Court of Criminal Appeal Supreme Court New South Wales

• Medium Neutral Citation: INEGBEDION, Meredith v R [2013] NSWCCA 291
• Hearing dates: 20/05/2013
• Decision date: 22 November 2013
• Before: Hoeben CJ at CL at 1; Rothman J at 2; McCallum J at 60

Decision

(1) To the extent necessary, leave to appeal is granted;

(2) Appeal dismissed.

• Catchwords: CRIMINAL LAW - Commonwealth Code - attempt - necessity for conduct that is a step towards the commission of an offence and is beyond that which is merely preparatory together with a state of mind or intention to commit the crime - conduct must be such as cannot reasonably be regarded as having any other purpose than the commission of the offence charged - necessity to direct on the two separate aspects of the crime, conduct and intent - error in insufficiently separating the two aspects - not an unreasonable verdict - no substantial miscarriage of justice has occurred - appeal dismissed.
• Legislation Cited: Criminal Appeal Act 1912; Criminal Code Act 1995 (Cth)
• Cases Cited: Britten v Alpogut [1987] VR 929; Davey v Lee [1968] 1 QB 366; Gillard v R [2003] HCA 64; (2003) 219 CLR 1; Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473; He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523; Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434; Knight v R [1992] HCA 56; (1992) 175 CLR 495; M v R [1994] HCA 63; (1994) 181 CLR 487; MFA v R [2002] HCA 53; (2002) 213 CLR 606; Onuorah v R [2009] NSWCCA 238; Singh v R [2011] NSWCCA 100; SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300
• Category: Principal judgment
• Parties: Meredith Inegbedion (Appellant); Crown (Respondent)
• Representation: Counsel: B Neild (Appellant); C P O'Donnell (Respondent); Solicitors: Nyman Gibson Stewart Solicitors (Appellant); Director of Public Prosecutions (Cth) (Respondent)
• File Number(s): 2010/299022
• Publication restriction: None

Decision under appeal

• Date of Decision: 2012-04-03 00:00:00
• Before: Puckeridge DCJ
• File Number(s): 2010/299022

Judgment

1 HOEBEN CJ at CL: I agree with Rothman J and the orders which he proposes.

2 ROTHMAN J: The appellant, Meredith Inegbedion, appeals his conviction by a jury of the offence of attempting to possess a marketable quantity of unlawfully imported substance, being a border controlled drug, namely heroin, contrary to s 307.6(1) of the Criminal Code Act 1995 (Cth) (the Code).

3 The appellant raises two grounds:

Ground 1: A miscarriage of justice has been occasioned by the trial judge's directions to the jury in relation to attempt.

Ground 2: The verdict is unreasonable and cannot be supported on the evidence.

Brief summary of facts

4 It is possible, at least in summary form, to state the facts. The primary facts are largely uncontentious.

5 On 8 April 2010, a package addressed to David Okeke, 16 Wolseley Street, Rooty Hill, and containing heroin, was intercepted by Customs Officers.

6 On 12 April 2010, officers of the Australian Federal Police (AFP) went to Wolseley Street for the purpose of identifying and apprehending the recipient or recipients of the package. An AFP officer, Stephanie Leonard, posed as an employee of Australia Post.

7 As she walked towards the front door of the premises, the appellant's co-accused, Peter Uadiale, approached her and asked if she had a package for David Okeke. She replied in the affirmative. They travelled together to her van to collect the package and he was arrested.

8 Prior to the approach by Mr Uadiale to the AFP officer, the appellant and Mr Uadiale were observed by other AFP officers to be seated together in a car parked further down the street. When Mr Uadiale attempted to flee, following his conversation with AFP officer Leonard, the car, driven by the appellant, started moving, and was intercepted by the AFP.

9 The car was searched and in it was found: a piece of paper in the appellant's wallet on which the name David Okeke was written; a Bible containing a piece of paper on which Sekaswi John Malaysia (the name and location of a person to whom international money transfers were effected in the name of David Okeke) was written; and $11,100 in cash.

10 The appellant was charged; was tried; and, on 14 November 2011, was convicted. The appellant was sentenced on 3 April 2012. There is no appeal against sentence.

Ground 1: Trial judge's directions in relation to attempt

11 Pursuant to the provisions of s 11.1 of the Code, an attempt to commit what is otherwise a Commonwealth offence is, itself, an offence under the Code. The relevant provisions of s 11.1 of the Code should be recited:

"11.1 Attempt

(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) For the person to be guilty, the person's conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.

