R v KADDOUR

Crown: S Kavanagh SOLICITORS: Appellant: Galloways

IN THE COURT OF CRIMINAL APPEAL 2002/2502

HULME J BARR J BUDDIN J

Friday, 2 September 2005 R v Khalid KADDOUR Judgment 1 THE COURT: On 5 February 2001 Khalid Kaddour was arraigned on four charges. In summary they were: 1. That between 1 January and 25 August 1996 at Brookvale and elsewhere he did knowingly take part in the manufacture of a prohibited drug, namely 3/4 - methyl-dioxemethylene amphetamine in an amount not less than the large commercial quantity for that drug. 2. That between 1 January and 25 August 1996 at Brookvale and elsewhere he did knowingly take part in the manufacture of a prohibited drug, namely 3/4 - methyl-dioxemethylene amphetamine in an amount not less than the commercial quantity for that drug. 3. That between 2 April and 26 August 1996 he did knowingly harbour Atilla Koller, an escaped prisoner. 4. That between 18 May and 26 August 1996 he did maliciously damage unit 4/42-44 Chard Road, Brookvale, the property of two named persons. 2 "3/4 Methyl-dioxemethylene amphetamine" is commonly referred to as MDMA and known as "ecstasy". 3 So far as the charges against the Appellant are concerned, on 10 April 2001 a jury returned a verdict of not guilty in the case of the first, second and third counts but a verdict of guilty to the fourth count and also a verdict of guilty in respect of the statutory alternative under Section 24(1) of the Drug (Misuse and Trafficking) Act, viz taking part in the manufacture of some quantity of the specified drug. 4 Pursuant to Section 32 of the Act the Appellant's conviction on the alternative charge rendered him liable to imprisonment for 15 years and a fine of 200 penalty units. His conviction on the fourth count rendered him liable to imprisonment for a maximum of 5 years pursuant to Section 195(a) of the Crimes Act. 5 On 17 May 2002, i.e. more than 12 months after the jury's verdicts, Judge Woods sentenced the Appellant in respect of his drug conviction to imprisonment for 5½ years including a non-parole period of 3 years and 5 months both such periods to commence on 2 March 2003. In respect of the malicious damage charge, the Appellant was sentenced to imprisonment for 1 year also from 2 March 2003 and in respect of this charge Judge Woods declined to set a non-parole period. 6 The particular commencing date was chosen because the Appellant had previously been sentenced to imprisonment including a non-parole period which expired on 2 March 2003 in respect of an offence of dangerous driving occasioning grievous bodily harm. 7 Two other persons were arraigned with the Appellant. One was a Mr Altaf Bhanji who faced counts for all practical purposes identical with the first 3 faced by the Appellant. Mr Bhanji was acquitted on all of these counts and also on the statutory alternative involving some quantity of drug. 8 The second co-accused was a Mr Bassam Turkmani who faced 4 counts identical with those on which the Appellant was arraigned. On or about the 35th day of the trial Mr Turkmani pleaded guilty to the statutory alternative and indicated that he would accept responsibility for the offences the subject of the 3rd and 4th counts if these were included on a Form 1. The Crown accepted this course in full discharge of the indictment against him. 9 The grounds of appeal advanced on behalf of the Appellant have been something of a moving feast but ultimately there were eight against conviction and 6 against sentence. The grounds of appeal against conviction were:- 1. The trial judge erred in his directions on the meaning of taking part in the manufacture of a prohibited drug. 2. The trial judge erred in admitting evidence that the Appellant secreted two keys belonging to him and then denied this when questioned by police 3. The trial judge erred in his directions to the jury regarding the manner in which the jury should approach the evidence the subject of ground 2 above, that is the evidence that the Appellant secreted two keys belonging to him and then denied this when questioned by police. 4. The directions given by the trial Judge on the question of impossibility or incompetence, that is whether the process in which the Appellant was allegedly involved was capable of producing MDMA, were erroneous. 5. The directions given by the trial judge on the issue of joint criminal enterprise, were inadequate. 6. The verdict of the jury on count 4 in the indictment alleging malicious damage to property is unreasonable having regard to the evidence. 7. The trial miscarried by reason of the prejudicial impact of adverse media publicity relating to the Barrister appearing for the Appellant being published during the trial proceedings. 8. The trial proceedings miscarried by reason of the fact that one of the members of the jury was a person who knew the Appellant and knew of adverse information regarding the Appellant's character and reputation. 10 It will be necessary in due course to consider the extent to which the Appellant should be permitted to rely on some of these grounds. 11 The charges against the Appellant arose in the following circumstances. On 24 August 1996 a factory warehouse being Unit 4/42-44 Chard Road, Brookvale was the subject of video camera and police surveillance. At or soon after 4.10am on the following morning the premises were observed to be on fire. According to some evidence this had been preceded by an explosion. The fire brigade attended as did police who found that a laboratory had been set up in what may be called the facilities area of the ground floor of the premises. That facilities area was divided into 3 rooms. A door from the main part of the ground floor opened into the central room which contained a sink and fridge and was the main area affected by the fire. To the east of this and entered via a doorway from the centre room was another containing a toilet and a shower cubicle. To the west of the centre room was the third of the 3 rooms and it was in this room that the laboratory was set up. 12 A hole something of the order of 3 feet square had been made in the floor of the shower cubicle and the concrete slab underneath and an area below, approximately 3 metres square, had been excavated and a cement floor and walls of bricks and Besser blocks constructed in the excavation. It was this hole and excavation which was the subject of the 4th charge against the Appellant. 13 It will be necessary in due course to describe in some detail this laboratory. It is sufficient for the moment to say that there was unchallenged evidence that, apart from possibly being incomplete in one or more respects, the equipment was of a nature appropriate for the manufacture of MDMA and there were chemicals there, at least some of which could have been used for that purpose. There was evidence that MDMA was found although the amount was unquantified and may have been very small. 