R v Campbell & Greig [1999] VSCA 177

14. Campbell's understanding at that time, as the learned sentencing judge found, was that upon payment by him of $2,000 he should collect from Prendergast and Carey the Ecstasy tablets that they had brought to Australia. They told Campbell, however, that their instructions from Phil were that they were to receive $10,000 each for their trouble, and that they were not to hand over the drug until the $20,000 was paid. Campbell thereupon asked Prendergast and Carey to let him have one thousand tablets for $2,000 so that he might sell them to raise money for the rest. This proposal they declined. Campbell, having no more than $2,000 with him, then made a telephone call from the hotel room at 2.26 p.m., leaving a message, apparently by means of an answering machine, asking "Could Dan phone Dave as soon as possible". At 2.47 p.m. on the same day Campbell received a telephone call at the Ibis Hotel room. During the ensuing colourful conversation, which lasted about five minutes, Campbell told the caller "I've got a little bit of a hiccup here". He referred to the caller as "Dan" and asked him to bring $20,000 urgently to Melbourne. Speaking with a very broad Merseyside accent, Campbell said "... the lads told me to give him two but obviously he wants the full pay, he wants to be paid fully like so I just wondered if you'd come down like and throw us the other twenty ...".

17. 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.

20. A search by police of room 237 at the Victoria Vista Hotel later in the day revealed some $67,000, made up of $50 and $100 banknotes, in the luggage of Burson and some $80,150 in the luggage of McDonald. Greig asserted to police in the course of an interview still later on the same day that money found in the room was partly his and partly Burson's. He admitted that he had that day given $20,000 to "a friend who was in need of it. I did not know what it was for ... and [in] return I was going to receive twenty five thousand dollars back in a period of two weeks". Greig told the police that he knew the "friend" only as David; that he was "just an English guy" whom he had known for about six months and who had told him in a telephone conversation of a need for the money; and that he had raised the money by borrowing from friends. Greig told police that the cash in the hotel room had been brought there "from home for the simple fact that it wasn't to be left unattended because ... the house has a bad break-in rate. That money can be covered".

23. Carey ultimately pleaded guilty to a charge of being knowingly concerned in the importation of the drug, and was sentenced, but Prendergast pleaded not guilty to the same charge and was acquitted.

26. The judge who tried Greig, and later sentenced him together with Campbell, expressed himself to be satisfied that both Greig and Campbell had known before 24 February that drugs were to be imported into Australia, that Campbell was to come to Melbourne to collect them and that Greig was to be available to provide whatever finance might be required. Campbell, having pleaded guilty, did not resist those findings but Greig had all along contested them. In particular, Greig challenged at the trial the admissibility of some of the evidence which tends to support the findings and challenges on appeal the correctness of the judge's decision to admit it and other evidence.

29. The challenged evidence fell into two categories. The first was evidence of the possession by Burson in her luggage, and inferentially possession by Greig, of the $67,000 that was found by police in room 237. This evidence was unsuccessfully objected to by the defence at the trial and is now the subject of ground 2 of Greig's application for leave to appeal against conviction. The second category was evidence of conversations covertly recorded at the Ibis Hotel room between Prendergast, Carey and Campbell. These conversations occurred on 24 February before and after Campbell by telephone requested Greig to provide $20,000 and Greig acceded by telephone to the request, and of course they took place in Greig's absence. Evidence of the terms of the conversations was led by the Crown at the trial without objection but Greig's ground 4 alleges that the trial miscarried because the evidence was given. I shall deal first with ground 2 and with ground 3, which is associated with it.

32. The Crown case relied on the discovery of the considerable sum of money found in room 237 of the Victoria Vista hotel as supporting Greig's characterisation as the provider of finance to Campbell knowing it to be for the purpose of his obtaining the Ecstasy tablets from Prendergast and Carey. Counsel's objection at the trial to evidence of the discovery of the money in the hotel room was made on the grounds that it was irrelevant and that, even if marginally relevant, it should be excluded because its prejudicial effect would exceed its probative utility. The judge ruled relevant and admissible the evidence of the finding of the $67,000 in Burson's luggage but excluded, on the ground of irrelevancy, evidence of the greater sum found in McDonald's luggage.

35. In this Court counsel for the applicant Greig contended again that the evidence of the discovery of the $67,000 was irrelevant, being no more relevant to the case against Greig than evidence of the finding of the money in McDonald's luggage. I am not at all sure that the discovery of the money in McDonald's luggage was not of some relevance. However that may be, I am unpersuaded that evidence of the discovery of the money in Burson's luggage was wrongly admitted. By itself, that evidence might not amount to a great deal but, like many kinds of circumstantial evidence, it derives cogency from its context. The context here included the circumstances in which Greig was enticed to journey to Melbourne, and did so, and his activity after arrival.