...

(4) A person may be found guilty even if:

(a) committing the offence attempted is impossible; or

(b) the person actually committed the offence attempted.

...

(7) It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission), section 11.3 (commission by proxy), section 11.5 (conspiracy to commit an offence) or section 135.4 (conspiracy to defraud)."

12 It is not particularly contentious to summarise the provisions of s 307.6 of the Code as creating an offence for a person to possess a substance that was unlawfully imported, which substance is a border controlled drug of a marketable quantity. Heroin is a border controlled drug and the quantity involved in these proceedings is a marketable quantity. It is unnecessary to recite the terms of s 307.6 of the Code.

13 It is appropriate next to refer to fundamental principle. With the exception of offences of strict or absolute liability, criminal responsibility depends upon two aspects: a criminal act and a criminal intention. It is generally true to say, as Brennan J said in He Kaw Teh v R [1985] HCA 43; (1985) 157 CLR 523 (He Kaw Teh), "that an act or omission done or made by a person is the essential foundation of his criminal responsibility". As his Honour went on to explain:

"When a statute creates and defines an offence only by reference to its external elements, a mental element is usually implied in the definition. A person who engages in prohibited conduct is not criminally responsible for it unless the mental element is present." (He Kaw Teh, at 565, per Brennan J.)

14 It is absolutely essential, in indictments other than particular statutory offences, that the two elements of an offence be understood and proved by the Crown. Those two elements are, as stated above, a criminal act and a guilty mind (actus reus and mens rea).

15 When one is dealing with an attempt to commit an offence, this can sometimes take on a particular difficulty. Depending upon the offence that is attempted, different requirements are imposed on the state of mind. Under the common law, and prior to the promulgation, relevantly, of s 11.1 of the Code, an attempt to commit an offence was a misdemeanour. Nevertheless, both under Commonwealth law (see s 11.1 of the Code above) and under most state laws, an attempt to commit an offence is an offence of the same order.

16 In order to prove that the accused is guilty of an attempt to commit a particular offence, the Crown must first prove, beyond reasonable doubt, that the accused intended to commit the crime, which the Crown alleges he attempted to commit. In other words, the accused must have intended to commit all of the physical acts which would constitute the crime attempted in circumstances which make those acts criminal.

17 Over and above the proof of an intention to commit the crime alleged, the Crown must also prove, beyond reasonable doubt, that the accused, with that intention, performed some act that went towards the commission of the offence, which act was more than merely preparatory of the crime and was immediately connected with the commission of that crime, having no reasonable purpose other than its commission.

18 In crimes of specific intent, an intention to commit the crime must include in the state of mind that specific intent. Thus, in a charge of attempted murder, the Crown must prove an intention to kill, not inflict grievous bodily harm: Knight v R [1992] HCA 56; (1992) 175 CLR 495.

19 The general issue associated with the existence of both a criminal act and a criminal mind applies equally, perhaps even more obviously, to an attempt. While recklessness as to the probable and/or foreseen consequence will suffice for almost all offences, it will be insufficient to satisfy the mental element in attempt (or, irrelevantly, aiding and abetting and other like bases for liability): Giorgianni v R [1985] HCA 29; (1985) 156 CLR 473 at 506, per Wilson, Deane and Dawson JJ. Often the difference will be more theoretical than practical, because an intention can be inferred from conduct that has known consequences.

20 Nevertheless, there are two separate aspects to the crime of attempt. As earlier stated, the first such aspect is the state of mind or intention to commit the crime; the second aspect is conduct which is a step towards the commission of the offence in question and which step cannot reasonably be regarded as having any other purpose than the commission of the offence charged.

21 Over the years there have been a number of attempts to define that which is a step towards the commission of an offence that does not have any other reasonable purpose than the commission of the offence. Often the relationship is referred to as an unequivocal act as a test of proximity: see Davey v Lee [1968] 1 QB 366. In other words, is the act upon which the criminal conduct rests an act that is too remote to constitute an attempt, which question is then answered by the answer to whether the act is directed to the commission of the particular offence or completed crime only.

22 The existence of two separate aspects, the state of mind and conduct amounting to attempt, is the basis for the allegation of error said to arise from the directions of the learned trial judge. The appellant submits, in this Court, that the direction given to the jury by the trial judge gave "rise to a miscarriage of justice ... [being] ... the conflation of attempt and intent, with the consequent diminution, if not obviation, of the need by the prosecution to prove the physical element of the offence".

