Nader v R

Court of Criminal Appeal (NSW)|2018-10-24|Before: Hoeben CJ, Davies J, Button J, Hunt J

Judgment

HOEBEN CJ AT CL: I agree with Davies J and the orders which he proposes.
DAVIES J: The applicant was found guilty after a trial before Judge Craigie SC and a jury of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, being 14.371 kilograms of MDMA. A co-offender, George Abouhaidar, was also found guilty of that offence. The co-offender had also pleaded guilty at the commencement of the trial and in the presence of the jury panel to having in his possession counterfeit money being 204 counterfeit $50 notes with a total face value of $10,200 knowing that the money was counterfeit.
The maximum penalty for the drug offence is life imprisonment and/or a fine of $1,350,000.
On 24 November 2017 the applicant was sentenced by Judge Craigie to a term of imprisonment of nine years and six months commencing 12 July 2017 and expiring 11 January 2027 with a non-parole period of five years nine months expiring 11 April 2023.
The applicant now appeals on the following two grounds: (1) That the honourable sentencing judge failed to take into account pre-sentence custody when sentencing the applicant. (2) That the conduct of the co-accused's case caused the applicant's trial to be unfair in all the circumstances.

Ground 1: That the honourable sentencing judge failed to take into account pre-sentence custody when sentencing the applicant

When imposing the sentence on the applicant, Judge Craigie said that it commenced on 12 July 2017. His Honour made no reference to the period during which the applicant was held on remand before being granted bail.
Section 16E(2) of the Crimes Act 1914 (Cth) provides that where the law of a State has the effect that a sentence imposed on a person for an offence against the law of the State, or a non-parole period fixed in respect of that sentence, may be reduced by the period that the person has been in custody for the offence, the law applies in the same way to a federal sentence imposed on a person in that State.
Section 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides: 24 Court to take other matters into account In sentencing an offender, the court must take into account: (a) any time for which the offender has been held in custody in relation to the offence, …
Section 47 of the Sentencing Procedure Act relevantly provides: 47 Commencement of sentence (1) A sentence of imprisonment commences, subject to section 71 and to any direction under subsection (2), on the day on which the sentence is imposed. (2) A court may direct that a sentence of imprisonment: (a) is taken to have commenced on a day occurring before the day on which the sentence is imposed, or (b) commences on a day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment. (3) In deciding whether or not to make a direction under subsection (2) (a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is taken to have commenced, the court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates. …
The Crown concedes that error has been established in relation to this ground. The effect of the 65 days the applicant spent in custody prior to the sentence ought to have resulted in the sentence being backdated to 8 May 2017. This is an arithmetical error which does not result in the need for the Court to re-sentence the offender: Kentwell v The Queen (2014) 252 CLR 601 at [42]; Refaieh v R [2018] NSWCCA 72 at [83].

Ground 2: That the conduct of the co-accused's case caused the applicant's trial to be unfair in all the circumstances

It is necessary to say something first about the trial and how it proceeded.

