R v Campbell & Greig [1999] VSCA 177

[1999] VSCA 177

Court of Appeal (Vic)|1999-11-10|Before: PHILLIPS, C.J., TADGELL and CHERNOV, JJ.A.

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Source facts

Court

Court of Appeal (Vic)

Decision date

1999-11-10

Before

PHILLIPS, C.J., TADGELL and CHERNOV, JJ.A.

Source

Original judgment source is linked above.

Judgment (82 paragraphs)

[1]

The applicant, Danyon James Greig, was convicted after a trial in the County Court on one count of being between 22 and 25 February 1997 "knowingly concerned in the importation into Australia" of a prohibited import, namely Ecstasy tablets consisting of not less than a commercial quantity, contrary to s.233B(1)(d) of the Customs Act 1901 of the Commonwealth. He was on 18 September 1998 sentenced for that offence to be imprisoned for 9½ years and a minimum non-parole period of 7 years was fixed. He now seeks leave to appeal against conviction and sentence. The applicant, David Campbell, pleaded guilty to a like offence arising out of the same importation as that which founded Greig's conviction. He was sentenced on the same day as Greig to imprisonment for 8 years with a minimum term of 5½ years and now seeks leave to appeal against the sentence. The maximum sentence in each case was imprisonment for life.

[2]

The circumstances of the importation of the Ecstasy tablets in question are described in the reasons of the Court of Appeal in R. v. Carl James Carey and I need not rehearse them in detail. The gist was that a man in Liverpool, England, known as Phil, arranged for Carey and a woman named Prendergast to bring from England by air to Melbourne a suitcase containing 24 plastic bags each of one thousand Ecstasy tablets. The total weight of the prohibited import exceeded seven kilograms, and the weight of the proscribed component drug was about two kilograms - four times the prescribed commercial quantity. The tablets were said to have had a possible retail value in Australia of about $1.2 million, and the exercise was referred to in as the largest importation to that time of the drug Ecstasy into Victoria. Prendergast and Carey, the international couriers, were apprehended by Customs officers upon their arrival at Tullamarine late on 22 or early on 23 February 1997 and co-operated with the authorities. They agreed to take part in a controlled delivery of the drug, for the preparation of which most of the tablets were removed from the parcel and replaced with innocuous material. At about the time when Prendergast and Carey arrived in Melbourne the supplier, Phil, telephoned from England to Campbell, a British national then living in Sydney. Campbell in turn telephoned from Sydney to Carey in Melbourne and arranged to meet him with Prendergast at the Ibis Hotel in Therry Street, where they were staying. Campbell travelled from Sydney to Melbourne on 24 February and that afternoon met Prendergast and Carey for the first time at their hotel room where, unknown to Campbell, the authorities had arranged for covert audio and video recording of the events.

[4]

The Crown case was that the person to whom Campbell made the request was Greig, who was by trade a carpenter living in Sydney. Only Campbell's part in the conversation was recorded. There was therefore no clear, direct evidence available to the Crown that it was Greig who had called Campbell at 2.47 p.m. on 24 February and, in order to prove the identity, the Crown relied initially on inference from circumstantial evidence which was in substance as follows. Within half an hour after the telephone call to Campbell, Greig booked himself and a man named Steege to travel to Melbourne by an Ansett flight leaving Sydney at 6 a.m. the following morning and to return to Sydney later in the day. The booking was proved by evidence from the airline to have been made at 3.17 p.m. in Sydney. Almost immediately after that, Campbell received another telephone call advising that the caller would leave Sydney at 6 a.m. the following morning, and Campbell said that he would see the caller about 8 a.m. Greig travelled by air from Sydney to Melbourne with Steege on 25 February, arriving at around 7.20 a.m. Also on the flight were Greig's girlfriend, Louise Burson, who was an Ansett flight attendant, and another female Ansett flight attendant, Vanessa McDonald. Each of the women took a large sum of cash in luggage on the flight. As airline employees, they were able to travel freely on the airline and their baggage was kept separate from that of ordinary travellers. Having arrived at Tullamarine, Greig, Steege, Burson and McDonald travelled together by taxi to central Melbourne. At about 8 a.m. the two women booked into room 237 at the Victoria Vista Hotel in Little Collins Street, accompanied by the two men. Campbell had stayed at that hotel during the previous night. Greig met Campbell there at about 8.15 a.m. on the morning of 25 February. Campbell thereupon went alone immediately to Prendergast and Carey at the Ibis Hotel, handed them two bundles of $10,000 in Australian bank notes, on receiving possession of the suitcase supposedly containing 24,000 Ecstasy tablets, and was promptly arrested. Greig was also arrested later in the morning in Little Collins Street, having then on his person some $2,300 in cash.

