Was the jury's verdict unreasonable or unsupportable?
42 Although the appellant originally submitted that the jury's verdict was unsafe and unsatisfactory, he accepted that the correct question for determination was whether the verdict was "unreasonable, or cannot be supported" within the meaning of s 6(1) of the Criminal Appeal Act 1912. The appropriate test was authoritatively stated by the High Court in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at 614 [25] and 634 [97]. In so doing the justices accepted that that test was as formulated by the majority of the High Court in M v The Queen (1994) 181 CLR 487 at 493 (and applied by that Court in Jones v The Queen (1997) 191 CLR 439 at 432) in the following terms:
"8 The appropriate test for determining whether a verdict is unreasonable or unsupportable within the meaning of s 6(1) of the Criminal Appeal Act 1912, was authoritatively stated by the High Court in MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53 at 614 [25] and 634 [97]. In so doing the justices accepted that that test was as formulated in the following terms by the majority of the High Court in M v The Queen (1994) 181 CLR 487 at 493 (and applied by that Court in Jones v The Queen (1997) 191 CLR 439 at 452):
'Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, the court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.' "
43 Relevant to the present case is the following further passage from the joint judgment in M (at 494):
"13 Relevant also to the test of whether a jury verdict is ' unreasonable, or cannot be supported ' within the meaning of s 6(1) of the Criminal Appeal Act is the following passage from the joint judgment of the High Court in M (at 494):
'In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.' "
44 Two attacks were made upon the evidence of Agent McClure. The first was directed to her experience and training with respect to drug-related investigations, drug-related terminology and the methods of operation of drug suppliers. She acknowledged that as at June 2000 she had been a member of the Australian Federal Police for approximately 1½ years attached to the National Avion Strike Teams which were task forces involved in the investigation of high level illicit drug importation and distribution syndicates in Australia and overseas. By the time she made her statement in May 2002 as to her interpretation of the interpreted telephone conversations between the appellant and Micalizzi, she had been engaged in the Task Force for some four years. As part of her responsibilities as an investigator she was involved in complex, protracted investigations relating to many types of illicit narcotics. As part of those investigations she had been extensively involved in the monitoring and analysis of intercepted telephone conversations and listening device material. By November 2002 she estimated that she had listened to many thousands of conversations.
45 Agent McClure also gave evidence that her duties had exposed her to the fact that those involved in drug trafficking often used coded language to discuss the distribution or importation of narcotics. Such persons were aware that law enforcement agents had the ability to intercept telephone conversations and therefore they used coded language to differentiate between their legitimate and illegitimate activities. She gave evidence that she was aware that such persons often used coded language in an attempt to avoid detection by law enforcement authorities. Finally, her evidence was that in her experience in the investigation of illicit narcotics she was aware that 350 gram blocks of heroin were commonly referred to as "half-units" and that 700 gram blocks were commonly referred to as "units". She was also aware that heroin in block form was commonly regarded as being of high quality.
46 Although she agreed under cross-examination that she had never undergone any specialised training in drug-related investigations or terminology, she nevertheless gave evidence that those involved in drug trafficking referred to half-units and units and that the range of price of half-units of heroin around May/June 2000 was between $40,000 and $60,000 and for a whole unit between $80,000 and $100,000. She also gave evidence that around June 2000 heroin was readily available in Sydney and that there was an oversupply which affected price.
47 Although Agent McClure agreed that she had not undertaken any formal course in relation to decoding telephone calls or voice recognition, in re-examination she indicated that she was unaware of any university or other course that offered study in breaking down coded conversations. She said that officers acquired that knowledge by on-the-job training. It should be noted that there was no challenge to the accuracy of the transcript of the telephone conversations in terms of the attribution of those conversations to the appellant.
48 The other basis of challenge to the reliability of Agent McClure's evidence related to the time when she first became aware that the appellant and Micalizzi were referring to heroin in their telephone conversations. In this respect the following exchange took place:
"Q. And until the arrest of Mr Micalizzi and Mr Lammas on 24 June 2000, you didn't know until the backpack was opened that what was involved in that transaction involved heroin, did you?
A. Not heroin specifically, no.
…
Q. It's by a process of reasoning backwards that you come to the opinion about certain words having meanings as being references, potential references to heroin, do you accept that?
A. Yes.
His Honour: Q. Just so that I understand your evidence. Are you saying despite being aware of what is being said in these recorded telephone conversations shortly after they were taking place you didn't know until the backpack was opened that the supply was to involve heroin?
A. Yes. I thought that the conversations could be about a potential supply of a narcotic commodity, but I didn't know until we searched the backpack that it was heroin specifically."