14 The principal witness called for the Crown was a Mr Koller who had previously been sentenced for involvement in the manufacture of MDMA in the operation the subject of the charges against the Appellant and who had agreed to give evidence against the Appellant and his co-accused. He received a discount in his sentence for doing so. It was common ground that Mr Koller had prior experience in the manufacture of MDMA. Indeed between 1994 and early 1996, when he failed to return to prison from day release, he had been serving a sentence for a similar offence. Mr Koller gave evidence of a number of conversations with the Appellant directed to the topic of manufacture of MDMA, the taking of preparatory steps in that regard, the inspection with the Appellant of a number of premises in the course of finding some suitable, that it was the Appellant who chose those in Chard Road, that he and the Appellant excavated under the shower recess, the commencement of manufacture in a rented hotel room and then of further steps in manufacture occurring at Chard Road during which the Appellant was present "and basically doing it together" . 15 Unsurprisingly, during the Appellant's trial Mr Koller's credibility and reliability was the subject of sustained attack and this on a number of accounts. In fact in his summing up the trial judge warned the jury about danger in Mr Koller's evidence on four bases, viz. that he was an accomplice, that the evidence suggested Mr Koller was mentally disordered in some way, that there were immigration issues which might have impacted on his reliability and the latter may also have been affected by his own sentence situation. 16 There was however a deal of other evidence tending to incriminate the Appellant. This included evidence that he was involved in the selection of the premises although the lease was taken in Mr Bhanji's name, that the Appellant was at the premises on occasions, that he was involved in the obtaining of an item of equipment, unusual and suited to the manufacture of MDMA found in or adjacent to the laboratory, that his fingerprints were on a number of documents found in the premises including a recipe for MDMA found in the laboratory and that he had sought to conceal his possession of keys to some of the doors of the premises. 17 We have described the grounds of appeal as something of a moving feast. The Notice of Appeal was filed on 31 May 2002. It was against conviction and sentence and stated as the Grounds of Appeal, "To be advised once the full transcript becomes available". 18 Records of proceedings before one of the Court's registrars on 22 July 2002 notes that the transcript was still awaited. No-one seems to have questioned why reliance could not be placed on the transcript which must have been used during the trial or why, if an appeal was to be initiated, any portions of the transcript such as the addresses and summing-up which are normally not prepared until after an appeal is lodged, were not pursued in the 12 months between verdict and sentence. Be that as it may, correspondence during August and the cessation of correspondence on the topic thereafter seems to indicate that this problem was sorted out at about that time and on 9 September 2002 an Associate's Records of Proceedings - one may infer indicating a direction given - for the first time records "GOA (presumably grounds of appeal) 11/10". The document also records that the Appellant's solicitors were to "chase Reg re EXH" and that Mr Odgers was briefed. The matter was stood over for mention on 14 October. 19 Between 9 September 2002 and 30 June 2003, the matter came before a registrar on no less than 5 occasions when again grounds of appeal were directed to be filed by nominated dates. None having been filed, on 24 July the matter came before Greg James J for summary dismissal or directions. 20 An affidavit of the Appellant's solicitor filed in connection with the proceedings before Greg James J indicated that Mr Odgers had been briefed to advise and appear on the appeal, that in October 2002 he had identified a number of grounds of appeal but that he also wished to obtain a copy of the final address of the Crown at the trial. The affidavit indicated that this had become available prior to 28 April 2003. The affidavit also referred to other causes of delay including the provision of information since January 2003 which may have led to the possibility of fresh evidence being available. Greg James J adjourned the matter until 10 December, also ordering that Grounds of Appeal and submissions (of the Appellant) be filed no later than 13 October 2003. 21 The Court file does not seem to contain any document of about that time constituting simply "Grounds of Appeal". However, on or about 26 September 2003, written submissions on behalf of the Appellant and purporting to be prepared by Mr Odgers were filed which did refer to 3 Grounds of Appeal. For convenience we will label them (a), (b), and (c):- (a) The trial judge erred in his directions regarding taking part in the manufacture of a prohibited drug. (b) The trial judge erred in admitting evidence that the appellant secreted two keys belonging to him and then denied this when questioned by police. (c) The trial judge erred in his directions regarding the evidence that the appellant secreted two keys belonging to him and then denied this when questioned by police. 22 The document also contained a heading "Appeal against Sentence" and 4 paragraphs dealing with that topic. Only two or, depending on approach, possibly three reasons were advanced in criticism of the sentence imposed or of the trial judge's approach in that regard. 23 On 9 December 2003, a document entitled "Additional Grounds of Appeal" was filed. It contained 3 further grounds which we will also label:- "(d) The directions given by the Learned Trial Judge on the question of impossibility or incompetence, were erroneous. (e) The directions given by the Learned Trial Judge on the issue of joint criminal enterprise, were inaccurate. (f) The verdict of the jury on count 4 in the indictment alleging Malicious Damage to Property is unreasonable having regard to the evidence: s6 of the Criminal Appeal Act, 1912." 24 Written submissions in support of those grounds were filed on the same day. 25 On 10 December 2003 when the matter was listed to proceed, it was adjourned, 3 grounds being advanced on the Appellant's behalf to that end, viz:- The possibility of new evidence (from Mr Bassam Turkmani, a co-accused, and another person) suggesting the Appellant's innocence. The unavailability of Mr Byrne SC to lead Mr Odgers SC. It was asserted that Mr Byrne's unavailability had precluded the preparation and filing of additional grounds of appeal and submissions in support until 9/12/03. The absence of the Appellant due to errors by the Corrective Services Department had to be adjourned because the Appellant was not present. 