Patterson v. Regina (Cwlth) [2001] NSWCCA 316

Thursday 12 July 2001 Wayne Desmond PATTERSON v. REGINA (Cwlth) JUDGMENT 1 HODGSON JA: On 1 May 2000 the appellant appeared in the District Court of New South Wales before Christie DCJ and a jury for trial on a charge that between about 1 November 1995 and 13 January 1996 in Sydney in the State of New South Wales and elsewhere he was knowingly concerned with the importation into Australia of prohibited imports to which section 223B(1) of the Customs Act 1901-1905 applied, namely narcotic goods consisting of a quantity of cannabis resin being not less than a trafficable quantity applicable to cannabis resin. He pleaded not guilty. 2 The trial lasted 12 days and on 17 May 2000 the jury returned a verdict of guilty. On 25 August 2000 Christie DCJ sentenced the appellant to imprisonment for six and one half years and specified a non parole period of four and one half years. The appellant appeals to this Court against the conviction and seeks leave to appeal against the sentence. 3 At the trial the fact of importation and the appellant's involvement in it were not disputed and were clearly proved. The only issue was whether or not the appellant's involvement in the importation was proved beyond reasonable doubt to have been knowing in the sense of the appellant knowing that cannabis was being imported. 4 There was no direct evidence of the appellant's knowledge that cannabis was being imported. The Crown case was that this could be inferred beyond reasonable doubt from the circumstances. The appellant gave evidence on oath to the effect that he had no knowledge of the circumstance that cannabis was involved. 5 In order to understand the issues on the appeal against conviction, it is convenient first to set out briefly the circumstances which were clearly proved and were not the subject of any contest. 6 On 11 January 1996 a cardboard carton was examined by Customs officers at the premises of Federal Express Australia at Mascot Airport. On the cartons was an airway bill which described the contents as "neon transformer", identified the sender's account as being "care of Mr Robert Thompson" and showed the sender as a company in Bangkok, Thailand, named Estel Company Limited. The recipient was named as Mr S Moore, Nu Tech Communications, 88 Parramatta Road, Lidcombe, with telephone number 7480888. 7 Customs officers opened the cartons, disclosing three small boxes. Inside each of the boxes was a metal box, which turned out to be a transformer casing with the internal workings removed to be replaced by cannabis resin, the quantity being just over seven kilograms in all. Taped on to one of the metal boxes, or possibly one of the smaller cartons, was a hand written letter on the letterhead of Dynasty Inn in Bangkok addressed to "Steve" and signed by "George", referring to meetings, including a meeting at the Estel factory and stating, among other things, "I have only been able to send you three units with another seven to follow within the next four weeks." 8 Australian Federal Police removed the bulk of the cannabis, and a controlled delivery sample of a little over 300 grams was replaced, together with other innocuous material, and repacked in the carton. Equipment capable of transmitting sound was installed in the carton. 9 On 12 January an officer of the Australian Federal Police, posing as a Federal Express employee, telephoned the phone number on the airway bill, spoke to a woman at Nu Tech Communications and was given a mobile telephone number at which, after a number of tries, he spoke to a man who provided the correct airway bill number and identified himself as Stephen Moore. 10 Thereafter this man and a woman named Rebecca Jack attended Federal Express premises and collected the carton. Mr Moore and Miss Jack took the carton to a green Statesman vehicle and they were followed by Police to Kings Cross where they parked the car, apparently met one Daniel Hutton in the Bourbon and Beefsteak Bar, and then drove with him around Kings Cross, ending up in the vicinity of a Kings Cross parking station. 11 It appears on the way the outer cardboard carton was discarded in a garbage bin. Mr Hutton left the vehicle carrying two of the smaller boxes and went into the parking station. The Statesman car drove off and shortly afterwards Mr Hutton came out of the parking station without the boxes, and returned to the Bourbon and Beefsteak Bar where he met the appellant. A little later Mr Hutton and the appellant went to the parking station and drove off in a blue Mitsubishi hire car. 12 There was evidence, with which the appellant agreed, that they did not go to the boot of the car before driving it off from its parking space. After a short time the car was stopped in traffic and Mr Hutton and the appellant were approached by police and arrested. Two boxes containing the transformer casings and the substituted material were found in the boot. 13 When the vehicle was searched, other items were also found. Firstly, two Papua New Guinea licences with the appellant's photograph, one with his own name and one with the name Frank Barnett. Secondly, a page on Dynasty Inn letterhead with writing of the appellant and some brown wrapping paper labelled "sample". Thirdly, an invoice from Estel Company Limited in Bangkok dated 16 December 1995 for four transformers at $US96.9 each, making a total of $US387.6. with the appellant's hand writing on that invoice with the words "attention Robert Thompson", that name being misspelt, "Regards Frank". Fourthly, there was a document apparently faxed on 10 January 1996 from "Kalbo", identified in the evidence as one Mark Ross from Thailand, addressed to Frank Barnett, referring to, among other things, some engines and stating matters such as, "I can put the man to work on the boxes right away", and other material which I need not relate. 