Citation: Regina v Leslie Carl JONES, Regina v Leslie Shane JONES [2000] NSWCCA 186
Court: NSW Court of Criminal Appeal
Date: 23 May 2000
Judge(s): Spigelman CJ, Hulme J, Carruthers AJ (dissenting)
Background
Two appellants (an uncle and nephew, referred to here as the appellant suppliers) were convicted in the District Court of conspiracy to supply cannabis leaf contrary to the Drug Misuse and Trafficking Act 1985. The Crown alleged they had conspired with two other men, referred to here as the distributors, to supply cannabis "to the world at large."
The evidence established that the appellants had supplied cannabis to the distributors on a large scale and on multiple occasions over an extended period. The distributors in turn sold the cannabis to customers. The central dispute was whether this ongoing commercial relationship amounted to a criminal conspiracy, or whether it was better characterised as a straightforward supplier-to-purchaser arrangement.
At trial, the Crown Prosecutor made submissions to the jury about why certain witnesses had not been called, which prompted applications by defence counsel to discharge the jury. Those applications were refused. The trial judge directed the jury to refrain from speculation about uncalled witnesses.
Legal Issues
- Whether the evidence was capable of establishing, beyond reasonable doubt, that the appellants were party to a conspiracy to supply drugs, as distinct from merely being suppliers who expected the distributors would on-sell the cannabis
- Whether a repeated course of dealing between a supplier and purchaser is sufficient to permit an inference of a criminal conspiracy
- Whether the trial judge's directions to the jury adequately addressed the Crown Prosecutor's submissions about uncalled witnesses
- Whether a Jones v Dunkel direction (drawing an adverse inference from a party's failure to call a witness) was appropriate in the circumstances
Decision
The majority (Spigelman CJ and Hulme J) allowed both appeals and quashed the convictions. The critical distinction the majority drew was between an expectation that goods will be on-sold and an actual agreement that they will be. Hulme J reasoned, by analogy to ordinary commerce, that a manufacturer supplying goods to a retailer does not thereby become party to an agreement that the retailer will sell those goods to the public. The same logic applied here: the evidence did not exclude the reasonable hypothesis that the appellants simply sold cannabis to the distributors without any wider agreement about supply to third parties.
Hulme J also noted that recorded telephone conversations following the distributors' arrest supported the inference that one distributor was a debtor who owed money to the appellants, not a partner in a joint venture. That characterisation was inconsistent with the Crown's case that all parties shared in the proceeds of a collective enterprise.
The majority held the case was indistinguishable from the Court's earlier decision in Trudgeon (1988) 39 A Crim R 252, which established that a mere expectation of on-sale is not sufficient to constitute conspiracy. The volume and frequency of transactions, while greater than in Trudgeon, did not compel the conclusion that a conspiratorial agreement existed. The appellants' silence at trial and their unsworn statements denying involvement did not materially change this analysis.
On the uncalled witness issue, the majority agreed with Carruthers AJ's reasons on grounds 3, 5 and 6. Carruthers AJ (dissenting on the conspiracy ground) found the trial judge's direction to refrain from speculation about uncalled witnesses was adequate in the circumstances, even if a broader direction of the kind suggested in R v Newland might have been preferable. No re-direction had been sought at trial, and the existing direction was sufficient to prevent prejudice.
Orders Made
- Appeals by both appellants allowed
- Convictions quashed
- Sentences quashed
Key Takeaways
- A conviction for conspiracy to supply drugs requires proof of an actual agreement to supply, not merely an expectation or reasonable inference that on-sale will occur. A course of repeated dealing between a supplier and a purchaser does not, without more, establish that agreement.
- The Court of Criminal Appeal confirmed the principle from Trudgeon that an expectation of on-sale is legally insufficient to constitute a conspiracy, and found that even a substantially more extensive and ongoing supply relationship does not automatically change that conclusion.
- Where recorded conversations and other evidence are equally consistent with a simple debtor-creditor relationship as with a joint venture, those hypotheses consistent with innocence on the conspiracy charge cannot be excluded on that evidence alone.
- A Jones v Dunkel direction, inviting the jury to draw adverse inferences from a party's failure to call a witness, was held to be inappropriate in the context of this case. The trial judge's direction to refrain from speculation about uncalled witnesses, while not as expansive as the approach endorsed in R v Newland, was sufficient to prevent prejudice where no re-direction had been sought at trial.
- Carruthers AJ dissented on the central conspiracy ground, finding the evidence sufficient to go to the jury. The majority decision therefore rests on the specific evidential circumstances rather than establishing a broad new rule.
Legislation and Cases Referenced
Legislation:
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(2), 26
Cases:
- Mulcahy v R (1868) LR 3 HL 306
- Peters v R (1998) 192 CLR 493
- Lipohar v R (1999) 74 ALJR 282
- Trudgeon (1988) 39 A Crim R 252
- RPS v R (2000) 74 ALJR 449
- R v Newland (1997-8) 98 A Crim R 455
- R v Taufua (Unreported, NSWCCA, 30 July 1999)