23 It is necessary to deal with some of the extracts of his Honour's summation and directions to the jury. Before doing so it is necessary to point out that there was an exchange between counsel for the accused, at trial, and his Honour in which these aspects were discussed, prior to the summation. This exchange occurred on the day prior to his Honour's summing up at p 394 - 397 of the Transcript (AB Volume 2, 430 - 433, 10/11/11).

24 Relevantly the exchanges are in the following terms:

"EDWARDS: Your Honour, my position is that the physical and fault elements that are required to make out this offence are required to be attributed to the accused. That's my position.

CROWN PROSECUTOR: Your Honour, I agree with that.

HIS HONOUR: I think we all agree with that.

EDWARDS: And that is whatever he alleged to have done, which is to be in the car, the jury must be satisfied beyond reasonable doubt that that constituted an attempt to possess a package.

CROWN PROSECUTOR: His intention to attempt to - that's right, I accept that.

HIS HONOUR: That's an intention. Well he's being in the car at the scene--

...

EDWARDS: ... In my submissions it's - I apologise for saying no your Honour. Your Honour, an attempt is--

HIS HONOUR: An attempt is an intent. He intends to possess.

...

HIS HONOUR: Attempt must be intend. That's what the law is as to the attempt.

EDWARDS: Because your Honour, they'll be given the direction ultimately. The question whether the conduct is more than merely preparatory to the commission of the offence is one of fact. So the jury are told that the person's conduct must be more than merely preparatory to the commission of the offence.

HIS HONOUR: Yes. We all agree with that.

EDWARDS: So it's an attempt to possess. So an intention could occur at any stage of a person's involvement in an offence, and it could occur in a context where is it merely--

HIS HONOUR: You just must intent [sic] but you must go to through those physical - the physical act, facts upon which the Crown relies.

EDWARDS: Yes your Honour.

...

HIS HONOUR: But in any event, yes. Possession, yes. Possession of a thing includes receiving, having control or obtaining possession. Yes.

...

EDWARDS: So what I would submit to your Honour, that its more in fact than an intention. A physical element has to be an attempt which involves, in my submission, more than an intention but requires an intention, if I can put it like that. Certainly your Honour, you don't--

HIS HONOUR: Under 3.2 only one of the four elements of intention or knowledge would need to be established in respect of each physical element of the offence attempted.

...

HIS HONOUR: An intention is that, yes.

...

HIS HONOUR: Yes, the fault element is intention.

...

EDWARDS: Yes, your Honour, but in terms of the - we see in the attempt it talks about the conduct and, your Honour, the conduct in this case, as I understand the Crown case, is that the accused was outside driving along the street, along Wolseley Street at the time Mr Uadiale got the package. Now, if that's accepted by the jury they would have to be satisfied that that constitutes an attempt. So it's the conduct that is in my submission--

HIS HONOUR: Well, it's just not the occasion when he's coming back, there's the earlier point of time when Sergeant Davenport said he saw him in the car.

EDWARDS: Yes, your Honour

HIS HONOUR: And also I think it was Saunders, he actually didn't say - he said parked, I'm not too certain if Sergeant Davenport said parked, I was going to transcript, and I think certainly Saunders said parked, saw him parked on the left hand side as he was driving down Wolseley Street.

...

HIS HONOUR: Yes, but certainly that would be I take it the Crowns relying upon that evidence to show an intention to possess.

...

HIS HONOUR: The whole lot, the fault element is intention, it must be more than merely preparatory to the commission of the offence, well that's certainly true, and you could put that."

25 The submission from counsel appearing for the appellant, in this Court, is that this exchange shows his Honour to have "some difficulty in appreciating" the need for both physical and fault elements to be proved by the Crown. It is always necessary to be extremely wary of drawing too much from an exchange in transcript for a number of reasons. First, as is clear from the full exchange from which the foregoing is extracted, an exchange between counsel and the Court, in the absence of the jury, is often a means by which a trial judge refines that which is being submitted as the law that is required to be put to the jury in the summing up.

26 Further, in an exchange with counsel that forms part of a much larger discussion, a looseness of expression generally occurs, without which the exchange, necessarily, would take a significantly longer period.

