Franze v The Queen [2015] HCATrans 119 (15 May 2015)

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Franze v The Queen [2015] HCATrans 119 (15 May 2015)

Last Updated: 21 May 2015

[2015] HCATrans 119

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Melbourne No M13 of 2015

B e t w e e n -

ADRIAN FRANZE

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

HAYNE J
NETTLE J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 15 MAY 2015, AT 11.45 AM

Copyright in the High Court of Australia

MS C.A. BOSTON: May it please the Court, I appear on behalf of the applicant. (instructed by Melasecca, Kelly & Zayler)

MR O.P. HOLDENSON, QC: May it please the Court, I appear with my learned friend, MR D.D GURVICH, for the respondent. (instructed by Director of Public Prosecutions (Cth))

HAYNE J: Yes, Ms Boston.

MS BOSTON: Little attention has been paid to the topic in this country, but for the reasons set out by the Court of Appeal, the likely position at common law is that it is not an offence to attempt to enter an agreement to commit an offence - so, in other words, to attempt to enter a joint criminal enterprise – but that it is an offence to attempt to commit an offence as part of a joint criminal enterprise. The cases that touch on the topic are, however, few and far between, presumably because unsuccessful joint crimes are generally prosecuted as conspiracies.

But even presuming the common law does draw this distinction, the crux of the applicant’s contention is that the Criminal Code (Cth) does not and that section 11.1(7) comprehensively precludes criminal liability for the inchoate offence of attempt under the Code being further extended on the basis of joint commission.

Now, as the applicant was prosecuted for a federal offence purely on the basis of joint commission, it is respectfully submitted that he has been convicted of those offences on a basis not known to the law. As the Court is aware, as this Code was passed in 1995, it contained provisions relating to conspiracy and aiding and abetting, but it did not contain section 11.2A.

As this Court confirmed in Handlen and Paddison v The Queen, the common law concept of joint criminal enterprise did not survive the implementation of the Code. Thus, in the years following the Code’s commencement in 1997, there was no ability at all to prosecute a person for a Commonwealth offence on any basis resembling joint criminal enterprise. In 2010, of course, an amending Act inserted section 11.2A and also amended significantly section 11.1(7) to include a reference to section 11.2A. That subsection now read and still reads:

It is not an offence to attempt to commit an offence against section 11.2 (complicity and common purpose), section 11.2A (joint commission) –

and so on and so forth. Now, it is clear that read literally that subsection would be of no effect insofar as it pertains to section 11.2, 11.2A and 11.3, since those provisions do not create offences. Rather, they provide for extensions of criminal responsibility for other offences, and the Code itself acknowledges this in the note to section 11.6.

The respondent purports to accept the proposition that all of the words in the subsection must prima facie be given meaning and effect but, in my respectful submission, when one thinks things through, the Crown’s construction would not achieve that goal. Indeed, interpreting the subsection in a restrictive way insofar as it pertains to section 11.2A so that it only precludes the criminalisation of attempts to enter agreements, would make the reference to section 11.2A redundant. I say that for two reasons.

HAYNE J: Can I just back up a little? It may, I think, be accepted for the purposes of argument that there is no offence of attempting to attempt, but is it possible to jointly attempt to commit an offence?

MS BOSTON: In my respectful submission, no, not under the Code.

HAYNE J: So the Code does not encompass the three men going to rob a bank, the motor man sitting in the car, the two who enter, and they fail for whatever reason in their attempts to make off with the money. The motor man who is outside would be guilty of no offence if it no doubt can be somehow, probably as a form of money laundering, be brought under the Commonwealth Code. Is that right?

MS BOSTON: It is not, with respect, your Honour, because of the existence of the offence of conspiracy under the Code which could cover such conduct, and the second thing I say in response to your Honour’s question is that for 13 years before this amending Act was passed it was clear that there was no way to prosecute a person on the basis of joint criminal enterprise under this Code. So unless section 11.2A - - -

HAYNE J: Which may speak more of the kinds of substantive offences with which the Code was initially enacted was dealing, but leave that aside, perhaps not. Yes, go on.

MS BOSTON: Be that as it may, unless section 11.2A does allow for the type of offending that your Honour has spoken of then, no, it does not cover it. So if I might just back up - - -

HAYNE J: It would again mark a sharp departure from the – I was going to say the generalised distaste for conspiracy as a charge – if, in the example I give of the motor man, the motor man was not guilty of the joint enterprise of attempting to rob a bank.

