CALDERWOOD v R

Harriman v R (1989) 167 CLR 590 M v R (1994) 181 CLR 487 Markarian v The Queen (2005) 79 ALJR 1048; [2005] HCA 25 R v Courtney-Smith (No 2) (1990) 48 A Crim R 49 R v Lam (1990) 46 A Crim R 402 R v Leff (1996) 86 A Crim R 212 CASES CITED: R v McGregor (2000) 120 A Crim R 24 R v Meloh (2001) 10 NSWCCA 211 R v Muradian (2002) NSWCCA 371 R v Nai Poon (2003) 56 NSWLR 284; [2003] NSWCCA 42 R v Schofield (2003) 138 A Crim R 19 R v Sukkar (2005) NSWCCA 54 Wong v The Queen and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64

PARTIES: David Calderwood (Appl) The Crown (Cth)

D Calderwood (appeared in person on conviction) COUNSEL: J Stratton SC (appeared for appl on sentence) M A Wigney (Crown Cth)

SOLICITORS: Legal Aid Commission of New South Wales (Appl on sentence) Commonwealth Director of Public Prosecutions

IN THE COURT OF CRIMINAL APPEAL 2005/2545

McCLELLAN CJ at CL HULME J HISLOP J

WEDNESDAY 27 JUNE 2007 CALDERWOOD, David v R Judgment 1 McCLELLAN CJ at CL: The appellant was found guilty by a jury of an offence contrary to s 233B(1)(b) of the Customs Act 1901, in that, between 27 March and 30 April 2004, he imported not less than the trafficable quantity of methylenedioxymethamphetamine (MDMA). The maximum penalty prescribed for this offence is a fine not exceeding $550,000 or a term of imprisonment not exceeding 25 years or both. 2 The quantity of drugs imported was 258.1 grams containing 99.1 grams of pure MDMA This is 180 times the trafficable quantity which is .5 grams. 3 The appellant was sentenced to 6 years and 5 months imprisonment to date from 27 January 2005. A non-parole period of 4 years imprisonment was imposed.

The essence of the Crown case 4 It will be necessary in the course of these reasons to examine some of the evidence tendered by the Crown in detail. However, the essence of the Crown case was that on 8 April 2004 a 14 kilogram package from Hong Kong addressed to "Cheng's Newsagent and Deli" was intercepted by customs at Sydney International airport. The package contained, amongst other things, 1000 MDMA tablets wrapped inside carbon paper and concealed inside DVD cases. 5 It was the Crown case that Henry Chin and the appellant were involved in the importation of these drugs. Various telephone calls were lawfully intercepted. The content of those calls indicated that the appellant had both organised the consignment and made several attempts to gain possession of it after its arrival in Australia. On the days following 8 April 2004 the appellant had several telephone conversations with the freight company in Australia and with Henry Chin in relation to the status of the consignment. The appellant was arrested and charged on 12 May 2004.

Grounds of appeal 6 The appellant filed a Notice of Appeal which contains 8 grounds. He also seeks leave to appeal against his sentence. He was only legally represented in relation to the sentence matter. The Notice of Appeal is lengthy, and parts of it are difficult to comprehend. On occasions the argument which the appellant seeks to advance is not made clear. I have endeavoured to comprehend each ground of appeal, and the Crown response to it. The appellant appeared for himself at the hearing and provided the court with detailed written submissions, including supplementary submissions filed after the hearing.

Ground 1 - The indictment should be set aside as the Crown could not prove the elements of the offence (1) the elements of the offence (2) the question of the material time (3) insufficient evidence.

Ground 2 - His Honour erred to not rejecting the full brief of evidence

Ground 3 - Questions were asked in the Record of Interview that related to two illegal importations of narcotics.

Ground 4 - The applicant was not present in court for the first day of his trial

Ground 5 - Witnesses gave evidence prior to rulings on the admissibility of the evidence.

Ground 6 - The Crown summing up was "distorted and dangerously prejudicial."

Ground 7 - The trial judge's summing up was "distorted and dangerously prejudicial."

Ground 8 - Trial judge's answers to the jury question was based on "distorted misinformation and was dangerously prejudicial."