27 Nevertheless, and without regard to the two foregoing considerations, the exchange between counsel and the trial judge, recited or summarised in the above extract, does not reveal a failure of his Honour to appreciate (or a difficulty in appreciating) that both mens rea and actus reus are required in order for the Crown to prove attempt.

28 However, in the exchange his Honour, after referring to the evidence of the appellant's conduct, and whether he drove along the road and parked (by reference to the evidence of witnesses Davenport and Saunders) remarked that the Crown would be relying upon that evidence to show an intention to possess, which discloses the kind of looseness one would expect in an exchange with counsel, but a looseness which uses the term "intention" in other than its strict legal meaning as a state of mind to be distinguished from conduct. His Honour is there using "intention to possess" as meaning "attempting to possess".

29 In other than the technical sense, and its ordinary meaning in colloquial English, intending to do something may sometimes include attempting to do something. For example, if a person said, "I intended to go inside, but the door was locked", it would ordinarily mean that an attempt was made to open the door. On the other hand, intention can be quite separate (as it is as a matter of law) to an attempt, best illustrated by a statement, "I intended to go to the beach, but it was raining". Much depends on context, which emphasises the need for precision in dealing with the issue, as a matter of law, and in directions or summing up to a jury.

30 It is necessary to recite some of the extracts of the summing up of his Honour. It is impossible, in the context of this judgment, to repeat the whole of the summing up or to put the extracts in context. Nevertheless, these include the extracts upon which the appellant relies for this ground of appeal.

31 His Honour, during the course of the summing up said:

"As the Crown has said it is for you as finders of fact to say whether or not Meredith Inegbedion did on12 April 2010 intend to take control of. That is what the words 'attempt to possess' mean. I will say a little bit further more in relation to that and the facts and how you would consider that, but I mention that to you as at this stage. It probably would be as well if I mention it now. The law applicable in this case is that the conduct of the accused on 12 April 2010, that is, the conduct which amounts to intention to take control of, must be more than merely preparatory to commission of an offence, more than preparatory to take control of the substance.

... The main matter is to focus on the fact that there was intent to take control of, and it must be from conduct that is more than merely preparatory to the commission of the offence.

...

That is, it is on the Crown to satisfy you beyond reasonable doubt that on 12 April 2010 the accused intended to take control of exhibit A, the package containing the heroin, and to reject the version that is put forward by the accused.

The accused does not have to persuade you to accept it, but if that evidence of the accused leaves you with a reasonable doubt as to whether or not the Crown has made out its case in respect of any element of the offence or an essential fact, then you are bound in law to bring in a verdict of not guilty.

...

The Crown in relation to the intention to possess, take control of the package, relies upon the circumstances as referred to in his address and as he stated the actions of the accused on 12 April 2010 and what was found on his person or in the vehicle on that day, and the links which follow in relation to the name of persons and telephone calls and puts to you that those actions can only, and it can be the only inference, show an intention to possess.

...

I can say it is a very good example I consider in relation to circumstantial evidence, and it is a good example of what the law requires, that when you have a Crown relying on circumstantial evidence, you must find beyond reasonable doubt that the only rational inference, the only one, from the circumstances upon which the Crown relies is that the accused on 12 April 2012 [sic] intended to take control of the package, and that his conduct was more than merely preparatory to the commission of the offence to possess the prohibited substance. They are the matters, and it can be the only inference that he indeed. The Crown puts to you that when you look at all that occurred on 12 April 2010, including the driving of the vehicle to Wolseley Street, Rooty Hill prior to the arrest, and the circumstances of the arrest and what was found in the vehicle which showed links according to pieces of paper to a person by the name of David Okeke which was the name referred to in package A on the address together with the actual address, which is again on the package, 16 Wolseley Street, Rooty Hill, and the telephone calls and the money transfers as referred to in exhibit J, and the other evidence, which is all before you, would lead you to the only rational inference that on that day, 12 April, he intended to take control of the package. The Crown submits that when you look at all that evidence that is the only rational inference, and that it has satisfied you beyond reasonable doubt that you ought to reject what the accused has stated as to the reasons why he was at Wolseley Road.

...

Officer Leonard said:

'I saw from my right an African male come running towards me. That male asked me if I had a package for David Okeke to which I replied "I do". I then asked him for identification. At that time he told me that he did not have any identification and I told him that because it was an EMS package that I required identification before I could give him the package.'

