El-Jalkh, Antoine v R [2009] NSWCCA 139 | Case summary

El-Jalkh, Antoine v R [2009] NSWCCA 139 | Case summary | Zoe

[15]

The Crown case at the trial 6 In his remarks on sentence Judge Williams said that he was satisfied that the jury had found the appellant guilty on the basis of "the following general facts", which his Honour then set out. I am satisfied that this statement of general facts by his Honour in his remarks on sentence was in accordance with what had been the Crown case at the trial. The following summary by me of the Crown case at the trial is based on his Honour's statement in his remarks on sentence and on parts of the evidence in chief of the principal Crown witness Carlos. 7 Carlos was born in Venezuela to Syrian parents and had been in Australia since 1981. 8 In 2002 Carlos was carrying on a business of importing in containers shoes and clothing, principally from Syria and Lebanon. He had a warehouse in a Sydney suburb. 9 Carlos first met the appellant in the year 2000 and from early 2002 both Carlos and the appellant, who was a hairdresser, carried on businesses in the same suburban shopping centre. They became friends. 10 Carlos was friendly with Paul Kellaway and Scott McGee. 11 At some time in 2002, which was not precisely fixed by the evidence, the appellant had a conversation with Carlos in which the appellant asked Carlos "how you getting all these stuff from overseas?" and Carlos replied "I get them by container". 12 On a subsequent occasion the appellant told Carlos "look I can make you to make big money to bring, you know, if you help me to bring some stuff from overseas in Lebanon". Carlos said to the appellant "what, what do you mean?" and the appellant said "I'm very well connected overseas and I'm very well connected here. I can put my hand, I can, if you know organise some drugs and cocaine and hash oil, oil-hash, in Lebanon. Can you put them in the container and you know we make big money and you not have to work hard and selling shoes and something like that". 13 Carlos said that he would think about the appellant's proposal. He contacted a New South Wales police officer for whom he had been an informant and told him about the proposal. The police officer encouraged Carlos to obtain further information. 14 The appellant told Carlos about a conversation the appellant had had with Paul Kellaway, in which he told Kellaway that he could get drugs from overseas but did not have any money and "Paul say ok, we can put in money in this". Kellaway had said that he had a partner "Scott" (McGee). 15 The appellant told Carlos in a subsequent conversation that the appellant had told Kellaway that the appellant had a quantity of 10 kgs of cocaine in a drum in Lebanon. 16 In a later conversation between the appellant and Carlos, Carlos told the appellant that he did not currently have any container coming from overseas. The appellant said that that would not be a problem. "These people would pay the money to organise a container of shoes" and said that Carlos' job would be to go to Syria, organise the container and the shoes or other stock which would be loaded into the container and bring the container to Lebanon, where it would be stored and the drugs would be placed in it. Carlos reported this conversation to the New South Wales police officer. 17 There was an attempt by the New South Wales police to have police officers observe Kellaway handing money to Carlos but, although $50,000 in cash was handed over by Kellaway to Carlos, police were unable to be present. 18 Carlos became dissatisfied with the New South Wales police officer and approached the National Crime Authority, as the Australian Crime Commission was then called. In early November 2002 he came under the supervision of Detective Purchas and he remained under Detective Purchas' supervision. Purchas encouraged Carlos to involve himself in the proposed importation of drugs. Listening device and telephone intercept warrants were obtained by the Crime Authority. 19 A further amount of $200,000 was paid to Carlos for the purpose of the drug importation. 20 On 29 December 2002 Carlos left Australia and travelled to Lebanon and Syria. 21 On 3 February 2003 the appellant left Australia and travelled to Lebanon. On 15 February 2003 the appellant went to Syria, where he had a meeting with Carlos, and on the following day he returned to Lebanon. 22 It had been intended by the conspirators that the drug which would be imported would be cocaine. However, cocaine could not be obtained in Lebanon or Syria. There was a change of plan, so that the conspiracy became a conspiracy to import MDMA. 23 On 24 February 2003 the appellant flew to Holland and arrived in Amsterdam. 24 On the following day 25 February 2003 McGee left Australia and flew to England. McGee then flew to Holland. The appellant and McGee had a meeting in Holland at some time between 25 February and 28 February.

