Boutros v R

The trial

1. The trial was very short, and was conducted with an unusual degree of co-operation between the parties.
2. The majority of the factual matters alleged by the Crown were agreed, and were put before the jury by way of an Agreed Statement of Facts pursuant to s 184 and s 191 of the Evidence Act 1995 (NSW). Only two witnesses, both Australian Federal Police ("AFP") officers, gave oral evidence in the Crown case. The appellant did not give or call evidence.
3. The Crown prosecutor opened very briefly to the jury. Relevantly, he said: "… The Crown has to prove a number of elements … I can tell you that the things that the Crown needs to prove are that the accused engaged in conduct that is more than what we say is merely preparatory and more than merely preparatory, to possess the substance. Secondly the Crown would need to prove that the substance was unlawfully imported. Thirdly the Crown needs to prove that the substance was a border controlled drug. As a matter of law, cocaine is a border controlled drug. Fourthly the quantity attempted to be possessed was a marketable quantity. Finally, the Crown needs to prove that the accused knew that the substance was a border controlled drug."
4. The Crown then referred briefly to some of the evidence he anticipated would be called, and told the jury that the evidence consisted in part of circumstantial evidence.
5. He then said: "The types of matters the Crown relies on in proving its circumstantial case are these, firstly that the accused new [sic] about the arrival of the package; secondly that he agreed to take delivery of the package; thirdly that he had attended at the relevant location and waited for the package and in the Crown's submission he refused to take delivery of that package because, on the Crown case, the accused formed the view that the situation was too hot and there were police that were already there and knew what was going on." (italics added)
6. Counsel who appeared for the appellant at trial opened the defence case briefly. Relevantly, as recorded in the transcript, he said: "The Crown will not, cannot prove that the accused knew that the package contained a narcotic drug and did nothing, in my respectful submission, [it] will be your finding of fact at the close of these proceedings, that even was in a mere preparatory fashion an act, coupled with the requisite intention, to possess the package. It really is, members of the jury, as simple as that."

