Czako v R

Ground One

1. Ground one is: The trial miscarried due to the fact that by the end of the trial the Crown was unable to prove a vital element of its case against the [applicant] pertaining to count 2 on the indictment, which was brought pursuant to s 193B(2) Crimes Act, 1900. In such circumstances the jury ought to have acquitted the [applicant].
2. As submitted by the Crown, this ground evidently seeks to invoke the power of the Court to set aside a jury's verdict because it is unreasonable, or cannot be supported, having regard to the evidence: s 6 of the Criminal Appeal Act 1912 (NSW). The applicant's written submissions contend that, by the end of the trial, the Crown had "resiled from" his position in opening to the jury as to part of the conduct said to sustain the Crown case but the appeal was not argued on the basis of any alleged unfairness on that account.
3. The approach to be adopted by this Court in determining a ground that the verdict is unreasonable, or cannot be supported, having regard to the evidence has been clearly stated in the decisions of the High Court in M v R [1994] HCA 63; 181 CLR 487 and SKA v R [2011] HCA 13; 243 CLR 400 and need not be repeated here. Adopting the approach stated in those cases, the critical task is to determine "whether the jury must, as distinct from might, have entertained a doubt about the appellant's guilt": Libke v R [2007] HCA 30; 230 CLR 559 at [113] per Hayne J; Gleeson CJ and Heydon J agreeing at [1] and [117] (emphasis in original).
4. The focus of this ground as expanded in the applicant's submissions is the element required to be proved by the Crown that the funds dealt with by the applicant were in fact proceeds of crime within the meaning of s 193B(2).
5. Section 193B(2) of the Crimes Act provides: "A person who deals with proceeds of crime knowing that it is proceeds of crime is guilty of an offence".
6. The term "proceeds of crime" is defined in s 193A to mean any property that is substantially derived or realised, directly or indirectly, by any person from the commission of a serious offence. The judge directed the jury that the offences relied upon by the Crown (of dealing in substantial quantities of heroin and cocaine) were serious offences.
7. The Crown opened (at T70.20 to 71.5) that two separate kinds of conduct would establish the money laundering offence: the three transfers to Magyari's Hungarian account and, separately, the applicant's attendance with Toemoeskoezy when she withdrew substantial amounts from her bank accounts after Magyari's arrest. Ultimately, however, the case was left to the jury only on the strength of the three electronic transfers to Magyari's account.
8. As already noted (and without derogating from the comprehensive treatment of this ground in the applicant's written submissions), the burden of the argument is that the evidence could not support proof of the second element of the offence, that the funds transferred by the applicant to Magyari in the three electronic transfers were proceeds of crime. It was not disputed that the applicant dealt with those funds and no separate submissions were directed to the element of knowledge.
9. The applicant relied on an exchange between the trial judge and the Crown prosecutor (in the absence of the jury) during which her Honour pressed the Crown as to the evidence on that element. At the conclusion of that exchange, the judge indicated that she proposed to make a comment to the jury on that issue. Her Honour did so, in strong and careful terms. The complete address on the issue appears at SU20.9 to 24.6. After directing the jury that the Crown had to prove beyond reasonable doubt as the second element of the offence that the funds of $29,780 transferred in the three transfers were in fact the proceeds of crime, her Honour said: You might think you will look in vain for anything in the Crown case that assists you directly in relation to this element, apart from the fact that these funds were in the account of the accused and were, on the evidence of the accused himself, paid to him by Magyari.
10. In the remarks that followed, the judge emphasised that the only direct evidence in the trial as to the source of the money transferred by the applicant to Magyari came from the applicant himself, in his evidence in chief. The impression gleaned from the remarks as a whole is that the jury would have been left in no doubt as to the lack of any direct evidence on that issue and the need to approach that element with care, in accordance with the principles applicable to a circumstantial case (as to which her Honour also gave careful directions).
11. The fact that the judge considered it appropriate to make a comment to the jury, while warranting proper attention in this Court, should not be regarded as determinative. The judge's role was of course quite different from that of the jury. A primary obligation of the judge was to ensure a fair trial; it was no doubt in discharge of that important function that her Honour chose to comment on the issue. Her Honour's remarks carefully delineated the nature of the task raised by the evidence. In effect, on the Crown case as it stood at the end of the trial, proof of this element required the jury to accept that any money Magyari gave to the applicant was derived wholly or substantially from the commission of a serious offence (as the judge remarked at SU 24.2).
12. It nonetheless remained a matter for the jury to decide, in the light of all the material before them, whether they were satisfied beyond reasonable doubt that the funds transferred were proceeds of crime. It would be wrong for this Court to approach a ground alleging an unreasonable or unsupportable verdict on the premise that the jury was obliged to capitulate to the judge's remarks; nor is this Court so obliged. As has been clearly stated by the High Court, the question raised by this ground is a question of fact which the Court must decide by making its own independent assessment of the evidence: M v R at 492-493.
13. On the strength of my assessment of the evidence, in my view it was open to the jury to be satisfied beyond reasonable doubt that the funds transferred by the applicant to Magyari were proceeds of crime. There may have been a certain logic in the approach commended by the trial judge of considering count 2 first, but that count was by no means uninformed by the evidence in support of count 1.
14. There was overwhelming evidence to support the conclusion that Magyari was running a well-organised criminal group which dealt in substantial quantities of prohibited drugs and made large amounts of money. He had been under police surveillance since March 2010 (T151.26). He had a safe house at Bexley (evidently devoted entirely to the storage of drugs), protected by the surveillance system allegedly installed by the applicant; whether or not that was established, it was at least clear that the applicant had assisted Magyari with its operation. That assistance was captured on intercepted telephone conversations (telephone intercepts no 1, exhibit G).
15. The applicant accepted in evidence that he had been to the Bexley safe house (T452.45). The appearance of those premises is revealed in a number of the photographs tendered in evidence in exhibit K. Having regard to what is depicted in those photographs, it would be open to regard the applicant's denial of any knowledge of Magyari's drug dealing with scepticism.
16. The applicant was Magyari's childhood friend. In his evidence, he described their relationship as very close, "as if we were brothers" (T448.44). He had come to Australia "many times" to spend time with Magyari and other members of the Hungarian community. During his most recent (longer) trip he had spent most days with Magyari. He stayed rent-free in an apartment owned by Magyari. He did not obtain any employment in Australia and was completely supported financially by Magyari (T458, 462-463). He had opened the Westpac account (from which the funds were transferred) during a previous visit when Magyari had given him thousands of dollars in cash (T458). He said that money remained in the account until his subsequent (final) visit. There was no plausible, innocent explanation for his receiving such funds.
17. The applicant, in turn, provided assistance to Magyari during that time (T451). The fact of some assistance was admitted; what was in dispute was whether the applicant knew, with all his intimate involvement with the man, that Magyari was heading up a criminal group.
18. Turning specifically to the money laundering offence, on the applicant's own evidence it was clear that he received large sums of money from Magyari which he regarded as Magyari's and which he dealt with in accordance with Magyari's instructions. That itself was a circumstance suggesting the money he received was proceeds of crime, although plainly not capable on its own of proving that element.
19. There was the additional fact that the transfers themselves appeared to have been structured so as to avoid monitoring by authorities. Each transfer was in an amount just under $10,000. There was evidence in the trial from a banker that AUSTRACK monitors transactions exceeding $10,000 for money laundering type payments (T378.25). A notepad located by police during the search of the applicant's home had the word "Oztrack" written on the bottom of one page. The applicant was not asked specifically about that particular entry, but admitted that generally it was his writing.
20. The applicant denied knowing that the transfer of an amount in excess of $10,000 might alert authorities to possible money laundering activities and denied having any suspicion about the source of the money. He said he transferred those amounts because Magyari told him to (T471). That evidence was inherently implausible and, while it is difficult to gauge from the transcript of evidence given through an interpreter, seems likely to have been unpersuasive.
21. The applicant submitted in this Court that the jury ought to have entertained a reasonable doubt as to whether the funds were proceeds of crime because the bulk of the money in the account had been received by the applicant (from Magyari) before the dates alleged in the indictment. It does not follow that those funds could not have been proceeds of crime. The dates in the indictment identify the range within which it is alleged the applicant dealt with the funds (by transferring them to Hungary for Magyari). It would be an offence, today, to deal with the proceeds of the great train robbery (with the requisite knowledge).
22. There was no independent evidence to suggest Magyari had any source of income other than the drug trade or that any cash he ever gave the applicant could have come from any other source. The applicant gave evidence as to his belief that Magyari had worked but, in the circumstances, the jury was not obliged to entertain a doubt on that account. In my view it was open to the jury to be satisfied beyond reasonable doubt that any money the applicant received from Magyari was proceeds of crime within the meaning of the statute.
23. I am not persuaded that ground one is made out.