MS BOSTON: Except that, your Honour, Parliament responded to those concerns which had been raised by this Court and other courts by putting in place various safeguards in the context of conspiracy, namely, the requirement of an overt act which did not exist at common law, the requirement that the DPP consent to the laying of the charge, the court’s ability to dismiss a charge if it is in the interests of justice to do so, and the stipulation that a person – this is section 11.5(4) – cannot be guilty of conspiracy if all other parties to the alleged agreement have been acquitted and the party’s conviction would be inconsistent with this.

It is clear that none of those safeguards exist under section 11.2A, and it simply, with respect, cannot have been Parliament’s intention that prosecutors could simply circumvent those safeguards by instead of charging somebody with conspiracy charging them with attempt on the basis of joint commission. So that is an important contextual matter, in my respectful submission, which supports the applicant’s construction.

HAYNE J: It is joint commission of the offence of attempt. It is not attempt to jointly commit – we get tangled in the words. The offence jointly committed is the offence of attempt, is it not?

MS BOSTON: Yes.

HAYNE J: In this case, attempt to - what was it – import, was it not?

MS BOSTON: Possess an unlawfully - - -

HAYNE J: Possess. Yes.

MS BOSTON: Yes. Except that the words of the statute – obviously, we must always start with the words of the statute - - -

HAYNE J: Yes.

MS BOSTON: - - - remove one’s common law goggles for a moment and look what the words on the page actually say, and it is - - -

HAYNE J: Yes. I seem to have read that somewhere, Ms Boston.

MS BOSTON: Yes. So the words on the page are it is not an attempt – it is not an offence to attempt to commit an offence against section 11.2A. The Crown’s interpretation of those words is that they mean it is not an offence to attempt to enter an agreement under section 11.2A, and that is just not what the words on the page say, in my respectful submission. The words on the page do not draw any distinction between attempting to enter an agreement and jointly attempting to commit an offence.

Of course, when one looks at 11.2A(1)(a) and (b), subparagraph (a) requires that there be an agreement and subparagraph (b), there has to be an offence “committed in accordance with” or “in the course of carrying out the agreement”, and there is no narrowing of the effect of section 11.1(7) such that it only applies to subparagraph (a) of 11.2A(1). So the words comprehensively refer to section 11.2A.

So what, in effect, section 11.1(7) is saying, inter alia, is that it is not an offence to do the thing set out in subparagraph (b). It is not an offence to attempt to commit an offence “in accordance with” or “in the course of carrying out” an agreement. The necessary implication of that is that it is also – the section 11.2A.....cannot be the basis of a charge of attempt.

If I might just move back to the point I was making about the Crown’s construction being redundant because it is not a point which I have made well in the written submissions. So the Crown says that it means it is not an offence to attempt to enter an agreement. It cannot be an offence under section 11.1(1) because obviously that criminalises only attempts to commit offences and section 11.2A is an offence, so we can put that to one side.

But as for the possibility that attempting only to enter an agreement to commit an offence could make a person guilty of attempting to commit that offence, well it could not, and the reason for that is that section 11.2A not only requires that there be an agreement, it also requires that there be an offence committed “in accordance with” or “in the course of carrying out the agreement”. So clearly some post-agreement action is required before section 11.2A can render a person criminally liable for any offence, be it attempt or otherwise. So even absent section 11.1(7), even absent that subsection, a person could never have been convicted of attempting to commit an offence on the basis that they attempted to enter an agreement to commit that offence.

In my respectful submission, the only sensible way to give effect and meaning to the subsection insofar as it pertains to section 11.2A is that it means it is not an offence to attempt to commit an offence on the basis of section 11.2A or under or in relation to it. That is supported by the extrinsic materials which are set out in the written submissions.

In particular, just to take some of the more illuminating examples, the Model Code in 1992 stated that the attempt provision does not apply to offences under the complicity and common purpose provision; that is the aiding and abetting provision. Then, the explanatory memorandum to the original Bill in 1994 stated that:

subsection 11.1(7) provides that there can be no offence of attempt in relation to proposed sections 11.2 . . . or 11.5 –

Now, again, it is very, very broad wording, all-encompassing wording I would suggest - - -

HAYNE J: But that includes you cannot attempt to attempt. The question is whether it goes beyond that, is it not?