38. The learned judge appears to have ruled on the admissibility of evidence of the money discovered in room 237 upon the assumption that the person for whom Campbell had left a message at 2.26 p.m. on 24 February, and to whom he spoke at 2.47 p.m. and again at approximately 3.17 p.m., was Greig. The assumption was plainly enough justified in the circumstances, and indeed it does not appear ever to have been resisted. The validity of the assumption was ultimately further justified by a number of admissions made by Greig when he gave evidence at the trial. He admitted in chief that he and Campbell knew each other's mobile telephone contact numbers; and Greig ultimately admitted that he was the other party in the telephone conversations that Campbell had had at 2.47 p.m. and at about 3.17 p.m. on 24 February. The jury had transcripts of Campbell's contributions to the conversations (or relevant parts of them) and there were also in evidence relevant parts of audio and video recordings of his contributions. Greig gave further evidence in cross-examination that Campbell had told him a couple of days before leaving Sydney of his intention to go to Melbourne. He admitted also that he had hidden $87,000 in the luggage of his girlfriend, Burson, without her knowledge, before their departure from Sydney on 25 February. He did this, as he swore, "because I didn't want to leave it in the house at home"; and when asked why he did not tell her he answered "because I didn't want to carry about that sort of money; ... she had priority baggage because she was an Ansett stewardess. ... It was safe." He agreed also in cross-examination that he put the money in Burson's bag "so that it would not be searched and stolen".

41. I consider that the judge was correct in the circumstances to treat as relevant the evidence of the discovery of $67,000 in Burson's luggage. Greig admitted that he took from the $87,000 that had been in her luggage the $20,000 that he gave to Campbell. Counsel for Greig contended in this Court that that was beside the point because what was relevant was the purpose of Greig's disposition of the $20,000, not the purpose of his possession of $87,000 or even $67,000. It was submitted that evidence of the discovery of $67,000 constructively in Greig's possession had the effect of imposing on him an unfair requirement in effect to explain his possession of it, thus running the risk of being disbelieved upon an extraneous issue, and so increasing his risk of being disbelieved when he swore that he was not knowingly concerned in the importation. Greig gave evidence in chief of the provenance of the money, which was not perhaps entirely consistent with his earlier assertions to the police on the subject. He swore that he had obtained it for a building project in various amounts from his parents, sister, girlfriend and other friends, and from his own earnings and savings.

44. 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.

47. We were referred, in support of the submission that evidence of the finding of the money in the Victoria Vista Hotel was irrelevant in this case, to the unreported decision of the New South Wales Court of Criminal Appeal in R. v. McMahon (23 June 1978). In McMahon the appellant was convicted of possessing heroin contrary to s.233B of the Customs Act 1901. Evidence was admitted at his trial of his being found in possession of a sum of money ($2,595) and the jury were invited to infer that such a large amount of money had been generated by his trafficking in heroin. Lee, J., who delivered the leading judgment, said that the possession of the money could be related only as a matter of speculation to a possible trafficking in heroin or possession of heroin. It was not a case, as his Honour held, of facts being proved from which an inculpating inference could be drawn if no explanation were put forward by the accused. His Honour considered that -

"A false issue as to the source from which the money had come was thus introduced into the matters of importance which the jury were asked to consider ...".

Admission of the evidence was held, in the event, to have produced a miscarriage and a new trial was ordered. Lee, J. also considered that, even if the evidence had been admissible, it should have been rejected in the exercise of the trial judge's discretion: its probative value could at the best have been slight and its prejudicial value was disproportionately high. A similar point was raised here.

52. I consider that McMahon is distinguishable and not of present assistance. The Crown here was not concerned to inculpate Greig by reference to an inference as to the manner in which the $67,000 was generated. Nor was Greig put in a position of running the risk of an adverse inference if he did not offer an explanation acceptable to the jury of the source of the money found in the hotel room. This was not a case of betterment, or anything like one, and the caution given in Burns v. The Queen [1975] HCA 21; (1975) 132 C.L.R. 258, at 264, about the use to be made of evidence of betterment, to which we were also referred, is not in point. Put simply, the discovery of the $67,000 was relevant for such light as it threw (together with all other relevant surrounding circumstances) on Greig's knowledge of the intended application of the $20,000 provided by him to Campbell.