The course of the trial

At the outset, Mr Hughes of Counsel for the applicant, objected to the jury knowing about Ms Tongalea's plea. Mr Hughes said that he would not be cross-examining her to impugn her credit because of the discount she received on her sentence. The trial judge ruled that the Crown could not open to the jury by telling them of her plea. His Honour said he would not regard it as admissible unless she was cross-examined about her state of mind at the time. Arrangements were made for her to be presented as an ordinary witness so that the jury would not know she was in custody. Mr Hughes did not cross-examine her about any matter that would have enabled the Crown to disclose her true position.
The applicant and Mr Abouhaidar were arraigned before the jury panel. Mr Abouhaidar pleaded guilty to the possession of counterfeit money as had been foreshadowed. No objection was taken to that course by Mr Hughes.
After the Crown opening, Mr Grant of counsel for Mr Abouhaidar opened to the jury. During that opening he said this: Why is he [Mr Abouhaidar] talking in code? Because he is involved in illegal activity but he is not involved in the importation of drugs. In the telephone calls not in dispute, there is great interest in relation to these two parcels and where are they, why haven't they arrived. Why is there great interest in the two parcels? Because Mr Abouhaidar is involved in criminal activity but not drugs. You will hear evidence about Mr Abouhaidar meeting up with Mr Nader to discuss what's been going on with these lost parcels and the great interest in the lost parcels. Why? Why this interest? Because Mr Abouhaidar has been involved in illegal activity, but not drugs. So what's the root, what's the root of the illegal activity that he is involved in? And you heard this morning, him plead guilty to count 3 on the indictment, which is a charge where he had in excess of 200 counterfeit 50 dollar notes in his possession the day that he was arrested by the police. ... That's what this case is all about? It's about illegal activity because he's a currency fraudster. That's what he is, a currency fraudster, not a drug importer.
Counsel for the applicant did not open to the jury.
The Crown led evidence about the finding of counterfeit money when Mr Abouhaidar's car was searched at the time of his arrest. The Crown also led expert evidence, over objection from Mr Grant, about the counterfeit money. No objection was taken to any of this evidence by counsel for the applicant.
At the end of the Crown case, Mr Grant indicated that he intended to call Mr Abouhaidar in relation to previous participation in counterfeiting of money and previous importation of paper for the purpose of counterfeiting. This was said to be additional to the counterfeiting charge to which he had pleaded guilty. Mr Hughes took no objection to that evidence being given, but indicated that he was entitled to call, and wished to call, his evidence first because the applicant was named first on the indictment.
Mr Hughes then called a number of witnesses, being relatives of the applicant, to attest to the applicant's good character. The evidence also tended to show that there was not a close relationship between the applicant and Mr Abouhaidar. The applicant did not give evidence.
Mr Abouhaidar then gave evidence. He was asked about his past involvement with counterfeiting money, including that he was previously convicted and was given a suspended prison sentence. During that evidence he said that he had been introduced to a man named John who asked him if he wanted to get into printing money. The following evidence was given: Q. Did he tell you anything about himself? A. No. He just said he had a factory in Newtown and lngleburn and wanted to get into printing. Q. Did he talk about any connections he might have in relation to-- A. He said he wanted to print for the Rebels motor cycle gang at the Sutherland Chapter. Q. Was counterfeit money produced? A. Yes, it was.
He gave evidence that John asked him if he (Mr Abouhaidar) could bring treated polymer from overseas "under the radar". Thereafter, he gave this evidence: Q. All right. After you told John that you would speak to somebody about it did you speak to Moses [the applicant] about it? A. Yes, I did. Q. And what did you ask him of him? A. I said, um, "Can we piggyback off another company something?", and I assured him it wasn't, it was never to be drugs, but I didn't tell him what it was. He said, "If it's not drugs there's no problem. Should be okay." Q. All right. So did you meet John as you had agreed to meet him? A. Yes, I did. Q. And when you met him what was discussed? A. I said - he said - I said, "My mate said it should be okay", and I assured him as long as it's not drugs it should be okay, so we left and I arranged to meet him again the week after.
He was asked about being arrested in relation to the charges being tried. He was stopped in his car about a block from his home. He said that his wife and daughter turned up to the place where he had been stopped. He then gave this evidence: Q. Why did you tell the police that you didn't know anything about the money, the counterfeit money that was in the car? A. I denied it because I didn't want my wife or my daughter to think that I was doing it again because of the bad experience we had in 2010 when I got arrested.
There was no objection by Mr Hughes to any of the questions asked by Mr Grant. Mr Abouhaidar was then cross-examined by Mr Hughes. The first section of the cross-examination seems designed to show that there was not a close relationship or friendship between the applicant and Mr Abouhaidar. The cross-examination then continued: Q. You gave some evidence that after that conversation with John, you spoke to Moses about what John had spoken to you about? A. Yes. Q. You never mentioned anyone who was, in effect, behind you, listening to Moses, didn't you? A. No. Q. "I have got to make a call to John whose sided up with some rebels (sic)"; that is not said anything (scil. not anything said) to you, was it? A. No. Q. Your evidence was that, "I assured him it wasn't drugs"? A. Yes. Q. Now, that was because, was it not, Moses Nader said to you, "I may be able to help you but I will have nothing to do with drugs" and he inquired of you whether it was drugs; is that right? A. Yes. Q. And he was quite insistent when he said that, wasn't he? A. Yes. He told me. Q. "I will have nothing to do with bringing drugs into the country"; that is what he said to you? A. Yes. He told me a couple of times, yes. Q. That is what gave rise to you, as you said, assuring him it wasn't drugs? A. Correct. Q. And that stands out, does it, to you; that he was very concerned to be assured that he would not be doing anything in the nature of that which you were asking him to do, if it involved bringing in drugs? A. That's right, yes. I wouldn't bring it in, correct. … Q. When it was you met him again and provided him with a waybill number ending 334, he again insisted that you assure him that it had nothing to do with drugs? A. Yes, correct. Q. Didn't he? A. Yes. Q. This was a theme of his, wasn't it? A. Yes. Q. He said he would be prepared to help you, in effect, under no circumstances was he having anything to do with drugs being brought in? A. Correct, that's right. Q. In relation to that package, 334, that came in? A. Yes. … Q. Your evidence is that that package contained polymer paper? A. Yes. Q. And the fact, is it not, that that package was never opened in front of Mr Nader? A. No. Q. Was it? A. No, never. … Q. I think I asked you, you never mentioned the Rebels to him? A. No, no, no. Q. It is the fact, isn't it, that in relation to this matter, you were using code, as I understand your evidence, because as far as you were concerned the importation of that polymer paper was illegal? A. Yep. … Q. Moses Nader never asked you to be paid for doing this for him, did he? A. No, no.