MS BOSTON: Well, clearly one - - -

HAYNE J: I do not want to divert you from the course of your argument; you follow the course you want to pursue, Ms Boston, if that is the more convenient.

MS BOSTON: So the two extrinsic materials I have taken the Court to are obviously prior to the enactment of – insertion of section 11.2A, but it is important because it shows that the legislature did not intend for the aiding and abetting provision, section 11.2, to be able to be used in combination with the attempt provision. Of course, 11.2A, the joint commission offence, is like 11.2 in the sense that it is an extension of criminal responsibility rather than being an offence in and of itself. Now, lest there be any doubt, the revised explanatory memorandum to the amending Bill in 2010 stated that the effect of inserting the reference to section 11.2A into section 11.1(7):

is that a person cannot be charged with attempting to engage in conduct that meets the requirements of section 11.2A. This is appropriate because joint commission only applies to completed offences.

Three parts of this explanatory memorandum in particular support the applicant’s interpretation. First, it states that “a person cannot be charged with attempting to engage in conduct”. There is no reference to attempts to enter agreements. Secondly, again, very broad words are used to give meaning to the word “against”, namely, “that meets the requirements of”. Thirdly, it could not be any more blatant, “joint commission only applies to” substantive offences.

Whether that statement stems from a mistaken understanding of the common law as the Court of Appeal supposed, or whether it is referring to joint commission under the Code is ultimately inconsequential. What is important is Parliament’s intention and that is crystal clear, joint commission only applies to completed offences. That makes sense, in my respectful submission, in the context of these safeguards having been implemented in the context of the conspiracy.

Another contextual matter, finally, relates to the difficulty, impossibility even, of attempting - trying to combine a substantive federal offence with the attempt and joint commission provisions. It does not work - to adopt the learned trial judge’s language, it is like putting a square peg in a round hole, and it is notable, in my respectful submission, that my learned friends have made no attempt, jointly or otherwise - pardon the pun – to demonstrate to the Court how these provisions do fit together. To the contrary, even the Crown concedes the difficulty of combining them and, in my respectful submission that is because the reason that they are difficult to put together is that there was never any intention that they be put together.

The primary conceptual difficulty arises, at least partly, due to the cascading effect of the special liability provisions which prevail throughout the Code, removing the traditional mens rea requirements or fault elements under the Code, as those special liability provisions appear to flow through to both the joint commission and the attempt provisions.

The Crown’s position in the current state of the law, at least at an intermediate appellate level, is that because of those special liability provisions attaching to this offence, the only fault element which the Crown would have to prove on a trial for the attempted possession of a commercial quantity of an unlawfully imported border-controlled drug, the only intention that the Crown would have to prove would be an intention that any person in the joint enterprise possess any border-controlled drug in any quantity.

Putting to one side whether that really could have been Parliament’s intention, let us assume that that is right, the problem is that the physical elements for an attempt based on joint commission are intrinsically linked with a person’s state of mind and that is because the physical elements are entering an agreement to commit an offence and are party to the agreement attempting to commit an offence in accordance with that agreement.

It is perhaps the difficulty of divorcing those physical elements from one’s state of mind which makes things problematic. It is particularly problematic in respect of an offence like section 307.5 which is only – the only way it is distinguished from other offences is on the basis of quantity for which absolute liability applies. May it please the Court.

HAYNE J: Thank you, Ms Boston. Mr Holdenson. Mr Holdenson, we may be assisted most immediately if you would state as close to in propositional form as you could the way in which you say 11.2, 2A and (7) relate to this case without seeking to develop those propositions, at least immediately.

MR HOLDENSON: Perhaps if I put it this way. There is an offence created in section 307.5(1) of the Act; that is the offence of possession of a commercial quantity of an unlawfully imported border controlled drug. If I can just call that possession of a commercial quantity of a drug. We then move on to section 11.2A(1)(a):

a person and at least one other party enter into an agreement to commit an offence –

Here the Crown contention was the offence, the subject of 11.2A(1)(a), was that offence of possession of a commercial quantity of a drug. Then the Crown was required to prove paragraph (b) which breaks down into alternatives but in this case it was (b)(i). So the Crown was also required to prove that an offence was committed in accordance with the agreement, the agreement being the agreement in paragraph (a), within the meaning of subsection (2). It is in subsection (2) that one sees, if you like, an interpretive provision with respect to (b)(i), in which case:

the person is taken to have committed –

and I am reading the last two and a bit lines of paragraph (1)(b) –

the joint offence referred to –

in this case, subsection (2). It is in subsection (2) that one gets the ingredients – to use a neutral expression – of that phrase in (b)(i), and each of those paragraphs talks about the joint offence. The offence that was committed in this case in accordance with the agreement, as set out in subsection (2), is the offence of attempt, that is, the offence of attempt to possess a commercial quantity, it being as per the way in which these provisions work and are described from within, a thing called “the joint offence”.