[13]

It is true enough that it was the use to which Greig put the $20,000 that was centrally important. That, however, was a matter to which the immediate source of the money was not irrelevant. The Crown's task was to prove, by circumstantial evidence, knowledge by Greig of the use to which the $20,000 was to be put so that, thereby, his being "knowingly concerned in" the importation might be inferred. Circumstantial evidence, it has been said, "... works cumulatively. Its persuasive force increases as individual items of evidence increase in number and their cumulative weight progressively eliminates the reasonable possibility of potential explanations": The Queen v. Benz [1989] HCA 64; (1989) 168 C.L.R. 110, at 141, per Gaudron and McHugh, JJ. The isolated fact of Greig's bringing $20,000 from Sydney to lend to Campbell might not by itself reveal much of Greig's knowledge of the money's intended application. If no more were known than that, he might perhaps be regarded as a mere courier or messenger. The transaction might well wear a different aspect if the $20,000 was shown to be part of a much larger fund of cash in notes of large denominations to which Greig had ready access at short notice, and which he was prepared to advance, unsecured, at a huge rate of interest with no questions asked. It is, I should say, greatly remarkable that Greig acceded, with the willingness and promptitude that he evidently did, to Campbell's bald request for financial assistance. The very terms of the telephoned request, recorded almost verbatim for the jury's consideration, were themselves such as to suggest that Greig was by no means unaware of the urgency of the need; and it would be, I think, fanciful to suppose that he was indifferent to the cause of the urgency. The jury were entitled to conclude that Greig was alone responsible for deciding on the time at which and the conditions on which Campbell's request for finance was to be met. It was remarkable, also, that Greig was prepared (according to his account of the transaction) to hand over the money without demur and without obtaining a receipt and pursuant to a merely oral arrangement. It may be that the prospect (if that is what it was) of interest at a rate equal to just on 652% per annum would have been a sufficient inducement for Greig to enter into such a slovenly arrangement. Be that as it may, the circumstances were such that evidence of the stock of money from which the $20,000 was drawn could not be excluded as irrelevant to a sensible evaluation of the nature and purpose of the arrangement, and of Greig's appreciation of it.

[26]

It was fundamental to the Crown case to prove that Greig was concerned in the importation at the time alleged; and the justification offered was that the impugned evidence was relevant and admissible to show the time, manner and circumstances of Greig's becoming concerned in the importation of the Ecstasy tablets. The argument for the respondent pointed out that, until Greig went into the witness box and admitted it, there had been no evidence that he had been the other party to Campbell's two telephone conversations that began at 2.47 p.m. and at about 3.17 p.m. respectively on 24 February. Evidence of those conversations by themselves, and the identification of Greig as the recipient of Campbell's request for money, was of course central to proof of Greig's being concerned in an importation which was then continuing and indeed continued until Campbell's arrest: cf. R. v. Leff (1996) 86 Aust. Crim. R. 212, at 214, at 222-3. Evidence of the tripartite conversations was relevant in the general context, it was submitted, in order to show when, in the course of the importation, Greig became concerned in it, and the circumstances of his becoming concerned. These conversations tend to show how it was that Campbell was driven, by his inability to obtain the tablets, to resort to Greig for finance. The tripartite conversations were proved by the calling of Carey as a Crown witness and the tendering of the audio-video tapes and the transcripts. Not only was this evidence adduced without objection but, notably, Carey was not cross-examined at all by counsel for Greig. All this confirms that the fact of the tripartite conversations having taken place, and their terms, were not contentious at the trial. One cannot but derive the firm impression that these conversations were treated on either side as evidence not to prove the truth of any of the contents but to show that they occurred, and when they occurred in relation to the time at which the evidence showed that Greig first came on the scene - i.e. when he telephoned Campbell at 2.47 p.m. on 24 February.