14 Fifthly, there were a number of orders for the international transfer of money. Sixthly, there was a note in the appellant's hand writing, addressed to Mark Ross, apparently written on 25 December 1995. Seventhly, there was a document with a telephone number and, among other things, words "money for last lot. Money for next lot". Finally, there was a piece of paper with the relevant airway bill number on it. 15 A search of Mr Moore's home located the third carton and a Papua New Guinea driver's licence with Mr Moore's photograph, but in the name of Stuart Morris. There was uncontested forensic evidence that a fingerprint of the appellant was on one of the cartons found in the boot of the Mitsubishi car. There was also forensic evidence that the sample tape on the Dynasty Inn letterhead was indistinguishable from tape on the imported carton, but also that this was quite a common tape. 16 In addition to that material, there was substantial material concerning telephone conversations between the appellant's mobile phone and Mr Moore's mobile and home phones and other relevant phone numbers, and also the evidence of transfers of money shown on the money transfer documents to which I have referred. There was also evidence concerning the hiring of the Mitsubishi vehicle, and the history leading up to the appellant's arrival in Sydney on the morning of 12 January 1996. 17 I will briefly summarise in chronological order the effect of this evidence. 18 The first relevant transfer of money was a transfer of just under $5,000 on 3 November 1995 to a person named Nittaya Ross, identified as Mark Ross's wife, in Bangkok, the transferor being Stephen Moore, using the name Stuart Morris. 19 On 4 November 1995, there were two business class air tickets to the Philippines and return, departing on 5 November, returning on 7 November for the appellant, which Moore purchased at a cost of $3,360. On each of 10 and 11 November 1995 there was a transfer of $5,000, again apparently to Nattaya Ross in Bangkok, this time by the appellant in the name of Frank Barnett. 20 Between 26 September and 23 November 1995 there were frequent telephone calls recorded between Mr Moore's mobile phone and Mr Patterson's mobile phone. On 24 November 1995 Mr Moore departed Sydney for Thailand. On 30 November 1995 the appellant departed Sydney for Thailand. On 3 December Mr Moore arrived back in Sydney. 21 Between 4 December 1995 and 4 January 1996 there were several telephone calls from Mr Moore's home and also from Mr Hutton's home to the Dynasty Inn hotel in Bangkok. On 6 January 1996 the appellant arrived in Brisbane from Bangkok. On 7 January 1996 the appellant went to Brisbane Airport with one Maureen Brown, where she hired the Mitsubishi car from Thrifty, with the appellant identified as a driver under the name Frank Barnett. 22 On 8 January 1996 a further $1,000 was transferred to Bangkok by the appellant to one Mark Dowsley. Between 6 January 1996 and 11 January 1996 there were numerous calls from the appellant's mobile phone and the Mitsubishi car's mobile phone to Mr Moore's mobile phone, Dynasty Inn, Mr Hutton's home and also Ms Jack's home. 23 On the night of 11 January 1996 the appellant drove overnight from Brisbane to Sydney, arriving at about 5.30am. A number of telephone calls are recorded, one at 9.17am from the Mitsubishi's car phone to Mr Moore's mobile phone; another at 11.24 am from Mr Moore's home to the appellant's mobile home; another at 14:25 from the appellant's mobile phone to Mr Moore's mobile phone; another at 18:36 from Mr Moore's home to the appellant's mobile phone; another at 5.39am on 12 January 1996 from the appellant's mobile phone to Mr Moore's mobile phone; and another at 9.38 on 12 January 1996 from the appellant's mobile phone to Mr Moore's mobile phone. 24 The appellant's case was that he denied any knowledge of cannabis, and that his understanding was that what he was involved in was a legitimate transaction for the importation of transformers. His sworn evidence was that he had been living in the Philippines since about 1988 or '89, following the breakdown of his marriage and his leaving Australia. In late 1995, he said, he was introduced to Stephen Moore by his friend Mark Dowsley, and he agreed with them to take part in a transaction involving the importation of transformers into Australia, in which the appellant was to invest $20,000. 