Ground 1: 7 This ground has not been expressed with clarity. However, the Crown submitted that it should be understood as raising three matters:

2. The question of the "material time" at which the appellant had the relevant intention; and

3. There was insufficient evidence to prove the offence. 8 The Crown case at the trial was circumstantial. This was recognised by the trial judge and appropriate directions were given to the jury. The judge identified that the real issue which the jury had to resolve was whether the Crown had proved the "fault" element of the offence, namely that the appellant knew or was aware that there was a real or significant likelihood that he was importing narcotics. 9 The trial judge directed the jury that if they came to the conclusion that there was a reasonable possibility that the appellant did not know that the box contained narcotics they must find him not guilty. The jury were given clear directions on a number of occasions as to the onus and burden of proof. 10 With respect to the "material time" the appellant complained in particular about the directions which the trial judge gave in relation to the definition of "importing." As I understand the appellant's submissions it was that there must be evidence, at the time the relevant items were actually imported, that the appellant was participating in that importation. A question was asked by the jury about this matter following which further directions were given. That direction was in the following terms: "Importing is a process of importing, it does not just stop the minute something lands in Australia because the person who is doing the importing is seeking to get his hands on it after the goods have landed in Australia, he would be seeking to go to the customs agent and pick it up. The evidence in this case is that the previous arrangements were, when parcels landed, the accused was told that he would then go to Mr Ngai's premises and pick them up. So he would be involved in importing right to the time he actually got his hands onto those goods. In this case he never physically got his hands on any goods. Customs people kept them at all times. Now the process of the telephone calls shows you that from 8, 9, 10 April, 11 April, he is still making enquires and that process continued through. He in fact spoke to the Chinese man Phil on 11 April about the parcel not being there and he is still trying to get his hands on the parcel. Now on 13 April, Trissette has a discussion with him about the customs hold on the parcel and tells him that they are x-raying the parcel. It can mean that they are x-raying it so that they can open it up and look at everything. Then there is another discussion on 13 April between Trissette and the accused to say it still was not clear but she thought they will pick it up that day. Then there is a discussion on 13th between Phil and David, who is the accused, about this parcel. There are further discussions on the 13th. On the 14th there is another discussion between Trissette, this is April, and the accused, about what's in the parcel and she raises for the first time any drugs or anything like that. He says, 'No, no, no, just no.' She asks, 'You are not bringing in porn and what's in there?' and he says 'CD's and magazines'. Now if by this time he is trying, indeed during any period that he is still trying to get his hands on the parcel, he knows in the sense that I have explained to you, that there is a reasonable likelihood, he either know directly or there is a reasonable likelihood that these goods had drugs in them. Well the importing is not finished. If he acquires knowledge, if he gets knowledge and he still keeps trying to get his hands on the goods, then he is importing the goods. If however, he doesn't have knowledge, he has suspicion, he is not even thinking clearly about it, or you are not sure if he has got knowledge, he may have merely suspicion but knowledge is something that comes to him over a period of time and perhaps becomes clear to him in May when the premises, his own house, is raided - by that stage it is too late. If his knowledge comes to him, say at the point the day that his house is raided, he realises that he has got a search warrant in his hand that is searching for drugs - well it must be drugs. By that stage his knowledge has passed the point at which they could be any importing. The importing is something that was still continuing from 8 April probably for some days afterwards. Now it is a matter for you to determine, not for me to determine, when that ceased. You should look again at those tapes and transcripts. You might think it ceased on 14th or 19th or the 20th or it continued right through. I should not tell you what I think. All I can say to you is that at some point it definitely stopped and I am expressing I suppose a view on facts which I say that by the time they went to his house, any question of importing has ceased. If he formed an opinion then, or it suddenly hit him that he'd been a bit of a fool and obviously drugs were involved and that is when it hit him, well he could not be guilty, but if he got that knowledge in the sense that I have directed you, in those written directions and he had that knowledge on the 8th, 9th, 10th dates around then of April and knowing there were drugs there, he kept trying to get them, then he is importing. I do not think I can make it any clearer than that you have to determine first of all, when you think his attempts to import that box stopped. If he acquired the knowledge before that point, and he kept trying to get the box nevertheless, then he is guilty. If he only got the knowledge, he had suspicion before that date, most and after that he got knowledge, then he is not guilty." 11 In my opinion the directions which his Honour gave were correct (see R v Lam (1990) 46 A Crim R 402; R v Courtney-Smith (No 2) (1990) 48 A Crim R 49; R v Leff (1996) 86 A Crim R 212; R v Sukkar (2005) NSWCCA 54). 12 The appellant's fundamental complaint is that evidence of the offence after 8 April, which was the date on which the drugs arrived in Australia, was inadmissible. However, an importation neither begins nor ends at the point of which the goods arrive in Australia. Both events before the goods arrive and activities afterwards, which are incidental to the bringing of the goods into Australia, are admissible to prove the importation (see Sukkar at [75]-[89], [109]-[121]). Even if the appellant only gained knowledge that drugs were in the parcels after they had arrived in Australia, if he, nevertheless continued in his efforts to obtain possession of the box he can be guilty of importing. 13 After the relevant package arrived in Australia the evidence indicated that the appellant made repeated and concerted efforts to obtain it. Evidence of telephone calls which evidenced these efforts were accordingly admissible in evidence. 14 As the trial judge pointed out to the jury it was critical for them to determine the point at which the appellant may have known there were drugs in the parcel. If they found that he had that knowledge at a time when his activities were directed to completing the importation then he was guilty of the offences as charged. The trial judge said: "if (the appellant) acquired the knowledge before that point (being the point at which the appellant's attempts to import the box had stopped), and he kept trying to get the box nevertheless, then he is guilty." However, his Honour correctly pointed out that the jury must be satisfied that the appellant had knowledge of the drugs and not merely a suspicion. 15 The third element of the first ground of appeal raised by the appellant is that the verdict was unsafe and unsatisfactory. This ground requires the appellate court to make its own independent assessment of the evidence and determine whether, considering the whole of the record, it was open to the jury to be satisfied of the guilt of the appellant beyond a reasonable doubt. The appellant court must allow for the advantage which the jury had in hearing and seeing the witnesses (see M v R (1994) 181 CLR 487 at 493). 16 There was no issue at the trial that the box that the appellant was concerned with importing contained MDMA. The issue at the trial was whether the appellant intended to import narcotics. The Crown case relied upon a series of circumstances which it was submitted could lead only to the conclusion beyond reasonable doubt that the appellant intended to import narcotics. Critical elements in the evidence were as follows:

The appellant imported a large package from Hong Kong which included two boxes which looked like oversized VHS cassette boxes. Inside each of these boxes was a quantity of MDMA tablets wrapped in carbon paper.

The package was forwarded from Hong Kong by Mr Chin who was a long standing friend of the appellant. The appellant with Mr Chin met Marco Ngai of Packtrans Australia Pty Limited, a freight forwarding company and customs broker, to make arrangements for the package once it arrived in Australia. During the meeting with Mr Ngai the appellant used the false name "George."

The package was addressed to Cheng's Newsagent and Deli - 123 Coogee Bay Road, Coogee. This business did not exist at that time.

The appellant provided Mr Ngai with paperwork in the name of "Cheng's Newsagency and Deli" which included the Coogee address. He also created a document with a letterhead "Cheng's Newsagency and Deli" although he knew that that business did not exist.

The appellant instructed Mr Ngai to arrange for the package to be sent from Hong Kong and when the package arrived in Australia instructed Mr Ngai what he was to do with it.

Both before and after the package arrived in Australia, which occurred on 8 April 2004, the appellant spoke with Mr Chin about it. One of those conversations included a discussion between Mr Chin and the appellant about methods of defeating x-ray machines and the use of carbon paper for this purpose. Carbon paper was wrapped around the MDMA tablets. The applicant denied in his interview with the police that he had any knowledge of the use of carbon paper. 17 In some of the telephone calls between the appellant and Mr Chin it is apparent that the appellant did not wish to speak on that phone and he said that he would ring Mr Chin back on a public telephone. There was no reason for him to do this if the importation was innocent. After 8 April 2004 the appellant made a number of telephone calls in which he attempted to ascertain the whereabouts of the package. The clear inference was that he was seeking to obtain possession of it. 18 Apart from the drugs in the package there was no reason for the appellant to use a false name and address. Although the appellant asserted in many places in his written submissions that he had no knowledge of the contents of the package he did not give this evidence at the trial. He gave no evidence at the trial. 19 Having regard to the evidence of the relevant events given at his trial the only rational inference is that the appellant was involved from the outset in making arrangements to import prohibited drugs. 20 Ground 1 of the appeal fails.

Ground 2 21 As I understand this ground of appeal the appellant complains that the brief of evidence which was provided to him was inadequate. However, the written submission proceeds to discuss the trial, the Crown's opening and the evidence given at the trial. Ground 3 of the appeal raises for consideration the admission by the trial judge of an edited version of the appellant's record of interview. I will discuss that matter below. Otherwise there is no material available to this Court from which it could be concluded that the Crown's brief was inadequate.