55. In the circumstances I think it cannot be said that the judge erred in declining to exclude the evidence as a matter of discretion. The evidence was likely to be telling and, in that sense, was prejudicial to Greig, which was the purpose of calling it. Evidence tending to prove the guilt of an accused person is always prejudicial in that sense but that of itself is no ground for its exclusion: R. v. Gay [1976] VicRp 59; [1976] V.R. 577, at 586. The touchstone for the exercise of the judge's discretion favourably to the accused is "undue or disproportionate prejudice having regard to the probative significance of the evidence upon an issue falling for determination by the jury": R. v. Stalder [1981] 2 N.S.W.L.R. 9, at 20, per Street, C.J. (original emphasis). Here, apart from the probative value of the evidence of the discovery of the $67,000, there was no element of prejudice demonstrated: cf. R. v. Gay, ibid. Ground 2 should therefore fail.

58. Ground 3 asserted that the trial miscarried because evidence could not be called by the defence as to the provision of $67,000 to the applicant. The judge was informed that, should evidence of a finding of the $67,000 be led, the defence would need at great expense to bring seven people from New South Wales to give evidence of their having lawfully provided Greig with the money. His Honour was not moved by the argument and, in the event, financial resources were not available to bring the witnesses to Melbourne to give their evidence. It follows from what I have earlier said, however, that the source of the $67,000 in Greig's hands was simply not an issue in the trial. It is doubtful whether, even had the seven witnesses been brought to give evidence for the defence, their evidence would have been properly receivable. As it was, Greig gave evidence of some of the sources but, since the provenance of the $67,000 was not in issue, he was understandably not cross-examined about it. It cannot be said that any miscarriage arose from Greig's inability to call the New South Wales witnesses. Ground 3 should also fail.

61. Grounds 4 and 5 of Greig's application are these -

"4. The trial of the applicant miscarried because evidence was given of conversations between David Campbell, Mary Prendergast and Carl Carey (to which the applicant was not a party) at the Ibis Hotel on 24 February 1997. 5. The learned judge erred in directing the jury that the telephone conversations between Campbell, Carey and Prendergast provided the setting in which telephone conversations between Campbell and the applicant took place."

(The word "telephone" where first occurring in ground 5 seems to be an error, for all conversations between Campbell, Carey and Prendergast of which evidence was led were between them face to face.)

As ground 5 suggests, the Crown relied on the conversations referred to in ground 4 in order to set the scene or provide a context for the evidence of the conversations to which Greig was a party. Notably, the conversations on 24 February between the three persons who were at the Ibis Hotel (which I shall for convenience call the tripartite conversations) tended to show the three stages of Campbell's dealings with the two couriers: his initial proposal to pay them $2,000 for the drugs, which was refused; his second proposal to obtain 1,000 tablets for $2,000 so that he could sell them to obtain funds for the rest, also refused; and his ultimate resort to Greig for the $20,000. As it was put to this Court by counsel for Greig, the Crown wanted to show by this means that Greig could not have failed to know why Campbell wanted the money.

67. The gist of the criticism now made of the evidence of the tripartite conversations (none having been made at the trial) is that it was evidence of conversations to which Greig was not a party and was hearsay as regards him and inadmissible; and that the evidence was in any event highly prejudicial and unfair. As it was submitted in this Court, the jury might well have used the tripartite conversations in order to interpret and assess what was conveyed by Campbell to Greig in the conversations between the two of them. The submission came down to saying that, because the jury might well have had regard in this way to what is now asserted to have been hearsay material, the trial miscarried. The judge did direct the jury specifically that evidence of the conversations to which Greig was not a party could not be used against him to prove any involvement of Greig in the offences charged. It is now submitted that neither this direction nor the failure on the part of counsel for Greig at the trial to object to the evidence of the tripartite conversations should stand in the way of the success of the argument.

70. Because at the trial the evidence of the tripartite conversations was not objected to, no attempt was then made to investigate the basis of its reception or to justify the Crown's tendering it. Had objection been made that it was hearsay, a ruling would presumably have been given. In this Court the respondent offered both a justification for reception of the evidence and an alternative basis for rejecting grounds 4 and 5.

73. 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.

76. It was also submitted for the respondent that there may have been a good forensic reason why defence counsel did not object at the trial to the evidence of the tripartite conversations. To listen to the conversations very strikingly emphasises the broad north country accent of all the speakers. This was a feature upon which defence counsel played in his final address. He said -

"The real focal point for you in this case is looking at those taped conversations and looking at it very very carefully. Now, you would remember, when those conversations were first played in court, it was like somebody was speaking in a foreign language, how difficult it was to understand ...".

Counsel developed the point for the jury, inviting them to conclude that Greig might very well have not understood all that Campbell said to him, so that it could not be concluded beyond reasonable doubt that he was aware of what he was being asked to do, and the circumstances of Campbell's request. Defence counsel also emphasised to the jury how late it was in the scheme of things that Greig entered upon the scene. Counsel put it to the jury that, while it was very obvious that Carey and Prendergast were involved in an importation of narcotics, the jury should have a doubt that Greig was concerned in the importation. Defence counsel was concerned in his address actually to rely upon the tapes with a view to suggesting that, comparatively, Greig was merely on the periphery.