26 That an adjournment would be sought had been foreshadowed in a letter of 4 December from the Appellant's solicitor advising of the first 2 of these matters and asserting that more time was required to properly present the appeal. 27 On that day the Court made orders that any affidavits to be relied on as fresh evidence and any submissions in relation to that evidence were to be filed and served by 6 February 2004. An Associate's Record of Proceedings before a registrar on 23 February records "no fresh evidence to be filed now". ` 28 On 15 June 2004, there was filed a document entitled "Consolidated Grounds of Appeal". It repeated the grounds we have labelled (a) to (f) and added what was described as a "Further Additional Ground filed 15 June 2004" and 6 "Grounds of Appeal on Sentence". These grounds of appeal encompassed the 2 or 3 aspects of the sentencing complained of in the submissions of 26 September 2003. The further ground of appeal against conviction, which we label, was in terms:- "(g) The trial miscarried by reason of the prejudicial impact of adverse media publicity relating to the barrister appearing for the Appellant being published during the trial proceedings." 29 The matter had been listed for hearing on 18 June 2004. On 17 June those acting on behalf of the Appellant provided the Court with some notification of the matters which in due course were encompassed by the eighth ground of appeal (which they said had only recently come to the attention of the Appellant or themselves), asked that the appeal not be dealt with to finality until those matters could be investigated but said "An adjournment of the proceedings tomorrow is not sought on behalf of the Appellant". Unsurprisingly, the proceedings were adjourned. The first formal articulation of the eighth ground of appeal was in a further version entitled "Consolidated Grounds of Appeal" filed on 24 August 2004. 30 Between 18 June 2004 and the hearing to the appeal in May of this year, there were a number of hearings before the Court or a Judge directed to the Appellant having available the evidence on which he wished to rely in support of ground 8 and there is no delay on the part of the Appellant or his advisers during this period which can be held against him. There have also been filed at various times a number of documents repeating the contents of those to which we have referred. 31 Except insofar as may be implicit in directions as to the filing of grounds of appeal or in the adjournment of proceedings, no leave or extensions of time to file or add additional grounds of appeal seem ever to have been sought or obtained. Furthermore, although the differences are not great, those acting on the part of the Appellant seem not to have troubled themselves to ensure that a ground of appeal, once enunciated, took the same form thereafter. 32 It has been submitted by the Crown that, in light of this history, the Court should not permit the Appellant to rely on Grounds 4 to 8 of the Grounds of Appeal against Conviction or on the Grounds of Appeal against sentence, numbered 1, 2, 4 and 5. In this connection the Crown referred the Court to remarks of Hodgson JA in R v Gregory [2002] NSWCCA 199 at [38] - [45] and to R v Bayliss [2002] NSWCCA 11 where the Court referred with approval to what was said by Nagle CJ at CL and Yeldham J in Regina v Lawrence [1980] 1 NSWLR 122 at p 148, inter alia that: - "On many occasions it has been observed by Courts of Criminal Appeal, that intending appellants should not assume that delays in filing notices of appeal or applications for leave to appeal, and especially considerable delays, will automatically be excused. See for example R v Sunderland , R v Tyrell , and R v Waterhouse . This Court takes the opportunity to emphasise again that it should not be assumed that a failure to give notice to appeal, or notice of intention to appeal, or to furnish proper grounds of appeal within time will be excused. 33 In R v Gregory, at [38] - [45], Hodgson JA, with whom the other members of the Court agreed, pointed out that whether an extension of time should be granted to an appellant depended to a great extent on what justice required but that considerations of justice were not confined to the situation of an appellant but must take into account also the interests of the Crown (and the community represented by the Crown), and of the administration of law generally and that one factor relevant was whether the alleged error, if established, would mean that an appellant would be entitled to an acquittal as of right, or merely to a new trial. If the latter were the case, the question would arise whether such a new trial would be fair to both sides. Other factors included the degree of future harm arising from a wrongful conviction, the possible deprivation of compensation for a wrongful conviction and past punishment and damage to reputation. 34 It is not difficult to excuse the formulation of grounds prior to the transcript of the trial becoming available and, if the events the subject of that ground only came to the notice of the Appellant shortly before 18 June 2004, the late notification of the eighth ground. However since about October 2002 those acting on behalf of the Appellant seem simply to have not bothered to comply with the rules or with directions of the registrars and to have made the assumption of which the Court disapproved in Regina v Lawrence. 35 No explanation for the magnitude of the defaults was proffered during the hearing of the appeal. However, following the hearing of the appeal, counsel appearing for the Appellant filed with the Court some further submissions directed to explaining or excusing the conduct to which reference has been made. In an introductory paragraph reference is made to comments by the bench during the hearing of the appeal directed to these topics and to the effect that these had not been addressed in submissions filed on behalf of the Appellant. The principal matters raised in these further submissions were:- (i) "that some time after the original submissions were filed, in about November 2003, there was a change in the representation of the appellant which led to a review of the grounds on which the appeal … would be based"; (ii) that after that initial change there were later developments leading to the addition of grounds 7 and 8; (iii) that on 10 December 2003 and 12 October 2004 the Appellant was not brought to Court due to an administrative mix-up and "on each occasion it was felt necessary for the matter to be re-listed in order that the appellant could be present"; (iv) that "the appellant himself raised the matters which are the subject of grounds 7 and 8 … and which might be seen to have contributed significantly to the delays which have occurred in this matter"; (v) that "until very recently, the appellant has been held in custody at Goulburn in conditions which make communication with him particularly difficult. He is given restricted access