case was a circumstantial one, largely consisting of telephone intercepts of communications in relation to the purchase, transportation and supply of dangerous drugs. The Crown alleged that Bryan Stasiak used his co-accused Turkyilmaz and Wieslaw Stasiak as agents in the business. The Crown sought that an inference be drawn that the two agents were associated and with the applicant Bryan Stasiak.
The primary issue for determination was whether the evidence, taken at its highest, was incapable of supporting a verdict of guilt in relation to the existence of a criminal organisation within the meaning of s 161O Penalties and Sentences Act 1992. In particular, Henry J focused upon the requirement that there be three or more participants and the phrase “by their association” within the subsection. His Honour, relevantly, accepted that association could be proved by indirect or circumstantial contact.
Henry J considered that the requirement of three participants was fairly made out but was of the view that there was an absence of evidence of the association as between the two agents, Turkyimaz and Wieslaw Stasiak. His Honour considered that the Crown were seeking to fill, what was otherwise a fatal gap in the evidence, in relying on an inference from arrangements for the pick-up and drop-off of dangerous drugs. This was in the face of evidence that Bryan Stasiak had sought to avoid contact as between the agents.
Ultimately, his Honour was of the view that the evidence was not capable of supporting the inference sought by the Crown and exercised the discretion to stay the further prosecution of the applicant on the circumstance of aggravation.
J Feely of Counsel