She then said:

'Well do you have a tracking number?' And he said he could go and get the tracking number from Vecar [sic - read: the car] , so then I said, "Okay off you go and go and get the tracking number". He then went back to my right which was east, up Wolseley Street, disappeared out of sight and then returned with a mobile telephone in his hand and then he read the consignment number, so the tracking number, out to me. I checked it against the package, the tracking number that I had written down, and saw that they were the same. I then asked him to sign the receipt for the package and I asked him if he was David Okeke to which he said, "Yes". He then signed the receipt and I asked him if he would come over to the van and I got the package out. I then opened the back sliding door on the passenger side of the van and Federal Agents Brian Chow and Matthew Murray then emerged. We identified ourselves as police.'

Now it is important I consider that that evidence be read out to you because it does, it is the start of the package and it was signed for as we know by Peter Uadiale, not the accused. But nevertheless because of the matters which are referred to and the evidence of other witnesses, particularly the officers, Davenport and Saunders, as to the fact that there was a parked vehicle, that is, the Tiida Vehicle, parked in an area of number 8 Wolseley Road and that was observed prior to Federal Agent Leonard speaking to Uadiale, that that is a circumstance on which the Crown relies, that is, there was a car driven by Mr Matthew Inegbedion and that it was in that area prior to that van attending at 16 Wolseley Street." [Emphasis added.]

[His Honour then set out the factual material upon which the Crown relied at the end of which, at AB 492, his Honour continued with his summing up.]

"I have referred to that evidence, members of the jury, because the circumstances are matters upon which the Crown relies. And you have heard the evidence of the accused that he went there and that he simply spoke to Mr Uadiale and he was there for about twenty minutes, and then Mr Uadiale got out of the vehicle. He said he went there, you will recall, after he received some telephone calls. He said he went there and he was driving a Tiida because he was involved in an accident, and there is no evidence contrary to his evidence that he was involved in an accident and there is the hire purchase agreement with the Tiida vehicle.

...

You have also had exhibit 2 marked in red what Mr Inegbedion said he wrote or did not write on the pieces of paper and you have heard the submissions of counsel in that regard. The Crown puts to you that those pieces of paper show links to David Okeke and he is the person to whom the package is addressed and you have heard the submissions of the Crown in that regard, and the telephone calls that were had on 11 April and also the money transfers and the names that were found inside the Bible, exhibit 7, and the reference to those names, and you would look at all the evidence so that the money transfers and through the pieces of paper are linked to those persons, and that you would reject his evidence that he had simply gone there to have a chat with Mr Uadiale and that he had gone there with the express intention of taking control of the package, and it certainly was not a preparatory step to the commission of an offence, and that you would reject the version of the accused." [Emphasis added.]

32 After an exchange with counsel, in the absence of the jury, further directions were given by his Honour. Relevantly, those directions were in the following terms:

"The Crown submits to you that on the established facts as to the accused driving to Wolseley Street, Rooty Hill, on 12 April 2010, and of being there at the time Uadiale was running down the street towards him, as he stated, and turning into the driveway on the opposite side - or the driveway in Wolseley Street in the area which he stated in his exhibits, that he was there not preparing, not taking a preparatory step, but intended to take possession of the prohibited substance.

...

And the Crown submits that on those facts, those matters, it was not preparatory to any offence him driving there to Wolseley Road, but he was there with the intention of taking possession of the prohibited substance." [Emphasis added.]

33 In Onuorah v R [2009] NSWCCA 238, Hodgson JA discussed the offence of attempt under the Code and, at [30], said:

"If one restricts attention to the elements of the attempted offence, then, in my opinion, in accordance with Britten, the question in truth turns on whether an accused person intends each element of the relevant crime to occur, and in pursuance of that intention does acts that are not merely preparatory but are sufficiently proximate to the intended commission of the crime. Where an element of the relevant offence is that there be a border-controlled drug that has been imported into Australia, then for there to be an attempt there must be an intention that there be such a drug that has been imported; but it is not necessary that this actually be the case."

The reference to Britten in the foregoing is to Britten v Alpogut [1987] VR 929.

34 As can be seen from the extracts of the summing up by the trial judge, there was no occasion when the trial judge expressly referred to two separate elements: the conduct and the state of mind. The trial judge referred to conduct and intention, as can be seen from the extracts, but not in a way that contrasted the nature of the two elements.