49 Reliance was placed by the appellant on the decision of this Court in Keller v Regina [2006] NSWCCA 204. Judgment in that case was delivered on 26 July 2006 some five months after the trial in the present case. In that case the indictment contained two counts against Keller, the first being that he did supply a prohibited drug namely, cocaine, being in a quantity which was not less than a commercial quantity; the second count, as an alternative, was that he did knowingly take part in the supply of that drug. He was found guilty on the first count so that the alternative count became irrelevant.
50 As in the present matter, the Crown case relied mainly on telephone intercept evidence. Opinion evidence was given by an officer of the Australian Federal Police. He gave evidence as to the various meanings conveyed in the intercepted conversations. In so doing he expressed opinions that a particular word or phrase "was" a reference to a particular aspect of drug trafficking such as the amount of drugs or money.
51 Before the officer's evidence was heard by the jury, it was taken on the voir dire and the trial judge ruled it admissible. As was pointed out by Studdert J, with whom Hall and Latham JJ agreed, at [20], the witness' evidence in chief on the voir dire was received substantially in statement form and in it the witness referred to words used in the intercepted conversations expressing the opinion that the language "was consistent" with being a reference to drugs and money. Although in the voir dire proceedings the issue presented on admissibility was whether the witness could give evidence that the language employed in the conversations "was consistent" with language referrable to a drugs transaction, inexplicably that was not the way in which the evidence was ultimately given before the jury.
52 It was acknowledged by the appellant's counsel in that case that had the witness limited himself to expressions of opinion as to the consistency of the language used as being referrable to drug dealing, there could be no complaint. That concession was regarded by his Honour as correct. As the evidence had not been given in that form, it was held by this Court to have been inadmissible. His Honour (at [33]) also noted that in cross-examination the witness did not draw a clear distinction between an expression of opinion that something spoken was consistent with being a reference to drugs, and asserting that it was a reference to drugs.
53 In Keller, the witness also gave evidence similar to that extracted in [48] above. He acknowledged in cross-examination that he had reasoned backwards in that as the accused had drugs on him at the time of his arrest, he must have been talking about drugs in the relevant conversations. In so doing, the witness had not identified the contextual matters which led him to the opinion expressed and to the extent that he relied upon the co-accused's arrest on the day after the conversation, he was not relying upon his expertise as such but on the fact that the accused was found in possession of half a kilo of cocaine the day after he had spoken to his co-accused.
54 Studdert J (at [37]) concluded that it did not appear that the witness had identified in the course of his evidence those matters which led him to conclude that the subject matter of the intercepted conversations was about drugs. His Honour then referred to this Court's decision in R v David & Gugea (unreported, NSW CCA, 10 October 1995) where in the judgment of the Court it was considered that it was appropriate for the expert to give evidence that the relevant conversations could be referring to the supply of heroin, not that they did in fact relate to the supply of that drug.
55 His Honour then concluded as follows:
"42. The different outcomes in David & Gugea and in Huynh highlight the necessity for a close consideration of the circumstances of the particular case. Returning to the present case, I do not consider as being shown that the opinions expressed by the witness were wholly or substantially based upon his specialised knowledge. Further, I do not consider that the reasoning process of the witness has been sufficiently exposed to establish how his conclusion was based upon his specialised knowledge, if such be the case. Hence I consider that the evidence of Federal Agent Ian Robert Smith that the conversations were about drugs should ultimately have been excluded from the consideration of the jury.
43. I add that if strictly the evidence was admissible … I consider it should have been excluded under s 137 of the Evidence Act … It is clear from the evidence that the witness gave that in part the opinion of the witness was arrived at having regard to the discovery of the cocaine in the possession of the co-accused who had conversed with the appellant. To that extent, of course, the opinion of the expert was not based upon his particular expertise, and it seems to me that there was a very real risk that the jury would be distracted from making its own evaluation of the evidence by reason of the assertion of the police officer as an expert that the conversations were about drugs. Moreover, absent the exposure of the reasoning process of the police officer, this opinion was not open to close scrutiny by the jury." (Emphasis added)
56 It is to be observed that the evidence of the witness in Keller that his opinion was arrived at having regard to the discovery of the cocaine in the possession of the co-accused, was not considered by Studdert J as being a ground of inadmissibility but, rather, as a basis to exclude the evidence under s 137 of the Evidence Act 1995 because its probative value would be outweighed by the danger of unfair prejudice to the accused.