[61]

It was submitted in this Court for the respondent that in all the circumstances the judge had been correct, when fixing Greig's sentence, to disregard the seizure, which was apparently assumed to have been valid as to the whole of the money seized. The circumstances to which counsel particularly pointed were these: Greig's access to a large sum of money at short notice which enabled him to assume the role of financier; the provision of the $20,000 to Campbell out of the pool of money brought down from Sydney to Melbourne; a presumption that the whole of the money available to Greig could have been made available to Campbell if necessary; the profit of $5,000 which Greig stood to make by way of interest on the loan of $20,000; Greig's evidence-in-chief that at least $51,000 of the pool of money did not belong to him but rather to his family and friends, so that in substance the loss arising from the forfeiture was to others and not to him. I do not read Greig's evidence as supporting a conclusion that at least $51,000 did not belong to him but rather as indicating, in the passage in question, the sources of the provision to him of $51,000 of the total sum. It is true that Greig did himself no ultimate service, in the matter of his sentence, by the vagueness of his answers to police questioning and in his evidence at the trial with respect to the provenance of the money. Allied to that, it does not seem appropriate to treat the totality of the money that was seized as quantifying or representing an irrecoverable loss to Greig, by way of penal impact, which he should be entitled to have set off, or for which he should be entitled to credit, in an assessment of the custodial sentence to be imposed on him. On the other hand it seems to me to be unrealistic to ignore for sentencing purposes the fact of the seizure or to treat it as occasioning no likely loss to him at all. I think the learned judge was in error in disregarding it altogether, and that the sentence must accordingly be set aside. The task of re-sentencing with a view to counteracting the error presents its own difficulties.

[73]

As I have sought to indicate, there is some difficulty in knowing precisely what has been forfeited in this case: one cannot be sure that there has been a forfeiture of more than $2,330.30. Then again, if there has been or is likely to be a forfeiture of more than that sum, there is a question of the extent to which Greig should be entitled to the benefit of it in the determination of his sentence. If there has been to date no effective forfeiture of any of the money save that which was found on Greig's person when he was arrested, the fact of the seizure of the larger sum suggests at least that there is likely to be a difficulty in the recovery from the Crown of the amount seized. One simply cannot know whether any part of it will be returned to those from whom it was seized. If the Crown has not yet complied with the requirements of ss.205 and 205A of the Customs Act it is by no means clear that, even now, resort might not be had by the Crown to Part II of the Proceeds of Crime Act 1987 of the Commonwealth for a confiscation order in respect of property that is "tainted property in respect of the offence" of which Greig has been convicted - i.e. "property used in, or in connection with, the commission of the offence": s.4. Looking at the prospective picture as a matter of likelihood I should take the view that the Crown is very much more likely than not to be able, even at this stage, to justify in that way the retention of at least the sum of $20,000 that was provided by Greig to Campbell, as well as the money that was found on Greig's person. Curiously enough, the copy notices of seizure which we were shown do not seem to cover that amount of $20,000. Taking it all in all, I should be prepared to say that those two sums amounting to $23,000 odd, are, to use the words of the Court in Pastras, supra, at 592, "likely to be confiscated"; and that it is fair to say that, if that happens, in so far as it has not already happened, the applicant is likely to suffer a loss that would be very significant to him. I should be prepared to treat it as his money or as money that he would be liable to repay if he had borrowed it: cf. Wignall, supra, at 56. I should therefore factor that consideration into the determination of Greig's sentence. I should not be prepared, on the information available, to treat as likely the forfeiture of any further sum in respect of which it could fairly be said that Greig suffered a loss.