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The defence case at the trial 29 As I have already indicated, the defence case at the trial consisted almost entirely of the evidence of the appellant. The following is a brief summary of the appellant's evidence in chief. The summary does not include the appellant's evidence about the recorded conversations, which I will deal with later in this judgment. 30 The appellant was born in Lebanon and came to Australia in 1970, when he was 21 years old. He was a hairdresser by occupation and carried on a hairdressing business in a Sydney suburb. 31 He had met Carlos about eight years previously and after he and Carlos began carrying on businesses close to each other he saw Carlos very frequently. Another person he knew was a man named Vincent Lim. 32 In conversations between the appellant, Carlos and Vincent Lim "we talked about arms deal, we talked about money laundering". Carlos offered to claim that a sum of $2m which police had seized from a friend of Vincent Lim was Carlos' money. 33 The appellant gave further evidence:- "We start talking about the arms deal somewhere in May/June roughly, roughly May/June 2002 when one morning Vincent talking about how he knew he had contacts in China and one of them is a general and can sell arms to any person any country in the world, so long as it's not forbidden by United Nations." 34 Carlos said with reference to the arms deal:- "Look I have a cousin who is in the Syrian army and another friend in the Intelligence … and I'm really interested in this and I can get to contact and see we can get things moving." 35 After Carlos had left the appellant and Vincent Lim, Vincent Lim said to the appellant that he did not want to deal directly with Carlos and would like the appellant to deal with Carlos. The appellant asserted in his evidence "I was the go in between". 36 The appellant said in his evidence:- "I did speak to a friend of mine, who was a lawyer, and I said to him there's going to be an arms deal between China and Syria and had nothing to do with Australia whatsoever and it's not forbidden by United Nations to sell arms from China to Syria so he said "if that's the case, I don't think its illegal"." 37 The appellant's evidence continued:- "So I said to myself well, it's worth a lot of money because Carlos told me the Syrian army are - they don't have enough weapons; things are hotting up in the Middle East and … need things for the army, trucks and guns and rockets and aeroplanes and what have you and the deal could be about $1 billion minimum … and according to my friend Vincent and the Chinese people, I would be entitled to something like about a minimum of US$60m." 38 Carlos said to the appellant that he could organise everything in Syria and that he had started discussions with persons in Syria, that Carlos would be going to Syria and that the appellant should come afterwards. 39 Vincent Lim told the appellant that he was talking to his contacts in China about the proposed arms deal. 40 The appellant denied that he had ever had any discussion with Carlos about drugs. 41 The appellant had first met Paul Kellaway and Scott McGee at a party. The appellant had been invited in his capacity as a hairdresser to dye the hair of some women at the party. The appellant had got to know Kellaway and McGee quite well. 42 McGee told the appellant that he had lots of money which he wanted to launder. The appellant asked Carlos whether Carlos would help McGee to launder the money. 43 In about August or September 2002 a first meeting took place between the appellant, Carlos, McGee and Kellaway. The appellant introduced Carlos to Kellaway and McGee. The appellant denied that at this or any subsequent meeting there was any discussion in the appellant's presence about drugs. There was discussion about money laundering and importing shoes. The appellant was not sure what money laundering meant but he understood that Kellaway needed somehow to "make money clean", because the money was from an escort agency conducted by Kellaway. 44 At one meeting Kellaway or McGee or both of them said "we give you money Carlos and you can buy shoes and the shoes will become legitimate and then we sell the shoes and we'll make money and the money will become clean". The appellant denied that he had any financial interest in the purchase of the shoes. To make Kellaway and McGee trust Carlos the appellant said, untruthfully, to Kellaway and McGee that he, the appellant, had put $50,000 into the venture. 45 Carlos spoke to the appellant about Carlos having had meetings with Kellaway and McGee, at which the appellant had not been present. 46 Carlos sometimes asked the appellant to telephone Kellaway and McGee on his behalf, because the appellant spoke better English than Carlos. The appellant described himself in his evidence as being "a messenger boy". 47 The appellant made plans to go to Syria. He said:- "The discussion was between me and Carlos, I wanted to meet the army, the officials of the Syrian government because I've been told by the Chinese officials or their representative in Sydney, I must have some kind of form from Syria or from the army to say that I represent them." 48 As well as going to Syria, the appellant would take the opportunity to have a holiday in a number of countries, including Holland. 49 In his evidence in chief the appellant was then taken by his counsel through the transcripts of the taped conversations. The appellant offered explanations of what was said in the conversations which would be consistent with his innocence of the charge brought against him. I will refer to these explanations in a later part of this judgment. 50 As already stated in my summary of the Crown case at the trial, the appellant did travel to Syria, Lebanon and Holland in February 2003. 51 The appellant did in fact go to China on 31 May 2003. While in China "we had a meeting … in a boardroom with about 10 generals". At the meeting the proposed arms deal was discussed "they all ready to go, just waiting for information, for me to confirm". 52 The appellant returned to Australia on 5 June 2003 and reported to Carlos in a telephone conversation about the progress of the proposed arms deal. The proposed arms deal never eventuated. The recorded conversations 53 As stated earlier in this judgment, there was evidence in the Crown case at the trial of a large number of recorded conversations, to some of which the appellant had been a party, which had been recorded by means of authorised listening devices or authorised telephone intercepts. The conversations were recorded as a result of intercepts placed on telephone services used by the appellant and by Kellaway and the installation of a listening device in the apartment occupied by Kellaway. On 27 December 2002 Carlos wore a listening device when he had a meeting with McGee. 54 The evidence of the recorded conversations at the trial consisted of tape recordings of the conversations, which were played to the jury. 55 As stated earlier in this judgment, transcripts of the conversations prepared by a police officer became exhibits M1 and M2 at the trial. In some parts of the conversations what was said could not be made out by the police officer who prepared the transcripts and in the transcripts these parts were left blank or indicated as "(words)". There was little or no dispute at the trial about the accuracy (so far as the transcripts went) of the transcripts forming exhibits M1 and M2. The members of the jury were provided with copies of the transcripts of the recorded conversations and during their retirement could have access to equipment in the courtroom with which they could play the recordings of the conversations. 56 The recorded conversations commenced with a conversation on 30 November 2002 between the appellant and McGee and concluded with a conversation on 5 June 2003 between the appellant and Carlos. The total number of conversations was more than 150. The appellant was a party to a fairly large number, but by no means all or even most, of the conversations. 57 A feature of the trial was the amount of time devoted to the recorded conversations, in playing the tape recordings of the conversations, in reading aloud transcripts of the conversations and in the giving of evidence by Carlos or by the appellant about what each of them said was meant by parts of the conversations. The transcript of the evidence of Carlos or the appellant about the recorded conversations occupies a total of several hundred pages of the trial transcript. 58 It was a part of one way in which the Crown case was put at the trial that the evidence of the recorded conversations corroborated Carlos' evidence that the appellant had been a party to the conspiracy to import MDMA. Alternatively, the Crown contended that the evidence of the recorded conversations was sufficient by itself to establish that the appellant had been a party to the conspiracy to import MDMA. The recorded conversation on which the Crown particularly relied was the conversation on 25 March 2003 between the appellant and Kellaway, which was recorded, both visually and aurally, by the device installed in Kellaway's apartment and which was referred to at the trial as LD123. 59 It was part of the defence case at the trial that there were other, innocent, explanations of those passages in the recorded conversations which the Crown contended incriminated the appellant in the offence charged.