25 The three transfers totalling $15,000 in late 1995, the appellant said, were on account of this investment of $20,000 which he was to make. In relation to the documents and other material found in the Mitsubishi vehicle, the appellant's evidence was that he used the name Frank Barnett and the licence in that name so that his wife could not find him. The tape with the Dynasty Inn letterhead document was for wrapping poles for night club, this being to rebut a suggestion by the Crown that it was a sample taken by the appellant to compare with tape on the outside of the carton, to make sure it had not been opened by anyone on the way. 26 The appellant's evidence was that the Estel invoice had been given to him by Mr Moore in Bangkok and that Mr Moore asked him to fax it to Robert Thompson, so that that was why the appellant had written on it. The appellant's evidence was that the facsimile message from Kalbo concerned a deal in relation to motor cycle components. 27 The appellant said that he obtained the airway bill number in a telephone call around 8 or 9 January. His evidence was that he went to Thailand in mid December 1995 to arrange sand blasting for dancing poles in night clubs. He gave evidence that around this time he saw transformer cases at a meeting with Mr Dowsley at the Dynasty Inn, and on that occasion he picked up a box with a transformer case in it. 28 He said he came to Australia on 6 January 1996 to see his family. He hired the car on 7 January 1996 because he was finding it too cold riding round on his motor cycle. He said he sent the money to Mr Dowsley on 8 January 1996 so that Mr Dowsley could come to Australia for the purpose of promoting the sale of transformers in Brisbane. He said he came to Sydney overnight between 11 and 12 January, partly to look at a motor cycle, and partly to collect two transformers and take them back to Brisbane where Mr Dowsley was to take them and promote the sale. 29 He gave evidence that he was told on 12 January by Mr Moore that the transformers had arrived, and that he told Mr Moore that he was at the Bourbon and Beefsteak Bar with Mr Hutton. When Mr Moore came there, Mr Hutton offered to put the boxes in the appellant's car because the appellant had cellulitis in his leg. The appellant said that when he got to his car he realised he needed a Ventolin spray and reached back from the front seat through a hatch in the rear seat to get it from a coat in the boot, pushing aside a box in the boot which was in the way. 30 Now, in this account of the overall circumstances of the case and the appellant's evidence, I have left out some matters specifically relating to grounds of appeal, which I will deal with when I come to deal with the particular grounds. 31 The grounds of appeal fall into four areas. 32 The first area concerns evidence given by a Federal agent, Mr Carnell, and a deposition taken at committal proceedings from a Federal agent Yarrow concerning what occurred at the time of the appellant's arrest. 33 The second general area concerns directions, or lack of directions, by the trial judge concerning lies. The third area concerns a refusal of applications by the applicant concerning the cross examination and recalling of witnesses. The fourth area concerns criticism by the trial judge of the defence counsel; and the fifth area concerns the application for leave to appeal on sentence. I will deal with these areas in turn. 34 In relation to the first area, the Federal agent Carnell gave evidence that when he approached the appellant's vehicle to arrest the appellant, he called out, "Federal Police. Put your hands out of your window now" and pointed his revolver in the direction of the appellant. According to Mr Carnell the appellant immediately reversed his vehicle into an unknown vehicle which had stopped in the lane behind him, collided with a loud bang. 35 In cross-examination, Mr Carnell said he has not seen any damage caused to either vehicle. No other officer either saw the reversing or heard a collision or saw any damage. Some testified that they did not see any damage. Mr Carnell also gave evidence that at the time of the arrest the appellant said, "My name is George. What is the problem, officer?"; and that immediately after the arrest, in answer to the question, "Do you have any weapons in the vehicle?" the appellant said, "No, I didn't put any drugs in the vehicle." 36 As regards Federal agent Yarrow, the Crown Prosecutor announced in court on the second day of the hearing that he had been advised at the end of the previous day that Mr Yarrow was absent from Australia. In fact, that he was stationed in Cyprus with the United Nations Peace Keeping Force. An application was made to have his deposition admitted pursuant to section 112 of the Criminal Procedure Act, which is in the following terms: 112(1) A deposition may be admitted as evidence for the prosecution at the trial of an accused person on proof on oath of each of the following matters: (a) that the deponent: (i) is dead, or so ill as not to be able to travel or to give evidence without a risk of endangering the deponent's life, or (ii) is absent from Australia, (b) that the deposition was recorded: (i) by or in the presence of the justice before whom it was taken, and (ii) in the presence of the accused person or during any period when the accused person (having been excused under section 41 (1B) of the Justices Act 1902) was absent, (c) that the accused person, or his or her counsel, had full opportunity to cross-examine the witness, or that the accused person (having been excused under section 41 (1B) of the Justices Act 1902) was absent when the deposition was taken and was not represented by counsel.