to the telephone and any visit necessarily occupies a significant amount of travelling time on the part of his legal advisers; (vi) that "the history of proceedings in RPS v R (2000) 199 CLR 620 and Fingleton v R [2004] HCA 380 demonstrate that if it is in the interests of justice to do so, considerable latitude can be given to an Appellant to permit expansion of the grounds of appeal to be relied on beyond those nominated in the original Notice of Appeal"; (vii) "the late development of the Grounds of Appeal should not stand in the way of their merit being considered by the court. If they are considered to have merit, then it is submitted leave should be granted to rely on them. If they are not considered to have merit, then it does not affect the appellant in any material way whether leave is refused or whether leave is granted and they are dismissed." and (viii) "To the extent that it is relevant to the question of compliance with the rules of the court, the Appellant relies on the terms of Rule 76 of the Court of Criminal Appeal Rules". 36 Rule 76 provides:- "Non-compliance by an appellant with these rules, or with any rule of practice, shall not, unless otherwise ordered by the Court or a judge, prevent the appeal being prosecuted, but the Court or a judge may make such amendments and give such directions as may be required." 37 In submissions in response the Crown opposed leave being given to the Appellant to rely on the post-hearing submission, pointing out that the topic of delay had been raised in written submissions of the Crown in June and October 2004 and submitting "there can be no adequate reason, and indeed none has been proffered, for the appellant failing to address the issue of delay either before, or, at the latest, during the hearing of the appeal". With this submission we entirely agree. 38 However, the Crown also sought to answer the claims made on behalf of the Appellant on substantive grounds. We do not regard it as necessary to record all that was said in this regard but reference may be made to the following. In an affidavit of one of the officers of the Goulburn Correctional Complex there were annexed records of the Appellant's phone calls and visits by legal representatives. They show that between 30 January 2001 and 9 September 2004 a legal representative visited the Appellant on 136 different dates and between April 2004 and May 2005 the Appellant attempted 1,278 phone calls and of 223 attempted legal calls, 78 were of 10 seconds duration or longer. Twenty-five 25 lasted longer than 5 minutes. 39 Although it seems clear that the Appellant has had other legal problems in addition to those the subject of the present appeal the affidavit indicates that as a significant reason for the deficiencies in the preparation or presentation of the Appellant's case the suggested ground of difficulty of contact cannot be accepted. 40 After the Crown submissions counsel for the Appellant provided yet another set of submissions by way of reply. Adverting to the affidavit just mentioned these submissions in reply say, "There is a suggestion that the Appellant has changed his representation. All that the Appellant has done is to seek a second opinion". How this assertion can be reconciled with the statement in the first set of post-hearing submissions that "there was a change in the representation of the appellant" escapes us. 41 Having regard to the fact that we do not hold against the Appellant any delays since June 2004 it is unnecessary to refer to the Appellant's absence on 12 October 2004. However, while the Appellant's absence on 10 December 2003 was undoubtedly a cause of the matter being adjourned on that date, it was quite misleading for the submissions to refer to this topic only and not to the fact that, 6 days earlier, the Appellant's solicitor had advised the court that an adjournment would be sought and asserted that more time was required to properly present the appeal. 42 The fact that it was the Appellant who wished to, or insisted on pursuing, ground 7 is of no weight. The point sought to be raised by it was taken in the trial. It was presumably earlier a considered decision by the 2 senior counsel who advised on the appeal, and between them formulated the first 6 grounds, that the seventh should not be pursued. 43 The extent of the omissions and defaults on the part of the Appellant's legal advisers provide strong grounds, if the needs of justice do not require otherwise, for the Appellant not being allowed to rely on grounds extending beyond those encompassed within the submissions of September 2003. Even these were almost 12 months after it would seem the transcript (except the Crown address) became available to Mr Odgers. 44 Furthermore, of the grounds not included in the original three, the grounds we have numbered 4, 5, 7, and 8, if made out, are grounds which would in the ordinary course lead not to an acquittal being entered but to a new trial, and this now 9 years after the time of the suggested offending. 45 Although a final decision on the issue of whether the Appellant should be allowed to rely on the grounds additional to those first raised can be left until later in these reasons, it is appropriate to mention 3 further matters. Firstly, the Court was also informed - without dissent from those who need the Court's indulgence - that since the Appellant's trial Mr Koller has been deported. Secondly, during the trial, there was no request for any redirection along the lines of the further grounds now raised and thus the Appellant has to meet the obstacle created by Rule 4, viz:- "No direction, omission to direct, or decision as to the admission of rejection of evidence given by the Judge presiding at the trial, shall, without leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless the objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal." 46 Thirdly, we reject the submission of the Appellant to the effect that "the late development of the Grounds of Appeal should not stand in the way of their merit being considered by the court. If they are considered to have merit, then it is submitted leave should be granted to rely on them." The adoption of that simplistic approach would mean that one may as well ignore a number of the rules made for the orderly conduct of the appeal process, something in which all appellants and the community generally have an interest and ignore also the principle that, so far as possible, any re-trial should be fair to the Crown and the community it represents and not rendered unfair by unnecessary delay and the common consequences of delay including loss of recollection and records. As it turns out, we do not need to decide whether the Appellant should be allowed to rely on the further submissions. Even taken into account, they do not affect the conclusions at which the Court has arrived. 47 Against this background we turn to the Grounds of Appeal individually.