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The defence case at the trial about the recorded conversations 63 In a part of his closing address which occupied about 30 pages of the trial transcript counsel for the appellant at the trial took the jury through a number of the recorded conversations, setting out the explanations the appellant had given in his evidence of apparently incriminating passages. Explanations of individual conversations included the following:- 64 Conversation on 30 November 2002 The appellant said in his evidence that the reference to Kellaway saying "he might have some work for us" was a reference to the money laundering transaction. Counsel for the appellant submitted that, in any event, the reference was ambiguous. 65 Conversation on 22 December 2002 In the conversation the appellant said he would be going to Beijing, which could only have been in connection with the proposed arms deal and not any drug deal. The appellant also said that he would be going to Moscow, which could only have been for a holiday. 66 Conversation on 24 December 2002 The money Carlos was to be paid was for the purchase of the shoes for the money laundering transaction. 67 Conversation on 27 December 2002 The appellant was not a party to this conversation and was not referred to in the conversation. There was no reference in the conversation to a chocolate wrapping machine, which, according to Carlos' evidence, was a method suggested by the appellant of transporting drugs from Amsterdam. 68 Conversation on 1 January 2003 The appellant talked about going on to China after he went to the Middle East. The trip to China could only have been in connection with the proposed arms deal. 69 Conversation on 18 January 2003 at 7:12 pm The appellant was not a party to this conversation between McGee and Kellaway. The steps being taken by McGee did not include any participation by the appellant. The two parts of McGee's statement "we're organising that" and "then we've got drinks with our friend (who was clearly the appellant)" were disjunctive, that is to any, quite separate from each other. 70 Conversation on 18 January 2003 at 12:22 am McGee regarded the appellant as a nuisance who had to be got rid of. So far as the appellant was concerned, "the first deal" was the importation of the shoes. 71 Conversation on 20 January 2003 The appellant's state of mind was that he was going to Syria to do an arms deal and then to China for the arms deal. He was not interested in anything else. His focus on the arms deal made him blind to what was being done by others around him (in connection with the drug deal). 72 Conversation on 25 January 2003 It was apparent that Kellaway, McGee, Stefan Pool and Danny Histon were old mates, who had done drug deals before. The appellant had had nothing to do with any previous drug deals between the others.