(2) The deposition: (a) must be in writing, signed by the justice by or before whom the deposition was taken, or (b) must be in the form of a written transcript of matter recorded by means, other than writing, authorised by law for the recording of depositions.

(3) If the deposition is in the form of a written transcript referred to in subsection (2) (b), it must be proved on oath: (a) that the record so made is a true record of the matter so deposed, and (b) that the transcript of the record is a correct transcript of that record.

(4) If it appears from the deposition: (a) that it was made in the presence of the accused person, and (b) that the accused person, or his or her counsel, had full opportunity to cross-examine the witness, the deposition is taken to have been so made and the accused person, or his or her counsel, is taken to have had such an opportunity, unless proved to the contrary.

(5) If it appears from the deposition: (a) that it was made while the accused person (having been excused under section 41 (1B) of the Justices Act 1902) was absent, and (b) that the accused person was not represented by counsel at that time, the deposition is taken to have been so made and the accused person is taken to have not been represented by counsel, unless proved to the contrary.

(6) In this section, "justice" includes a coroner holding office under the Coroners Act 1980. 37 The trial judge acceded to that application, and the depositions were admitted as the last item of evidence in the prosecution case. Mr Yarrow had made two statements, one on 16 January 1996 and the other on 4 September 1996. The second statement, but not the first, corroborated Mr Carnell in relation to the two conversations. However, the statements and the deposition did not support Mr Carnell on the alleged reversing of the appellant's vehicle and the impact with another car. 38 Also, according to Mr Yarrow's deposition, he made no notes of the conversations, but he claimed to have a copy of notes made by Mr Carnell shortly after the event, and signed by him. Under cross-examination at the committal proceedings, Mr Yarrow said he had the notes with him, but it appears the matter was not taken further at that stage. At the trial Mr Carnell denied that he had made any notes and when the appellant's counsel, at the trial, called for the production of notes by Mr Carnell, they were not produced. 39 In relation to these matters four particular submissions have been made: firstly, there was error in admitting Mr Yarrow's deposition; secondly, there was failure to direct the jury adequately or properly as to how they might use this material; thirdly, there was error in inviting the jury to consider Mr Yarrow's motivation; and fourthly, there was failure to direct the jury in relation to flight. 40 In relation to the admission of the deposition, Mr Ramage QC submitted that section 65 of the Evidence Act, coupled with the definition of "unavailable" meant that there had to be reasonable efforts made to secure the attendance of the absent witness before hearsay material could be admitted. At the very least, even if satisfaction of the lesser criterion in section 112 of the Criminal Procedure Act was sufficient, there should have been proper regard paid to the circumstance that the Crown had not made any effort to secure the attendance of Mr Yarrow. 41 Mr Ramage advanced further reasons why the admission of this material was an error in the exercise of discretion. He submitted that the first conversation given in evidence by Mr Carnell and corroborated by the Yarrow deposition could only be material in attempting to link the appellant with the apparent writer of the letter found with the cartons, that is the person named George. There was handwriting evidence led by the appellant that this document was not in his writing, and at the very end of the case the Crown disavowed any contention that the appellant had written that letter. In those circumstances the material concerning the name George could only be prejudicial. 42 He submitted that the circumstance that Mr Yarrow's material was the last piece of Crown evidence gave it undue prominence; and he submitted that the prejudicial effect of this material outweighed any probative value, particularly the reference to "drugs" in the second conversation. In relation to this matter it appears to be common ground, although there was no evidence about this, that a small quantity of other drugs was found in the vehicle. No evidence of this was led at the trial, apparently because it was regarded as being purely prejudicial. However, Mr Ramage submitted that this circumstance made the reference to drugs in the second conversation particularly prejudicial. 43 Mr Ramage submitted that insufficient weight was given to the ability of the jury to see Mr Yarrow and to hear him cross examined. He submitted that this was particularly so in relation to the conflict between Mr Carnell and Mr Yarrow in relation to Mr Carnell's notes, and in circumstances where the evidence from Mr Yarrow corroborating Mr Carnell first appeared in a statement made eight months after the event. 