The Crown then cross-examined Mr Abouhaidar. This cross-examination was initially designed to show that it was unusual for Mr Abouhaidar to have volunteered to the applicant that drugs were not involved. The flavour of that can be discerned from the following question: Q. The fact that the topic of drugs had never been raised in your brief meetings with Mr Nader but was raised on this first occasion when you made enquiries for the first air waybill number, do you say that you didn't consider it to be unusual that he would ask you about drugs-- This question was objected to by Mr Grant and rejected by the trial judge after some resistance by the Crown. The Crown did not thereafter pursue the matter.
At a later time when the Crown was cross-examining about the precise chronology of what happened at the roadside when Mr Abouhaidar was arrested in his car, the Crown, in the absence of the jury, said he wished to put a chronology to the witness, seemingly with a view to challenging the witness's evidence in chief about why he lied to the police about the presence of the counterfeit currency. The transcript reads: CROWN PROSECUTOR: So what I intended to ask the witness, was that he was told at a certain time by a police officer that his wife was going back to the premises and, in fact, left; to put that chronology to the witness. HIS HONOUR: Leaving aside what we do about what happened before the jury went out, Mr Grant and Mr Hughes, does that outline of the further evidence cause any difficulty? HUGHES: It doesn't cause me difficulty. My only concern that this reference to drugs, I would ask your Honour.
The Crown then cross-examined Mr Abouhaidar about whether his wife and daughter were present when he made the statement to the police denying knowledge of the currency. He conceded that his evidence that he lied to the police because of the presence of his wife and daughter was not true. This cross-examination was conducted without objection by Mr Hughes.
During the evidence of Federal Agent Andrews, the officer-in-charge of the investigation, the Crown played a DVD (which became Exhibit 39) of the search of Mr Abouhaidar's car at the time of his arrest. The Crown had made clear during a voir dire about the adducing of this evidence what its purpose was: There's two portions that the Crown seek to tender against the accused Mr Abouhaidar that is objected to and it relates to the finding of the first smaller bundle of counterfeit cash from the console driver's door and it being shown to Mr Abouhaidar and the things that he says in relation to it. And then the same thing for when the larger bundle is found in the boot. … Because the accused is relying on this counterfeit currency to defend or provide a possible explanation consistent with his innocence, that is, currency fraudster not drug importer that if the Crown does not exclude it beyond a reasonable doubt would result in his acquittal. The fact that he's pled (sic) guilty to the offence doesn't matter because he's using this evidence as a positive explanation. Now that he's relying on that state of affairs the Crown's submission is that his false denial of it and abandoning himself, distancing himself from the very currency he seeks to rely on is a matter of weight for the jury as to whether or not they're going to accept that explanation that is being put to them.
During the argument on the voir dire on the leading of this evidence, Mr Hughes said that his client had no interest in the matter. However, when the DVD was payed to the jury, Mr Hughes sought, and the trail judge gave, a direction that the evidence was only tendered against Mr Abouhaidar. His Honour gave this direction: HIS HONOUR: Members of the jury, it is very approach (sic), and Mr Hughes was certainly wise to give rise to a further warning from me, which would you (sic) have had in any event, to remind you that there are two people here on trial. As a matter of convenience, so this whole exercise doesn't have to be done twice, and because some of the evidence is common to both, we have a joint trial. However, you need to be very much aware of what evidence is led and that is placed before you by the Crown as against which accused person. This evidence, and indeed the evidence about the Blackberry phone, which was Mr Abouhaidar's, and the encryption, is against him and him alone. It does not bear in the case against Mr Nader.
During his final address, Mr Hughes discussed the distinction between the cases against the applicant and against Mr Abouhaidar as follows: And this brings me to that which has not escaped your attention, the case of Mr Grant, his client, and the way it has been put. There are three, so it seems to me, outcomes available at the conclusion of your deliberations. Putting to one side the plea of guilty by Mr Abouhaidar to the currency charge and having regard to each of the identical charges on the indictment faced by the two men in the dock, there can be three possibilities. You can find them both guilty, you can find them both not guilty or you can find one guilty and the other not guilty. The evidence, for convenience, the trial of both men is heard at the same time and, as you would have appreciated, there is evidence led against Mr Abouhaidar not led against my client, the transaction, if I could put it that way, that occurred on the side of the road on the day of his arrest on 9 December 2015, but there are two cases running here and were you at the end of your deliberations to find one of the accused guilty and the other not guilty there would be no inconsistency in such a verdict. It is open to you so to do.
Later in his address, Mr Hughes drew attention to the evidence of Mr Abouhaidar, which he said was not challenged, where Mr Abouhaidar had told the applicant that drugs were not involved in the importation. He read out to the jury the passage which is largely set out at [34] above, and then said: Now the Crown never said to Mr Abouhaidar, you're making that evidence up. There was never this inquiry, it was just left alone. It is unchallenged evidence, members of the jury. That was Nader's mindset. It is entirely conformable with what his family had to say about it.
Mr Hughes returned to this matter on three subsequent occasions in his address.