The Crown case

1. The evidence in the Crown case was as follows.
2. On 3 December 2010, a consignment, consisting of a package labelled as containing cosmetics, which had originated in Lebanon, arrived in Australia. It was addressed to "Goerges (sic) Sarkis" at an address in Beverley Hills. The consignment was investigated by Customs and Border Security, and was found to contain cocaine of a pure weight of 324.1 grams. Cocaine is a border controlled drug. A marketable quantity of cocaine is 2.0 grams.
3. Measures were put in place to prevent delivery. The cocaine was removed from the container and replaced with an inert substance.
4. A police operation commenced. Telecommunications services in the name of Andrea Abdallah were intercepted pursuant to warrants issued under the Telecommunications (Interception and Access) Act 1979 (Cth). Andrea Abdallah and George Sarkis were the same person. At 8.45pm on 3 December, Abdallah telephoned the appellant, expressing some consternation at the delay in the processing and release of the consignment and asking the appellant to "go and check", saying "they reckon there's a drama or something". Abdallah then advised the appellant to "put a hat on and that, huh". The appellant said that he understood. (The Crown case was that this was a coded warning to the appellant to take care.) At about 9.10pm, the appellant telephoned Abdallah, confirming that release of the consignment had been delayed, but giving no explanation.
5. An AFP undercover operative (Daniel Laveta), posed as a FedEx driver called "Dan". On 8 December Mr Laveta telephoned Abdallah advising that he was calling from FedEx, and that he was trying to arrange to deliver a parcel for "George Sarkis".
6. On 9 December, at about 8.30am, Mr Laveta contacted Abdallah (using the name George). Abdallah gave Mr Laveta an address on Liverpool Road, Strathfield for delivery of the package. He said that the building was being renovated, and a worker named Jason should be present to take delivery of the package. Mr Laveta told Abdallah that he would need a signature for delivery to take place.
7. Mr Laveta drove to the Liverpool Road address, arriving at about 10.40am. The shop was closed and apparently unoccupied.
8. At about 11.45am Abdallah telephoned the appellant. The appellant told Abdallah that he was "at the place". Abdallah asked if there were "any coppers yet". The appellant asked "Have you, have you done the thing yet?". Abdallah replied "Yeah, yeah, I did it, but they sound like coppers". He asked if there had been any sign of police at the premises. He recounted to the appellant the conversation with Mr Laveta about needing a signature.
9. From about 1.00 or 2.00pm, the Liverpool Road premises were under AFP surveillance.
10. At about 2.11pm Mr Laveta, still posing as a delivery driver, rang Abdallah. He said that he had been unable to make the delivery because there was nobody present at the address. Abdallah told him simply to drop the package at the premises. Mr Laveta declined to do so, saying he did not feel comfortable with that course. They arranged to meet about 15 minutes later.
11. At about 2.30pm on the same day the appellant was present at the Liverpool Road address in Strathfield, standing outside on the pavement; he then walked inside the premises. Mr Laveta arrived, in his role as a FedEx delivery driver. He was wearing a listening device, authorised by a warrant issued under the Surveillance Devices Act 2007 (NSW). He had a conversation with the appellant, who appeared to be working there. The conversation was recorded. Mr Laveta introduced himself and told the appellant that he had a package that he had been told to drop off for "George". The appellant professed ignorance of George. There was further conversation concerning delivery of the package, which culminated in the appellant saying: "It's up to you, man. If you want to leave it here it's up to you, but … then it gets delivered you see." Mr Laveta declined to leave the package in those circumstances and left at about 2.45pm.