44 Turning to the second particular submission, Mr Ramage submitted that the trial judge did not warn the jury that in dealing with Mr Yarrow's statement they should bear in mind that they had not seen Mr Yarrow or seen his evidence tested in cross examination, and he referred to cases such as Mendham & Foster (1993) 71 ACrimR 382. Furthermore, in so far as the second conversation was said to demonstrate a consciousness of guilt, directions akin to those discussed in Edwards v R (1993) 178 CLR 193, were required. 45 On the third matter, in relation to Mr Yarrow's motivation, Mr Ramage submitted that the trial judge had, in effect, put it to the jury that if Mr Yarrow fabricated evidence to corroborate Mr Carnell, they might think he would have corroborated Mr Carnell more fully; and he submitted that was an erroneous invitation to the jury to speculate and was not a balanced direction to the jury. 46 Finally on this matter, Mr Ramage submitted that the trial judge referred to Mr Carnell's evidence concerning the reversing of the vehicle as having been led by the Crown as being demonstrative of at least a momentary attempt to escape. Mr Ramage submitted that this being an intention directed towards an action disclosing consciousness of guilt, a direction of the type discussed in Edwards was required. 47 I will deal with those contentions before moving on to the next area of appeal. 48 In my opinion, it was not mandatory for the more stringent requirements of section 65 of the Evidence Act to be satisfied. Section 112 of the Criminal Procedure Act was inserted in 1999 after the passage of the Evidence Act, and in my opinion it should be considered as operating in accordance with its terms and authorising the admission of depositions in cases where the requirements of section 112 are satisfied. There was, in this case, no dispute to suggest that the requirements of section 112 had not been satisfied. 49 On the matter of exercise of discretion, in my opinion the appellant has not demonstrated any error of principle, nor has it been shown that the result was clearly wrong. The trial judge did take account of the circumstance that the prosecution had not taken practical steps to return Mr Yarrow from Cyprus. This was a case where Mr Yarrow had been cross-examined at the committal, and the point that the corroborating material in his evidence arose only in a statement made eight months after the event was demonstrated by that cross examination and was the subject of appropriate directions by the trial judge. 50 The conflict between Mr Carnell's evidence and Mr Yarrow's evidence in relation to Mr Carnell's notes was damaging to the Crown case, and was the subject of appropriate directions by the trial judge in favour of the appellant. The circumstance that more might have been made of this, had Mr Yarrow been available, does not in my opinion mean that there was either an error of principle or that the decision to admit the material was clearly wrong. 51 In relation to the possibility of Mr Yarrow's evidence and also Mr Carnell's evidence being misleading because of the other drugs being found in the vehicle, it seems to me that this is a matter that gives rise to a difficult question for trial judges. Where evidence is not led against an accused because of its prejudicial effect, and where an account of events occurring at the time of an arrest could possibly be misleading because that other evidence is not led, it seems to me that there is no easy answer to dealing with the matter fairly. 52 In some cases the only appropriate step might be to exclude the evidence that might possibly be misleading. Another approach, it seems to me, is to permit that evidence to be led, but to make sure that use is not made of it which would be misleading by reason of the absence of the evidence prejudicial to the accused. 53 In my opinion, matters which might possibly have been misleading in relation to the reference to drugs in the second conversation and the evidence relating to flight, by reason of the absence of the prejudicial material in relation to the other drugs, was dealt with appropriately, in particular by not being given undue prominence and by ensuring that no matter was put to the jury that was likely to mislead them. 54 There is some force in the submission that the Crown's reliance on the appellant's alleged introduction of himself as George was a matter that could not rationally support a conviction unless the Crown alleged that the appellant was the writer of the document; but in my assessment this was a very minor part of the case. It was highly unlikely to have misled the jury and it was certainly not given undue prominence. 55 In relation to the absence of a warning concerning the jury not seeing Mr Yarrow and not hearing him cross examined, cases such as Mendham & Foster do assert that such a warning should be given as a matter of course. I think it was an error not to have given that direction; but my assessment of the matter again is that this was a very minor part of the case, and my assessment is that it did not deprive the appellant of a chance of acquittal. In the absence of other successful grounds of appeal, in my opinion it would be appropriate to apply the proviso in relation to this matter. 