Ground Two

1. Ground two is: …the trial judge erred in her directions to the jury concerning what the Crown needed to prove in relation count one in the indictment.
2. The alleged misdirection (which ought to have been specified in the ground of appeal) was that the Crown did not have to prove that the applicant knew every single member of the group. The Crown case was that there was a criminal group consisting of the seven people identified above. Magyari was alleged to be the leader. Toemoeskoezy was his ex-girlfriend. She was alleged to have been involved by laundering money through her bank account. Cuzman and Bucataru (known as "the fat gypsy" and "the thin gypsy") lived in Adelaide and were alleged to be customers of Magyari, receiving large quantities of drugs for on-sale. They came under police notice due to the interception by police of Magyari's telephone conversations (T216.46). Suto and Bodo were each alleged to have done a drug run to the two gypsies in Adelaide. Bodo's run resulted in his arrest (T322), which brought the investigation to a head. Magyari's flat was searched within hours afterwards and Magyari was arrested at that point. Bartos lived in Queensland and was also alleged to be a customer of Magyari. The applicant knew Magyari, Toemoeskoezy, Bartos, Suto and Bodo but not Cuzman and Bucataru (T453). As to the five he knew, he denied knowing that any was involved in any criminal activity, let alone as a group with the relevant shared objective.
3. The direction complained of by the applicant was as follows (SC15, emphasis added in the applicant's written submissions): "There is one aspect of the address to you on behalf of the accused that I want to correct in relation to your consideration of this element and that is that the Crown does not have to prove, in order to establish that the accused knew that this was a criminal group, that he knew every single member of that group who the Crown alleges was a member of that criminal group. For that matter the Crown would not necessarily need to prove that he knew any of them at all. Of course you are entitled to take into account evidence about whether or not the accused did or did not know named people in deciding whether or not the Crown has proved in fact that he knew it was a criminal group, but the Crown does not need to prove that he knew each member who they have nominated as being a part of this group. Nor does the Crown need to prove that he knew personally the actual serious indictable offence or offences with which they were involved. It is sufficient if the Crown proves beyond reasonable doubt that the accused knew his activities amounted to participation in this group of at least three people who were seeking to make material gain from a criminal offence which in fact amounts to a serious indictable offence. Now this could be seen as a little confusing but in this trial you might think less so because in any event there is no room for ambiguity in your minds about what might or might not have been known because of the way in which the Crown has run the case. In fact, as I have said, for this element to be proved beyond reasonable doubt you would have to be satisfied that the accused knew that what he was doing was participating in either one or all of those three ways that the Crown alleges in a way that amounts to participation with a group of people comprising at least three from amongst those named people and that he knew that that group was involved in trafficking illegal or prohibited drugs or substantial quantities of illegal drugs. That is in reality what the Crown case is here and you would have to be satisfied that he knew that there were at least three people involved in doing that to be satisfied beyond reasonable doubt in relation to this third element. To prove this element the Crown relies entirely on what is called a circumstantial case, circumstantial evidence, and in due course I am going to come to give you some directions about circumstantial evidence."
4. The offence under s 93T required proof that the applicant participated in a criminal group knowing that it was a criminal group and being reckless as to whether his participation in that group contributed to the occurrence of any criminal activity.
5. The term "criminal group" is defined in s 93S of the Act as follows: (1) In this Division: "Criminal group" means a group of 3 or more people who have as their objective or one of their objectives: (a) Obtaining material benefits from conduct that constitutes a serious indictable offence, or … (2) A group of people is capable of being a criminal group for the purposes of this Division whether or not: (a) Any of them are subordinates or employees of others, or (b) Only some of the people involved in the group are involved in planning, organizing or carrying out any particular activity, or (c) Its membership changes from time to time.
6. The applicant submitted that, on its proper construction, the offence under s 93T requires proof beyond reasonable doubt that "the accused knew the identity of all the persons that he was participating in a criminal group with" and that "the accused knew or was reckless to the fact that his participation contributed to the occurrence of any criminal activity of that criminal group" (emphasis added).
7. It was submitted that the Crown could not prove those elements unless it proved the accused knew the identity of each of the other members in the criminal group, "otherwise he could not know that he was participating in a criminal group".
8. It was further submitted that the prosecution must prove beyond reasonable doubt that an accused person's knowledge in the participation was in relation to specific and particular criminal activity, "otherwise members of the criminal group could be engaging in criminal activities outside the scope of the knowledge of an accused".
9. It was further submitted that, in the context of this case, the Crown had to prove beyond reasonable doubt each of the following matters: 1. that the applicant knew the identities of all of the members of the criminal group for the whole of the period alleged in the indictment; 2. that for the whole of the period alleged in the indictment the applicant knew that his participation contributed to the supply of illegal drugs involving Magyari, Cuzman, Bucataru, Bartos, Suto and Bodo.
10. As that contention was expanded in the written submissions, it appeared also to be contended that the Crown had to prove that each of the other members of the group "knew about" each other and that the criminal conduct of each alleged by the Crown was done on the part of that participant with knowledge of participating in a criminal group.
11. In my view, the submissions overstate the task faced by the Crown. The elements of the offence under s 93T as it stood at the relevant time were: 1. that there was a criminal group (within the meaning of s 93S); 2. that the accused participated in that group; 3. knowing that it was a criminal group; and 4. that he knew or was reckless as to whether his participation in that group contributed to the occurrence of any criminal activity.
12. In order to establish the first element, the Crown had to prove beyond reasonable doubt the existence of a group of three or more people who had the relevant shared objective. The judge directed the jury in those terms (SU12 to 13).
13. The Crown sought to prove that element by proving the existence of a group of seven people who had the shared objective of making money by dealing in heroin and cocaine. The issue raised by ground two is whether it followed that, in order to satisfy the third element of the offence (that the applicant knew it was a criminal group), the Crown had to prove that the applicant knew each of the seven alleged to be a member of that group.
14. There are two possibilities as to the proper approach to establishing the offence. One is that, if the Crown alleges the existence of a group of seven people, the element of knowledge that it is a criminal group requires proof of knowledge of the existence of all seven. The alternative is that it is sufficient to prove the existence of at least three and that the accused knew it was a criminal group of at least three having the relevant shared objective as defined in the section (a further complexity of the section mooted during argument in the appeal is whether, on that analysis, they must be the same three but that issue was not raised by the applicant's grounds of appeal).
15. So far as the researches of the parties have ascertained, there is no authority that determines this issue. Since the time averred in the indictment, s 93T has been amended so as to require a different mental element: see Crimes Amendment (Consorting and Organised Crime) Act 2012 (No 3).
16. The applicant's contention is that, having alleged the existence of a group of seven, the Crown had to prove not only that the accused knew that there existed a group of seven but also that the accused knew the identity of each of the seven. Further, it was submitted that the applicant had to know the identities of each of the seven for the whole time period alleged in the indictment (from 1 March 2010 to 2 June 2010). In the absence of any authority considering that issue, the applicant was left to point to what he contended was "a reasonable and proper construction of the section". In particular, it was submitted that, if an accused person did not know the identity of each other member of the criminal group, he could not know that he was participating in a criminal group.
17. The criminalisation of participation in a group often carries complexities of language in the relevant statute but a sensible construction is usually discernible. A strong indication against the construction of s 93T contended for by the applicant is the last clause of s 93S(2), which provides that a group of people is capable of being a criminal group whether or not its membership changes from time to time. That reflects parliament's recognition of the improbability of fixed membership in such groups (for one matter, some of their members occasionally get arrested).
18. That is a factor which, in my view, points to the conclusion that the offence does not require proof that the accused knew the identity of each member of the group throughout the whole of the relevant period. To adopt the language of a different field of jurisprudence, criminal liability attaches for participation in a group that is fixed and floating. It would be enough, in my view, for the Crown to prove that the accused knew, at the time of his participation, that he was participating in a group of three or more people who had the relevant shared objective.
19. Further, in my view, it would be possible for the Crown to prove knowledge of the existence of a group even if the accused person did not know the identity of each member of the group; a person can have criminal dealings with another person without knowing his or her identity. As it happens, that issue is of no moment in the present context since, as already noted, the applicant acknowledged knowing five of the seven members of the Crown's alleged group. The critical issue at the trial was whether he knew (at the time of his participation) that at least three of those people had as their objective obtaining material benefits (making money) from conduct that constitutes a serious offence (dealing in substantial quantities of heroin and cocaine).
20. A further factor pointing to the construction of the section contended for by the Crown is the further element of the definition in s 93S(2) that a group of people is capable of being a criminal group whether or not only some of the people involved in the group are involved in planning, organising or carrying out any particular activity. As submitted by the Crown, that was illustrated in the present case, where the group largely revolved around Magyari. Parliament plainly intended to criminalise participation in a group defined by reference to the shared criminal objective of its members. Knowledge of the identity of each member does not appear to me to be an obvious requirement of such liability; an objective can be revealed with anonymity.
21. The Crown submitted that some support for its contended construction of the legislation may be found in the analogy of the law of conspiracy. It is open in that context to prove the existence of an agreement of two or more persons to do an unlawful act even though the alleged conspirators may never have seen each other and never corresponded or even heard each other's names, provided there is proof of acts on each part to sustain an inference that they were engaged in accomplishing the same object: Ex parte Coffey; Re Evans & anor [1971] 1 NSWLR 434 at 445. Although the ultimate question is to determine what the words of s 93T mean, that common law context provides some support for the conclusion I have reached.
22. Separately, the applicant submitted that the Crown needed to prove "that the appellant knew that his participation contributed to the supply of illegal drug dealing allegedly involving Magyari, Cuzman, Bucataru, Bartos, Suto and Bodo". As submitted by the Crown, that is simply not an element of the offence. What is required is proof that when the applicant participated in the criminal group, he knew it was a criminal group and knew or was reckless as to whether his participation in that group contributed to the occurrence of any criminal activity.
23. In my view, ground two is not made out.