12. In cross-examination, Mr Laveta agreed that the transcript of the tape recorded conversation indicated that the appellant was engaged in some activity perhaps hammering or drilling.
13. At about 3.00pm, the appellant telephoned Abdallah. Evidence about the identification of the participants referred to in the transcript as "M1" and "M2", to the conversation was confusing, but for present purposes it does not matter. This conversation took place after Mr Laveta had departed from the Liverpool Road premises. The transcript of this conversation records the following: "M2 (Abdallah): Yeah hi mate. M1: Fuck it's hot man. M2: Fuck tell me about this weather. M1: What happened. M2: Fuck it hot it's hot as uh. M1: Yeah yeah yeah yeah turn it down don't worry about it. M2: Yeah yeah no M1 (foreign =): When you call her … this number, don't call her on this number, alright? M2: Alright bye. M1: Bye."
14. At about 3.45pm, with other members of the Australian Federal Police, Mr Laveta returned to the Liverpool Road address. The appellant was in the back of the premises. He was then arrested.
15. On the same day a search warrant was executed at the appellant's home. Police located a black notepad that contained references to the consignment, including the consignment reference number. The appellant's fingerprints were on part of the notepad.
16. The Crown placed considerable reliance on certain portions of the intercepted telephone conversations to establish that the appellant was well aware of the contents of the consigned package, and of the need for concealment and caution. These included the references to "a drama", to "putting on a hat", and to "delay" (in the release and delivery of the consignment).

The defence case

1. As mentioned above, the appellant did not give or call evidence. His case was put through cross-examination of the two Crown witnesses, and the argument of his counsel in his final address. Essentially, it was the appellant's case that his presence at the Liverpool Road address was explained by the fact that he was doing construction work at the premises, and that the evidence failed to establish to the requisite standard that he had, in terms of s 11.1(2) of the Code, engaged in any conduct that was more than merely preparatory to the commission of the offence (the offence being possession of a border controlled drug).
2. At the conclusion of the Crown case, counsel representing the appellant applied for a verdict of acquittal by direction. That was refused. By that time, it was clear that the disputed issues in the trial were limited to two: (i) whether the Crown had proved that the appellant was aware that the contents of the package were cocaine; and (ii) whether the Crown had proved that the appellant had taken any step, or engaged in any conduct, that was "more than merely preparatory for the commission of the offence".
3. The trial judge was satisfied that the Crown had sufficiently discharged its onus as to the first, that is, that there was sufficient evidence to go to the jury that the appellant knew that the package contained cocaine. He described the second issue as "the harder question", and said: "… at first blush it is difficult to find any conduct in the evidence which would establish that element."
4. He referred to evidence that the appellant was present at the Liverpool Road premises because he was working there, but concluded that, although his presence was "capable of an innocent explanation", his presence was also something that the Crown was entitled to rely on as evidence of an attempt to gain possession of the package. He also referred to the evidence of the conversation the appellant had with Mr Laveta as evidence capable of supporting an inference that he was attempting to have Mr Laveta leave the package with him.
5. Accordingly, although "not without hesitation" he rejected the application for a verdict of acquittal by direction.

