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The applicant, who was charged with drug trafficking with a serious organised crime circumstance of aggravation, applied for a permanent stay of the prosecution of the circumstance of aggravation on the basis that the prosecution case was incapable of establishing a case to answer. In determining the application, Henry J clarified the proper approach to resolving such a submission in a circumstantial case, and also considered the meaning of the term “criminal organisation” in s 161O of the Penalties and Sentences Act 1992.
19 June 2020
The applicant was charging with trafficking in dangerous drugs, with a serious organised crime circumstance of aggravation under s 161Q Penalties and Sentences Act 1992. He applied under s 590AA Criminal Code 1899 for a permanent stay of the prosecution of the circumstance of aggravation on the basis that the prosecution case was incapable of establishing a case to answer in respect of the circumstance of aggravation.
Proper Approach to the No Case Submission in a Stay Application
The prosecution case as to the circumstance of aggravation was circumstantial. Justice Henry took the opportunity to clarify the proper approach to deciding a no case submission in this context, noting the care had to be taken not to fall into the role of the ultimate tribunal of fact.
Both parties had referred to the “purported restatement of principle” by King CJ in Questions of Law Reserved on Acquittal (No 2 of 1993) (1993) 61 SASR 1. Part of that restatement indicated that “if the judge deciding a no case submission believes there is a hypothesis consistent with innocence reasonably open on the evidence, he or she must find that there is no case to answer” which, as Henry J explained, was contrary to authority. The “orthodox position” is that of McPherson J in R v Stewart; Ex parte Attorney-General  1 Qd R 590. Under it, a no case submission should only be upheld if the evidence was such that an inference of guilty was incapable of being drawn beyond reasonable doubt. Contrary to King CJ’s approach, “that there might remain a possible inference consistent with innocence did not serve to remove the question from the province of the jury”.
Meaning of “Criminal Organisation”
The prosecution case in this matter relevant to the circumstance of aggravation was that the applicant participated in a “criminal organisation” consisting of two individuals based in Sydney and two based in Cairns. It was alleged that the Sydney offenders repeatedly sent large quantities of illicit drugs to Cairns and the Cairns offenders then repeatedly sent large quantities of cash back to Sydney.
A “criminal organisation” under s 161O Penalties and Sentences Act relevantly required “a group of 3 or more persons, whether arranged formally or informally ... who engage in, or have as their purpose … engaging in, serious criminal activity; and … who, by their association, represent an unacceptable risk to the safety, welfare or order of the community”.
Justice Henry considered that the word “association” should be given its ordinary meaning as connoting “some form of connection … but not the precise manner or form of the connection”. It was not to be read down to exclude an indirect association:
“To describe the word ‘association’ as requiring only a direct association would involve the same erroneous reasoning as describing the word ‘contact’ as requiring only direct contact, as distinct from indirect contact. Reading the word ‘association’ in its context, I readily conclude the association it contemplates may be direct or indirect.”
Furthermore, the “central requirement” was that there was “a group of three or more persons”. There had to be “some unifying combination or relation between persons for them to constitute a group”, although the collection did not need to be capable of being recognised by the public as a group.
The applicant submitted that while each pair of offenders could be described as a group, there was no connection or relationship between all four of them. Applying the “orthodox” approach, Henry J held that the fact this “rival view” of the prosecution case existed said “nothing as to whether the inference contended for … by the prosecution is capable of being sustained by the evidence”. While the matter ultimately would require an “assessment of the degree as to how one characterises what was occurring as between the Sydney and Cairns offenders”, the evidence was capable of sustaining the inference that they were in association with each other as part of the group.
In the result, the application was dismissed.