35 Nevertheless, the trial judge made clear that the conduct of the appellant towards the commission of the offence had to be more than merely preparatory. He directed the jury expressly that the appellant's conduct had to be "conduct that is more than preparatory to [the] commission of an offence, more than preparatory to take control of the substance".

36 Further, his Honour emphasised that the jury needed to conclude an intention to commit the offence from the appellant's conduct in order to convict and needed to do that from conduct that was more than preparatory towards the commission of the offence. This Court must assume that the jury followed the trial judge's direction and, if they did, in reaching their verdict, they must have found both the relevant conduct and intention.

37 To the extent that the trial judge, through his directions, confined the jury to considering only conduct more than merely preparatory in determining whether there was the requisite intention, the trial judge unduly restricted the jury's consideration in a manner favourable to the appellant.

38 Nevertheless, the trial judge did not direct the jury to consider separately the requisite conduct and the relevant intention. Nor did he adequately explain the distinction. That failure discloses error.

Ground 2: Unreasonable verdict and Proviso

39 The Crown relies, inter alia, on the proviso to s 6 of the Criminal Appeal Act 1912. The appellant submits that the verdict is unreasonable "and cannot be supported on the evidence". The test for each is similar, the approach of the Court to each is the same, and both submissions should be considered together.

40 As stated at the outset, the primary facts are either wholly or largely uncontentious. The two co-offenders arrived together and parked until the mail van arrived. The appellant's co-offender then approached the person purporting to be the mail delivery officer.

41 When the co-offender sought to flee, the appellant moved the car away. When the AFP searched the car, the name of the intended recipient of the package was in the appellant's wallet, and the car driven by the appellant contained both cash of an amount over $11,000 and the name and the location of the person to whom international money transfers were effected.

42 The appellant submits that only the co-offender approached the mail delivery officer and that his client did not, as a consequence, attempt to possess the package. The appellant also points to the Crown's disavowal of joint criminal enterprise as a basis for the conviction of the appellant. As I understand this latter aspect, the appellant submits that the appellant cannot, therefore, be held accountable for the actions of the co-offender in approaching the officer.

43 As earlier stated, the primary facts (as distinct from inferences arising therefrom, including the state of mind, or the conclusions to be reached) are uncontentious.

44 The test to be applied by this Court, where a convicted person relies upon a ground that asserts the verdict is unreasonable, is whether the Court thinks that it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty: M v R [1994] HCA 63; (1994) 181 CLR 487 at 493; MFA v R [2002] HCA 53; (2002) 213 CLR 606. The emphasis in the foregoing is that the court assesses the evidence independently and considers itself whether it has a doubt as to the accused's guilt. The test is not one directed at assessing whether evidence exists to support the conviction. Rather, it assumes the latter and assesses whether there is a reasonable doubt arising from the entirety of the evidence.

45 In Singh v R [2011] NSWCCA 100, the Court (Rothman J, Latham and Price JJ agreeing) said:

"[10] The focus must be on the unreasonableness of the verdict, and the term 'unsafe and unsatisfactory', although sometimes still used, ought not be. Further, whether the verdict was 'open to the jury' does not itself, answer the question. The focus of the examination is whether the jury ought to have experienced a reasonable doubt, which is answered by whether the appellate court has a reasonable doubt that cannot be answered by paying regard to the jury's advantage in seeing and hearing the evidence. See also The Queen v Nguyen [2010] HCA 38; (2010) 85 ALJR 8.

[11] Concentration on the expression as to whether it was open to the jury to be satisfied beyond reasonable doubt may lead to some confusion. The focus of the enquiry is not whether there is evidence upon which a jury could have convicted (i.e. whether there was evidence of each element of the offence), but whether it was open to be satisfied beyond reasonable doubt (i.e. whether, on all of the evidence, it was open to be satisfied that there was no reasonable hypothesis consistent with innocence).

[12] In examining the issues, it is the evidence as a whole that must be considered; not each part of the evidence in a piecemeal fashion: R v Rasic [2009] NSWCCA 202 at [29]."

And see the subsequent judgment of the High Court in SKA v The Queen [2011] HCA 13; (2011) 243 CLR 400, at [14], where the majority said:

"In determining an appeal pursuant to s 6(1) of the Criminal Appeal Act, by applying the test set down in M and restated in MFA, the Court is to make 'an independent assessment of the evidence, both as to its sufficiency and its quality'. In M, Mason CJ, Deane, Dawson and Toohey JJ stated:

'In reaching such a conclusion, the court does not consider as a question of law whether there is evidence to support the verdict. Questions of law are separately dealt with by s 6(1). The question is one of fact which the court must decide by making its own independent assessment of the evidence and determining whether, notwithstanding that there is evidence upon which a jury might convict, "none the less it would be dangerous in all the circumstances to allow the verdict of guilty to stand".'"