81. Whether it is correct to treat defence counsel as having welcomed the tender of the tapes of the tripartite conversations, or as having sought merely to make the best of them once they were in evidence, it is perhaps unnecessary to decide. I am in any event satisfied that it is not now open to the applicant Greig successfully to contend, as ground 4 asserts, that the reception of the evidence of the tripartite conversations caused the trial to miscarry. The evidence of the conversations appears to have been led not to prove the truth of what was relevantly said in them, but to prove that it was said. It was therefore not hearsay: e.g. Pollitt v. The Queen [1992] HCA 35; (1992) 174 C.L.R. 558 at 571, 602-3. So much appears indeed to have been common ground at the trial. The central fact in issue to be proved against Greig was his knowledge of the reason for Campbell's need for $20,000. There was no issue at the trial that Carey and Prendergast had imported the drug. The tripartite conversations proved that Campbell said to the importers that he wished to get hold of the drug and that they said to him that he would not be given it unless he paid them $20,000 for it. That statement by Carey and Prendergast to Campbell (made at the time it was) and taken together with the evidence of conversations Campbell shortly afterwards had with Greig, and of what Greig then did, tended to assist to establish the fact in issue. Treated in that way, the relevant parts of the tripartite conversations were not hearsay. So much is succinctly explained by Brennan, J. in Pollitt, supra, at 571, thus -

"Evidence of an out-of-court statement may tend to establish a fact to be proved either because that fact is asserted by the maker of the statement and the maker of the statement is to be believed to have made the statement truthfully - in which case the evidence is hearsay - or because the making of the statement is itself the fact to be proved or, when taken together with other facts established by evidence or common experience, tends to establish the fact to be proved - in which case the evidence is original evidence." (My italics.)

Here, the relevant parts of the tripartite conversations tended at least to indicate what might be thought a very surprising degree of spontaneity and alacrity in Greig's acceding to Campbell's plea for financial assistance.

86. Dawson and Gaudron, JJ. pointed out in Pollitt, supra, at 603, that there are some cases in which evidence of an out-of-court statement, being primary and direct evidence and not hearsay, -

"... should be excluded as a matter of discretion because it contains an assertion which cannot be tested by cross-examination and there is a danger that a direction to treat the statement as a fact, and not as proving the truth of any assertion contained in it, may be ineffective. The absence of an opportunity for cross-examination is often advanced in explanation of the hearsay rule, but the same problem can arise even though the evidence is led to prove what is said, rather than what was asserted, in the statement."

Counsel for Greig submitted in this Court that the judge's direction that the tripartite conversations "cannot afford any assistance at all of the involvement of Mr Greig in any of these offences" was likely to have been ineffective in the way suggested in the passage last-quoted. The judge went on to say that the tripartite conversations were "placed before you firstly to show that there was in fact an importation of a large quantity of Ecstasy and to provide the setting in which the telephone conversations occurred. But what was said by the people in that room cannot of course be evidence against Mr Greig". The direction is the subject of Greig's ground 5. I think that the criticisms have no substance. No part of the tripartite conversations dealt with or referred to Greig in any way. There was no assertion in them that could be used as proof as against him of the truth of what was said. Because the conversations were relevant in the manner I have indicated, and admissible as direct evidence to prove the fact of what was said and not the truth of what may have been asserted in what was said, I think the judge's direction was unexceptionable. Grounds 4 and 5 should therefore fail.

91. Ground 6 of Greig's application contends that -

"The learned trial judge erred in directing the jury that they may have regard to the probability of truth of an explanation by the applicant for his lack of candour as to his knowledge of the surnames of Campbell and Steege and the address of his girlfriend."

When interviewed by the police on 25 February Greig, in addition to claiming that he did not know Campbell's surname, denied that he knew that of Steege or the address of Burson. Almost at the outset of his evidence-in-chief Greig conceded, in answer to questions from his counsel, that he had in fact known the names and the address of which he had professed to the police to be ignorant. His explanation with respect to Campbell was that, when interviewed, he was "maybe protecting him against some inference that he was involved in [something] that I did not know about". Greig was asked in chief "Did this all come as a bit of a shock to you when you were arrested?", to which he simply answered, "Absolutely". Greig's explanation with respect to Steege's surname and Burson's address was "The same". Greig was asked nothing about these matters in cross-examination.