Ground Three

1. Ground three is: The trial miscarried in relation to count one due to the fact that the actions of the [applicant] could not be shown to have contributed to the activities of the criminal group and the jury should have entertained a reasonable doubt as to the [applicant's] guilt.
2. As with ground one, this ground appears to invoke the Court's power to set aside a verdict on the ground that it is unreasonable, or cannot be supported, having regard to the evidence.
3. As already noted, the Crown identified three ways in which the applicant was alleged to have participated in a criminal group (the establishment of any one of which would suffice): 1. by his assistance with the installation or operation of security cameras at Magyari's home at Drummoyne and also at the drug safe house at Bexley; 2. by allowing his bank accounts to be used to receive money from Magyari and then transferring funds to Magyari's account in Hungary; and 3. by assisting Toemoeskoezy with the withdrawal of $95,000 from her bank account after the execution of the search warrant at their flat and the arrest of Magyari.
4. As to the security cameras, the applicant submitted that his actions were not shown to have contributed to any criminal activity. He submitted that there was no evidence as to which criminal group of three was assisted by the installation of the cameras and no nexus shown between the installation of the cameras and any criminal activity.
5. In my view, it is a misconception of the offence to contend that the Crown must establish that the accused's participation in fact assists three or more members of the group. The section criminalises participation, not successful assistance. In any event, as submitted by the Crown, the installation of a surveillance system at the Bexley drug safe house and at Magyari's home was plainly calculated to assist Magyari in the conduct of his drug trade.
6. As to the assistance provided by the applicant in accompanying Toemoeskoezy to withdraw her funds from the bank, the applicant submitted again that his conduct "was not shown to have contributed in any way to alleged criminality by the alleged criminal group" especially given that it was not directly proved that those funds were the proceeds of crime. As submitted by the Crown, it was plainly open to infer that the applicant knew those funds were the proceeds of Magyari's drug supply syndicate and that the withdrawal of those funds was calculated to enable them to be laundered or else placed beyond the reach of authorities so as to be available for use by Magyari. The evidence was that the applicant accompanied Toemoeskoezy to withdraw a total of $95,000 from six different banks over two days following Magyari's arrest. It would be naïve to accept an innocent characterisation of that conduct.
7. The applicant's submissions in respect of his conduct in transferring amounts to Magyari's account have been considered in respect of ground one above.
8. In my view, ground three is not made out.

Ground Four

1. Ground four is: The trial miscarried due to the Crown's unfairness in addressing the jury at the end of the trial on the critical matter of desiccant not put to the [applicant] in cross-examination.
2. The Crown said: "Here's something that came to me late in the piece when I was reviewing evidence after the accused had finished giving his evidence on Friday. You must bear in mind I never had a chance to ask him about this or confront him with it so you will take that into account when you weigh up whether or not it means anything. When you look at exhibit G, which are the telephone conversations between Magyari and the accused, and you have the transcripts of those, look at exhibit G and you turn up p 790 on the bottom right hand side, you will hear the accused, or you will read that the accused said, as translated from Hungarian to English, the word "desiccant". This is p 790 which you have. Conversation, by the way was on 8 April, remember? Three days after he was photographed, if you believe the date stamp on the photographs, three days after he was photographed inside the safe house. Here he is three days later talking to Magyari and the accused used these words. This is in the middle of p 790. I'll read you the last couple of paragraphs. "Roughly it's the same, like, what happened with the desiccant that it would have arrived a long time ago if not for the uncertainty we are living in. If there is a definite idea, then we know how it fits into it." The "it" that he's referring to is, you will see from the context of the conversation, is a component for the security system that they're talking about. But the point is this. The accused used the word "desiccant" when he said "Roughly it's the same, like, what happened with the desiccant that it would have arrived a long time ago if not for the uncertainty we are living in." What about those little blue and white crystals that you saw that are in evidence and you've seen photographs of, the desiccant that was part of the drying apparatus, along with the dehumidifier? That was a part of the safe house drug factory, for want of a better word, together with the press, plastic bags and those sorts of things. Remember, this is the same house that, when the accused was interviewed during the search on 31 May, he says, "I don't know what was going on inside the place". There was never any mention then about Magyari looking after it for people who were overseas or who were away. He just said, "I don't remember. I don't know". As I put to him in cross-examination, he was trying to distance himself from anything to do with that drug house. That drug safe house. That's the reason. But if, looking at the circumstance, and this is just one circumstance. Remember, he's used the word "desiccant" of itself may prove nothing. It might be a desiccant that had some relation to something else. But, what a remarkable coincidence that three days after being filmed in the drug house, he should talk about one of the chemicals that was in common use and which was discovered there the next month on 31 May when police raided it gathered together all of the chemicals and drugs that were found in the drug house. And included in that haul, were desiccants."
3. As conceded by the Crown at the outset of those remarks, the issue of the alleged reference to "desiccant" in a recorded telephone conversation with Magyari had not been put to the applicant in cross-examination.
4. The judge reiterated that concession in her summing up, saying to the jury: [The applicant] has never been given the chance to explain what he meant when he used that word. The Crown himself conceded that he had only thought about this over the weekend. There is a basic rule of fairness in trials which is that people should be given a chance to respond to allegations made against them and where that has not occurred, like in relation to this particular issue, you may well think that you would not be entitled to give that argument much weight. It would be a matter for you, but it is a piece of evidence which the accused has not been given the opportunity to respond to.
5. The applicant submits that, notwithstanding those remarks, the unfairness could not be overcome. He submitted that the breach of the rule in Browne v Dunn [1989] VR 845 was highly significant in the context that the Crown had cross-examined the applicant as to his knowledge of the Bexley address and whether he had seen desiccant there. The applicant denied that he was aware of the desiccant. It was submitted that, in that circumstance, the effect of the Crown's address was to place the applicant in a position where it appeared he had lied on that issue.
6. The Crown submitted that there was no unfairness. The evidence included 31 intercepted telephone conversations between the applicant and Magyari in which they spoke Hungarian. They had been translated into English by a NAATI-accredited interpreter. The translation was admitted into evidence and that is recorded as having occurred without objection (exhibit G; T207). The accuracy of the translations was not disputed (their accuracy was confirmed by Sergeant Kisa (T189.13), as to whom see ground six below). Copies of the English translations were given to the jury and read to the jury by the Crown prosecutor, also without objection (T208-215).
7. As a result of the admission of exhibit G, the applicant was plainly on notice that there was evidence before the jury that he had used the Hungarian word for desiccant in a telephone conversation with Magyari. Further, he had been cross-examined as to his knowledge that there was desiccant in the Bexley drug safe house (which he had denied) (T469). If the applicant was made to appear a liar, that was not so much due to the Crown's submission but the combination of that evidence in the trial. In the circumstances, it is doubtful whether there was any unfairness in the fact that the Crown did not confront the applicant with his use of that term. It was open to the applicant to address that matter himself, in chief.
8. In any event, in my view, any hint of unfairness was amply addressed by the careful remarks of the trial judge. Ground four is not established.