Directions of the trial judge

The trial judge gave a number of directions to the jury in his summing up seeking to distinguish the two accused. His Honour said: In this present trial, the two accused men, Moses Nader and George Abouhaidar, have been indicted individually with the same offence as separately committed by them in their own way (at 12); Counts as laid against each accused in what is a joint trial, effectively two trials within the one proceeding. The Crown's task, then, is to prove in respect of each accused … that each and every one of the legal elements that apply in the offence alleged has been made out and established beyond reasonable doubt (at 13); When considering the case against each accused, you will have to determine whether the Crown has satisfied you, in the case of that accused, that all of the elements have been proven beyond reasonable doubt (at 13-14).
When dealing with the fourth matter that the Crown had to prove, the state of mind required in a person for proof of an attempt to import an unlawfully imported substance, the trial judge said: It requires that the Crown proves beyond reasonable doubt that the particular accused, as he comes under your consideration, had the intention, the knowledge, or belief that the substance he was attempting to possess was a type of substance which was a border controlled drug (at 15). The area of contest, however, turns upon whether it is proven beyond reasonable doubt that there was an attempt with a required state of mind to possess a border controlled drug, and that deserves emphasis: to possess a border controlled drug and nothing else. That is to be distinguished from an attempt, as is not disputed, to possess some expected item, not being a drug, as in Mr Abouhaidar's case, or some item expected only to be something of which he was assured was not a drug, as is Mr Nader's case (at 15-16). In the case of Mr Abouhaidar, that conclusion or hypothesis is that he believed that what he was indeed doing was committing a crime, but it was the crime of illegally importing polymer, which is a restricted item (at 17). In the trial, Mr Nader has relied on Mr Abouhaidar's evidence that Mr Nader asked him for assurance that what he was doing had nothing to do with drugs and that Mr Abouhaidar repeatedly gave that assurance (at 18).
When dealing with counsel for the applicant's address to the jury, his Honour said: You are reminded that you should distinguish between that evidence which is applicable against one accused only and that which is applicable against both (at 66).
At the end of his summing-up, the trial judge said this: There are two accused on trial; there are two counts on the indictment. A good deal of the evidence is common to the trials of the two, that is, the two separate trials within the one proceedings. However, there must be separate consideration of the matters leading to separately-determined verdicts for each, however those verdicts turn out, one way or another. A verdict one way or another does not mean, for that reason, that it must be the same verdict for the other accused. By the same token, it does not mean that it cannot be, if that is your proper verdict.
In addition, the jury had been reminded during the trial that not all of the evidence was admissible against both accused. In that regard, I have made reference at [39] above to what the trial judge said when dealing with Exhibit 39.
When Mr Abouhaidar was being cross-examined by the Crown prosecutor he was asked whether he remembered that his wife used the word "drugs" when she arrived at the place where he had been stopped by the police in his car. An objection was taken by Mr Grant. His Honour determined in the absence of the jury that the question should be disallowed, but that it was necessary for some explanation to be given to the jury. In the course of the debate about what should be said to the jury, Mr Hughes submitted that his Honour should say something to the effect of whatever was said or not said could not in any way be admissible against the applicant. His Honour gave a direction to that effect as well as a direction that it could not be used against Mr Abouhaidar.