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Ground 1 - There was a miscarriage of justice in that the jury were wrongly informed by the Crown about the presumption of innocence . 86 This ground of appeal was based on a part of the Crown prosecutor's closing address in which the prosecutor said:- "Now, in addition to those two matters, the evidence and your commonsense, the other thing that you have to assist you is the presumption which I told you ran throughout the trial and continues to run at this stage, that under our law an accused person is to be presumed to be innocent until such time as you have the opportunity to retire to consider your verdict and you make a decision. Up until that time the presumption of innocence, as it's called, runs and every accused - not just Mr El-Jalkh - every accused should have the benefit of your keeping an open mind until at the end of the day you're asked to go and consider your decision and, of course, you can understand why that's important, because I'm going to say certain things to you now about what you should make of all of this evidence, Mr Johnston - you have yet to hear from him and you have yet to hear from his Honour and in particular you have yet to hear from his Honour as to the law that you apply in relation to this matter." 87 It was submitted on behalf of the appellant that in this part of his address the prosecutor conveyed to the jury that the presumption of innocence would apply only up until the jury retired to consider its verdict, whereas it is clear that the presumption continues up until a jury is satisfied beyond reasonable doubt of the guilt of the accused (Robinson v The Queen (1991) 180 CLR 531 at 535 per curiam). 88 It was submitted that the Crown prosecutor had made a similar error in his opening address, when he said words to the effect that the presumption of innocence would continue until the jury had heard all of the evidence, the addresses and the summing-up, "until you have all of the material before you". 89 There was no complaint by counsel for the appellant at the trial about these parts of the prosecutor's addresses. 90 What the Crown prosecutor said in his two addresses was not correct; the presumption that the accused is innocent continues up until such time as the jury in its deliberations is satisfied beyond reasonable doubt that the accused is guilty. However, I do not consider that the prosecutor's errors were material. 91 The prosecutor's closing address was followed at the trial by defence counsel's address in which counsel stressed the need for the Crown to prove beyond reasonable doubt that the appellant was involved in the importation. 92 In the part of his closing address which I have quoted the Crown prosecutor told the jury that it had not yet received directions from the trial judge about the law it was to apply. When the trial judge summed up to the jury he gave repeated, correct, directions about the criminal onus and standard of proof and no request was made that he should say anything further. 93 I would refuse leave under r 4 in respect of this ground.

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Ground 4 - Failure to give good character direction 94 This ground of appeal was based on a part of the appellant's evidence in chief, very close to the end of the evidence in chief, which was in the following terms: "Q. In relation to this matter it's the case that you were arrested by police and you did a record of interview on 25 July 2003, which (is) referred (to) as exhibit M in these proceedings, is that correct? A. Yes Sir. Q. Did you tell the police the entire truth in that record of interview? A. No Sir I didn't. Q. Why was that? A. Well a couple of reasons Sir. First of all I was terrified, I've never been interviewed by police in my life and at that time I realised there's a drugs problem and I wasn't involved in and I didn't want to involve myself in. Q. When you say you've never been arrested, have you ever been charged with a criminal offence in -- A. Never been arrested or charged or anything Sir. Q. In Australia? A. Anywhere in the world Sir." 95 It was submitted that in giving evidence that he had never previously been arrested or charged with any offence anywhere in the world the appellant was raising his good character and directions of the usual kind should have been given by the trial judge, that, if the jury found that the appellant was a person of good character, the jury should take that into account (1) on the question of guilt, that is the improbability of a person of good character having committed the offence charged and (2) on the question of the appellant's credibility. 96 It was submitted on behalf of the appellant that it would have been particularly important in the present case for a direction to have been given about the relevance of good character to the accused's credibility. The appellant had given evidence at the trial and his evidence was in stark conflict with the evidence of the principal Crown witness, whose own credibility was open to attack. 97 No application was made at the trial for directions about character and the trial judge did not give any directions about character. 98 Character is raised by an accused person in his evidence, only where the evidence is given with the intention of raising good character. See, for example, R v Fuller (1994) 34 NSWLR 233 at 238 per Hunt CJ at CL. 99 I am not satisfied that in giving the evidence about his never previously having been arrested or charged with a criminal offence the appellant was intending to raise good character. The evidence was given in the context of the appellant proffering a reason why he had not told the full truth when interviewed by police. He said he had not told the full truth, because, not having previously been arrested or charged with any offence, it was a novel and terrifying experience for him to be interviewed by police. 100 The appellant gave evidence to a similar effect in cross-examination, where the following questions and answers occurred:- "Q. So why didn't you tell them the truth? A. Because I was scared sir. Q. What were you scared about, telling them the truth? A. No sir, I'm scared because I've never been charged before, I've never been interviewed before, I've never had anything done with the police before." 101 The circumstances that counsel for the appellant at the trial made no submission about the appellant's good character in his closing address and did not ask the trial judge to give directions about character, support the conclusion that there was no intention on the part of the appellant to raise character.