Ground six

1. It is convenient to deal with ground six next. That ground is: The trial judge erred in admitting the evidence of Sergeant John Kisa pertaining to statements allegedly made by the [applicant] to Ms Toemoeskoezy during the search at Ms Toemoeskoezy's home at Barnstaple Road.
2. Police executed a search warrant at Toemoeskoezy's flat on 31 May 2010. The applicant had been staying there and was present during the execution of the warrant. One of the police who assisted as a searching officer during the execution of the warrant was Sergeant Kisa. He speaks fluent Hungarian. He is not NAATI-accredited but was raised by his Hungarian grandmother and so spoke exclusively Hungarian as a child. He has continued to speak Hungarian throughout his life (T171). Since five of the seven members of the alleged criminal group were Hungarian, it is hardly surprising that a Hungarian-speaking officer would be involved in the investigation, if one was available. In addition to his role as a searching officer, Sergeant Kisa was recruited to assist with the execution of the warrant to translate any documents located that were written in Hungarian.
3. At the outset of the search, the applicant and Toemoeskoezy spoke in Hungarian to each other. They were requested by the officer in charge (Sergeant Schreuder) to speak in English.
4. For most of the period of the execution of the warrant, Sergeant Kisa was not in the immediate presence of the applicant and was not able to hear any conversation between the applicant and Toemoeskoezy. He did, however, overhear a number of remarks made by the applicant to Toemoeskoezy in Hungarian. When the applicant was asked about a notebook with Hungarian writing in it which had a reference to "Access Security Systems" (exhibit D), Sergeant Kisa heard the applicant say (in Hungarian), "they are trying to make links, this is getting interesting" (T174.10).
5. Sergeant Kisa subsequently heard the applicant say (in Hungarian), "they are not going to find the thing I told you about earlier" (T175.39) and, later, "they can't link us to anything" (T176).
6. When police located a document containing Hungarian writing, the applicant said to Toemoeskoezy in Hungarian, "I told you to throw that away before" (T177.26). According to the evidence of Sergeant Schreuder, that was a heated exchange. In the bottom corner of one page was written a Queensland address which relates to ground five, considered below. The document was tendered in the trial (exhibit E).
7. At the trial, the applicant objected to the admission of Sergeant Kisa's evidence as to the remarks made by the applicant to Toemoeskoezy in Hungarian during the execution of the search warrant. The basis for the objection was that the evidence should have been excluded in exercise of the Court's discretion under s 90 of the Evidence Act 1995 (NSW). That section provides: In a criminal proceeding, the court may refuse to admit evidence of an admission or refuse to admit the evidence to prove a particular fact, if: (a) The evidence is adduced by the prosecution; and (b) Having regard to the circumstance in which the admission was made, it would be unfair to an accused to use the evidence.
8. An aspect of the alleged unfairness was the contention that Sergeant Kisa was deliberately placed in the role of an eavesdropper. The applicant submitted that Sergeant Kisa's attendance would hardly be a coincidence. As already noted, it may be accepted that his participation in the investigation was not a coincidence. He conceded as much (T193.43). A Hungarian-speaking officer would be an obvious boon in the investigation of a Hungarian-speaking drug syndicate. Sergeant Kisa had been involved from an early stage of the investigation. He had listened to 3,548 intercepted telephone conversations (T187.34), most of which were in Hungarian (T194.1).
9. It does not follow that his role at the execution of the search warrant was to eavesdrop. The trial judge expressly rejected that contention, accepting the evidence of both Sergeant Kisa and Sergeant Schreuder on that issue. In particular, her Honour had regard to Sergeant Kisa's evidence that, for most of the time during which the warrant was executed (stated to be about 95%), he was engaged in the role of a searcher and was unable to hear anything the applicant may have said. The judge also noted that the applicant's remarks in Hungarian to Toemoeskoezy were made after Sergeant Schreuder had expressly asked him to speak in English.
10. The applicant seeks to challenge the finding that Sergeant Kisa was not brought to the premises as an eavesdropper on the basis of the following evidence given by Sergeant Schreuder during the trial (T143-144): Q. The search was being recorded that day. Isn't that correct? A. Correct. Q. There was nothing to stop you was there when Senior Constable Kisa came to you the first time and said these two occupants had said something, there was nothing to stop you from asking Kisa to ask the two occupants to repeat what was said? A. That's correct. Yes. Q. Then there would have been a record that we could have all heard and seen? A. Yes. Q. You decided not to do that? A. No. Q. And that's because you wanted to keep the use of him [Kisa] as being able to eavesdrop on what was being said? A. Yes.
11. The proposition appears to be that that evidence impugns the judge's earlier finding (based on the evidence on the voir dire) that Sergeant Kisa was not in the role of an eavesdropper. I do not think there is any force in that contention. Sergeant Schreuder's agreement that he wanted to be able to keep using Sergeant Kisa to eavesdrop at that point does not amount to a concession that that is the purpose for which Sergeant Kisa was brought to the premises. As already noted, the fact that Sergeant Kisa spent almost all of his time out of the hearing of the applicant cogently contradicts that proposition. To the extent that this ground challenges her Honour's conclusion on that issue, it is without substance and must be rejected.
12. Separately, the applicant contends that the use of the admissions was unfair to the applicant because he was not given an opportunity to adopt (or contest) Sergeant Kisa's notes of the remarks. The trial judge found, after a hearing on the voir dire, that there was no unfairness on that account. Her Honour referred to the history of the use of "verbals" in this State and the need for the Court to be alive to the need to exclude verbal admissions where appropriate guidelines have not been adhered to. She noted, however, that the applicant was not a detained person at the time. He was a visitor at the premises where the search warrant was being executed and was not the occupier of the premises. He was not obliged to speak to, or in the presence of, police and was cautioned twice during the execution of the warrant, which was video recorded. He was requested to speak in English, not in Hungarian. He chose to speak to police, for the most part, in English but to Toemoeskoezy in Hungarian.
13. The judge further observed that it had not been put to Sergeant Kisa on the voir dire that the admissions he recorded were never said or were not said as alleged. The alleged unfairness in not giving the applicant an opportunity to adopt the admissions had to be assessed in that context. The content of the remarks reported by Sergeant Kisa do not suggest confabulation on his part.
14. I would respectfully agree with the trial judge's ruling. Once the applicant started making incriminating remarks to Toemoeskoezy in Hungarian (contrary to Sergeant Schreuder's request that he speak in English), I do not think the requirements of fairness mandated that he be interrupted and asked to adopt a note of what he had just said. The use of an unguarded incriminating remark heard by police is not inherently unfair.
15. Separately, the applicant contends that the evidence should have been excluded under s 137 of the Evidence Act, since the remarks were equivocal and were open to innocent explanation. That is a perhaps charitable interpretation of the remarks but, in any event, it reflects the application of the wrong test. Section 137 requires the Court to exclude evidence where its probative value is outweighed by the danger of unfair prejudice to the defendant.
16. In determining whether the section applies, the Court should consider the inference most favourable to the Crown and assess the potential probative value of the evidence on that basis, without regard to the availability of any competing inference. There is ample authority for that proposition; the Crown cited R v Burton [2013] NSWCCA 335 per Simpson J (as her Honour then was) (with whom R A Hulme J and Barr AJ agreed).
17. Further, it is doubtful whether the evidence was prejudicial in the sense comprehended in s 137. Evidence is not prejudicial because it tends to prove an accused's guilt. In my view, the evidence was properly admitted. Ground 6 is not made out.