46 Likewise, or conversely, the task in applying the proviso is almost identical. In Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300, the High Court (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ) said:

"[35] The fundamental task committed to the appellate court by the common form of criminal appeal statute is to decide the appeal. In so far as that task requires considering the proviso, it is not to be undertaken by attempting to predict what a jury (whether the jury at trial or some hypothetical future jury) would or might do. Rather, in applying the proviso, the task is to decide whether a 'substantial miscarriage of justice has actually occurred'.

[36] By hypothesis, when the proviso falls for consideration, the appellate court has decided that there was some irregularity at trial. If there was not, there is no occasion to consider the proviso. In cases, like the present, where evidence that should not have been adduced has been placed before the jury, it will seldom be possible, and rarely if ever profitable, to attempt to work out what the members of the trial jury actually did with that evidence. In cases, like the present, where the evidence that has been wrongly admitted is evidence that is discreditable to the accused, it will almost always be possible to say that that evidence might have affected the jury's view of the accused, or the accused's evidence. And unless we are to return to the Exchequer rule (where any and every departure from trial according to law required a new trial) recognition of the possibility that the trial jury might have used wrongfully received evidence against the accused cannot be treated as conclusive of the question presented by the proviso.

...

[41] That task is to be undertaken in the same way an appellate court decides whether the verdict of the jury should be set aside on the ground that it is unreasonable, or cannot be supported having regard to the evidence. The appellate court must make its own independent assessment of the evidence and determine whether, making due allowance for the 'natural limitations' that exist in the case of an appellate court proceeding wholly or substantially on the record, the accused was proved beyond reasonable doubt to be guilty of the offence on which the jury returned its verdict of guilty. There will be cases, perhaps many cases, where those natural limitations require the appellate court to conclude that it cannot reach the necessary degree of satisfaction. In such a case the proviso would not apply, and apart from some exceptional cases, where a verdict of acquittal might be entered, it would be necessary to order a new trial. But recognising that there will be cases where the proviso does not apply does not exonerate the appellate court from examining the record for itself.

[42] It is neither right nor useful to attempt to lay down absolute rules or singular tests that are to be applied by an appellate court where it examines the record for itself, beyond the three fundamental propositions mentioned earlier. (The appellate court must itself decide whether a substantial miscarriage of justice has actually occurred; the task is an objective task not materially different from other appellate tasks; the standard of proof is the criminal standard.) It is not right to attempt to formulate other rules or tests in so far as they distract attention from the statutory test. It is not useful to attempt that task because to do so would likely fail to take proper account of the very wide diversity of circumstances in which the proviso falls for consideration."

47 In a case such as this, the task is easier than in most. The evidence is uncontentious. Having read the evidence, I have no doubt of the kind that would warrant setting aside the verdict because it is unreasonable. There is no reasonable doubt.

48 On the contrary, a reading and analysis of the evidence satisfies me that no substantial miscarriage of justice has actually occurred and, notwithstanding the error of the trial judge in insufficiently specifying the necessity for the jury to consider the existence of each of the conduct towards the commission of the offence and of the state of mind to commit the offence, the appeal should be dismissed.

49 Two other matters should be mentioned. First, as earlier mentioned, in the course of submissions, counsel for the appellant relied on the failure of the Crown to put joint criminal enterprise as part of its case against the appellant, or the disavowal, by the Crown, of reliance on joint criminal enterprise.

50 The appellant submitted that, as a consequence of the Crown's conduct of the trial, it (and the Court) could not rely on the conduct of the co-offender in determining whether the appellant's conduct went toward the commission of the offence in a manner that was more than preparatory.

51 In reaching the above conclusions as to the operation of the proviso, it is unnecessary to utilise the final conduct of the co-offender. Nevertheless, the conduct may be utilised without the need to resort to a joint criminal enterprise.