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The closing address for the defence at the trial 108 At the trial counsel for the appellant made a closing address which began shortly before lunch on Friday 7 October 2005 (the day's hearing concluded at 3 pm) and finished shortly before lunch on Monday 10 October 2005. 109 In his address counsel reiterated that it had never been disputed by the defence that there had been a conspiracy; what had been disputed was whether the appellant had become part of the conspiracy. 110 It was submitted that the Crown case depended on Carlos' evidence; that it was necessary for the jury to assess Carlos as a witness; that the jury should find that Carlos had been motivated by money, hoping to obtain a container of shoes without paying for it and then to obtain a reward from assisting the authorities; and that the jury should find that Carlos was an unreliable witness and had falsely implicated the appellant in the drug conspiracy. 111 It was submitted that there was an innocent explanation of the appellant's conduct, competing with the explanation advanced by the Crown. From start to finish it had been the arms deal which had motivated the appellant. There was evidence that the arms deal was already being discussed before the appellant went overseas on 29 December 2002. The appellant's travel movements and what he had said in the recorded conversations, including apparently incriminating remarks, could be explained as referring to the arms deal. The appellant had in fact gone to China in 2003 and had had a meeting with Chinese generals in Beijing. 112 It was submitted that the appellant had played a very minor role. The appellant had merely introduced Kellaway and McGee to Carlos for the purpose of money laundering, to enable Kellaway and McGee to put "black" money into a purchase of a container of shoes. The appellant had been merely a go-between or a messenger boy. The others, that is Kellaway, McGee and Carlos, had attempted to conceal from the appellant the drug conspiracy into which they had entered. It was true that the appellant had at a late stage become aware of the drug conspiracy between the others but he himself had never joined the conspiracy. Notwithstanding some assertions he had made to Kellaway, he had not in fact contributed any money to such a conspiracy and there was no evidence of any definite benefit he would receive and these factors made it improbable that he had ever been part of the conspiracy. 113 On the morning of 10 October 2005 in a part of his address which I have already summarised, counsel for the appellant took the jury through a number of the recorded conversations, repeating the appellant's explanations, which were consistent with his innocence, of apparently incriminating passages. The summing up 114 The trial judge commenced the summing-up in the afternoon of 10 October 2005. The first thing that the trial judge told the jury was "I will try to make this as pain-free as possible". The summing-up was virtually concluded on the afternoon of 10 October. On the following morning the trial judge, at the instance of the prosecutor, gave fairly brief formal directions about the elements of the offence of conspiracy under the Criminal Code and then sent the jury out to consider its verdict. The transcript of the summing-up occupied a little over 30 pages. 115 Much of the summing-up was devoted to directions or suggestions of a general kind which are to be found in most, if not all, summings-up, for example directions about the respective functions of the trial judge and the jury, the onus and standard of proof (to which I have already referred in considering the first ground of appeal) and the drawing of inferences and suggestions about how the jury might conduct its deliberations. 116 What the trial judge said in the summing-up which was specific to the present case was limited to the following.

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The only other references to the facts of the case in the summing-up were statements that the appellant was charged with conspiring to import drugs and not with dealing in arms (this was the only reference to the arms deal in the summing-up), that the drug conspiracy might have changed from a conspiracy to import cocaine to a conspiracy to import MDMA and that there were parts of the recorded conversation LD 123 which were indistinct in the recording and, this being so, the jury should be careful with regard to the transcript prepared by the police officer, because the officer might have had an expectation that things would be said about drugs, and the jury should not endeavour to fill in any gap in the conversation, unless they were satisfied beyond reasonable doubt "that what you're being asked to interpolate into the document is what is actually there". These were the only references to LD123 in the summing-up. 117 In the summing-up the trial judge said:- "I could but I think it would be somewhat pointless going through each of the telephone intercepts and pointing out to you what Mr Crown said as to how that intercept should be interpreted and how Mr Johnston said it should be interpreted. You have heard their arguments that have been put to you. If you accept them, well and good. If you have thought of other ways of looking at the material, that is again well and good; that is a matter for you to determine. But I do not think that me going through two volumes of telephone intercepts and putting what has already just been put to you by counsel is going to be very productive for anyone." 118 What is not to be found in the summing-up is any summary of the evidence, either of the oral evidence of Carlos or the appellant or of the objective evidence, or any summary of the submissions of the parties, and particularly the defence submissions, apart from the general statement of the nature of the Crown case and the nature of the defence case which I have already quoted. 119 No application was made by counsel for the appellant at the trial that the trial judge should say anything further in the summing-up (apart from counsel joining in a submission by the prosecutor that the trial judge had not correctly stated the nature of an offence of conspiracy under the Criminal Code, a matter having no relevance to the present grounds of appeal).