The final addresses of the parties

1. Given the issues that have arisen on appeal, it is necessary to refer to what was said by the parties in final addresses. The following is recorded in the Crown prosecutor's final address: "… The Crown says that the accused knew about the arrival of the package. Secondly, that he agreed to take delivery of the package. Thirdly, that he attended at the relevant location, waited for the package and importantly, had a conversation with that courier driver who we know to be the federal agent, about delivery of the package. Finally, the phone call that he has with Mr Abdulla shortly after [Mr Laveta] leaves the shop on Liverpool Road …"
2. The Crown prosecutor then addressed at some length on the evidence to establish that the appellant knew or believed that the package to be delivered contained a narcotic drug. This was largely the evidence that emerged from the recorded telephone conversations. He submitted that the only reasonable inference to be drawn from that evidence was that the appellant knew what was in the package.
3. He then made reference to the evidence upon which the Crown relied to establish that the appellant had attempted (in the sense used in s 11.1 of the Code) to take possession of the cocaine. In this passage, he made specific reference to the conversation between the appellant and Mr Laveta in which the appellant did not accept delivery. That was the conversation in which the appellant said: "It's up to you, man. If you want to leave it here it's up to you, but … then it gets delivered you see?" This should be taken, the Crown submitted, as indicating that the appellant knew what was in the package, but that he did not want to be seen to be actively taking receipt of it. He labelled this "plausible deniability".
4. He then addressed on the issue of intention, and, in that context, said: "It is clear from those conversations that Mr Boutros has gone to that spot for a particular purpose … He's there for the specific purpose, perhaps working, but certainly to take delivery of that package."
5. A little later, with specific reference to the issue of "attempt", he put to the jury: "In pursuit of that intention, his conduct, Mr Boutros' conduct, was more than merely preparatory. The Crown says that it was. He knows about the arrival of the package; we've got the black notebook, we've got the conversations that he has with Mr Abdulla about the delivery of the package. He agrees, the Crown says, to take delivery of the package, that's why he's there at Strathfield on Liverpool Road. The Crown says that he agreed to take delivery of the package because he goes to that address and [Mr Laveta] turns up to make the delivery."
6. The Crown prosecutor returned to the conversation between the appellant and Mr Laveta, and said of that: "But the Crown says that that is an offer that he makes to attempt possession of the cocaine … … his conversation with [Mr Laveta] was an attempt by him to have the package left there. Remember, he does refuse to take delivery, but it is submitted it's because he had formed the view that it was too hot. The Crown says that that is not a reference to the weather, it's a reference to I'm suspicious, I already have a feeling there are police outside …"
7. In his final address, defence counsel relevantly put the appellant's case as follows: "Can I say this much to the ultimate argument in this case and it's this. What's he done in factual terms to take delivery of the package? The law is, as you've seen from the directions given to you; it's got to go beyond mere preparation. Well look at the evidence of the events leading up to 9 December 2010 from 3 December. What does Mr Boutros do, if anything, to effect preparation to enable him to take delivery of this package? We would submit to you absolutely nothing. And on the afternoon of 9 December 2010 at those Liverpool Road, South Strathfield premises, the words spoken, 'if you want to leave it there you can but it's up to you mate, then it gets delivered,' are at best equivocal, and I mean by that they can mean more than one thing, because as this conversation has unfolded, as the evidence has been placed before you, none of it allows you to dismiss the proposition that Boutros, had he been asked to sign for the package, would have …"
8. Later, he said: "… the accused, and I am not suggesting for a moment that this is a concession made on his behalf, it is certainly not in the agreed statement of facts, can have the requisite knowledge, that is the belief that the package contained a narcotic drug but if he did not attempt to take possession of it, he is not guilty of this offence … It is my submission to you that neither of the elements, that is the belief or the knowledge that the package contained a narcotic substance, nor the attempted possession are made out by the Crown because for the same reasons members of the jury, in a roundabout sort of way, for the same reasons that the knowledge relied upon in respect of the attempt to possess the package is relied upon in relation to the belief that it contained a narcotic drug fall well short of the mark …"