Ground 1 The trial judge erred in his directions on the meaning of taking part in the manufacture of a prohibited drug. 48 His Honour's directions relevant to this ground were in the following terms:- Now turning back to the question at the bottom of page 4, "Take part in the manufacture". The Crown is not required to prove that the accused or associates completed the manufacture of the prohibited drug, provided that all the other requirements of proof are satisfied. Any step which the accused knowingly took during the period mentioned in the charge and which he intended to be aimed at the prohibited manufacture, is sufficient. There is evidence in this case of an explosion of some kind and fire after which no Ecstasy pills or MDMA, if you believe that was the aim of the operation were actually created. You might think in interpolate, that as soon as the police were on the job with a camera outside the premises it was fairly unlikely that the exercise would ever come to any finalisation as far as the participants if there were more than one were involved. A step towards manufacture could involve for example, arranging the acquisition of ingredient chemicals, carrying chemicals or chemical equipment, or doing some other act of helping an associate in the manufacturing process. It is a matter for you to determine whether any such step was taken by any particular accused. However, I emphasise that no such preliminary step, could of itself amount to proof of an offence unless it was intentional, carried out with knowledge on the part of the accused that what he was taking part in was the intended manufacture of the prohibited drug 3/4 methylenedioxymethamphetamine as set out in the indictment, in the required quantity. As against Khalid Kaddour, the Crown alleges that the accused took a step in the process of manufacture principally by obtaining equipment, by assisting in excavating the cellar, by handling the recipe, by concealing Koller and otherwise. It is a matter for you to assess this evidence." 49 It was submitted that many of the actions referred to in this direction are properly to be characterised as preparatory rather than steps or actions in manufacture itself. 50 In that regard reliance was placed on the decision in BD [2001] 122 A Crim R 28. In that case this Court had to consider the situation of someone who was found driving a vehicle containing some thousands of Sudafed tablets, other chemicals and chemistry glassware. There was evidence that the most common method of making methyl-amphetamine illicitly involved the reduction of pseudoephedrine, one of the ingredients in Sudafed tablets and that the glassware found would be suitable for both extracting the pseudoephedrine and the process of manufacturing amphetamine. One of the chemicals found was appropriate for use in the process, a second could be if combined with another chemical not found and further chemicals would be needed for the manufacturing to be complete. The trial Judge had found that at a prima facie level the evidence was capable of establishing that it was BD's purpose or intention to use the chemicals and equipment to manufacture methyl-amphetamine but that the evidence did not establish that the appellant had taken any step in the process of manufacture. Indeed it was not established that apart from what was found in the Respondent's car there was anything which could be regarded as a process of manufacture in operation. In dismissing a Crown appeal under s5A(2) of the Criminal Appeal Act Bell J, with whom the other members of the Court agreed, remarked that:- "The acquisition and/or the transport of chemicals or equipment do not, without more , constitute steps in the process of manufacture. They are steps preparatory to the process of manufacture." (My emphasis.) 51 Her Honour distinguished an earlier decision in Thomas (1993) 67 A Crim R 308 pointing out that in that case, a process of manufacture had been underway. In Thomas, the Court had observed:- "It is to be noted that the outset that the concept of taking a step in a process of manufacture appears, in s6 of the Act, in a context which manifests a legislative intention that is inconsistent with any narrow or pedantic approach to the description of activities connected with bringing prohibited drugs into existence. Paragraphs (b) and (c) of s6 demonstrate that… Where, as the Crown alleged to be the case here, a person manufactures something with a view to going on to use it in the manufacture of a desired end product then it is normally proper to regard that as a step in the process of manufacturing the end product." 52 Section 6 of the Drug (Misuse and Trafficking) Act to which reference was made, provides:- "For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug if - (a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply; (b) the person provides or arranges finance for any step in that process; or (c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates." 53 Bell J also saw no contradiction between her decision and that in Kouroumalos [2000] NSWCCA 453 where an offender was shown to have popped Sudafed tablets out of blister packs containing them, to have collected and paid for chemicals required for the process, storing equipment and testing product by way of assistance to an organisation which was engaged in manufacturing methylmphetamine. 54 The proved existence in Thomas and Kouroumalos of a process which was regarded as answering the description of manufacturing process is a matter which distinguishes those cases from the present one because it was clearly a live issue in the trial from which this appeal is brought whether there was in fact such a process in which the Appellant could have been knowingly involved. So much is clear from that part of the address of his counsel which was transcribed and the trial judge's summing up where reference is made to an argument that the laboratory may have been moved from elsewhere by Mr Koller and not in fact used in the premises where it was found. 55 Subject to one passage, the trial judge never told the jury that to convict the Appellant they had to be satisfied that there had to be some activity which could be described as, or part of, a process of manufacture. Whether or not with an additional instruction to that effect the remarks quoted above at the commencement of consideration of this ground would have been sufficient, they clearly were not in the absence of the additional instruction. His Honour's summing up occurred before the decision in BD and suffers from the error to which the words of Bell J which we have quoted were directed. This ground is made out. 56 The passage which inspires the qualification at the beginning of the immediately preceding paragraph was as follows:- "But you cannot find the accused guilty of anything unless there was a step taken in the process of manufacturing MDMA as a result of a joint criminal enterprise involving at least one of the accused and Koller. If it was Koller and somebody else, some unidentified person, then the accused are not guilty. It is a matter for you to assess whether it is a reasonable possibility that there is any such party." 57 This passage appears long after that part of his summing up where his Honour gave the jury his instructions as to the legal issues incidental to the charge and otherwise arising in the case. The passage occurred when his Honour was dealing with the facts and in particular Mr Judd's evidence as to the possibility that the laboratory may have been transplanted from elsewhere and any MDMA found may have been the product of some previous manufacture. Given the location of this instruction, we do not regard it as curing the deficiencies in the instruction quoted at the beginning of our consideration of this ground.