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The appellant's submissions on the appeal 120 It was submitted on behalf of the appellant that the trial judge "almost entirely abdicated his duty to assist the jury in relation to the facts that they would have to consider and the issues they would have to decide, that is how to apply the law to the facts". 121 Counsel referred to a number of authorities stating principles governing summings-up in criminal trials, including R v Zorad (1990) 19 NSWLR 91 at 105; Cleland v The Queen (1982) 151 CLR 1 at 10; R v Coleman (1990) 19 NSWLR 467 at 486; R v Gutierrez [2004] NSWCCA 22 at [86]; R v Lawrence (1982) AC 510-519. 122 It was conceded by counsel for the appellant that s 161 of the Criminal Procedure Act provides that a trial judge need not summarise the evidence given in a trial, if the judge is of the opinion that, in all the circumstances of the trial, a summary is not necessary. However, it was submitted that the operation of s 161 is limited by its own terms, including sub-s (3), and by the interpretation which has been placed on s 161 or its predecessors by the courts. 123 It was submitted that circumstances which have been identified as rendering it unnecessary for a trial judge to summarise the evidence in a trial have included that the trial was a short one and that a summary of the evidence might work to the disadvantage of the accused, because all, or almost all, of the evidence in the trial was adduced in the Crown case. However, in the present case the trial had lasted approximately a month and the appellant had given extensive evidence. 124 Counsel pointed out that in the summing-up the trial judge had not made any summary at all of the oral evidence of either Carlos or the appellant. 125 Although the trial judge had referred to the evidence of the recorded conversations as "objective evidence", the parties had differed in the interpretations they submitted should be placed on what had been said in the conversations and the inferences they submitted should be drawn from what had been said and the trial judge in his summing-up should have explained to the jury the competing interpretations and inferences. 126 It was a vital part of the appellant's case that he had been a party to a proposed arms deal and that the objective evidence, including what he had said in conversations to which he had been a party and his travel movements, could be explained by reference to the proposed arms deal. However, the trial judge had made only one passing reference, which I have already noted, to the arms deal. 127 It was submitted that, although no application had been made by counsel for the appellant at the trial that the trial judge should say any more in the summing-up, it was fundamental to a criminal trial before a jury that the trial judge should deliver a summing-up complying with the principles stated in the authorities counsel had referred to; that the summing-up delivered by the trial judge had not complied with these principles; that leave under r 4 of the Criminal Appeal Rules should be granted; and that it would be inappropriate for this Court to apply the proviso to s 6 of the Criminal Appeal Act.

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Decision 134 In Zorad the Court, in a passage in its judgment which has subsequently often been quoted or referred to, said at 105:- "A summing-up should, in every case, not only include directions as to the ingredients of the offence which the Crown has to establish and an explanation of how the relevant law may be applied to the facts of the particular case, but it should also include a collected resumé of the evidence which relates to each of those ingredients and a brief outline of the arguments which have been put in relation to that evidence…" 135 It was submitted by counsel for the Crown on this appeal that what was said by the Court in Zorad should be read in the context of the particular facts of that case and as limited by the facts of that case. However, as I have already stated, the passage has often been quoted or referred to in other cases and I consider that what was said should be regarded as being of general application. 136 In R v Tillott (1991) 53 A Crim R 46 at 51 Hunt J (as his Honour then was), who was the presiding member of the Court in Zorad, explained that the ingredients (or elements) about which the jury must be directed are only the ingredients of the offence charged which are in dispute in the particular trial. 137 In the present case there was no dispute that there was a conspiracy to import MDMA and the only issue was whether the appellant had become a party to that conspiracy. Hence, there was no need for the trial judge to give any more extensive directions than he gave about the elements of the offence of conspiracy. Zorad would, however, require that evidence relating to the issue of whether the appellant had become a party to the conspiracy be collected and an outline given of the arguments of the parties in relation to that evidence. 138 After Zorad was decided, s 405AA of the Crimes Act was enacted, coming into force on 17 March 1991. That section of the Crimes Act was subsequently repealed and replaced by s 99 of the Criminal Procedure Act, which subsequently became s 161 of that Act. 139 All three statutory provisions have been in substantially similar terms. Section 161 of the Criminal Procedure Act now provides:- "(1) At the end of a criminal trial before a jury, a Judge need not summarise the evidence given in the trial if of the opinion that, in all the circumstances of the trial, a summary is not necessary. (2) This section applies despite any rule of law or practice to the contrary. (3) Nothing in this section affects any aspect of a Judge's summing up function other than the summary of evidence in a trial." 