Ground 3 22 The appellant was originally charged with two offences of importation. The Crown did not proceed on the second count. For this reason it was necessary to carefully confine the evidence tendered at the trial so that evidence of the other alleged importation was not admitted. This had the effect that a number of telephone intercepts were not put before the jury. The appellant's record of interview was also edited to delete any reference to a second importation of drugs. 23 The appellant was represented by counsel at his trial and although objection was taken to some of the questions and answers in the record of interview the whole record was not objected to. As could be expected there was argument before the trial judge about the telephone intercepts and the contents of the record of interview which should be admitted. 24 The trial judge made the following ruling: "My view, I hope I have made it clear, anything that intends to establish the commission of the first offence or his guilty knowledge about anything connected with the first offence is relevant and admissible. If there is some particular ground of prejudice that has to be raised in relation to any of that, Mr Buchen (who appeared for the appellant) can no doubt raise it with me specifically. But anything intending to show he has committed other crimes is irrelevant and inadmissible. Whether it's possession of a small quantity of drugs or a second importing from China about which there will be no evidence, is inadmissible. The dates that admissions are made on telephone intercepts are irrelevant. The question is what is the content of what is said, rather than what is the date of what is said." 25 It is difficult to fully comprehend the submission which the appellant now makes about the record of interview. However, the Crown has endeavoured to distil the essence of the submission which I believe is generally correct. Those matters are:

(a) the entire interview should have been excluded because, once it had been edited to remove references to, amongst other things, the alleged importation in May 2004 it presented a misleading or distorted impression of the appellant's state of mind or intentions.

(b) the entire interview should have been excluded because it promoted and continued with a "premeditated fabricated lie" by the interviewing officers in relation to the alleged May 2004 importation.

(c) some of the questions and answers that were not edited out should have been because they related to, or included a reference to, the alleged May 2004 importation.

(d) some of the questions and answers that were not edited out should have been because, whilst they were indistinct, they may have related to both the importation the subject of the charge and the alleged May 2004 importation.