56 In relation to the submission that an Edwards' direction was required in relation to the second conversation and in relation to the flight, my view is that these were such minor parts of the Crown case that an Edwards' direction was not required and, indeed, could possibly have given those matters undue prominence. 57 In my opinion the trial judge's directions concerning Mr Yarrow's motivation was not gratuitous. It had been put by the appellant's counsel that, because the corroborative material was first introduced eight months after the event, the jury could conclude it was fabricated in order to corroborate Mr Carnell. In those circumstances a comment on motivation was not, in my view, inappropriate, and in my view there is not shown to be such imbalance in the comment to suggest error. 58 The second main area of appeal concerns directions in relation to alleged lies by the appellant. The trial judge's summing up refers to lies alleged by the Crown in relation to a number of particular matters. The trial judge referred to alleged lies by the appellant concerning his coming to Sydney overnight from Brisbane for some reasons other than this transaction with Mr Moore, his evidence that he did not know Mr Moore was going to Thailand on 24 November, his evidence concerning his reaching into the boot after getting into the Mitsubishi vehicle, his evidence of inspection of the transformer cases in Bangkok in December 1995, his reasons for giving wrong addresses in various documents and using an alias of Frank Barnett, his explanation of apparent secrecy in relation to bicycle parts in the Kalbo facsimile message, coupled with the circumstance that there was no documentation found in the vehicle referring to bicycle parts, his evidence that his only purpose in connection with the relevant transaction in his activities in Sydney was to pick up two boxes to take them back to Brisbane, so that Mr Dowsley could get them in Brisbane. 59 Having referred to those allegations concerning lies, the trial judge went on to say, as he said on a number of occasions, that the accused bore no onus of proof to prove anything, and that in a case depending on circumstantial evidence, the jury had to consider all the evidence, including that of the appellant. 60 Mr Ramage referred to the case of Edwards and also to Zoneff v R (2000) 200 CLR 234. He pointed out that the accused's counsel had sought a further direction concerning lies, to the effect that whether or not the jury accepted that the appellant had lied, still the Crown had to prove its case beyond reasonable doubt. 61 Mr Ramage's submission was that in this case there should either have been a direction of the type discussed in Edwards concerning consciousness of guilt, or a direction that the matter of alleged lies would only affect credibility, or, at the very least, a more general direction discussed in Zoneff. 62 In my opinion this is not a case which required any of these specific directions. There was, in this case, no doubt that there had been an importation of cannabis resin and there was no doubt as to the appellant's involvement in the importation. The only question in issue was whether the appellant knew that the importation in which he was involved did include the importation of cannabis resin. 63 In order to explain his involvement, the appellant gave detailed evidence of the history of his involvement in what he claimed he understood to be a genuine transaction of importing transformers. The Crown's submission was, in effect, that this whole history was a fabrication, and the Crown gave effect to this submission by pointing to particular aspects of the history which the Crown contended to be unbelievable. 64 In my opinion, in submitting that these aspects of the evidence were unbelievable and were lies, the Crown was not relying on the lies purely as going to the credit of the appellant, or as disclosing consciousness of guilt, but rather as part of what the Crown contended to be an unbelievable account of the appellant's involvement. A finding beyond reasonable doubt that the appellant was guilty necessarily required a finding that the history he gave was a deliberate fabrication; and on the other hand, a finding that the history was a deliberate fabrication meant, in my opinion, that there could not be a rational decision other than that he knew the importation was of cannabis. Because the other evidence in the case very strongly supported an inference of knowledge, the additional circumstance of a deliberately false account of his understanding and involvement in the transaction could not, in my opinion, be given any rational explanation consistent with innocence. 65 So, for those reasons, it seems to me that lies in this case were not relied on either as affecting credibility or as showing consciousness of guilt, but rather as matters going directly to the essential issue. In my opinion it was sufficient in this case that the judge made it abundantly clear that there was no onus on the accused to prove anything, and that the Crown had to prove every element in the case, including the appellant's knowledge, beyond reasonable doubt. 