140 It is clear from the terms of the section that the only summing-up function of a trial judge with which s 161 deals is the function of summarising the evidence given at the trial. All other functions to be performed by a trial judge in summing-up to the jury are expressly preserved by sub-s (3). 141 The limited effect of s 405AA of the Crimes Act (and hence s 161 of the Criminal Procedure Act) was stated in cases decided after s 405AA came into force. 142 In R v Condon (1995) 83 A Crim R 335 Allen J, with the concurrence of the other members of the Court, said at 347-348:- "Section 405AA applied to the present trial. But even if it reasonably was open to his Honour to form the opinion that a summary of the evidence was not necessary as to which it is not necessary to express an opinion, s 405AA does not relieve a trial judge of the duties to which I have referred. The fulfilment of those duties does not require that the evidence be summarised as distinct from the respective cases being stated and the jury instructed as to the application of the law to those cases." 143 In R v Piazza (1997) 94 A Crim R 459 Grove J, with the concurrence of the other members of the Court, said at 463:- "It (s 405AA) came into effect on 17 March 1991 and its terms make plain that it is unnecessary for a presiding judge to recapitulate evidence and, I would add, particularly not to do so by reciting the individual testimonies of witnesses in a mechanical repetition of the evidence as it has unfolded. Subsection (3) preserves other obligations of the judge and the provision does not detract from the duty to communicate to the jury of what the respective cases being presented on behalf of the Crown and accused consist, and how it is that cases are claimed to be supported (or not) by the evidence. The judge is not required to restate every argument put on behalf of an accused but he must ensure that the jurors have sufficient knowledge and understanding of the evidence to discharge their duty to determine the case according to the evidence: Domican v The Queen 1992 173 CLR 555; 60 A Crim R 169." 144 In the present case I consider it was well open to the trial judge to form the view that a general summary of the evidence given in the trial, and particularly of the evidence of the recorded conversations, was not necessary. It is true that the trial had not been a short trial and that there had been extensive evidence in the defence case. However, circumstances of the trial which would support the formation of such a view by the trial judge would include that there was only a single issue in the trial, that the recorded conversations had been traversed in great detail several times in the trial and that the jury, by means of the transcripts of the recorded conversations which had been supplied to them and by their access to equipment for playing the recordings of the conversations, had no need to be reminded of the terms of the conversations. I also consider that the trial judge could properly have some regard to the view he had apparently formed that the jury were exhibiting signs of fatigue and would be unlikely to be receptive to yet another progression through the recorded conversations. In any event, a summing-up in which the trial judge went through each of the recorded conversations in chronological order would be similar to the type of summing-up which was the subject of criticism in Zorad and Piazza. 145 As there was no dispute at the trial that there had been a conspiracy to import not less than a commercial quantity of MDMA, that is no dispute that all the elements of the offence of conspiracy were present, and the only issue was whether the appellant had become a party to the conspiracy, I would not uphold ground 3, which was expressed as being a failure by the trial judge to sum-up the evidence in the trial with the elements of the offence. 146 The functions to be performed by a trial judge in summing-up to a jury were discussed by Wood CJ at CL in R v Meher [2004] NSWCCA 355. His Honour said, with the concurrence of the other members of the Court:- "[76] It is trite law that the fundamental task of a trial judge is to ensure a fair trial. That will involve not only instructing the jury about the law. It extends to identifying the issues, relating the law to those issues, and assisting the jury to understand how it is that the accused may be guilty of the offence charged in the indictment, or of any alternative offence open upon that indictment. It also requires the judge to explain why it is that the accused asserts that his guilt has not been established beyond reasonable doubt and to give any directions which, in accordance with the Evidence Act or established case law, call for a particular explanation or caution. So far as the accused is concerned, it is the case which the defence makes that the jury must be given to understand, including any matter that is properly open upon which they might find for the accused: Pemble v R (1971) 124 CLR 107. [77] There is no obligation to go beyond those matters that are of direct relevance for the trial, nor is there a need for a judge to painstakingly read all of the evidence to the jury, or even to analyse all of the conflicts in it: Domican v R (1992) 173 CLR 555 at 560-561. What is required is a fair and balanced summary of the law, the issues, and the respective cases for the prosecution and the defence. ………………….. [82] It is essential, if a summing up is to be fair and balanced, that the defence case be put to the jury.