Ground Five

1. Ground five is: The trial judge erred in admitting the evidence of Detective Andrews in respect of seizures from a search warrant at the Queensland address of Mr Bartos.
2. Mr Bartos was one of the seven members of the alleged criminal group. He lived in Queensland. His address in Queensland was the address recorded on the piece of paper found at Toemoeskoezy's flat (referred to above). Detective Andrews was a Queensland detective who executed a search warrant at those premises on 2 June 2010. The items found by police at those premises relevantly included a small amount of cocaine, plastic bags containing suspected cocaine and heroin and six mobile telephones (T316 to 316). The proposition that Bartos was a member of the criminal group came, in part, from the fact that his address was written on a piece of paper seized at Toemoeskoezy's flat. It was when the two pieces of paper on which that address was written were found that Sergeant Kisa overheard the applicant say to Toemoeskoezy, "I told you to throw that away before" (T177).
3. That document contained a large amount of information including figures and calculations. The other page had further scribbles together with drawings described in evidence at T177 as "farmyard animals" including a crocodile, an elephant, a hippopotamus and a giraffe. The applicant's remark about having instructed Toemoeskoezy to throw the document away did not refer unequivocally to the Queensland address.
4. The applicant gave evidence that he had met Bartos, who was also Hungarian and in Magyari's group of friends, "a few times" (T454). He described him as an acquaintance rather than a friend (T453 to T454).
5. The applicant gave an explanation for having Bartos' address written on the piece of paper by saying that, shortly after Bartos moved to Queensland, Toemoeskoezy had wanted to visit him so he (the applicant) rang him to get his address (T454.46).
6. In cross-examination, the Crown suggested to the applicant that, during the execution of the search warrant at his flat, proved his knowledge that Bartos was involved with drugs by being nervous when police found the page with Bartos' address on it. He also suggested that the accused became upset with Toemoeskoezky for not having thrown that piece of paper out as he had instructed because he knew the address would link him to another part of Magyari's criminal group (T470).
7. The applicant's response was that he did not remember the conversation and that there was no more relation with Bartos than what he had said. The applicant's evidence was given through an interpreter. It is very difficult to form any view, from the transcript, as to its likely impact on the jury.
8. The applicant submits that there was no evidence in the trial that the drugs seized at Bartos' address had come from the criminal group and no evidence that the applicant had any knowledge of the drugs located at Bartos' address. I do not accept that submission. The connection came from the applicant's unguarded remarks in Hungarian to Toemoeskoezy during the execution of the search warrant, overheard by a police officer who speaks Hungarian. Whether that evidence was tenuous was very much a matter for the jury's assessment. In my view, the evidence was admissible. Ground five is not made out.