Submissions

The applicant submitted that the conduct of the co-accused's trial caused the applicant's trial to be unfair. Although this could not be anticipated by the trial judge or the applicant's counsel, the applicant submitted that an examination of the full extent and accumulation of matters disclosed that the trial was not fair.
The applicant accepted that the co-accused's trial and the applicant's trial were somewhat entwined from the start. However, the issue of knowledge of the presence of a border-controlled drug in the parcels was central to the case of each co-accused. The applicant's case involved an absence of such knowledge supported by a strong character case that was not contested by the Crown. The applicant submitted that the way in which the co-accused's case was conducted terminally undermined the applicant's character case and resulted in the applicant being found guilty by association.
The applicant submitted that the entry by the co-accused of a plea of guilty to the offence of possession of counterfeit money before the jury panel had the effect of showing to the jury that the applicant was a close associate of a criminal being the co-accused. The applicant submitted that the effect of the decision of the co-accused to give evidence in which he stated that he had a criminal past including convictions for counterfeiting, that he did so for the Rebels Motorcycle Gang and had previously been sentenced to nine months' imprisonment, had the effect of showing to the jury that the applicant was a close associate of a habitual criminal being the co-accused. The applicant submitted that by entering the plea to the counterfeiting and, in choosing to give evidence, the co-accused exposed himself to cross-examination in relation to lies he told to the police when arrested.
The applicant submitted that the Judge's directions did not cure the injustice to the applicant's trial. The applicant submitted that only with the benefit of hindsight can it be seen that it would have been preferable in all the circumstances now known to have conducted the trial separately. The applicant submitted that that was not readily apparent at the time.
The applicant submitted that ultimately the way in which the co-accused's case was run disclosed material that was highly prejudicial to the applicant, though not admissible against him. That question of prejudice, it was submitted, must be examined from the viewpoint of the accused by asking the question: is the reception of evidence at the trial against A but inadmissible against B such as to endanger the prospect of a fair trial for B?
It is clear, therefore, that the applicant relies on three aspects of the evidence adduced by the co-accused which are said to give rise to unfairness: (a) The co-accused's plea of guilty to the possession of counterfeit money; (b) The co-accused's criminal convictions for counterfeiting and involvement with the Rebels Motorcycle Gang; and (c) The co-accused's evidence in cross-examination in relation to lies he told the police when he was arrested.