Your Honours will see in the concluding words of paragraph (b) that the offence which “is committed in accordance with the agreement” is the joint offence and one sees that phrase “joint offence” within each of the three paragraphs which make up subsection (2). That is not, however, the end of the operation of section 11.2A. One sees in the subsequent subsections – and we can disregard subsection (3) because that related to subsection (1)(b)(ii) – but one sees within the subsequent subsections, subsections (4), (6) – I have jumped (5) – (7) and (8) the phrase:

For a person to be guilty of an offence because of the operation of this section –

and one sees that phrase in subsections (4), (6), (7) and (8), and as one reads those sections that is speaking of the joint offence which is referred to in subsection (1)(b)(i) or (ii), depending upon which case it is, and then subsection (2) or (3), depending on which case it is, which is not the offence the subject of the agreement in 11.2A(1)(a).

So – and I may be straying from the particular question your Honour Justice Hayne asked me to address – but that is why this application is really a case about section 11.2A or, more precisely, the scope of section 11.2A and how it works. Just returning to the facts for a moment - - -

HAYNE J: Well, as I say, what I am looking for is a statement in propositional form of the way in which you say these provisions speak to the facts of this case.

MR HOLDENSON: So the Crown relies on section 11.2A. As I have said, there was an agreement to possess a commercial quantity of a drug, but the offence actually committed in accordance with that agreement was not that offence - - -

HAYNE J: But the offence of attempt.

MR HOLDENSON: - - - but the offence of attempt.

HAYNE J: Yes.

MR HOLDENSON: The reason why – an inner substance was substituted by diligent police officers post-importation. That does not pose – and I am going now really to respond to your Honour Justice Hayne’s question – that was not an impediment for the Crown insofar as the offence of attempt was concerned by reason of 11.1(4)(a):

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

(a) committing the offence attempted is impossible –

So the question really becomes whether or not the joint - - -

HAYNE J: I think we may not need to trouble you further, Mr Holdenson. Ms Boston, is there anything you would wish to say in answer?

MS BOSTON: Just, your Honour, in your Honour’s response to my learned friend’s construction of section 11.2A. It is correct as far as it goes. The difficulty is that it does not contemplate the effect of section 11.1(7). So that subsection says:

It is not an offence to attempt to commit an offence against . . . section 11.2A –

What that means, in my respectful submission, is it is not an offence to attempt to engage in the thing set out in section 11.2A, so subsection (1), as elaborated on in subsequent sections. So that includes the proposition that it is not an offence to attempt to do the things that are in section 11.2A(1)(b). It is not an offence to attempt to commit an offence in accordance with the agreement.

So what that means, it is not an offence to attempt to commit an offence in accordance with the agreement, the necessary implication of that is that an attempt cannot be an offence which is the same type as the substantive offence. So because of that the reference to “the same type” in subsection (2) does not assist the Crown. An attempt cannot be an offence of the same type.

Moreover, or furthermore, only subparagraph (a), which refers to that concept of an offence of the same type, that relates only to the conduct of the offence which for this offence is the possession. The matters of the drug being a border-controlled drug and in a commercial quantity and having been unlawfully imported, that is not conduct, that is circumstance, so that comes under subparagraph (c). Your Honours will see that in subparagraph (c) there is no reference at all there to an offence of the same type. So the consequence of all of that is that this section, 11.2A, cannot be used as the basis for establishing criminal responsibility for an offence under section 11.1 because of subsection (7). May it please the Court.

HAYNE J: Thank you, Ms Boston.

The Court of Appeal’s decision about the application in this case of sections 11.2, 11.2A and 11.1(7) of the Criminal Code (Cth) is not attended by doubt. Special leave to appeal is refused.

AT 12.15 PM THE MATTER WAS CONCLUDED