Ground seven

1. Ground seven is: The trial judge erred in admitting the evidence of Detective Hamilton.
2. Two of the members of the alleged criminal group were Cuzman and Bucataru, who lived in Adelaide. Police had covertly recorded telephone conversations between them and Magyari. Cuzman and Bucataru were not Hungarian and the conversations were in English. A collection of the calls were identified as "telephone intercepted calls No 3". Those recordings, together with transcripts of them, were provided to Detective Hamilton for the purpose of expressing an opinion as to the language used, based on his experience in the illicit drug trade.
3. After a hearing on the voir dire, the judge ruled the evidence to be admissible. Ground seven challenges the correctness of that ruling. In her judgment on that issue, the judge described the detective as an ad hoc expert. With great respect to her Honour, I would not use that expression to describe the expertise of Detective Hamilton. The expression "ad hoc expert" has been used to describe a witness who gives an opinion based on expertise acquired for the very purpose of the proceedings in which the evidence is to be given, such as so-called voice identification experts. The care with which the admission of such evidence must be approached is considered in the judgment of this Court in Nasrallah v R [2015] NSWCCA 188 (at the time of publishing this judgment, that judgment remained restricted but is available on the JIRS website).
4. Detective Hamilton's expertise was not of that kind. He had extensive (lawful) experience in the illicit drug trade. His evidence in the trial as to his experience was as follows: Experience investigating drug offences. During 2002 and 2003, I performed investigation duties at the Kings Cross Drug Unit. These duties involved the investigation of street to middle-level drug supplies involved in the distribution of prohibited drugs in the Kings Cross area. I have been the officer-in-charge of many controlled operations involving the purchase of prohibited drugs. I have managed numerous criminal informants and have detailed discussions with these informants regarding the drug supply community and the methodologies used by drug suppliers to avoid detection by law enforcement authorities. Experience as an undercover operative. Between 2001 and 2002, I assisted in numerous prohibited drug-related investigations as a street level operative. My role in these investigations involved the controlled purchase of the prohibited drugs, including heroin, methylamphetamine, cocaine, MDA [MDMA?], which has the street name ecstasy, and cannabis. These operations involve the investigation of drug distribution from visible street dealers. A street dealer is a person who supplies drugs to another person for personal use. Between 2003 and 2004, I assisted in further prohibited drug-related investigations as an undercover operative. During this time I worked undercover with and without informants and was involved in the direct negotiation and purchase from persons of street to medium level. During this time I worked undercover with and without informants and was involved in the direct negotiation and purchase from persons of street to medium level amounts of methylamphetamine, heroin, cocaine, cannabis and ecstasy. These operations involved the investigation of drug distribution from middle level dealers. Middle level dealers supply quantities of drugs to persons for further distribution and may be for and on behalf of persons who have imported or manufactured the prohibited drugs. Between 2004 and 2007, I was attached to the Special Services Group undercover branch as a full time undercover operative. I was involved in numerous investigations into the medium to high level supply of illicit drugs. My duties at this time involved me negotiating and purchasing amounts of illicit drugs from persons directly involved in the manufacture and/or distribution process, as well as conducting a variety a of other undercover duties. I communicated extensively with established and professional criminals in person and via telephone using the jargon, techniques and the methodologies expected of an experienced drug supplier. During this time I played a major role in investigations, operations and training in a multi-agency and cross-jurisdictional working environment. I have worked on operations with agencies such as the major crime squads, Victorian Police and the United States Federal Bureau of Investigation. I have been involved in numerous controlled operations and directly negotiated with persons for sale and purchase of up to large commercial amounts of illicit drugs, including heroin, amphetamine, cannabis, cocaine and designer drugs. I am experienced training undercover operatives and supervisors. Since 2004, I have been involved in the design, planning and conduct of the New South Wales Police undercover operative training program. I have been involved in the selection, training and assessment of the New South Wales Police Force street level operatives, undercover operatives and undercover supervisors prior to operational undercover deployment. I restructured a number of components of the undercover program and have since that date trained and advised undercover operatives and supervisors on these subjects. I relied on my personal experience in directly dealing with persons involved with the administration and supply of illicit drugs from street level to manufacturing and importation in order to design this training. I also relied on my dealing with informants and continued experience and research on these topics. I have trained numerous undercover operatives and supervisors from New South Wales Police Force on the topic of prohibited drugs and the techniques and methodologies used by suppliers of prohibited drugs. Subjects covered include the manufacture, packaging, cutting, purity, prices, profit, distribution, terminology, administration and affects (sic) of the most commonly available illicit drugs such as cannabis, amphetamine, cocaine, heroin, hallucinogens and designer drugs. In 2006 I attended the FBI undercover training school in the USA where I was an international observer of the special agent undercover training course. During this course I liaised extensively with undercover operatives, supervisors, and staff from agencies such as the FBI, the New York Police Department, the United States Drug Enforcement Agency, the DEA, as well as from the United Kingdom, Italy and the United States. I am an accredited supervisor of undercover operations targeting cannabis, methylamphetamine, cocaine and ecstasy. Between January 2007 and August 2010 I performed duties as investigator in the New South Wales Police State Crime Command, Middle Eastern Organised Crime Squad. My duties included investigation of drug [production], importation, distribution and supply as well as a variety of other criminal offences.
5. Detective Hamilton's evidence was that, based on his experience, the majority of drug dealers have a belief to varying degrees that law enforcement agencies activity monitor and record telephone conversations in an attempt to detect criminal behaviour (he added that that is in fact the truth). He said that such persons conduct telephone conversations regarding drug transactions using slang, pre-determined codes or veiled speech in order to disguise the true purpose of their conversations. He defined veiled speech as conversations where the true purpose is disguised but in a less elaborate and more flexible way than with the use of a code, for example "I want to get the same as before" or "wait at the usual place". For slang, he gave the example of the use of the term "paper" to mean money. He defined codes as being specific to particular drug dealers or groups of dealers.