Consideration

It should be noted that no ground of appeal is raised by the applicant that counsel appearing for the applicant at the trial was incompetent or did not adequately and properly represent the applicant. Nor is there any ground of appeal concerning the directions or the summing-up of the trial judge. The ground is put only on the basis that, when the whole of the trial is viewed in retrospect, it was not a fair trial and, presumably, a re-trial ought to be ordered because there has been a substantial miscarriage of justice.
The applicant accepts that the Crown case was that the applicant and the co-accused jointly attempted to obtain possession of certain drugs, with the result that it was initially appropriate that the trials be held jointly. The applicant further accepts that there was ample admissible evidence of phone calls and meetings between the applicant and the co-accused to show that they were closely associated and were operating together to retrieve the parcels. The issue of knowledge of the presence of the drug in the parcels was central to the case of each co-accused.
The general rule is that where persons are charged with committing an offence jointly, they are to be tried together: Webb v R (1994) 181 CLR 41 at 88-89.
An application for separate trials may be made at any stage during the trial, and a decision made prior to a trial to refuse an application for separate trials may always be reviewed during the course of the trial if some additional circumstance becomes apparent which might not have been foreseen: R v Middis & Ors (27 March 1991, NSW Supreme Court, Hunt J - Unrep).
The principles to be applied in relation to the ordering of a separate trial were set out by Hunt J in Middis. They have been accepted with some qualification by Adams J (Spigelman CJ agreeing) in R v Pham [2004] NSWCCA 190 at [38]-[40]: [38] In R v Baartman (unreported, Court of Criminal Appeal 6 October 1994) this Court approved the following summary of the relevant principles enunciated by Hunt J in R v Middis (unreported, NSWSC 27 March 1991), an approval repeated by Fernando [1999] NSWCCA at [210] - "Briefly, the relevant principles are that: 1. Where the evidence against an applicant for a separate trial is significantly weaker than and different to that admissible against another or the other accused to be jointly tried with him; and 2. Where the evidence against those other accused contains material highly prejudicial to the applicant although not admissible against him; and 3. Where there is a real risk that the weaker Crown case against the applicant will be made immeasurably stronger by reason of the prejudicial material, a separate trial will usually be ordered in relation to the charges against the applicant. The applicant must show that positive injustice would be caused to him in a joint trial." [39] Two phrases in this summary need some explanation. In ordinary speech, "immeasurably" usually connotes something of such an enormous degree that it is beyond measurement. It is obvious that it was here not used in this sense. I think that his Honour meant "significant, though incommensurable". The starting point is that the inadmissible, prejudicial material is completely irrelevant. If, when placed on the scales, it would be likely to turn a potential acquittal to a conviction then this would, I think, amount to "positive injustice". Of course, the likelihood cannot be measured: if it is real, as distinct from inconsequential, having regard both to its inherent character and the context of the Crown case, then the trial must necessarily embarrass the affected accused. The question then arises whether the risk that the material might be placed by the jury on the scales is such that the trial miscarried. It should also be noted that Hunt J necessarily assumed that clear and emphatic directions would be given to the jury that the inadmissible material must be ignored and the point made by the summary is that, in the posited circumstances, such directions may well be insufficient to avoid a miscarriage and separate trials should be ordered to prevent such an occurrence. [40] I interpolate that, with unfeigned respect, I am doubtful that the weakness of the applicant's case as compared with that of the co-accused against whom it is proposed to tender the prejudicial evidence can be a relevant consideration. Assume that the case against the co-accused was much weaker than the applicant, even with the prejudicial evidence. If there was a significant risk that the prejudicial evidence could be used by the jury adversely to the applicant and that evidence was itself significantly prejudicial, I am unable to see why the mere fact that it was adduced in a weaker co-offender's case is material. Indeed, the opposite would seem to be the case since, if the co-accused's case was weak, or weaker than the applicant's, the prejudicial evidence might well assume even more importance than otherwise. As it seems to me, with respect, the crucial issue is the potential effect of the inadmissible evidence on the jury's consideration of the applicant's case.
The qualifications introduced by Adams J were accepted by a differently constituted Court of Criminal Appeal in Madubuko, Henry Ugo v R [2011] NSWCCA 135 at [29], [39] and [40].
Even if an application was made and refused at the trial, and there was no error in the exercise of discretion by the trial judge, an appellate court has power to quash the conviction and order a new trial where it can be seen that the way in which the trial unfolded brought about a situation where there is a real concern regarding the fairness of the procedures of a joint trial: R v Guldur (1986) 8 NSWLR 12 at 15.
In determining in the first instance if a miscarriage of justice occurred, it is necessary to consider whether the course adopted by counsel for the applicant at the trial arose as a result of forensic decisions taken that enabled the applicant to present his case in the most favourable way to him. When speaking of a failure of counsel to object on the basis that multiple offences should not have been joined in the one indictment, Gibbs CJ in De Jesus v The Queen (1986) 22 A Crim R 375 said at 379: It has been settled, at least since Stirland v Director of Public Prosecutions [1944] AC 315 at 327-8, that it is not necessarily fatal to an appeal that counsel for the accused at the trial failed to raise the necessary objection. Of course, if it were thought that counsel had deliberately refrained at the trial from submitting that the joinder was impermissible, in order to gain some tactical advantage, the case would be different,…
Similarly, Mason and Deane JJ said at 384-385: If the failure to inform the trial judge of the contrasting defences at the time when the application for separate trials was made was deliberate for forensic or appellate purposes, as in the absence of any explanation it would seem to have been, the applicant can hardly complain of the consequences of that failure. Indeed, it is difficult to see how a party can even argue that a trial judge's exercise of discretion miscarried, let alone that there was a substantial miscarriage of justice, by reason of a failure to give weight or sufficient weight to a factual matter of which the trial judge was deliberately kept in ignorance by that party. Moreover, this court always pays close attention to the manner in which a party deliberately conducts his case at the trial and takes some care to ensure that it does not, by acceding to arguments not put at the trial, encourage the approach that a failure to raise matters at the trial is likely to be rewarded, in the event of conviction, with the opportunity to conduct the case in a different way on a second trial with consequent damage to the administration of criminal justice.
