Ground 9
The trial miscarried as a result of inadequate Counsel for the Appellant
48 Two distinct matters are relied on as, so it is said, demonstrating the inadequacy of Counsel's conduct of the trial. The first is the failure of counsel to challenge the admissibility of the evidence as to the transmission of the moneys to Racerullo and Bosca on the ground of the time at which the moneys were transmitted. As has been said, there was a challenge to the admission of the evidence concerning the Bosca monies on another ground.
49 What I have said above in considering grounds 3 and 3A provides a sufficient answer to this suggested demonstration of inadequacy. However there is another. For the course of the trial indicates that the failure to challenge the admissibility of the evidence as to the transmission of moneys to Racerullo and Bosca on the ground of the time at which the moneys were transmitted is capable of explanation by the possibility of forensic advantage. In these circumstances, it is impossible to say that the decision created or contributed to a miscarriage of justice.
50 In this regard there was an affidavit sought to be read on behalf of the Appellants in which it was said that "it was the intention of trial counsel to avoid any reference to (the timing of the receipt of the monies in Europe as showing they could not have been used to purchase the cocaine) to set up a so-called "killer point" that was unanswerable by the Crown". The point was in fact made forcefully in the cross-examination of Detective Critchlow when he was recalled as the last witness.
51 According to the remarks of Gaudron J [at 27], Hayne J [at 107-108] and Gummow J [at 101], in TKWJ v R (2002) 193 CLR 7 the passage just quoted was inadmissible. Her Honour said:-
One matter should be noted with respect to the question whether counsel's conduct is explicable on the basis that it resulted or could have resulted in a forensic advantage. That is an objective test. An appellate court does not inquire whether the course taken by counsel was, in fact, taken for the purpose of obtaining a forensic advantage, but only whether it is capable of explanation on that basis.
52 It is unnecessary for this Court to consider whether that is the last word on the topic. Gleeson CJ - see [8-10] did not obviously agree. McHugh J did not advert to the topic although his Honour referred, without disapproval, to Ignjatic (1993) 68 A Crim R 333 where an affidavit indicating that tactical decisions were the reason for some courses of action was received - see at p338 - and to that evidence - see at [81]. Nor do any of the judgments in TKWJ v R indicate that the issue was there the subject of argument.
53 Here, as has been said, quite apart from the affidavit, the course of the trial indicates that the failure to raise the time of transmission as a ground for challenging the admissibility of the evidence presently under consideration is capable of explanation by the possibility of forensic advantage. Accordingly the first aspect of this ground fails.
54 The second particular arose from the terms of a formal admission, headed "Statement of Agreed Facts" and which became Exhibit A. Its terms included the following:-
"1. On 19 November 1999 the Accused Cerullo attended the Mid City Flight Centre, Sydney. She was in the company of Mr Szelenczy. The Accused tentatively booked a flight for Szelenczy to travel from Sydney to Frankfurt to Budapest to Frankfurt and back to Sydney. She paid a deposit of $100.00. She gave out her contact number as 0415 910 469.
2. On 23 November 1999 the accused, Toni Raffaella Cerullo ("Cerullo") made an international booking for herself and the co-accused, Dimitrios (Jim) Soukoulis ("Soukoulis") to travel to Frankfurt, Germany with STA Travel in Swanson Street, Melbourne.
3. …
4. When making this booking Cerullo left a non-refundable $100 deposit. Cerullo left her telephone number 0413 707 390.
5. …
6. …"
55 It was submitted that reasonably competent Counsel would not have advised the Appellant to make the admission in paragraph 1 which, it was asserted, was wrong in that:-
(a) The booking was not for Szelenczy alone but for him and his wife;
(b) At some unstated time the booking was changed to Szelenczy alone;
(c) The first Appellant was not involved in the changing of the booking;
(d) The contact number was simply a contact number in relation to the booking and not the first Appellant's contact number; and
(e) The contact number belonged to Szelenczy.
56 The Court's attention was drawn to a statement by a Ms Griffiths of 28 January 2000 which was apparently included in the Crown brief and on which part of the Statement was based. She was the employee of Flight Centre with whom the booking was made. It was also asserted that apart from a warrant under Section 45 of the Telecommunications (Interception) Act 1979, which identified the service 0415 910 469 as belonging to Mr Szelenczy, there was no other evidence available to be called at trial as to Ms Griffiths' involvement or as to the ownership of the mobile phone mentioned in the admission.
57 What the statement of Ms Griffiths said concerning the phone number given to her at the time of the booking was, "The female also gave me a contact number of 0415 910 469". Ms Griffiths said also that the tentative booking was for Mr Szelenczy and his wife although Ms Griffiths went on to say that "she was not sure whether the wife could obtain holidays at that stage. However, Mr Szelenczy was definitely going".