6. From exhibit J, he identified what he would loosely describe as a code specific to Magyari, being the discussion of medical treatment when enquiring about the quality and availability of a quantity of prohibited drugs.
7. Detective Hamilton did not purport to translate the language of exhibit J by reference to any particular language he learned from his experience in the illicit drug trade. Much of the applicant's argument under this ground misconceives the nature of his evidence in that respect. Rather, he explained why he regarded each of the examples as being consistent with his experience of the choice of codes by particular drug dealers. For example, he pointed out that one of the difficulties with the use of codes is when the predetermined code fits awkwardly into a conversation. By way of example unrelated to this case, he gave the example of the term "white lady" as code for an ounce of heroin. With that code, a buyer could ask to meet the white lady tomorrow and enquire what time she would be at the café. The difficulty would arise if the buyer wished to purchase half an ounce of heroin. Detective Hamilton gave an examples of two conversations between Cuzman and Magyari in which the "doctor" code fitted awkwardly into the relevant exchange (the conversations are at AB 256-257 and 263).
8. The Crown case was that Cuzman and Bucataru were large scale purchasers of Magyari's drugs. It was made clear that the Crown did not assert that the applicant had anything to do with them. The evidence was relied upon to establish the first element of count one; that is, the existence of a criminal group headed by Magyari.
9. The applicant's submissions on this ground entailed an element of confusion. In terms, the ground alleges error in admitting the evidence of Detective Hamilton. However, the argument put in support of the ground appeared to be directed also to the admission of the transcripts of the telephone calls themselves.
10. The applicant submitted that the evidence pertaining to alleged drug codes used in telephone calls between Magyari, Cuzman and Bucataru should not have been admitted into evidence for two reasons: "(1) Detective Hamilton's evidence was irrelevant, and or even if relevant, created a grave unfairness to the [applicant] receiving a fair trial as it dealt with admissions by third parties and not the [applicant]"; (2) Detective Hamilton's evidence was opinion and he was not qualified to give such evidence given that his opinions were not contemporary and no clear foundation was lead (sic) for his evidence".
11. As to the first point, the evidence was plainly relevant to the issue whether there existed a criminal group. As to its admissibility, the reference to the fact that the evidence related to admissions by third parties was intended to sustain a submission that the evidence infringed the rule against hearsay.
12. As noted by the Crown, the response to that contention is that the calls were admitted for the limited purpose of proving steps taken by three of the members of the alleged group to establish the existence and nature of the criminal group. The trial judge directed the jury on that basis and there is no complaint as to her Honour's directions.
13. As to the objection based on the fact that the evidence was opinion, the specific complaint (at written submissions, paragraphs 87 to 92) was that the witness impermissibly strayed into asserting his opinion as fact. The authorities relied upon by the applicant in support of this ground acknowledge that opinion evidence is not inadmissible only because it is about a fact in issue or an ultimate issue. The burden of the submission was that, in the context of a criminal trial, caution must be exercised when considering expressions of opinion close to the ultimate issue: Keller v R [2006] NSWCCA 204 at [28], per Studdart J (Hall and Latham JJ agreeing).
14. The applicant identified only two short extracts from Detective Hamilton's evidence said to trespass impermissibly into the territory of factual assertion, as follows: "During this conversation Cuzman asks, "So you went to the doctors, you don't feel better at all, no?" and the immediate answer provided by Magyari is "I've got some more of the old stock". This supports my opinion that the inquiry is about doctors and treatment are a code related to prohibited drugs. Further, similar examples occur within other conversations below… The conversation alluded to one of the common difficulties encountered by persons involved in the illicit drug trade surrounding maintaining a consistent quality and quantity of drugs." "This exchange is typical of two persons negotiating the supply of prohibited drugs where a pre-determined code is in the medical treatment."
15. On a fair reading of Detective Hamilton's evidence as a whole, I do not think the applicant's complaint on that account is made good.
16. Separately, the applicant submitted that no proper foundation for expert evidence of the kind given by Detective Hamilton was established. He submitted that the detective did not demonstrate any real expertise in the field of codes and veiled language and that the task undertaken by him could readily be undertaken by a layman listening to and reading transcript of the 56 pages of telephone conversations.
17. There is force in the contention that the issue whether a particular conversation includes the use of veiled or coded speech or slang is one which, depending upon the circumstances of the individual case, may well be able to be undertaken by the jury. If Detective Hamilton's opinion on that issue was founded on material no different from the material available to the jury from its own observation, his opinion could not rationally affect the jury's assessment of the relevant fact and would accordingly be irrelevant: cf Smith v R [2001] HCA 50; 206 CLR 650 at [11].
18. The content of the telephone calls was available to the jury. The transcript had already been tendered during the evidence of Detective Amey (exhibit J) and the recordings were played to the jury at that point (T220).
19. However, Detective Hamilton's evidence was not confined to an analysis of exhibit J that could have been undertaken by the jury. It was, for the main part, drawn from his extensive experience as an undercover police operative dealing directly with drug dealers and his involvement in many controlled operations involving the purchase of drugs. He had, over many years, directly observed the techniques and methodologies used by suppliers of prohibited drugs.
20. I accept that this is an area in which caution is required in determining whether, in the circumstances of an individual case, opinion evidence as to the use of codes is properly admissible against an accused person. The use of police as ad hoc experts must be approached with particular caution. In the present case, the trial judge found (correctly, in my respectful opinion) that much of the opinion expressed by Detective Hamilton was in respect of the use of veiled or coded speech generally rather than the use of a particular word as code for a drug-related word.
21. In my view, ground seven is not made out.