(e) some of the questions and answers that were edited out in their entirety should have only been partly edited. 26 It is useful to summarise the version of events which the appellant gave during his interview. He admitted that he was a business associate of Henry Chin who was also known as Henry Chen or "Phil" by which he was referred in some of the telephone intercepts. He admitted that he was the effective consignor of the package that contained the narcotics which were the subject of the indictment. 27 Henry Chin owed the appellant the sum of $50,000 from previous business arrangements. The appellant agreed to organise further arrangements with Henry Chin so as to recoup the money owing to him. 28 The arrangements that Henry Chin asked the appellant to organise involved arranging some "importing type ventures" or "import contact … with the company to import some kareoke music that would be sold into … some Asian type Chinese kareoke bars … ." 29 Pursuant to the arrangement with Henry Chin the appellant went to a freight forwarder and importing agent - Packtrans - and put in place arrangements which allowed parcels to be sent to Australia. This included organising the use of a business name and preparing a letterhead using that name - Chan's Newsagent and Deli. The appellant had no relationship with that business and it must be the case that he used the fictitious name for "cover." The arrangement with Mr Chin was that the appellant would pick the parcels up from Packtrans and then drop them at a butcher's shop in Woodburn Road, Berala. The appellant knew the butcher only as William. 30 The appellant had been introduced to Packtrans by Mr Chin as being a "contact that would - would structure the business" and would communicate with Packtrans when the parcels arrived. Over a period of time a number of parcels were sent to Australia and picked up by the appellant pursuant to his arrangement - up to 2 boxes per week. The appellant believed that in total 11 parcels "came in" pursuant to the arrangement. The appellant also collected money for the payment of freight from the butcher at Berala and gave that money to "Marco" (Ngai) at Packtrans. The payments were approximately $600 or $700 and always in cash. 31 The appellant said that he himself had received nothing for his role in this business arrangement - only the hope to receive the $50,000 owed to him by Henry Chin in the future. 32 The appellant admitted that he communicated with Henry Chin by telephone - either by public phone or by a mobile phone that utilised a SIM card that was not in his name. 33 Throughout the interview the appellant denied that he knew what was in the parcels he picked up or was to pick up and denied any knowledge of narcotics. However, he did admit that he was suspicious about the contents of the parcels and that he did not "block out" that it may have been something illegal but he said that he believed it may have been pornography or pirated CDs. 34 The charge for which the appellant was convicted related to the importation of narcotics that arrived on 8 April 2004. The other charge, which the Crown did not proceed with, related to an alleged importation in May 2004. The original record of interview included questions and answers relating to the May importation and for that reason it was required to be edited. 35 There were significant differences between the steps in the importation in April and that alleged to have occurred in May. The May importation did not utilise the business name Chan's Newsagent and Deli as the consignee. It also involved a different narcotic. 36 At the trial the appellant objected to all passages in the record of interview that concerned the May 2004 importation. It was also submitted that much of the interview was irrelevant, unfairly prejudicial or involved unfair questioning. Objection was taken to questions relating to Packtrans consignment received prior to 8 April 2004, the finding of a narcotic substance in the appellant's car and some questions that were directed to whether the appellant had any dealings with Russians. Many of the objections were allowed. The prosecutor and counsel for the appellant agreed on the way "edits" would be made to the transcript and video of the interview. 37 At the first day of the trial the appellant's counsel provided written submissions with respect to the record of interview. It was submitted that there were two factors which "militated for exclusion of the entire interview under s 135 or 137 of the Evidence Act." It was submitted that the appellant was "incorrectly informed of the nature of the allegation concerning the second importation at the commencement of the interview" and that the "interview continually oscillates between the two allegations" and the "faced with this disorientating interrogation technique, it would not have been possible for the accused to identify his particular state of mind at different stages of the period in question (for example, before and after 8 April)." 38 When the record of interview was provided to the jury the trial judge told the jury that the "blanked out portions" had been blanked out at his direction and following legal argument. His Honour told the jury that they were not to speculate on what might have been blanked out but that these matters had been removed because they were irrelevant to the case. His Honour said: "In the course of a lengthy interview going over, I think, more than 4 hours, it is only to be expected that some things will not be relevant." 39 The submission which the appellant makes on the appeal is in essence a repetition of the submission made by his counsel at the trial. He submitted that the entire interview should have been excluded because the editing changed the structure and meaning of the interview and that what was left was not a true representation of his state of mind at the time. 40 It is not uncommon that a record of interview contains material which should not be admitted at an accused's trial. The accused will often be interviewed at a time when the precise allegation which is made at a later trial has not been formulated and questions are asked which explore matters which later turn out to be irrelevant. In some cases when a record of interview has been extensively edited the resultant interview must be rejected because it would unfairly prejudice the accused. In Harriman v R (1989) 167 CLR 590 Dawson J at 559 - 600 stated the relevant principles. His Honour recognised that where the editing of a document destroyed its "coherence or character" it is necessary to consider whether the resultant document should be excluded. The question will be whether or not the probative value of the edited interview is outweighed by its prejudicial effect. 41 The relevant question in the present case is whether the "edits" resulted in the interview being so distorted as to make it unfair to allow it to go to the jury in its edited form. I have read the entirety of the interview in its edited form and am satisfied that it reveals a sufficiently coherent and consistent account of relevant events and was appropriately admitted into evidence. There are occasions when the interview does lack coherency but this is usually as a result of the implausible and unusual responses of the appellant. 42 The appellant submitted that the interview criss-crosses between both importation events. I do not accept this submission. It seems to me that because the two events had an apparently different modus operandi the questioner was largely able to separate the questions. Although there are some general answers given by the appellant that appear to apply to all importations to which he may have been a party there are no occasions where an answer given by the appellant would be understood as relating only to the May 2004 importation and not also to the earlier events. 43 I do not accept the submission that the edited interview does not fairly represent the appellant's state of mind during the interview. There is no suggestion that the appellant did not understand the questions he was being asked and there was no evidence at the trial (which could have been given on a voir dire) to the effect that his answers were unreliable because he was confused. 44 The appellant submitted that by reason of the admission of the edited interview the jury were "denied the knowledge that another importing venture was involved in this interview, that was taking place at the same time." It is difficult to understand this submission when at the trial counsel was successful in sustaining an objection to any material in the interview which revealed the existence of the May 2004 importation. In my view that objection was rightly made and it was neither necessary for the jury to know that it was alleged that there was another importation and it may have operated to the prejudice of the appellant. 45 This submission must be rejected. 46 There can be no doubt that the edited interview was highly probative of the appellant's guilt. The deletion of discrete portions did not make the admission of the edited version unfair or prejudicial so as to require its rejection. 47 The appellant also submitted that the interview was based on a "premeditated fabricated lie." As I understand it, the submission is founded on the fact that in relation to the alleged importation in May, the Chinese authorities had intervened and removed the narcotics before allowing the parcel to continue to Australia. As a result there was no actual importation of narcotics in May. 48 The Crown accepted that when the interviewing officers put the allegation relating to the May importation to the appellant at the commencement of the interview, they did not tell him that the Chinese authorities had intervened and substituted the narcotics. However, there was no evidence from which the trial judge could have concluded that this omission was deliberate, premeditated or done with the intention of misleading or deceiving the appellant into making admissions. There was no voir dire in which these allegations were put to the interviewing officers. Although these matters were raised in written submissions provided to the trial judge no request was made for a voir dire to explore the issue or provide an evidentiary basis for an allegation that the interviewing officers employed improper tactics. 49 Furthermore there was no evidence from which the trial judge could have concluded that the appellant was in any way actually mislead or deceived or that the reporting of the May allegations to him at the commencement of the interview had any consequence for the answers which the appellant gave. There is nothing to suggest that the appellant had been mislead or deceived by the alleged "lie" by the interviewing officers. 50 The appellant contended that a number of questions and answers that were not edited out of the record of interview were indistinct and may have related to the May 2004 importation, as well as to the Packtrans' importations and accordingly should have been excluded. The appellant provides an extensive list of questions and answers which he submitted fell into this category of which only 8 were the subject of any objection at the trial. 51 I have carefully considered all of the questions and answers. In relation to those not objected to at the trial I reject the appellant's submission and would decline leave pursuant to rule 4. 52 In relation to the other questions and answers I am satisfied that although it is conceivable they may have encompassed the May 2004 importation this would not have been apparent to the jury. I am satisfied that the admission of these questions and answers did not occasion prejudice or unfairness to the appellant. 53 The appellant also submitted that it was unfair to have edited some questions and answers completely from the transcript. It was submitted that it would have been fairer to edit only part of these questions and answers. The essence of the submission is that parts of these answers showed denials which should have been placed before the jury. 54 I reject the submission. All of the passages about which the appellant now complains were objected to in their entirety at the trial. It was never suggested that they should be partially edited. Most of the passages complained about relate to the May 2004 importation and accordingly, any denial or exculpatory statements would have been irrelevant. Furthermore, it would have been difficult if not impossible to partially edit these particular questions and answers without disclosing the appellant's involvement in the May 2004 importation or without distorting the meaning of particular answers. 55 I reject this submission.