52 For the Crown to have relied on joint criminal enterprise, it would have been required to prove that the appellant and the co-offender reached an agreement (tacit or express) to carry out the offence in which the appellant participated: Gillard v R [2003] HCA 64; (2003) 219 CLR 1 at [109]-[110], per Hayne J; Huynh v The Queen [2013] HCA 6; (2013) 87 ALJR 434. In Huynh, the Court (French CJ, Crennan, Kiefel, Bell and Gageler JJ) said:

"[37] The respondent's written submissions acknowledged that joint enterprise liability requires proof of the agreement and of the accused's participation in the enterprise. However, on the hearing of the appeals the respondent resiled from that submission in favour of the contention that 'one plays a part at its most simple by joining into the agreement'. That contention conflated the making of the agreement (whether tacit or express) with participation in its execution and confused liability for conspiracy with liability for the offence that is the subject of the conspiracy. Under the common law the agreement of two or more persons to commit a crime is, without more, a conspiracy. Parties to a conspiracy are liable to conviction for that offence regardless of whether the crime that is the subject of their agreement is committed. The doctrine of joint criminal enterprise provides the means of attaching liability for the agreed crime on all the parties to the agreement regardless of the part played by each in its execution. Of course there will usually be no occasion to have recourse to the doctrine in the case of a party who does some or all of the acts constituting the actus reus. The work done by the doctrine is in making other parties liable for those acts. The principles are as explained by McHugh J in Osland v The Queen. Liability attaches to all the parties to the agreement who participate in some way in furthering its execution." [Footnotes omitted]

53 The jury would have been able to rely on an inference that the co-offender in seeking to collect the package and return it to the car was acting, in part or wholly, as the agent of the appellant (or on his instructions), without evidence of the knowledge of the co-offender or whether he was party to an agreement of the requisite kind.

54 However, in the circumstances, that which was done by the appellant was sufficient to prove guilt without the necessity of relying on the conduct of his co-offender.

55 The second further aspect requiring comment is the operation of s 11.1(7) of the Code. During the course of submissions on the joint criminal enterprise aspect, a brief submission was put relating to its application, given the terms of s 11.2A and s 11.1(7) of the Code.

56 The provisions of s 11.1(7) of the Code understandably exclude relevantly an attempt to commit an offence by common purpose (s 11.2) or joint commission (s 11.2A) or commission by proxy (s 11.3). That is for the obvious reason that, in the case of common purpose, there is either an agreement or there is not.

57 Nevertheless, the converse is not prohibited. A person can be criminally liable by reason of common purpose, joint commission or commission by proxy of an offence which is an attempt. For example, an agreement to commit a murder in which both agreeing parties participate may end "unsuccessfully" and the death of the intended victim not eventuate. The parties would be guilty of attempt by joint criminal enterprise.

58 The foregoing two additional comments are not necessary to the conclusion I have reached on this appeal. For the reasons given, I consider there has been error in the summing-up, but there has been no substantial miscarriage or justice and I would exercise the discretion reposed in the Court by operation of the proviso.

59 I propose that the Court issue the following orders:

(1) To the extent necessary, leave to appeal is granted;

(2) Appeal dismissed.

60 McCALLUM J: I have had the benefit of reading, in draft, the judgment of Rothman J. I agree that the appeal should be dismissed, for the reasons stated by his Honour. As to ground 2, I have undertaken the task of making my own independent assessment of the evidence, both as to its sufficiency and its quality, as required in accordance with the principles explained by the High Court in SKA v The Queen. The appellant's contention that the verdict is unreasonable and cannot be supported on the evidence is based principally on the proposition that, putting aside the evidence of Mr Uadiale approaching Federal Agent Leonard, there was no evidence of any act on the part of the appellant of attempting to possess the drugs other than that he was present in the Tiida van near 16 Wolseley Street. A consideration of the whole of the record of the trial reveals that to be an oversimplification of the Crown case. Even on the appellant's own evidence, he arranged to meet Mr Uadiale in Wolseley Street. He brought $11,000 in cash with him to that meeting. He also brought, in his wallet, the name of the person to whom the parcel was addressed and the consignment number. He parked in Wolseley Street and Mr Uadiale got into the Tiida with him. They sat there together until the Post Australia van arrived, when Mr Uadiale approached Federal Agent Leonard. Mr Uadiale then left Federal Agent Leonard to get the tracking number and returned to her with the number to take delivery of the package. In my view, there was a sufficient evidentiary basis for the physical element of attempting to obtain possession of the parcel. My review of the evidence has not excited any doubt in my mind as to that element of the offence.

61 I agree with the orders proposed by Rothman J.

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Decision last updated: 20 December 2013