[181]

[83] In Regina v Schmahl [1965] VR 745, Winneke CJ (with whom Scholl and Pape JJ agreed) said, in this respect (at 748): … Failure adequately to put the defence is, of course, a well-recognized ground of appeal. See the case of R v Wilson (1913) 9 Cr App R 124. In a case like this where the evidence was lengthy, and by no means easy to unravel, and where it related to a conversation which had taken place so long before, the interests of justice required that the defence of the applicant should be clearly and fully presented to the jury. Failure to make such a presentation where it relates to an important part of the defence makes it dangerous, in my view, to allow the verdict to stand. In such circumstances, the recent decision of the High Court in Raspor v R (1958) 99 CLR 346; [1958] ALR 1062, shows, if authority for such a proposition be needed, that it is not only the function but the duty of this Court to hold that a miscarriage of justice has occurred. In such a case it is not possible to save the verdict by the application of the proviso to s 568(1) of the Crimes Act 1958 … [84] In Regina v Tomazos NSWCCA 6 August 1971 this Court approved the passage quoted above. Isaacs J added: In the result the conclusion appears to me to be inevitable that not only has there been a miscarriage of justice but a substantial miscarriage. The Appellant has not had what in law he is entitled to have, and that is a trial according to law. A trial according to law includes as an essential prerequisite that the trial judge has put fairly, cogently and with clarity to the jury the accused's defence. The weaker the defence the more essential it is for his defence such as it is to be put to the jury so that they can consider it in the light of the Crown case and evaluate it as part of their assessment together with the Crown evidence to see whether the Crown has discharged its onus of proof. It can properly be said that the accused fairly lost a chance of acquittal because his case was never put to the jury by the trial judge. It is completely insufficient for a trial judge simply to say to the jury in effect, "Well, you have heard all that has been said on behalf of the accused by his counsel; it is unnecessary for me to say anything more". The trial judge must lend the weight of his judicial position and authority to putting before the jury himself the case for the accused. [85] Similarly in R v Malone NSWCCA 20 April 1994 Blanch J (with whom Grove and Studdert JJ agreed) said: What is of paramount significance in assessing a summing-up is to determine whether the defence has been fairly put thus allowing a jury properly to consider the issues raised on the accused's behalf. If a jury is not given the opportunity fairly to consider the defence case, then there has been a miscarriage of justice. Another way this can occur is illustrated in Van Leeuwen v The Queen (1981) 55 ALJR 726 where Gibbs CJ at page 728 said: A trial judge is not bound in his summing up to comment on all of the evidence or to refer to all of the contentions on which the accused has relied. The adequacy of a summing up in its references to questions of fact must depend upon the circumstances of the particular case. In the present case the learned trial judge not only failed to indicate to the jury the significance of the important piece of evidence but by stating that he did not follow the argument of counsel might have been through by the jury to be depreciating its importance." 147 It is clear from the authorities to which I have referred that it is an essential function of a trial judge in summing-up to a jury that the trial judge, having identified the issue or issues in the trial, put the defence case on that issue or those issues and that the trial judge make such references to the evidence as may be required to enable the jury properly to understand the defence case and that it is not sufficient for the trial judge to say to the jury that they should give consideration to the arguments which have been put by counsel. 148 In the present case the trial judge in his summing-up did identify for the jury the single issue in the trial, that is whether the Crown had proved that the appellant was a party to a conspiracy which had admittedly come into existence, and directed the jury that it would not be sufficient for the Crown to prove merely that the appellant had acquired knowledge of the existence of the conspiracy. However, all the trial judge did by way of putting the defence case was to tell the jury that counsel for the appellant had made submissions that the jury should not accept Carlos' evidence, that the objective evidence was capable of an interpretation other than that urged by the Crown and that the jury should find that the appellant's evidence was reasonably possibly true. The trial judge did not refer to any specific parts of the oral evidence or of the recorded conversations. 149 In my opinion, the trial judge failed to perform the essential function of putting the defence case on the issue of whether the Crown had proved that the appellant was a party to the conspiracy, including making such references to the evidence as would be required to enable the jury properly to understand the defence case. Even though defence counsel had completed his closing address only on the morning of the day on which the trial judge gave most of the summing-up, the trial judge was required, on his own authority as the trial judge, to put the principal arguments for the accused. The references in the summing-up to the arguments for the accused and to the evidence need not have been lengthy or discursive. 150 A particularly important argument or set of arguments for the appellant was that the appellant's travel movements and what he had said in the recorded conversations, including apparently incriminating remarks, could be explained as references to the proposed arms deal; that there was evidence of such a proposed arms deal; that there was evidence that the proposed arms deal was being discussed at an early stage, before the appellant's departure for overseas on 29 December 2002; that some things said in the recorded conversations were, fairly clearly, references to the proposed arms deal; that there was evidence that after McGee was arrested and the appellant became aware of the arrest of McGee the appellant had continued with the proposed arms deal; that the appellant had actually travelled to China for the purposes of the proposed arms deal; and that the authorities had taken the proposed arms deal sufficiently seriously to delay arresting the appellant for some months. These arguments should have been put to the jury by the trial judge, with some reference to evidence which might support the arguments. 151 I also consider that the trial judge should have put to the jury at least some of the explanations of individual recorded conversations which I have summarised earlier in this judgment under the heading "the defence case at the trial about the recorded conversations". As the Crown relied so much on conversation LD 123, I consider it was essential for the trial judge to put to the jury such explanations as the appellant had offered of apparently incriminating remarks and conduct by him in the course of that conversation. 152 The trial judge was not relieved of the requirement of putting these matters to the jury, because they had already been put by defence counsel or because they might have seemed obvious or because they might have seemed difficult to accept. 153 In my opinion, ground 2, that is failure to sum-up the defence case, has been established. Because of the fundamental nature of the requirement that a trial judge in a summing-up in a jury trial put the defence case, I would grant leave under r 4 of the Criminal Appeal Rules. 154 Because of the fundamental nature of the requirement that a trial judge put the defence case in a summing-up, I also consider that it would be inappropriate to apply the proviso to s 6(1) of the Criminal Appeal Act. A substantial miscarriage of justice occurred. 155 In Weiss v The Queen (2005) 224 CLR 300, where the High Court considered the application of the proviso in the corresponding statutory provision in Victoria, the High Court said at 317 [45] that there could be cases "where there has been a significant denial of procedural fairness at trial" such that it would be inappropriate to apply the proviso, even if the appellate court was persuaded to the requisite degree of the appellant's guilt. 156 In Taleb v The Queen [2006] NSWCCA 119, a case in which the trial judge in the summing-up had repeatedly commented unfavourably on the case of the appellant and the evidence of the appellant and his witnesses, a majority of the Court of Criminal Appeal (Grove J and Howie J) held that the undermining of the appellant's case in the summing-up amounted to such a denial of procedural fairness that the proviso should not be applied. In my opinion, in the present case there was a denial of procedural fairness such that the proviso should not be applied.

El-Jalkh, Antoine v R

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