In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Gaudron J said: [24] There are two reasons why the question whether an accused was competently represented poses difficulties for an appellate court. First, the conduct of a criminal trial frequently involves defence counsel in making tactical decisions designed to obtain a forensic advantage or, perhaps, to avoid a forensic disadvantage. Those decisions may contribute to a defect or irregularity in the trial. Thus, for example, defence counsel may decide not to seek directions with respect to the need for corroboration lest the directions serve to emphasise the strength of the corroborative evidence with the result that there is a defect in the trial because no such directions are given. The second reason is that, ordinarily, it is not possible to know what was in defence counsel's brief. [25] Where decisions taken by counsel contribute to a defect or irregularity in the trial, the tendency is not to inquire into counsel's conduct, as such, but, rather, to inquire whether there has been a miscarriage of justice, or, if the proviso to the criminal appeal provisions is engaged, whether "no substantial miscarriage of justice has actually occurred". In that exercise, the question whether the course taken by counsel is explicable on a basis that has or could have resulted in a forensic advantage is a relevant, but not necessarily a decisive, consideration. [26] The question whether there has been a miscarriage of justice is usually answered by asking whether the act or omission in question "deprived the accused of a chance of acquittal that was fairly open". The word "fairly" should not be overlooked. A decision to take or refrain from taking a particular course which is explicable on the basis that it has or could have led to a forensic advantage may well have the consequence that a chance of acquittal that might otherwise have been open was not, in the circumstances, fairly open. [27] One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis. [28] As already indicated, if there is a defect or irregularity in the trial, the fact that counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage is not necessarily determinative of the question whether there has been a miscarriage of justice. It may be that, in the circumstances, the forensic advantage is slight in comparison with the importance to be attached to the defect or irregularity in question. If so, the fact that counsel's conduct is explicable on the basis of forensic advantage will not preclude a court from holding that, nevertheless, there was a miscarriage of justice. [29] Even though there is no defect or irregularity in a trial, a question may arise whether there was a miscarriage of justice. Such is the case, for example, when it is argued that a verdict should be set aside because of the discovery of evidence that was not available or, with reasonable diligence, could not have been made available at the trial - "fresh evidence", as it is usually called. The question may also arise if counsel fails to call evidence that was available or fails to elicit evidence in cross-examination. In that situation, it has been customary to focus on the competence of defence counsel, it being said that there must be "flagrant incompetence", an "egregious error", "extreme conduct" or "significant fault". Thus it was that the argument in the present case was premised on counsel having made a "wrong" decision. [30] Apart from the difficulties involved in an appellate court reviewing the conduct of counsel to determine whether it justifies one or other of the above descriptions or, even, whether it involved error, that is not an exercise that is directly required by s 6(1) of the Criminal Appeal Act. Relevantly, the question posed by s 6(1) is whether "on any other ground ... there was a miscarriage of justice". The words "on any other ground" do not postulate the demonstration of error. Rather, they simply require that "something occurred or did not occur" in the trial. [31] As in the case where there is a defect or irregularity in the trial, the reason why something occurred or did not occur is relevant to the question whether, in the circumstances, there was a miscarriage of justice. But the relevant question that must ultimately be answered, is whether the act or omission resulted in a miscarriage of justice, not whether, if it is referable to the course taken by defence counsel, it was the result of "flagrant incompetence", "egregious error" or the like. [32] An accused will not ordinarily be deprived of a chance of acquittal that is fairly open if that chance is foreclosed by an informed and deliberate decision to pursue or not to pursue a particular course at trial. As was said by Barwick CJ in relation to fresh evidence in Ratten v The Queen: "[A trial] will not become an unfair trial because the accused of his own volition has not called evidence which was available to him at the time of his trial, or of which, bearing in mind his circumstances as an accused, he could reasonably have been expected to have become aware and which he could have been able to produce at the trial." [33] Where it is claimed that a miscarriage of justice was the result of a course taken at the trial, it is for the appellant to establish that the course was not the result of an informed and deliberate decision. This he or she will fail to do if the course taken is explicable on the basis that it could have resulted in a forensic advantage unless, in the circumstances, the advantage is slight in comparison with the disadvantage resulting from the course in question. It should be added, moreover, that where the course in question is the failure to call evidence, an appellant will not establish a miscarriage of justice unless, as with fresh evidence, the evidence is such that "when viewed in combination with the evidence given at trial ... the jury would have been likely to entertain a reasonable doubt about the guilt of the accused". (emphasis added)
It is apparent from a consideration of the way the trial unfolded that counsel for the applicant was not apparently taken unawares at any stage of the trial about the course that was being pursued by Mr Abouhaidar. No objection was taken to any of the matters that are now relied upon as the three principal aspects of the evidence concerning Mr Abouhaidar. The acquiescence in the developments during the course of the trial, and the strong reliance by the applicant's counsel on the evidence of Mr Abouhaidar concerning his assurance that drugs were not involved, lead to the view that the approach adopted by counsel was a clear forensic decision in the face of what was otherwise a strong case against the applicant.
An analysis of the evidence presented is likely to have led those acting for Mr Abouhaidar to perceive that the case against him, and the applicant for that matter, was a strong one. One possible way to answer that strong case was to have the jury accept as a reasonable possibility that, whilst Mr Abouhaidar was engaging in criminality, that criminality did not involve drugs. In a sense, Mr Abouhaidar was in a good position to do that both by reason of the fact that he already had a conviction for counterfeiting money and also because when arrested counterfeit notes were found in his car. Certainly, counterfeiting was not the best alternative form of criminality to put forward because, being a crime of dishonesty, there were ramifications for the credibility of Mr Abouhaidar. However, it appears that that was all Mr Abouhaidar had to avoid the probability otherwise of a guilty verdict on the drug offence charged.