96. The judge's direction referred to in ground 6 was given in the context of a larger instruction concerning the assessment of credibility of witnesses. After drawing attention to Greig's admitted lack of candour to the police his Honour said -

"In deciding what facts are proved by direct evidence, you are entitled to have regard to the probabilities. Now do not misunderstand me. The Crown must prove its case beyond reasonable doubt, but in deciding whether you accept a particular piece of evidence you may consider the probabilities about that particular evidence being correct ... So you are entitled to consider the probabilities. How does this particular assertion, this particular piece of evidence, fit in with other pieces of evidence that you accept as being in fact proved and as being correct? Is it probable or improbable that this particular thing would have occurred in the way in which the witness has said it did occur?"

100. The submission for the applicant Greig based on ground 6 was that the direction given was at odds with a proper direction concerning consciousness of guilt, which was not given, and that, in the absence of the latter, the former direction should not have been given. The complaint was that the judge was thereby inviting the jury in effect to decide whether the applicant's offered innocent explanation for his lack of candour was probably correct; and that in doing so his Honour was placing an onus on the applicant that was not known to the criminal law. Not surprisingly, counsel before us did not press the argument very hard and was disposed to concede that, by itself, it could hardly avail the applicant. In truth there is, I think nothing in ground 6. Greig's credit was squarely in issue. The impugned instruction was merely by way of inviting the jury to weigh the admitted lack of candour in the balance with all the evidence in deciding whether to be satisfied that he had the state of knowledge for which the Crown contended. I do not regard the instruction as fairly capable of carrying a suggestion that the applicant bore any onus to satisfy the jury that his explanation for his want of candour should be accepted. Ground 6 should fail.

103. The remaining ground as to conviction was ground 1, which contended that the verdict was unsafe and unsatisfactory. This was not the subject of much separate argument: counsel merely contended that the combined force of the submissions under the other grounds - especially those numbered 2, 3, 4 and 5 - showed that the verdict was unsafe and should be set aside. Since in my opinion none of the other grounds should succeed, it must follow that ground 1 cannot do so. Given such evidence as there was of the telephone conversations between Greig and Campbell, supplemented so far as that was necessary by evidence of the tripartite conversations, and the admitted provision by Greig of the $20,000 taken from the supply of cash in Burson's luggage, the case against Greig was strong. I would therefore dismiss his application for leave to appeal against conviction.

106. Greig's grounds for his application for leave to appeal against sentence are these -

"1. That the sentence of the learned sentencing judge is manifestly excessive. 2. The learned sentencing judge erred in finding beyond reasonable doubt that the applicant or persons acting on his behalf made a telephone call to England on 24 February between two recorded conversations on that day between the applicant and Campbell. 3. The learned sentencing judge erred in failing to take into account the forfeiture of a very large sum of cash by the applicant. 4. The learned sentencing judge erred in finding that the applicant knew there had been previous importations by the same organisation."

Relevantly to ground 3, it appears that the money found in room 237 of the Victoria Vista Hotel and on Greig's person on 25 February was immediately seized by the police. The material before the sentencing judge with respect to the seizure, and the consequences of it, was sparse; and there was very little more vouchsafed to us. It was, however, common ground in this Court that the authorities regarded s.229A(2)(a)(i) of the Customs Act 1901 as applying to what was seized, being "... moneys ... in the possession or under the control of a person, being moneys ... that came into his possession or under his control by reason of (i) his selling or otherwise dealing in, or his agreeing to sell or otherwise deal in, narcotic goods imported into Australia in contravention of this Act ...". Sub-section (6) of s.229A provides that, for the purposes of s.203, moneys to which s.229A applies "shall be deemed to be forfeited goods ...". The only consequence of that deeming provision appears, however, to be that a warrant to seize the goods can be sought. The source of the power actually to seize on which the police acted was not made clear to us. Perhaps a seizure warrant was obtained or perhaps reliance was placed on s.203C(3), which provides that -

"If, in the course of searching for special forfeited goods that are narcotic goods, an authorised person finds a thing that the authorised person believes on reasonable grounds is evidential material relating to an offence committed in respect of those goods, the authorised person may, without warrant, seize that thing whether or not the authorised person has found those goods."

Assuming that the money was duly seized pursuant to statutory authority, the "responsible person" making the seizure was required by s.205(1) to serve within seven days after the seizure a seizure notice complying with the requirements of s.205A. One such requirement is that the notice must set out -

"... a statement that, if a claim for the return of the goods has not already been made, and is not made within 30 days after the day the notice is served, the goods will be taken to be condemned as forfeited to the Crown ...".

Section 205C then provides that -

"If: (a) goods have been seized under a seizure warrant or under sub-section 203B(2) or 203C(2); and (b) a seizure notice has been served; and (c) at the end of 30 days after the day the notice was served, no claim has been made for the return of the goods; the goods are taken to be condemned as forfeited to the Crown." (Emphasis added.)