Telephone intercepts 56 The appellant submitted that evidence of anything occurring after the period 8 - 14 April 2004 which he refers to as the "material time" was irrelevant and prejudicial to him and should have been excluded. He contended that after this time the importation had finished. On this basis various telephone intercepts would have been rejected. 57 I reject this submission. In my view the Crown correctly submitted that the act of importation can embrace activities that follow the arrival of goods in Australia provided they are related, proximate and incidental to the bringing of the goods into Australia. The appellant's suggestion that the importation was at an end or aborted when the parcel was seized by Customs on or about 14 April is not correct. Furthermore, acts of the appellant or statements made by him after the importation ceased may nevertheless be probative of his intentions at an earlier time when the importation was still on foot. 58 There is evidence from transcripts of telephone calls made on 18 and 20 April 2004. On 18 April Mr Chin and the appellant discussed conducting a search on the internet to find out how x-ray machines work and whether carbon paper "did or did not work." There was no dispute at the trial that the relevant packages had been wrapped in carbon paper. During another telephone call on 20 April 2004 between the appellant and Mr Chin the following exchanged occurred: "Appellant: Well as you know most of the product comes through the airports, comes straight through not everything eh. Chin: Need to clear. Appellant: x-rayed or smelled it comes by air container. Chin: Yea Appellant: and it comes if you pay the right money. It comes prior priority airport to airport so it will come about of um Hong King (sic) straight to Sydney okay and Maj … the majority of of um okay the last last one was unlucky very unlucky." 59 In my opinion these telephone calls were relevant to establish the nature of the relationship between the appellant and Mr Chin. It demonstrated that the appellant was discussing with Mr Chin his knowledge of custom procedures in Australia. From it the jury could understand that the appellant believed that the interception by customs of the parcel the subject of the indictment was simply "unlucky" and that most parcels arriving by airfreight are not subject to x-rays. Accordingly, the telephone calls are capable of establishing the nature of the relationship between them with respect to a previous importation even though the primary object of the conversation may have been the prospect of a further importation. 60 This ground of appeal fails.

Ground 4: 61 The appellant's trial commenced on 15 November 2004. On that day he was present in court. 62 The appellant complains that he was not in court on 11 November 2004 when his matter was considered by the court. 63 The record indicates that on that day he was arraigned before Andrews ADCJ. It would appear that the trial did not proceed before his Honour and the matter was referred on the same day to Finnane DCJ. I infer that the appellant had been returned to the cells and was not present in court before Finnane DCJ. 64 This Court has been provided with a transcript of the proceedings before Finnane DCJ on 11 November 2004. It reveals a discussion between counsel and his Honour as to the general nature of the Crown case and the preliminary issues that may arise. There was also discussion of the arrangements necessary to take evidence including the prospect of a video link with China. The Crown brief was provided to his Honour and the essence of the Crown case was explained. Counsel for the appellant indicated matters which may require resolution during the course of the trial. 65 The transcript does not indicate whether the appellant was present before Finnane DCJ. However, before adjourning at lunchtime his Honour was recorded as saying that "the accused is remanded in custody, he will come back before me at 3 pm." The transcript does not indicate whether the accused was in court either before the luncheon adjournment or when the matter resumed at 3 pm. However, it does not suggest that he was not present. 66 Pre-trial matters were further considered on 12 November 2004 when the transcript records his Honour as saying "we had better get the accused up." The transcript indicates that he was present on that day. Counsel seeks an opportunity to consult with him during the course of the proceedings. 67 As I have indicated during the course of 11 November the appellant was represented by counsel. Although pre-trial matters were considered the trial did not commence until 15 November 2004. If, as the appellant alleges, he was not in court during these discussions an oversight took place. He was entitled to be present. However, if he was absent this did not prejudice his trial and, in my view, no miscarriage of justice took place. He was present throughout his trial.