The summing up

1. At the commencement of the summing up, the trial judge gave the jury one page of written directions, which were as follows: "Before you can find the accused guilty you must be satisfied beyond reasonable doubt that each of the following elements is present: 1. A quantity of cocaine was unlawfully imported into Australia. 2. That quantity was 2 grams or more. 3. The accused attempted to possess the cocaine. The first two elements are not disputed by the accused. His case is that the prosecution has not proved the third element beyond reasonable doubt. The accused would have attempted to possess the cocaine if: 1. He believed the package to be delivered contained a narcotic drug. 2. He intended to possess the package. 3. In pursuit of that intention, his conduct was more than merely preparatory."
2. I extract below relevant passages from the transcript of the summing up. Those passages are: "Has the Crown proved that Mr Boutros believed the package to be delivered contained a narcotic drug … The next thing that the Crown has to prove is that Mr Boutros intended to possess the package. The third thing that the Crown has got to prove is that in pursuit of that intention because you only get to number three if you find number two proved beyond reasonable doubt so I assume in discussing number three you will have found number two proved. In pursuit of the intention to possess the package was Mr Boutros' conduct more than merely preparatory? You see what the Crown has to prove beyond reasonable doubt is that the accused did some act, actually did something, towards committing the crime which was immediately connected with the commission of that crime and which cannot have had any other reasonable purpose other than commission of the crime. … [His Honour gave some illustrations of conduct that would fall short of being more than merely preparatory, and of conduct that would meet that standard.] To try and make a couple of things clear to you, firstly you have got to do something, an intention to commit a crime is not enough. Secondly that conduct has to be towards committing, in this case the crime of possessing prohibited drugs and thirdly the conduct has got to be more than merely preparatory. So, if you are satisfied beyond reasonable doubt that Mr Boutros intended to gain possession of the package containing drugs he is not guilty of the crime of attempt unless the Crown has proved beyond reasonable doubt that Mr Boutros committed an act which is more than mere preparation to gain that possession. He must actually have embarked upon the commission of the crime, that is possessing a prohibited drug, that he intends to commit. What the Crown of course relies on is the conduct of Mr Boutros saying to the police officer something along the line of, well, it is up to you if you want to leave it here, that way it will be delivered … But that is the conduct the Crown relies on, the Crown says that is conduct that demonstrates that Mr Boutros intended to possess the package and that is more than merely preparatory … So, Mr Crown says that Mr Boutros' conduct is more than really [sic - ? merely] preparatory. He knows about the arrival of the package. He agrees to take delivery of it and he goes to the shop to take possession of it. … And it is Mr Boutros' activities in suggesting that the package be left which amount to an attempt to take possession of it." (italics added)
3. After the jury retired, they sought clarification by a question. The question was: "Does a change of mind three hours prior, or at delivery, negate intent to possess?"
4. There followed some discussion between the trial judge and counsel as to how to answer the question (which his Honour and defence counsel said they found difficult to understand). After that discussion, and by agreement, his Honour directed the jury as follows (as recorded in the transcript): "You remember, I trust, that the Crown has to prove as far as attempt is concerned, those three elements: belief that the package contained drugs, intention to possess the package, and conduct that was more than merely preparatory. Now what the Crown has to prove beyond reasonable doubt is those three things happened at the same time … So it cannot prove that one thing occurred at one stage, and another thing occurred at another stage. What you are looking for is has the Crown proved that at some stage those three things coincided, belief that the package contained drugs, intention to possess the package, and conduct that was more than merely preparatory. Now of course the conduct that the Crown relies on are these words spoken to Dan the delivery driver, 'It's up to you man, if you want to leave it here it's up to you but, then it gets delivered you see'. That is the conduct the Crown relies on … Those things have to all come together at the same time. It does not matter what time it is, but it has got to be at the same time. [In] [t]his case the Crown says the time they all occurred is the conduct when Mr Boutros did those things by saying, 'It's up you [sic], man, if you want to leave it here it's up to you but, then it get delivered, you see'." (italics added)
5. Shortly after that, the jury sent a further note, asking what would be the procedure if they were unable to make a unanimous decision. His Honour gave a response in terms of Black v The Queen [1993] HCA 71; 179 CLR 44. Thereafter the jury sent a third note, which read: "Your clarification of 'all three things happening at the same time' made reference to the comments 'it is up to you man if you want to leave it'. Could the jury form a view that these three requirements could have been fulfilled at another time"."
6. There followed another discussion between counsel and the trial judge. The Crown prosecutor said: "Well I think we, the Crown put it in two ways, there was the going to the property and then there was that conversation."
7. Counsel for the appellant vigorously dissented from this proposition, saying that the conduct the Crown relied on as an attempt lay in the words spoken to Mr Laveta. The Crown prosecutor maintained that he had also relied on the appellant's attendance at the Liverpool Road shop as conduct as more than merely preparatory in an attempt to commit the offence. His Honour accepted that the Crown had: "… put the case on the basis that the jury could find Mr Boutros guilty on an action of going to the shop." He said: "It was me that confined the Crown case to the words spoken by Mr Boutros at the shop, but that occurred after, of course, Mr Stanton's [counsel for the accused] final address."
8. The transcript records that he then read the question to the jury and said: "Answer yes. So, members of the jury, if you find that at another time the accused believed - at the same time believed the package to be delivered contained a narcotic drug and he intended to possess the package and at that time had engaged in contact [sic - conduct] that was more than merely preparatory in pursuit of the intention to possess the package, you could find him guilty, okay."
9. Counsel for the appellant then sought discharge of the jury, first on the basis that the direction was a departure from the case he had sought to meet, and second on the basis that the further direction invited the jury to speculate about what the conduct relied upon might be.
10. His Honour declined to discharge the jury. Shortly after, the jury returned with a verdict of guilty.