It was obviously in the applicant's interest for Mr Abouhaidar's defence to be accepted because that made it much more likely that the applicant would also not be found guilty. In addition, he had the added benefit of the good character evidence adduced on his behalf together with the evidence of how his brother's drug abuse had been so damaging to the applicant's family.
Mr Hughes was careful in both his cross-examination and his final address not to discredit Mr Abouhaidar in any way. All he sought to do was to distinguish him carefully from the applicant where it was necessary to do so by reminding the jury, and having them reminded by the trial judge, that there were two separate trials, and that certain evidence, most particularly Mr Abouhaidar's lies at the time of his arrest, was not admissible against the applicant. As Gaudron J said in TKWJ the tactical decision might be designed to obtain a forensic advantage or to avoid a forensic disadvantage.
Where there is a strong likelihood that the trial was conducted for the applicant in the way it was for tactical forensic reasons it is difficult to see how a miscarriage of justice has occurred: TKWJ at [33]. In the circumstances of the present case the decisions taken cannot be thought to have deprived the applicant of a chance of acquittal that was fairly open. As has been noted, his position could only have been improved by those decisions on the basis that Mr Abouhaidar may have been believed.
Those tactical decisions apparently included not seeking a separate trial at any stage, particularly at the time of the emergence of the evidence concerning the three matters put forward on the applicant's behalf. Those matters (except the mention of the Rebels) were clearly foreshadowed, and no opposition was raised nor application made. The mention of the Rebels was referred to in passing. As set out at [34] above, Mr Hughes returned to it in his cross-examination of Mr Abouhaidar to distance the position of his own client from that of Mr Abouhaidar. However, the more significant matter was the need to reinforce Mr Abouhaidar's complete assurance that drugs were not involved in the conceded illegality.
One way to determine if there was a miscarriage of justice by reason of a joint trial is to examine the likely way a separate trial would have proceeded if an application for a separate trial had been made and ordered at any stage. From an examination of the evidence led at the joint trial, it can be seen that the applicant would have had two choices how to conduct his defence. He could have chosen not to call Mr Abouhaidar. In those circumstances, and in the absence of giving evidence to the effect that he had no idea that drugs were involved, it is difficult to see how the Crown would not have proved its case on the strength of the evidence it presented. It can be reasonably assumed that the applicant would not have given evidence because he did not do so at the joint trial. If he had given evidence and said that Mr Abouhaidar had told him that drugs were not involved, he would have to have called Mr Abouhaidar to give evidence to that effect.
Alternatively, and if he called Mr Abouhaidar to give the sort of evidence he gave at the joint trial, to get the benefit of Mr Abouhaidar's evidence that he told the applicant drugs were not involved, Mr Abouhaidar would have similarly had to adopt the confession and avoidance approach taken at the joint trial. That is, he would need to have given evidence that he was importing polymer for counterfeiting purposes. To provide any solid basis for that, he would have needed to disclose his past conviction and, presumably, his new plea to counterfeiting. Nor can there be any doubt that the Crown would have sought to discredit him in the way it did at the joint trial by pointing to the lies he told when arrested with the counterfeit money and, if he had not given evidence of his plea and past conviction, there can be little doubt that the Crown would have cross-examined him about those matters.
In all of those circumstances, the only possible difference from the joint trial might have been that there would be no mention of the Rebels. However, that evidence had been volunteered by Mr Abouhaidar at the joint trial, and the Crown had cross-examined him about it. The strong likelihood is, therefore, that Mr Abouhaidar's connection with the Rebels would have emerged during his evidence in a separate trial of the applicant.
It is difficult to see how the applicant would have been better off in a separate trial, how he would have had any forensic advantage over his position at the joint trial, and what in the joint trial brought about a miscarriage of justice that would not have occurred at a separate trial. The onus is on the applicant to show that that is so, and he fails to discharge that onus.
Another matter of some significance is the fact that the jury, having retired to consider its verdict at 11:34am on 3 July 2017 returned a verdict against Mr Abouhaidar at 10:58am on 5 July 2017, but took until 12:45pm on 12 July 2017 to find the applicant guilty. It is clear from that timeline that the jury gave a detailed consideration to the separate aspects of the case against the applicant from those against Mr Abouhaidar.
In Phillips v R [2016] NSWCCA 159 R A Hulme J (Hoeben CJ at CL and N Adams J agreeing) said at [22]: … It is completely unrealistic to now raise on appeal a point that was never in issue at trial. This case is an example of an "armchair appeal"; counsel who did not appear at trial picking over the transcript and creating arguments that did not occur to those who had the benefit of the complete atmosphere of the trial. That is an apt description of the complaint in this matter. No separate trial was applied for by counsel for the applicant because it was not to the applicant's advantage to do so. The best chance the applicant had of acquittal was to piggy-back (to use an expression used frequently in the trial) on the defence of Mr Abouhaidar.
No doubt the reason that the applicant did not complain about his counsel at trial nor about the directions and summing up of the trial judge, was that he realised that favourable forensic decisions were made on his behalf. The fact that those forensic decisions did not bring about a finding of not guilty does not mean that the trial was unfair. Even with the benefit of 'armchair' hindsight, it is not easy to see what better course could have been employed than that which was employed by the applicant's counsel at the trial.
I would reject this ground of appeal.

Conclusion

I would propose the following orders: (1) Leave to appeal against conviction allowed. (2) Dismiss the conviction appeal. (3) Leave to appeal against sentence allowed. (4) Allow the appeal against sentence. (5) Quash the sentence imposed by Judge Craigie SC in the District Court on 24 November 2017. (6) In lieu, sentence the appellant to a term of imprisonment of nine years and six months commencing 8 May 2017 and expiring 7 November 2026 with a non-parole period of five years and nine months expiring 7 February 2023.
BUTTON J: I agree with Davies J.

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Crimes Act 1914(Cth)s 16E

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