Ground 2 The trial judge erred in admitting evidence that the Appellant secreted two keys belonging to him and then denied this when questioned by police 58 The Appellant complains that the trial judge erred in admitting evidence that he had secreted two keys which belonged to him under the ERISP machine in the room in which he had been interviewed. It was also said to be an error for the trial judge to have admitted the evidence that the Appellant had denied knowing how the keys had come to be under the machine. 59 There was provision at the time, as there is now, for interviews with suspects to be videotaped: see, now, s 281 of the Criminal Procedure Act 1986. The relevant legislation provides that evidence of an "admission" which is made "in the course of official questioning" is not admissible unless there is either a tape-recording made of the interview during the course of which the admission was made, or the prosecution establishes that there was a "reasonable excuse" as to why the tape recording could not be made. 60 The Appellant concedes that even if his act could be said to constitute an "admission", there was nevertheless a "reasonable excuse" for it not to have been recorded. So far as what the Appellant is said to have told police about the circumstances in which the keys were located, it was submitted that that was clearly an "admission". This was so even though it was exculpatory, because it was capable of constituting an implied admission and as such it could be relied upon as evidencing a consciousness of guilt: See R v Horton (1998) 104 A Crim R 306. Moreover, the statement was made "in the course of official questioning". Accordingly, it was submitted that the interview about the alleged "admission" should have been tape recorded. 61 Notwithstanding the fact that there was no direct evidence upon the issue, we are disposed to infer that there was a "reasonable excuse" for the "admission" not to have been recorded. The Appellant had indicated that he did not wish to be interviewed without his solicitor being present. Attempts to locate a solicitor for him had proved to be unsuccessful and the Appellant had been informed of that fact. The Appellant had then once again indicated that he was not prepared to engage in an interview without his solicitor being present. He was then asked if he was "prepared to go on the video and refuse to be interviewed" and he replied "That's not necessary". In any event, it can reasonably be inferred that the evidentiary significance of the keys was not apparent to police at the time. 62 However, even if we are wrong in concluding that there was a "reasonable excuse" for the "admission" not to have been recorded, there is still a fundamental difficulty confronting the Appellant and that arises from the failure to object to the reception of the evidence at trial. In R v Reid [1999] NSWCCA 258, Spigelman CJ held that the words "is not admissible" in the relevant section should be construed as meaning "is not admissible over objection". A similar view was expressed in R v Spathis & Patsalis [2001] NSWCCA 476 and R v Lyberopoulos [2002] NSWCCA 280. 63 In our view this is a ground which should attract the operation of rule 4. Accordingly we refuse leave to argue it.

Ground 3 The trial judge erred in his directions to the jury regarding the manner in which the jury should approach the evidence the subject of ground 2 above, that is the evidence that the Appellant secreted two keys belonging to him and then denied this when questioned by police. 64 This ground is related to the previous ground and asserts that the trial judge erred in his directions to the jury upon this issue. His Honour directed the jury in the following terms: You might recall there was some evidence and some cross-examination about the business of the keys and, according to the prosecution case Mr Cook (and there is also evidence by Holloway and another police officer about this) Colin Kaddour had played with two keys and shoved them under a video; and the defence position is that that is in effect a verbal, meaning by that an exercise of seeking to add to an otherwise possibly thin police case by making it appear as if a person had something to hide. 65 It was submitted that the jury was not provided with any assistance as to how it should approach the evidence of the police officers. Nor was the jury directed about "the care that should be exercised before an inference of consciousness of guilt was drawn". 66 The Appellant did not give evidence and so there was no direct evidence contradicting the evidence given by the police officers. It is also to be observed that trial counsel made no request for redirections. That rather suggests that trial counsel did not regard the matter as having the significance which it is now said to assume. It may well be, in all the circumstances, that counsel simply took the tactical decision not to have the matter highlighted by any further directions. Certainly there is no material before the court to suggest that the decision was not a tactical one. 67 In our view this is a ground which should also attract the operation of rule 4. Accordingly we refuse leave to argue it. Ground 4 The directions given by the trial Judge on the question of impossibility or incompetence, that is whether the process in which the Appellant was allegedly involved was capable of producing MDMA, were erroneous. 68 What his Honour said on the topic of incompetence or impossibility was:- "I turn to the subject of incompetence or impossibility. Another aspect of the evidence about the process in which Koller said they were engaged, is that you may have a doubt about whether what he and others, if there was a joint criminal enterprise, was doing, would in fact have resulted in the manufacture of MDMA liquid or saleable Ecstasy tablets. For example you may have a doubt about whether one or more of the chemicals used had sufficient purity to make the reaction work property. You should understand that the law under which counts 1 and 2 are framed, is intended to catch not only those who successfully manufacture the prohibited drug, but also any one who incompetently or unsuccessfully sets out to do so with the required knowledge and intention. I direct you as a matter of law that an offence under count 1 or count 2 or its alternative, may be committed even if an accused was such an incompetent amateur that he in fact never did or was never likely to produce MDMA either in liquid form or in the form of Ecstasy tablets. The question is, did the accused knowingly take some step during the period mentioned in the charge which he intended to be aimed at the prohibited manufacture?" 69 These remarks were made against the background that counsel for the Appellant was contending that a number of items said to be necessary for the production of MDMA were not present at the premises. The remarks had, according to submissions for the Appellant to this Court, the effect of withdrawing the issue of impossibility from the consideration of the jury. 70 On behalf of the Appellant, it was further submitted that the mere fact of taking some steps with the intention of manufacturing the particular drug is not sufficient and reference is made to the decisions of this Court in R v McCoy [2001] 51 NSWLR 702 and El-Azzi (2001) 125 A Crim R 113. In the first of these cases, with the concurrence of the other members of the Court, Hulme J said, at [16-17]:- "I do not think it necessary to address in the abstract where in the spectrum a process of manufacture of a prohibited drug lies for the purposes of the Act. It is sufficient that in this case the matter was put to the jury on a narrow basis, whereby the process was that under way at and just prior to the time of the Appellant's arrest. It was at all times impossible for manufacture of methylamphetamine to occur in the course of the attempt at manufacture in which the Appellant was then involved. Those directing the enterprise could have made another attempt using different chemicals, but that would have been a different process of manufacture of methylamphetamine from that put before the jury. It would not have been the process of manufacture of methylamphetamine being carried on at, and just prior to, the time of the Appellant's arrest. It was not put to the jury that the process in this case extended to the use of different chemicals if the initial attempt was not successful. In the process as the matter was put to the jury, however genuinely the Appellant may have thought that the chemicals being used when combined made methylamphetamine, it could not realistically be said that the attempt to combine those chemicals was the taking of a step in the process of manufacture of methylamphetamine. To illustrate the point, however genuinely the appellant may have thought that hydrogen and oxygen when combined made methylamphetamine (rather than water) it could not realistically be said that an attempt to combine those elements was the taking of a step in the process of manufacture of methylamphetamine. The chemicals in the present case were just not appropriate for the purpose, and there was no process of manufacture of methylamphetamine. 71 The correctness of these remarks was not challenged by the Crown and accordingly the direction the subject of this ground of appeal was erroneous. 72 Should the Appellant be allowed to rely on the ground, given the deficiencies in the formulation of the appeal to which reference has been made and the fact that there was no exception taken at the trial to the direction? In our view this question should be answered in the affirmative. The direction went to an essential legal issue which arose as an incident of the drug charges preferred by the Crown case against the Appellant and, subject to the operation of the proviso to s6 of the Criminal Appeal Act, to allow the Appellant's conviction to stand in the face of the misdirection the subject of this ground would be to perpetuate a miscarriage of justice.