116. Section 205G provides that -

"When goods are, or are taken to be, condemned as forfeited to the Crown, the title to the goods immediately vests in the Commonwealth to the exclusion of all other interests in the goods, and the title cannot be called into question."

120. We were told by counsel for the respondent that a seizure notice was served on Greig but that, although seizure notices were prepared with respect to money seized from the luggage in the hotel room belonging to Burson and McDonald, they were not served with them. In any event the particulars of the seizure were wrong in that the amounts specified in the notices were transposed: $80,150 referred to in the notice prepared for Burson should have been $67,000 and that amount referred to in the notice prepared for McDonald should have been $80,150. Moreover, the amount specified in the notice served on Greig was $2,330.30 only, that apparently being the amount that was found on him.

123. It was common ground that no claim for return of any of the seized money has been made. In the circumstances, however, it appears to be distinctly arguable that s.205C(b) has not been satisfied in order to effect a condemnation as a forfeiture to the Crown of more than a few thousand dollars. It would appear that these difficulties were not revealed to the judge as they were, following our request for information, revealed to us. His Honour was told on the plea (no doubt in good faith) rather the opposite of what we were told by counsel for the Crown. Counsel for Greig said this to the judge on the plea -

"One of the other matters that I feel I should raise also which was mentioned at the trial - and your Honour is well aware - that a substantial amount of money which was found in the hotel room was seized by the authorities. As I understand it, the relevant notices requiring action to be taken within 30 days under the Customs Act served on the owners of the baggage, that is the girls, no such document was served on Mr Greig. There was inaction in that regard on the part of the girls and that this time Mr Greig has not made any application to seek to have the money returned. That's a matter for your Honour and that may be a matter that you consider when imposing sentence ...".

The prosecutor submitted merely that the matter of the seized money was entirely irrelevant to the sentencing task. He said to the learned judge -

"It is even on Mr Greig's evidence not his money he has lost and it is money that has been legitimately seized. It should not in any way play any part in the sentencing process."

In his sentencing remarks his Honour said only this on the subject -

"It was also urged that I should have regard to the forfeiture of the very large amount of cash which has already taken place. In my view, again, that is not a factor which I should take into account here. There may or may not yet be a successful application for the return of that money or part of it but, in any event, it seems to me not a factor which I would really take into account in sentencing."

131. It is, I think, not unfair to observe that the matter of the consequences of the seizure of the money has been very unsatisfactorily handled on either side. The learned sentencing judge was placed in an invidious position, and so are we. Even so, I do not think it right simply to ignore the seizure as though it does not now matter or because it presents a problem which is too hard to resolve. The applicant Greig should not necessarily be disadvantaged because a failure to serve appropriate seizure notices creates a doubt that there has been an uncontestable or unexaminable forfeiture. It was common ground on the plea, and acknowledged by the judge in his sentencing remarks, that a very large sum of money had been forfeited.

134. 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.

137. Over the last ten to fifteen years there has developed in Australia an extensive body of legislation designed - putting it broadly - to achieve the forfeiture of money and other property that has been derived from or associated with illegal activity. The legislation has taken a variety of forms, differing in its precise scope and the means adopted and the criteria applied to achieve its aims. There is legislation directed to the confiscation not only of the proceeds of crime but also of money or property used with a view to the commission of crime, whether successfully or not. Some legislation depends for its effect upon the making of a court order for forfeiture or confiscation or restraint (for example, some of the provisions of the Proceeds of Crime Act 1987 (Cth) and the Victorian Crimes (Confiscation of Profits) Act 1986, now repealed and replaced by the Confiscation Act 1997) whereas some (such as the Customs Act) operates automatically in given circumstances: see R.A. Brown, Forfeiture of Property Under The Customs Act 1901 (1982) 56 A.L.J. 447. Enactment of confiscatory legislation is evidently driven by policy which sometimes does not grapple with the complex issues of legal principle to which it gives rise. The many problems of principle have, however, spawned a good deal of analytical literature. The Money Trail - C_onfiscation of Proceeds of Crime, Money Laundering and Cash Transaction Reporting_ (1992), by Fisse and others exemplifies and provides a useful bibliography of some of the academic research that has been done. Fox & Freiberg on Sentencing, 2nd ed., (1999), chapter 6, provides a useful recent survey of the scene.

140. The courts have from time to time had to consider whether confiscatory legislation should affect sentencing. It must be conceded, however, that no extensive judicial analysis of the matter has so far been made; and presumably none could very practicably be made in view of the infinitely variable circumstances which can give rise to potential problems arising from a need to consider, as a matter of proportionality, the interaction between forfeiture under statute and a judicially imposed sentence of imprisonment: cf. Fisse: Confiscation of Proceeds of Crime: Discretionary Forfeiture or Proportionate Punishment? (1992) 16 Crim.L.J. 138.