Ground 5 68 During the course of the pre-trial discussions the trial judge indicated that he would not rule in relation to some foreshadowed objections until the trial had commenced. His Honour indicated that this would enable the arguments in relation to admissibility to be assessed in light of the relevant context. As it happened objections to the admissibility of the relevant evidence were heard early in the trial during the evidence of the first witness. That witness was not cross examined until the objections to the evidence had been ruled upon. 69 In my opinion the appellant's submission on this matter is entirely without substance. The course which his Honour took was appropriate. The transcript reveals that by about the fourth day of the trial practical problems were emerging and rulings were necessary. The matter was raised with his Honour and rulings were made. 70 I reject this ground of appeal.

Grounds 6, 7 and 8 71 It is convenient to consider these grounds together. The essence of these grounds is the appellant's submission that evidence of events after 8 April 2004 was irrelevant. The appellant submitted that any argument or direction which relates to events after 8 April is "distorted" and "dangerously prejudicial." I have already concluded that evidence of these events was properly admitted at the trial. It must follow that that evidence was relevant and could be referred to by counsel and his Honour when summing up to the jury. 72 The appellant also complained of various phrases used by his Honour in the course of his summing up. Some of the phrases were used in relation to the alleged illegal operation and some are descriptive of the appellant. In using these phrases his Honour was repeating the arguments of the prosecutor and defence counsel. Elsewhere his Honour sought to put the appellant's case into perspective. His Honour said: "Can I say that that is really the big issue that you are being asked to decide. Is he a man who, because he was short of cash, joined with a Chinese drug dealer in an operation that would give him cash to make up that shortfall or is he a dupe, is he a stupid fellow who is taken advantage of by someone who has failed to pay him, who has been sucked into a scheme which he suspected might have some illegality attached to it, hence his use of a false name and so on, but who did not think for a minute he was involved in importing narcotics. That is really what it comes down to in the whole case, you have got to decide that." 73 Although his Honour used somewhat colourful language a fair reading of the submissions by the appellant's counsel to the jury make his Honour's remarks appropriate. The defence case which the jury were required to consider was, as his Honour summarised it, based upon the proposition that the appellant was naïve and did not realise that he was being used for the purpose of importing drugs. 74 I reject this ground of appeal.