58 Although it would clearly have been more appropriate for the admission to follow the terms of Ms Griffiths' statement, using the expression "a contact number" instead of "her contact number", in context the difference was, in my view, immaterial, particularly given the reference to "her telephone number" in paragraph 4. Furthermore, there was, as was no doubt to be anticipated, other evidence in the trial as to phone numbers. As recorded it was that the phone number of Ms Cerrulo's mobile phone was 0413 703 390 and that of Mr Szelenczy was 0415 912 469. Each of these is one digit different from the corresponding number in the Statement of Agreed Facts but is calculated to make clear whose number was given at the time of the booking of Mr Szelenczy's flight.
59 It was also submitted that the absence from the Statement of any reference to the tentative booking having been made for Mrs Szelenczy was calculated to diminish the weight of an argument that Mr Szelenczy's trip was of an innocent nature, one in which it was originally planned that his wife would participate. However, evidence of such a booking, later cancelled, is hardly compelling.
60 The counsel who had appeared at trial were not called and there was no evidence put before the Court as to why the Statement took the form that it did. I am prepared to assume that there was no justification for the departures from Ms Griffith's statement to which I have referred. If so, the departures should not have occurred and counsel was at fault. However the fault does not come close to that of such a serious nature as would lead to the conclusion that there has been a miscarriage of justice - se R v Birks (1990) 19 NSWLR 677 at 685.
61 In support of this ground, counsel for the Appellants sought, as I have said, to read an affidavit. It was by a barrister, Mr Wayne Baffsky. Mr Baffsky deposed to, inter alia, having an extensive criminal practice and of having read the transcript and many, if not all, of the documents in the case. Mr Baffsky opined that
"It was deficient of trial Counsel not to rely upon the later receipt of the Racerullo monies and the Bosca monies in Germany
"reasonably competent Counsel should have sought to have applied to have the Jury discharged or to have the Racerullo monies and the Bosca monies withdrawn for the Jury's consideration" and
"reasonably competent counsel should not have advised the Appellant(s) to make the admission (contained in the Statement of Agreed Facts)".
62 The Crown objected to the affidavit. The Court said that it would decide the question of admissibility in these Reasons.
63 I have already indicated that a passage wherein Mr Baffsky records that it was the intention of trial counsel to avoid any reference to the timing of the receipt of the monies in Europe as showing they could not have been used to purchase the cocaine so as to set up a so-called "killer point" that would be unanswerable by the Crown, was, in light of the remarks in TKWJ v R , inadmissible. The balance of the affidavit, which consisted of the opinions I have quoted and material which formed the basis for those opinions should also be rejected. Section135(c) of the Evidence Act (NSW) provides the basis for this conclusion:-
The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:
(a) …
(c) cause or result in undue waste of time."
64 This Court has more than sufficient experience to make a judgment as to whether counsel's conduct in the trial, which had no particularly unusual features, was reasonable or within the range of what reasonably competent counsel would or might have done. In the circumstances of the case the Court does not need and would not be assisted by the opinion of some practitioner on the issues to which Mr Baffsky's opinion goes. Indeed, although I need not decide this now, I find it difficult to conceive of a case where evidence such as that given by Mr Baffsky would be of assistance to this Court. Even if there were no cross-examination - and the Crown in written submissions reserved its rights in this regard should the Court admit the evidence - the time taken to consider, and probably refer in the Court's reasons to Mr Baffsky's evidence might not be great but, as the evidence would not assist, that time would still be an undue waste.
65 This ground also fails.
66 It follows from what I have said that the Appeals against conviction should be dismissed. This conclusion makes it unnecessary to consider the application of the proviso to s6 of the Criminal Appeal Act.
67 Ground 10
The sentence imposed upon the Appellant was manifestly excessive.
68 The principal argument advanced in support of the application for leave to appeal against sentence was that her Honour had arrived at wrong conclusions as to the role of the Appellants in the importation and in particular as to the relative criminality of the Appellants and Mr Szelenczy.
69 The latter had been sentenced to imprisonment for a period of 9 years with a non-parole period of 5 years. An appeal to the Court of Criminal Appeal was dismissed - R v Szelenczy [2001] NSWCCA 75. There is nothing in the report of the Court of Criminal Appeal to suggest that that Court or the primary judge took a different view of Mr Szelenczy's role from that suggested above and that taken by Judge Hock.
70 Mr Szelenczy had however a number of subjective circumstances in his favour which the Appellants do not have. He had pleaded guilty at an early stage and was regarded as exhibiting remorse and contrition. He was in a serious state of ill health, both physical and psychological, and an alcoholic. He had sought treatment for drug and alcohol problems while in custody and was making genuine efforts to resolve his problems. Nevertheless, Szelenczy had committed the offence for monetary gain.