The grounds of appeal

1. The grounds of appeal were pleaded as follows: "1. A miscarriage of justice occurred as a consequence of the Trial Judge leaving to the jury, after the addresses and summing up, an alternative factual basis for the charge of attempt, different to that case the Crown had originally relied upon, involving some unspecified happening at some other time, not withstanding [sic] the trial had been conducted by the Defence on the original basis, and directed the jury to the effect that the charge was made out if the jury concluded that at that time the accused believed the package to be delivered contained a narcotic drug, he intended to possess it, and engaged in conduct that was more than preparatory. 2. The verdict was unreasonable and not supported by the evidence."

Ground 1

1. Put simply, the ground is that, as a consequence of the questions asked by the jury, the trial judge departed from the case that the Crown had sought to make. The argument was that the Crown had identified the conduct said to amount to an attempt to take possession of the cocaine as the appellant's invitation to Mr Laveta to leave the package with him.
2. In my opinion, that was not the Crown case.
3. A fair reading of the Crown's opening reveals clearly that its primary position was that the appellant's attendance at the Liverpool Road address (which, the Crown asserted, was for the purpose of taking delivery of the package) was sufficient to establish "conduct more than merely preparatory to the commission of the offence". That remained the Crown's position throughout. It was echoed in the Crown's final address, although the Crown prosecutor also referred to the appellant's conversation with Mr Laveta, in which he said "It's up to you … If you want to leave it here it's up to you … then it gets delivered you see.". The Crown put to the jury that this was an attempt to have Mr Laveta leave the package in the appellant's possession.
4. It was this that the trial judge referred to in answering the jury's first question. It was when the third note arrived that it became plain that the trial judge had (as he said) unduly confined the Crown's case of conduct constituting an attempt to gain possession to that conversation. This answer to that question was that the Crown was not confined to that time in establishing the relevant conduct. All that the jury could have understood from that was that, at some earlier time, the appellant could have engaged in relevant conduct. So long as that coincided with the necessary belief and intention, that was sufficient. In the circumstances of this case, the only other time could have been the time when the appellant attended (and remained at) the Liverpool Road premises.
5. The judge could have gone further, and specified the conduct as attendance at that address. That specifically could hardly have assisted the appellant's case.
6. Defence counsel's protest that the conduct relied upon by the Crown was only the words spoken by the appellant to Mr Laveta was misconceived. It is contradicted by the plain words used by the Crown in the opening.
7. The written submissions filed on behalf of the appellant repeat the misconception of trial counsel. It was there submitted: "It is submitted that a miscarriage of justice has occurred because, by answering 'yes' the jury's question, whether the elements of the offence could be satisfied 'at an earlier time', the Trial Judge effectively obviated the need for the prosecution to prove the physical element of the offence and denied the Defence an opportunity to meet whatever case the jury might have found in the evidence. In the circumstances the accused was effectively deprived of the statutory right to address under s 160 of the Criminal Procedure Act [1986]: see King v R [[1986] HCA 59;] 161 CLR 423], Robinson v R [2006] NSWCCA 192."
8. First, the written submission misquotes the jury's question, and the answer. The question did not specify "at an earlier time", but "at another time" (although, in the context, it could only have referred to an earlier time). More importantly, the submission assumes that the physical element on which the Crown relied, and opened and closed to the jury, was the appellant's conversation with Mr Laveta. That is wrong. The physical element on which the Crown opened - and closed - to the jury was the appellant's attendance at the Liverpool Road premises. In closing, the Crown added a reference to the conversation.
9. There was no change of direction in the Crown case.
10. In my opinion, Ground 1 is based on a false premise and must fail.

Ground 2

1. It is worth restating that this ground is framed in terms of the asserted unreasonableness of the verdict. No question of the adequacy or correctness of the directions to the jury arises.
2. It was accepted that the jury must have been satisfied beyond reasonable doubt that the appellant knew that the content of the package was cocaine, and intended to possess it. There was ample evidence in the intercepted telephone conversations to support those conclusions and they are not challenged on appeal.
3. The written submissions filed in support of this ground were confused and confusing. For example, it was put: "49. Although the question of whether conduct is 'more than merely preparatory' is ultimately a question of fact in this case, the jury should, at least, have been directed that it needed to be satisfied [that] to establish the necessary intent and it[s] coincidence with the relevant conduct … the conduct had to be such as showed beyond reasonable doubt that it had no purpose other than commission of the offence. Plainly, the Appellant's presence at the premises had a purpose other than commission of the offence: he was there for the purposes of his employment in construction, and remained there long after the delivery had failed. This was accepted by the Crown in his closing address to the jury on the second day of the trial."
4. No complaint was made at trial about the directions, and no ground of appeal challenges the directions. It was never suggested that the jury ought to have been directed as suggested in par 49 of the appellant's written submissions.
5. There was some slight evidence that the appellant, while at the premises, was or may have been engaged in some form of building work. However, it was open to the jury to accept that his purpose in attending the premises was to take possession of the package. This was also amply supported by the telephone conversations. It was further supported by his conversation with Mr Laveta. That the appellant busied himself with some sort of building work while he was there (if he did) does not impinge upon the question of his presence there for the purpose of taking possession of the package.
6. It was suggested that his Honour took the view that the second question asked by the jury gave rise to an: "… inescapable conclusion that at least one member of the jury was not satisfied beyond reasonable doubt that [the appellant's] conduct in speaking to the pretend delivery driver at the shop amounted to the offence." It may or may not be correct that one or more members of the jury took that view. I doubt that that is an "inescapable conclusion". The basis for the question, and what the jury drew from the answer, is a matter of pure speculation.
7. I have considered carefully all of the evidence. I am satisfied that it was open to the jury to convict the appellant. I am satisfied beyond reasonable doubt that the evidence amply supported the conviction. I would therefore reject Ground 2.
8. The order I propose is: 1. Appeal against conviction dismissed.
9. ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Simpson JA with which reasons I agree. My analysis of the evidence does not leave me with any reasonable doubt as to the guilt of the appellant.
10. BELLEW J: I agree with Simpson JA.

Amendments 01 July 2015 - [53] typographical error - "confusion" replaced by "confined" DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 01 July 2015