57 In the present case, not only was there no objection to the admissibility of the evidence but there was no application that the evidence should be excluded under s 137 because of the cross-examination of Agent McClure which I have recorded in [48] above. In these circumstances, and as the appellant's counsel readily conceded, very little can be made of that cross-examination.
58 Nevertheless, the appellant submitted that notwithstanding that Agent McClure's evidence was admitted, her conclusions could be seen to be patently flawed so that combined with the other circumstantial evidence in the Crown case, the competing hypotheses advanced by the defence that the dealings between the parties were in the context of horseracing and betting were not negatived beyond reasonable doubt.
59 Furthermore, it was submitted that none of the telephone conversations relied upon by the Crown referred to drugs in any explicit way and the meanings attributable to the words and expressions used in them by Agent McClure were capable of a different construction from that placed by her upon them. The appellant's case at trial was that the telephone intercepts related to horseracing, betting and gambling and had nothing to do with the supply of heroin and, it was submitted, "evidence at the trial supported this competing hypothesis". Accordingly, in the light of Agent McClure's "very limited experience in the area", her evidence ought to have been accorded scant weight by the jury in deciding the ultimate issue as to the meaning of the words used in the intercepted telephone conversations.
60 It was also submitted that the conversations did not on their face justify the inference that the speakers were engaged in illicit drug dealing activities. Agent McClure's evidence at its highest was that the conversations "could" relate to a proposed drug transaction but there were competing inferences which were a real possibility. In these circumstances, the jury ought to have accorded slight or no weight to the evidence of Agent McClure in circumstances where "cogent evidence" was available to rebut her opinion. Accordingly, the jury's verdict was unreasonable or unsupportable.
61 We reject the appellant's submissions for the following reasons. First, no complaint was made with respect to the trial judge's summing up. His Honour on numerous occasions made it clear to the jury that if there was any other rational inference or reasonably possible explanation open on all of the evidence which was inconsistent with the appellant's guilt and which the Crown had not excluded or disproved beyond reasonable doubt, they could not draw an inference that established guilt and they must find him not guilty. His Honour also made it clear to the jury that if they were not satisfied that the Crown had proven beyond reasonable doubt that the recorded conversations between the appellant and Micalizzi involved discussions concerning supplying heroin, then they also would be obliged to find the appellant not guilty.
62 Second, the trial judge put the appellant's case squarely to the jury, namely, that there was another rational inference or possible explanation available with respect to the content of the recorded conversations between the appellant and Micalizzi that was inconsistent with guilt and which the Crown had not disproved beyond reasonable doubt, namely, that the appellant and Micalizzi were not using coded references referring to drugs but were using words in their ordinary normal meaning taking into account that English was not the appellant's first language and that he was talking to Micalizzi about things such as women, furniture and their mutual interest in horseracing.
63 In this last respect the Crown accepted that there was no question that the appellant and Micalizzi were interested in horses and betting on horses and that there were a number of occasions in their conversations when they were actually and genuinely talking about those subject matters. His Honour repeated to the jury the Crown's submission that there were other occasions in the conversations between Micalizzi and the appellant to which reference has been made when although they were referring to horses and using gambling terms, they were not actually talking about those subjects. The Crown submitted to the jury that if two people are familiar with each other and have a common interest and want to disguise the subject matter of their conversation, it is natural for them to do so by using language they were familiar with and in which they have a common interest.
64 Importantly, the Crown submitted to the jury, and the trial judge in his summing up reminded them, that there were a number of examples in the recorded conversations that simply did not on their face make any sense at all unless they related to the supplying of the heroin that was ultimately supplied to Micalizzi on 24 June 2000. Particular reference was made to the conversation transcribed as Exhibits D7 and D8 which referred, amongst other things, to a discussion about starting at fifty-five to one and there being a "flood" and it being "very cheap right now" which, so the Crown submitted, simply did not make sense in terms of placing a bet but did make sense in the context of a discussion as to the oversupply of heroin in the Sydney market at the time, a fact that was not in dispute.
65 Third, in our opinion the most telling aspects of the recorded conversations which pointed to the appellant's guilt was the contrast between the conversations referred to in [21] and [24] relating to the "flood", it being "very cheap right now" and "it's everywhere" which the jury may well have considered to have had no relationship to the placing of a bet or some other form of gambling on horses and those referred to in [35] and [36] which, on their face not only made sense but were clearly referrable to the health of Micalizzi's horse Maestro Boy and [32] which also in clear language referred to the chances of Myalla Red who was racing the following day, 17 June, and who in fact did so and ran third.