143. In R. v. Stafford (1997) 97 A.Crim.R. 85, at 91, Miles, C.J. asserted that there is "plenty of authority for the proposition that a future or past payment of compensation will be taken into account in the prisoner's favour even if the payment is made under compulsion such as under the Proceeds of Crime Act 1991 (ACT) or under such a provision as s.437 of the Crimes Act 1900: e.g. McDermott (1990) 49 A.Crim.R. 105." In McDermott the Full Federal Court applied a dictum in the decision of the Victorian Court of Criminal Appeal in Allen (1989) 41 A.Crim.R. 51, at 57, that -

"... although an offender may be sentenced before an application for a confiscation order is made, then if at the time of sentencing it is apparent that the profits of the crime are confiscated, it is appropriate to bear that circumstance in mind when sentencing the offender."

The same approach was followed, and perhaps expanded, by the Victorian Court of Criminal Appeal in Pastras (1993) 65 A.Crim.R. 584, at 592, in which the Court took Allen to have decided that "... the fact that property has been or is likely to be confiscated is relevant to the sentencing decision ..." (emphasis added). See also Thomas [1991] VicRp 60; [1991] 2 V.R. 207, at 208-9 and Tsolakos, an unreported decision of this Court of 6 July, 1995. A similar attitude can be traced back to Combi (1986) 20 A.Crim.R. 1, a decision of the Court of Criminal Appeal of Western Australia, and is exemplified in later cases of Wignall (1992) 61 A.Crim.R. 54 (another decision of the Court of Criminal Appeal of Western Australia), and Tapper [1992] FCA 600; (1992) 64 A.Crim.R. 281, at 287-8 and Whitnall [1993] FCA 271; (1993) 68 A.Crim.R. 119, at 125, both decisions of the Full Federal Court.

148. None of these cases, however, was quite like the present. All save Whitnall were cases in which a confiscatory order (or some equivalent) had been made following conviction for a relevant offence. The amount of the order was often equal to the actual or estimated proceeds of the offence in question. In the case of Wignall it was the amount obtained by the prisoner to further a crime, and offered by way of a bribe to police, as distinct from being obtained from a crime. In the case of Whitnall there had been a pecuniary penalty imposed administratively by the Commissioner of Taxation, which fell to be taken into account by the judge passing sentence for the offences which had given rise to the pecuniary penalty, namely furnishing false income tax returns and thereby defrauding the Commonwealth. In the present case there was, of course, no relevant order or anything equivalent to it. The provisions of the Customs Act 1901 to which I have referred above are part of a scheme whereby it is intended that money or goods may be vested in the Crown by operation of the Act without court order: see French v. O'Connor (an unreported decision of Northrop, J. on 23 May 1985); Pearce v. Button (1985) 8 F.C.R. 388, 404-6, a decision of Pincus, J. sitting in the Federal Court. Insofar as those provisions did in this case achieve any forfeiture they did so without the need for any order.

151. I can see no sensible reason why money so forfeited should not be taken into account, upon the same basis as pecuniary penalty orders and confiscatory orders and the like may be taken into account for the purpose of sentencing. The weight to be given to the forfeiture in the sentencing synthesis is, as was pointed out in Allen, supra, at 57 -

"... an entirely different matter. Often it may be entitled to little weight. But if, for example, the crime was one involving a fraud of some millions of dollars, it might be seen to have some real relevance when sentencing to be aware that a confiscation order had been made that was likely to be effective in the recovery of the amount of the fraud."

The degree of hardship imposed by the forfeiture is likely to be relevant. In some cases, as Pidgeon, J. observed in Wignall, supra, at 56 -

"... forfeiture of a particular sum would be no hardship to the offender and the sum forfeited in some instances may be no more than profit from the particular crime. In the present case it was an amount obtained by the applicant to further a crime as distinct from being obtained from a crime. The applicant's position is such that its loss would be a very significant one. In the final analysis one must look at the ultimate sentence in the light of the fact that, in the circumstances of this case, the applicant has forfeited $15,000 out of his own moneys, or has become liable to repay it if he had borrowed it."

These remarks were apparently accepted in Whitnall, supra, at 125.

158. 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.

161. Since I am of opinion that it falls to this Court to re-sentence the applicant Greig, I find it unnecessary to deal in any detail with grounds 2 and 4 of his application for leave to appeal against sentence. I should say, however, without elaboration, that I regard the findings complained of as having been open. Leaving aside the sentencing error identified in ground 3, I am unpersuaded that the sentence imposed on Greig was outside the permissible range. I turn to the awkward task of re-sentencing.