Ground eight

1. Ground eight is: The trial judge erred in not giving a warning under s 165 of the Evidence Act as to the potential unreliability of the evidence of Detective Hamilton.
2. The matters relied upon by the applicant to support the contention that the evidence was unreliable were expressed as follows: 1. being his subjective opinions, his evidence cannot be examined by an independent expert; 2. his evidence was largely subjective and not based on any measurable criteria; 3. his alleged expertise was dated and the alleged coded and or veiled language used in the intercepted telephone calls could have referred to other matters apart from illegal drugs; 4. the evidence in the telephone conversations was "hearsay" evidence in that none of the speakers was called at the appellant's trial and could not be tested under cross-examination; and 5. in all the circumstances of the case the general direction to the jury by the trial judge as to expert evidence was insufficient.
3. In my view, this ground is misconceived. The evidence did not fall within one of the listed categories in s 165(1) of the Evidence Act. As submitted on behalf of the applicant, that is an inclusive provision and it is not necessary for evidence to fall within one of those categories before the section can have operation. However, I do not think any of the matters identified on behalf of the applicant is such as to bring Detective Hamilton's evidence within the scope of the section.
4. The reference to the alleged inadequacy of the summing-up finds no logical place under the heading of this ground. In any event, I have read the entire summing up. I would reject the contention that it was inadequate in this (or any other) respect.

Ground nine

1. Ground nine is: The verdicts were unreasonable or could not be supported by evidence.
2. This is a ground which requires leave, since it raises questions of fact. In my view, leave to appeal on this ground should be refused.
3. The Crown provided detailed written submission in respect of this ground. The applicant did not. The only submissions put in writing were as follows: "It is submitted that there was a clear inference consistent with innocence on the defence case in relation to both counts and that accordingly any inferences in the Crown case had been displaced. It is submitted that upon the state of the evidence at the end of the case that it was not open to the jury to be satisfied of the applicant's guilt beyond a reasonable doubt and that in such circumstances the jury ought to have acquitted the applicant."
4. Where a ground that a verdict was unreasonable, or cannot be supported, having regard to the evidence is added almost as an afterthought or at least as no more than a catch-all safety net appended to a series of specific grounds without the assistance of any discrete reasoned argument to support it, in my view leave should be refused.
5. That is the approach that has been adopted by this Court in a number of cases: see Golossian v R [2013] NSWCCA 311 at [50] to [51] per Leeming JA; Johnson J and R S Hulme AJ agreeing at [112] and [113] respectively; Clarke v R [2014] NSWCCA 236 at [65] per Leeming JA; Price and McCallum JJ agreeing at [93] and [94] respectively; El Haddad v R [2015] NSWCCA 10 at [121] to [127] per Leeming JA; McCallum and R A Hulme JJ agreeing at [129] and [130] respectively.
6. For those reasons, the orders I propose are: 1. To the extent that leave to appeal is required, leave be granted except in respect of ground 9; 2. That the appeal be dismissed.

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: 03 August 2015