Sentence 75 The appellant was sentenced to a term of imprisonment of 6 years and 5 months with a non parole period of 4 years. The maximum penalty for the importation of a traffickable quantity of MDMA is 25 years imprisonment. 76 The traffickable range for MDMA is between .5 grams and .5 kilograms. The amount of pure drug which the appellant imported was 99.1 grams. 77 The appellant submitted that the sentence imposed was manifestly excessive. The submission is supported by reference to the statistics from the Judicial Commission which suggest that both before and after the repeal of s 16G of the Commonwealth Crimes Act the head sentence and the non-parole period were above the median sentence which has been imposed. 78 The appellant submitted that his Honour exaggerated the role of the appellant in the importation. There was no evidence that he financed the activity or shared in the profits. It was submitted that his role was confined to organising the collection of the drugs and their delivery to the distributor. Such a role, involving greater exposure to the risk of detection, was said to be usually associated with those towards the lower end of the criminal hierachy. 79 The appellant referred to a number of previous cases. In R v Muradian (2002) NSWCCA 371 the offender, who was found guilty after trial had imported 452.9 grams of pure ecstasy. She was sentenced to 5 years imprisonment with a non-parole period of 3½ years. An appeal against the severity of the sentence was dismissed. 80 In R v Nai Poon (2003) 56 NSWLR 284; [2003] NSWCCA 42 the offender pleaded guilty to importing 5,800 tablets with a net weight of 392 grams. The sentencing judge said there was doubt that the offender was the principal although he was not a mere courier. He was sentenced to 7 years with a non-parole period of 4 years and his appeal against severity was dismissed. 81 In R v McGregor (2000) 120 A Crim R 24 the offender had been committed for sentence on four charges only one of which was relevant to his appeal. A courier had brought into Australia approximately 8,000 tablets containing 647.3 grams of ecstasy which had been detected at the airport. The offender was found to have been motivated by financial gain. He was 23 at the time and had no prior record and was considered to have good prospects of rehabilitation. The offender was sentenced as a courier and a term of imprisonment of 9 years with a non-parole period of 6 years was imposed. On appeal the sentence was reduced to one of 8 years imprisonment with a non-parole of 5 years although this decision was significantly influenced by considerations of parity. 82 In R v Meloh (2001) 10 NSWCCA 211 the offender pleaded guilty to an offence of being knowingly concerned in the importation of a traffickable quantity of MDMA being 471.5 grams. The offender arranged to and received a package which contained the drugs. He was sentenced as "a quite low level operative in the hierachical structure of the operation" but "not just a courier" and someone who "did organise the actual importation." He was accepted to be contrite and susceptible to pressure being a refugee who had participated in the exercise in order to obtain a passport to enable his sister to leave Somalia. The sentencing judge had imposed a sentence of 6 years imprisonment including a non-parole period of 4½ years. The appeal was confined to the non-parole which was reduced by this Court to 3 years and 7 months. The Court was also referred in a supplementary written submission to the cases referred to by Hulme J in R v Schofield (2003) 138 A Crim R 19. Those cases confirm the broad range of circumstances including variations in the role of the offender and the weight of narcotic imported for which sentences have been imposed. 83 When sentencing the appellant the trial judge concluded that he was relevantly a principal. He said: "I have come to the conclusion he is a principal because what he did in this operation establishes that he went with Mr Chin to make the arrangements with the customs agent in Australia. He went to pick up every package. He provided false letterheads with false destinations. He made numerous phone calls to Mr Chin and others associated with Mr Chin. He pursued the customs agents if any parcel was delayed. He was the one and was to get the money to pay out the customs agent for the clearance of the parcels in Australia." 84 His Honour said that "in my opinion it was perfectly obvious that he knew that there were drugs of some kind in this box. A person can be a principal without being a financier. He can be a principal even though another person is of more importance in the organisation." 85 The appellant pleaded not guilty and has continued to maintain his innocence. He has shown no remorse. 86 The appellant's argument has two primary elements. Firstly, consideration is given to the available statistics and the amount of the drug imported. In Wong v The Queen and Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64 the High Court questioned whether weight was the "chief factor to be taken into account in fixing a sentence." Gaudron, Gummow and Hayne JJ said at [68]: "It must be recognised that not all offenders will know or even suspect how much pure narcotic is to be imported. Apart from the extent to which the pure narcotic is diluted or cut (a matter about which those involved in the importation may know little or nothing), it is by no means uncommon for many of those involved in an importation of narcotics to know nothing at all about what they are dealing with, except that it is a quantity of narcotic." 87 Their Honours went on to conclude that this Court had erred in attributing chief importance to the weight of narcotic in fixing sentences. Their Honours said at [70]: "The selection of weight of narcotic as the chief factor to be taken into account in fixing sentence represents a departure from fundamental principal." 88 Although it is plain that the weight of narcotic is a relevant matter the offender's state of knowledge about the importation and the nature of any reward may be more significant when determining the offender's criminality (see Markarian v The Queen (2005) 79 ALJR 1048; [2005] HCA 25). 89 In my opinion his Honour was correct to conclude that the appellant was relevantly a principal in the offence. His role was essential. He was responsible for making arrangements with customs agents and set up the facilities by which the drugs were being imported into Australia. He was also to be responsible for making the necessary payments to ensure that the drugs were cleared through customs, collected and made available for distribution. 90 Consideration of the previous decisions to which the appellant referred do not persuade me that the sentence his Honour imposed was excessive. In some of those cases the offender pleaded guilty and in Meloh the judge accepted the offender was contrite. The decision in McGregor is difficult to compare with the present matter because of considerations of parity. 91 With respect to the statistics from the Judicial Commission the appellant submitted that both the head sentence and non-parole period imposed on the appellant were above the median sentence for this offence. This may be so but the statistics also confirm that the sentence imposed was not outside the available range. 92 Although I would grant leave to appeal against sentence I would dismiss that appeal.

1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted but the appeal dismissed. 93 HULME J: I agree with McClellan CJ at CL. 94 HISLOP J: I agree with McClellan CJ at CL. **********

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.