164. In sentencing Greig and Campbell the learned judge treated as what he called "the sign post" the sentence that had been imposed by this Court on Carey on 13 November 1997 after allowing his appeal against sentence: [1998] 4 V.R. 13. Carey had been originally sentenced to be imprisoned for eight years with a minimum term of five and a half years. The judge had thought that, but for Carey's promise of future assistance to the authorities, (it will be recalled that he ultimately gave evidence in Greig's trial) the appropriate sentence would have been one of 12 years' imprisonment. This Court considered that starting point to be excessive by two years. The Court agreed, however, that Carey's co-operation warranted the same discount of four years in all that the sentencing judge would have allowed. Carey was therefore re-sentenced to be imprisoned for six years and a minimum term of three-and-a-half years was fixed.

167. In sentencing Greig and Campbell the judge did not distinguish between their roles, treating their degree of criminality as about equal. I should not disagree with that. His Honour concluded further that the roles of Greig and Campbell in the exercise were rather less central than that of Carey. Again I should not disagree. His Honour proceeded on the footing, again no doubt correctly, that neither Greig nor Campbell was entitled, as Carey had been, to a discount for co-operation with the authorities. Greig was, however, as his Honour concluded, entitled to some discount because his conduct and that of his counsel (presumably on instructions) very much shortened the trial. His Honour said that it was "appropriate to reduce the sentence somewhat because of the financial savings to the community as a consequence of the way in which the trial was conducted". Campbell was, of course, entitled to a reduced sentence on account of his plea of guilty.

170. The sentence of 10 years that this Court considered to be the appropriate sentence for Carey "... absent future co-operation and adjusted for the provisions of s.16G [of the Crimes Act 1914 of the Commonwealth, taking account of the abolition in Victoria of remissions] was one of 10 years and no more": p.19. The notional sentence of 10 years, after giving credit for Carey's plea of guilty and past co-operation, was equivalent to a sentence of 15 years which was subject to remissions. Greig's sentence of nine and a half years was equivalent to a sentence of about 14 years if remissions had been available. The difference between Carey's notional sentence of 10 years, discounted for all but future co-operation, and Greig's sentence, having regard to his lesser role and a discount for the conduct of the trial, is only six months. This appears to me to give an unduly modest effect to the difference between the roles of Carey and Greig and to Greig's co-operation at the trial. It is impossible to be too precise about this but, giving those two factors due weight, and taking account of the likely penal impact on Greig of a forfeiture of money, I would propose that he be re-sentenced to be imprisoned for eight and a half years and that he be ordered to serve a minimum term of six years before becoming eligible for release on parole.

173. Campbell's grounds of his application for leave to appeal against sentence are these -

"1. Severity of sentence. 2. The learned sentencing judge erred in finding that the applicant knew there had been previous importations by the same organisation."

As in the case of Greig, I am unable to discern any manifest excess which would sustain the first ground, assuming that to be the complaint. The learned judge took carefully into account all the matters personal to Campbell that were urged on his behalf, and I think that the sentence imposed was within the available range. Again, as in the case of Greig, I consider that the judge was well entitled, having regard to the content of the recorded telephone conversations, to make the finding of which ground 2 complains. I would not, therefore, uphold either of the grounds taken. Campbell did not complain of insufficient disparity, having regard to their respective pleas, between his sentence and Greig's. As the sentences stood, that point was hardly open. In the light, however, of my proposal for Greig's re-sentence, I have asked myself whether Campbell might now have a legitimate sense of grievance if, notwithstanding his plea of guilty, the discrepancy between the sentences were reduced from 18 months to six months only. After consideration, I have concluded that the two factors in Greig's favour that Campbell does not enjoy, namely the co-operation at the trial and the likely impact of a forfeiture - justify the relatively slight discrepancy of only six months. It might be thought faintly ironic that Greig has had the benefit of the former of those factors because he chose to plead not guilty whereas Campbell, having pleaded guilty, was denied a similar benefit. As against that, however, it may be said that the Crown case against Greig was somewhat less strong than that against Campbell, whose plea of guilty was entitled in the circumstances to a rather modest weight.

178. In the result I propose that Greig's application for leave to appeal against conviction be dismissed, that his application for leave to appeal against sentence be allowed with the result I have indicated, and that Campbell's application for leave to appeal against sentence be dismissed.

183. In my view, for the reasons given by Tadgell, J.A., Greig's application for leave to appeal against conviction should be dismissed, his application for leave to appeal against sentence should be allowed and he be re-sentenced as proposed by his Honour. Campbell's application for leave to appeal against sentence should be dismissed.