Ground 5 The directions given by the trial judge on the issue of joint criminal enterprise were inadequate. 73 What Judge Woods said on the topic of this Ground 5 included the following:- Generally, it is only the words or acts of or relating to a particular accused himself which can be used as evidence against him in a criminal trial. However, if at the time alleged in the indictment he is taking part in a joint criminal enterprise with one or more others, the acts or words of the other parties to a joint criminal enterprise done within the scope of that enterprise, may also be evidence against him. It is for you to decide whether the Crown has proved beyond reasonable doubt that there was a joint criminal enterprise, what its scope was and who was party to it. … Primarily you should look, when you are considering the case of each of these accused before you now, Mr Bhanji and Mr Kaddour, you should look at their acts and acts relevant or relating to them. However if you take the view that there was a joint criminal enterprise, that you can use the acts of one of the others in the joint criminal enterprise done within the scope of that joint criminal enterprise against the other person. … I emphasise that you should when considering the case of Khalid Kaddour look at: 1. Crown evidence directly relating to Khalid Kaddour acts or statements; 2. Evidence of the actual statements of any person in the course of a joint criminal enterprise where it is proven that the accused was part of the joint criminal enterprise; 3. Evidence adduced by either accused relating to the circumstances of the case. Correspondingly, the evidence relating to Altaf Bhanji is similar in its categorisation. … As for items of evidence directly involving Mr Turkmani, that material remains before you, but you are to disregard it unless you conclude beyond reasonable doubt that there was a joint criminal enterprise between Mr Turkmani and the remaining accused whose case you are considering. If there was such a joint criminal enterprise you may regard any act done by Mr Turkmani within the scope of that joint criminal enterprise and within the period of the indictment as the act of either of the other accused also party to the joint criminal enterprise. I repeat what I said before about the evidence of Mr Judd: you should disregard in the Crown case any evidence given by Mr Judd of MDMA being found by chemical analysis except in relation to his analysis of the liquid said to have been found in the vessel marked A2 in exhibit G. 74 His Honour returned to the topic briefly on a number of occasions. We do not regard it as necessary to detail all he said but there were a number of remarks such as:- "Of course you remember that Bassam Turkmani's fingerprint was found on an olive oil bottle. Now that is not relevant to either of these two accused unless you believe that there was in fact, as the Crown alleges, a joint criminal enterprise between at least 2 of them." "But you cannot find the accused guilty of anything unless there was a step taken in the process of manufacturing MDMA as a result of a joint criminal enterprise involving at least one of the accused and Koller." 75 It was submitted on behalf of the Appellant that his Honour's remarks were too general and he was obliged to provide to the jury a closer analysis of the manner in which the Crown contended it could prove the Appellant's guilt by relying on the acts of Mr Koller. Reference was made to the remarks of Giles JA in R v Harrison & Georgiou [2001] NSWCCA 464 at [17]. It was submitted that the circumstances of the case required that the jury be told what specific acts were relied on as establishing that there was a joint criminal enterprise in existence between the Appellant and Koller, particularly evidence independent of Mr Koller of such acts. 76 This ground raises matters which were not the subject of any request for redirection at the trial. In the circumstances of the case, any deficiency or error in the trial judge's directions did not go to any fundamental issue and the Appellant should not be given leave under rule 4 to rely on the ground. Furthermore, allowing the appeal on this ground would in the ordinary course lead only to an order for a retrial and both the passage of time and the deportation of Mr Koller lead us to the view that no retrial fair to the Crown could occur. Having regard to the delays in the proper formulation and presentation of the appeal by or on behalf of the Appellant, we are also of the view that we should not grant any extension of time to allow the ground to be raised. 77 In any event the ground would fail. In the first place the Crown case against the Appellant was not one which depended to any substantial extent on the out-of-court actions and statements of others but rather one which was primarily reliant on objective facts and the evidence of what persons, including Mr Koller, said in the witness box. There was no question but that on 24 August 1996 a laboratory was found set up in the premises being Unit 4/42-44 Chard Road, Brookvale and a room had been excavated and created below the floor. There was no question but that it was a laboratory which, in the equipment it contained, was suitable for the manufacture of MDMA and that a number of the chemicals found there were also suitable for that purpose. There was no doubt that the Appellant had been involved in a number of activities calculated, even if not designed, to further some use of the premises. The primary consideration for the jury was whether, either by acceptance of the evidence of Mr Koller, or inference from matters about which there was little issue, they should draw some inference that some manufacturing or process of manufacturing of MDMA had occurred, particularly at the Chard Road premises, and should infer that there was knowing involvement by the Appellant in what it was. 78 Certainly, there were areas where the Crown relied on the actions of the Appellant's co-accused. One example is Mr Bhanji's purchase of methylamine, one of the chemicals used in the manufacture of MDMA. However, as has been said, such evidence was but a relatively small part of the Crown case.