66 The next area of appeal concerns alleged error by the trial judge in refusing an application by the accused to cross examine a Federal agent Melrose and refusing the application of the accused to have Federal agents Bell and Price recalled. The matter in respect of which those applications were made was whether the letter signed by George was found taped to a transformer box or to one of the smaller cartons within the main carton. In my opinion this matter was so peripheral to the case that there is no substance in the submission that there was an error of discretion which could provide a ground of appeal. 67 The next area of appeal concerns criticisms of the defence counsel. In my opinion the manner of dealing with submissions by defence counsel, with which the trial judge disagreed, is very peculiarly a matter within the discretion of the trial judge, and in respect of which the trial judge is in a much better position than this Court to make an assessment. In those circumstances, it seems to me that a very powerful case would need to be made out of error in relation to such a matter. I think it is sufficient to say in this case that in my opinion a powerful case of that nature is not made out. 68 The final matter in respect of which an appeal is brought concerns sentence. As mentioned earlier, the appellant was sentenced to 6.5 years with a non parole period of 4.5 years, back dated to commence on 17 May 2000. It appears that the trial judge referred to some comparative sentences, worked back from those sentences to a starting point of around eleven years, took from eleven years a deduction of one-third to allow for remissions not available in New South Wales; he then reached a figure of either seven or seven and a half years; he gave credit of six months for previous occasions in custody, possibly a credit totalling 12 months, but certainly at least six months. 69 Mr Ramage submitted that error was shown, firstly in the starting point of around eleven years; secondly in failing to give sufficient weight to the onerous nature of incarceration in the Philippines and to the circumstance of him having been shot on the occasion of arrest in the Philippines, failing to take into account long and extensive reporting on bail since mid August 1988, and failing to take into account financial hardship suffered by the prisoner and his family. This arose from the circumstance that the prisoner broke bail to go to the Philippines because of illness of his daughter, resulting in the forfeiture of $25,000 put up by his mother, and resulting consequently in loss of the family home. Mr Ramage also submitted that there was failure to give sufficient weight to matters under section 16A, including previous character and good prospects of rehabilitation. 70 In relation to the non parole period, Mr Ramage submitted that the appropriate non parole period was approximately 60 to 66 per cent in the absence of special circumstances. The non parole period in this case was in excess of 69 per cent of the head sentence, and exceeded by some 12 months the highest other non parole period imposed in certain statistics provided by Mr Ramage to the court. 71 In my opinion no error is shown in the fixing of the head sentence: no error of principle in my opinion is identified in the reasons of the judge, and in my opinion it is not made out that this sentence was so excessive that this Court should intervene. However, I think there is some force in submissions concerning the non parole period. 72 In addition to the submissions which I have outlined, it seems to me that, in calculating a non parole period, when credit is given for time previously served in prison, the correct approach would normally be to take the head sentence arrived at before giving credit for that time, work out an appropriate proportion for the non parole period, and then give the benefit of the previous period of incarceration to both periods. That results in a somewhat larger parole period than if one calculates the proportion after one has given credit for the previous period of incarceration. 73 In my opinion, when one couples that consideration with the adoption of a proportion in excess of 69 per cent in this case, there is a matter of principle which indicates that a shorter non parole period should have been given. In my opinion the appropriate non parole period in this case is four years. 74 For those reasons I would propose that the appeal against conviction be dismissed, that leave to appeal on sentence be granted, that the head sentence be confirmed but there be substituted a non parole period of four years commencing 17 May 2000. 75 MATHEWS AJ: I agree. 76 STUDDERT J: I also agree. 77 HODGSON JA: The order of the Court is the appeal against conviction is dismissed. Leave to appeal against sentence is granted. The head sentence is confirmed; the specification of the non parole period is set aside and in lieu thereof the Court substitutes a non parole period of four years commencing 17 May 2000, to expire on 16 May 2004. ***********

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