66 All the other critical conversations couched in what might be referred to as "racing terms" simply did not make sense and, if they were intended to relate to genuine racing transactions, involved the use of the most elliptical language in circumstances where, as we have indicated, quite plain language had been used by the appellant and Micalizzi when they were undoubtedly speaking about Maestro Boy on the one hand and placing bets on Myalla Red on the other.
67 Fourth, as we have observed in [41] above, there was a clear inconsistency between the statement by the appellant in Exhibit D19 referred to in [38] above that "I got ten horses start tomorrow. You organise an SP already?" and the conversation in Exhibit D21 involving the reference to the meeting at 3 o'clock in the context of the arrangements made between Micalizzi and Fung referred to in Exhibit D20 to meet at 3 o'clock that day at the corner of Pitt and Liverpool Streets.
68 Although it is true that there was a race at Warwick Farm at 3pm on 24 June in which Myalla Red, a horse trained by Stapleford, was listed to run, the horse was scratched early in the morning and before these conversations took place. It would be odd in the extreme if Micalizzi at 1.02pm on 24 June when speaking to the appellant (Exhibit D21) could have been referring to the race meeting at Warwick Farm scheduled for 3pm in circumstances where Myalla Red had already been scratched. No doubt it was possible that Micalizzi was unaware of that fact but it was clearly open to the jury to have found beyond reasonable doubt that the conversation between the appellant and Micalizzi relating to the meeting at 3 o'clock had nothing to do with that race.
69 To adopt the language of the joint judgment of the High Court in M to which reference has been made in [43] above, in our opinion there is nothing in the evidence upon which the Crown relied which contained discrepancies or inadequacies or otherwise lacked probative force. On the contrary, it was clearly open to the jury to take the view that those shortcomings were applicable to the appellant's case based upon the submission that the conversations were innocent and were capable of an alternative rational explanation which the Crown had not excluded, namely, conversations with respect to the mutual interest of the appellant and Micalizzi in horseracing and betting.
70 At the end of the day, the weight to be given to Agent McClure's evidence was entirely a matter for the jury. Contrary to the appellant's submission, we are unable to find that there was "cogent evidence" available to rebut the opinions she expressed. There may have been evidence but it certainly was not cogent and none was so identified in argument. Furthermore, we would reject the appellant's submission that Agent McClure's evidence that words and expressions used in the relevant conversations were, in effect, consistent with an illicit drug transaction "could be seen to be patently flawed". Whether or not those opinions combined with the other circumstantial evidence in the Crown case were capable of negativing the competing hypotheses advanced at trial on behalf of the appellant that the dealings between he and Micalizzi were in the context of horseracing, was entirely a matter for the jury.
71 In our view the jury was entitled to reject the submission put to them by the appellant that they should only accord Agent McClure's evidence "scant weight" in deciding the ultimate issue as to the meaning of the words used in the intercepted telephone conversations. What can undoubtedly be said about that issue is that it was open to the jury to accept Agent McClure's evidence which, if they did, would inevitably lead to a finding of guilt beyond reasonable doubt. There was nothing in that or any other evidence which should necessarily have persuaded the jury to accord it scant, if any, weight.
72 It follows in our opinion that we do not experience any doubt as to the reasonableness of the jury's verdict. Nor do we accept that there is any possibility, let alone significant possibility, that an innocent person has been convicted. Accordingly, the appellant's challenge to his conviction should be rejected and his appeal against his conviction dismissed.
The appeal against sentence
73 Turning to the sentence appeal, it is important to note at the outset that the offence upon which the appellant was convicted after trial carries a maximum penalty of life imprisonment. The quantity supplied was in excess of three times the large commercial quantity. The offence having been committed in 2000, the provisions of Division 1A of Part 4 of the Crimes (Sentencing Procedure) Act 1999 did not apply.
74 The asserted error in the sentencing judge's finding of the role undertaken by the appellant in the supply focuses upon the respective positions in the hierarchy of the appellant and the co-offender Micalizzi. It is the appellant's contention that his Honour should have assessed the appellant's criminality at about the same level as that of Micalizzi. It is acknowledged that the ground alleging manifest excess falls away in the absence of any error by the sentencing judge in this respect.
75 His Honour began his remarks on sentence by noting that the Crown case at trial, as evidenced by the telephone intercepts between the appellant and Micalizzi, was that the appellant "negotiated with Micalizzi the quantity and price and caused arrangements to be set up for the delivery and for at least part payment of 3.5197 kgs of heroin that was supplied by a Vincent Fung to Micalizzi in the city area of Sydney on 24 June 2000". No issue is taken with this description of the part the appellant played in the supply of heroin, which was between 59% and 68% pure, at an estimated wholesale value of between $460,000 and $600,000.