71 The Appellants on the other hand had earlier established themselves in a successful pasta restaurant and were regarded as intelligent and capable business persons whose only motivation was greed. More significant for present purposes were findings of her Honour recorded in the following passage:-
"On the evidence I am satisfied beyond reasonable doubt that these two offenders were involved in the importation from the early stages to its conclusion and that they were superior to Szelenczy in the criminal enterprise to import this drug into Australia.
I am satisfied beyond reasonable doubt they were principals overseeing Szelenczy who was himself no mere courier. I base these findings on the following evidence: the recorded telephone calls in which these offenders gave instructions to Szelenczy; the transfer of the $50,000 to Frankfurt; the booking of Szelenczy's flight by Cerullo and the fact that she travelled to Frankfurt; and finally the fact that these two offenders distanced themselves from the actual parcel containing the drugs.
In arriving at this finding I have not overlooked the transcripts of the telephone calls between Szelenczy and others not these two offenders tendered at the trial and on sentence. That material is capable of giving rise to an inference that Szelenczy may have also had a role in the subsequent distribution of some or all of the cocaine but that does not detract from the conclusion I have come to that these two offenders were the financiers and the brains behind the importation."
72 A number of these findings were challenged. In particular, it was submitted that her Honour erred in finding that the role of the Appellants was superior to that of Szelenczy, and that in fact there were not recorded telephone calls in which the Appellants gave instructions to Szelenczy, that the Appellants did not distance themselves from the actual parcel containing the drugs and, even if they did, that does not support the conclusion that her Honour drew from such a finding.
73 I agree that there were not recorded telephone "calls" in which the Appellants gave instructions to Szelenczy. The Crown was only able to point to one such conversation, one on 18 December 1999 at 1835 hours and my perusal of the transcripts of the calls leads me also to the view that this was the only one. Her Honour's reference to "calls" was erroneous although the one to which I have referred provides significant support for her Honour's conclusion.
74 I am inclined to agree also that such evidence as there was that the Appellants distanced themselves from the actual parcel containing the drugs does not support the conclusion that the Appellants were in a position superior to that of Szelenczy. Having apparently been at Szelenczy's premises at the time of delivery, their immediate departure argues as much for him being in a superior role as it argues for the reverse. Of course, Szelenczy's retention of the parcel is consistent with either him having a superior role in the importation or being more closely involved with the subsequent sale or distribution of the drugs.
75 There were other factors. The number of conversations between one or other of the Appellants and Szelenczy in the days immediately prior to the arrival of the drugs on the topic of their delivery demonstrates a great interest in the consignment. However, the Appellants' apparent position as financiers might be an explanation for that and while Szelenczy's informing the Appellants of the parcel's arrival and their attendance at his flat argues for their interest being substantially more than minor, even in conjunction with their almost immediate departure, it does not argue for their role being greater or higher than Szelenczy's was.
76 There was however one further aspect of the events occurring at about the time of delivery to which her Honour did not refer, but might well have. The presence of the money on the same table as the drugs and in Mr Szelenczy's hand at the time of the police raid on his flat argues for the conclusion that it had been paid to him by one or both of the Appellants, perhaps for the successful conclusion of the importation.
77 It was further submitted that her Honour's findings that the money sent to Frankfurt was used in some way to finance the importation and that the Appellants were the brains behind the importation were findings not open to her Honour. The first of these has been sufficiently answered by what has been said when I was considering grounds 3 and 3A. The second is amply supported by the evidence as to what the Appellants on the one hand, and Szelenczy on the other, did.
78 Finally, it was submitted that "following the successful appeal in Wong v R (2001) 207 CLR 584, it is no longer appropriate to sentence an offender convicted of being knowingly concerned in the importation of narcotics by reference to the weight of the particular narcotic. It is appropriate to have particular regard to the role played by the Appellants in the importation".
79 The second of these propositions has been dealt with. The first is wrong. In Wong v R members of the High Court criticised what they saw as undue emphasis on quantity but no one suggested it was irrelevant. Thus at [64], Gaudron, Gummow and Hayne JJ said, "In general, however, the larger the importation … the heavier the punishment that would ordinarily be exacted". See also [31], [70], [129-130].
80 No error has been shown in the sentence her Honour imposed. I would grant leave to appeal against sentence, but dismiss the appeal.
81 BUDDIN J : I have had the advantage of reading in draft form the judgment of Hulme J. I respectfully agree with the orders which his Honour proposes. I am in substantial agreement with what his Honour has said in relation to Grounds 3 - 10 and wish to add only some brief observations concerning Grounds 9 and 10. As I have come to a different view as to how Ground 2 should be disposed of, it will be necessary for me to state my reasons for having done so.