Ground 6 The verdict of the jury on count 4 in the indictment alleging malicious damage to property is unreasonable having regard to the evidence. 79 The complaint which is advanced in relation to this ground is that the verdict of guilty in relation to count 4, which alleged malicious damage to property, is unreasonable in view of the verdict of not guilty in relation to count 3, which alleged that the Appellant knowingly harboured, Koller, who was an escaped prisoner. 80 The submission, in essence, is that the jury having entertained a reasonable doubt in relation to count 3, based as it was solely upon the evidence of Koller, ought also to have entertained a reasonable doubt in relation to count 4, in respect of which the Crown also relied heavily upon the evidence of Koller. In that sense it is submitted that there is an inconsistency in the verdicts. As to the relevant principles to be applied in such circumstances, see R v Markuleski (2001) 52 NSWLR 82. The test established by s 6(1) of the Criminal Appeal Act 1912 is nevertheless one of unreasonableness rather than inconsistency: See MFA v The Queen (2002) 213 CLR 606. 81 Koller gave evidence of his initial meeting with the Appellant at which it would seem that the invitation was extended to him by the Appellant to stay at his premises. Koller gave evidence that he had thereby hoped to avoid being deported. However, he gave no direct evidence that he had informed the Appellant that he was a prison escapee. In those circumstances, the jury's verdict would be perfectly explicable upon the basis that there was deficiency in the evidence in the Crown case upon count 3 as to an essential element which it had to prove, namely that the Appellant knew that Koller was a prison escapee as opposed to being someone who was merely seeking to avoid deportation. 82 There was certainly evidence from Koller from which the jury was entitled to draw the inference that the Appellant "harboured" Koller. There was evidence, for example, that the Appellant allowed him to stay in the shed at the back of his premises and that subsequently, at the Appellant's instigation, Koller moved into the Chard Street premises where he thereafter virtually lived. The Appellant, according to Koller, also provided him with clothes. Nevertheless, the jury may not however have been prepared to accept that part of Koller's evidence to the requisite standard since there was other evidence which contradicted Koller's evidence, for example, that he had stayed at the rear of the Appellant's premises. The verdict may be explicable on that basis as well. 83 But there is one final consideration. As we have said, the Crown case in respect of count 3 depended for its acceptance entirely upon the evidence of Koller. It is true that in respect of count 4, it also depended in large measure upon the evidence of Koller. He gave evidence of their joint plans to make a secret laboratory under the shower access and what they had done in order to create it. As the trial judge observed, "… so far as the underground part is concerned, apart from the evidence of Koller, there is no direct evidence of the accused Colin Kaddour being involved in the digging". 84 There was however other evidence available upon which the jury was entitled to rely as providing some support for the evidence of Koller in respect of count 4. There was, for example, evidence that the Appellant's fingerprints were upon documents associated with the hire of items of equipment which were capable of being used for the purpose of excavation and the removal of waste. There was also a cement mixer at the premises. It was also open to the jury to infer that the presence of materials and waste in the general warehouse area and the need for an alternative shower to be rigged up would have been readily apparent to the Appellant. The jury would have been entitled, in the light of that material, and the remainder of the evidence to which reference has been, and will be made, to infer that the Appellant was well aware of the digging operation. 85 The trial judge gave extensive and careful warnings to the jury concerning the way in which it should approach the evidence of Koller. His Honour directed the jury that "you have to most cautiously and carefully look for independent supporting evidence. If there is none, then you may be inclined to reject his evidence, but it is a matter for you". The jury may well have simply decided, in the light of that direction, to acquit the Appellant in respect of count 3 because there was simply no evidence independent of Koller which implicated the Appellant. 86 Clearly, however, the jury did not entirely reject Koller's evidence because it returned a verdict of guilty in respect of the statutory alternative to count 2. In all the circumstances the verdict of not guilty on count 3 is explicable on a number of bases, none of which entail the wholesale rejection of Koller's evidence. 87 As we have observed this ground was not filed until 9 December 2003. For reasons which we have earlier expressed no satisfactory explanation has been advanced to explain that delay. 88 Accordingly, and particularly because there is no merit in it we are of the view that we should not grant an extension of time to allow this ground to be raised.

Ground 7 The trial miscarried by reason of the prejudicial impact of adverse media publicity relating to the Barrister appearing for the Appellant being published during the trial proceedings. 89 As has been observed, the Appellant was represented at trial by Mr Somosi of counsel. On 26 February 2001, which was the eighteenth day of the trial, an article was published on the front page of the Sydney Morning Herald which asserted that certain members of the Sydney bar were not meeting their obligations concerning the payment of income tax. Photographs of four such barristers, including Mr Somosi, appeared on the front page and page four of the newspaper. The article referred to the fact that some barristers had not lodged income tax returns. It went on to assert that they had then sought "shelter in bankruptcy" from the debts which they had incurred to the Australian Taxation Office. The article then asserted that "[a]nother serial bankrupt is the well known criminal advocate Mr Robert Somosi, who has accumulated $835,000 worth of unpaid taxes and penalties. Mr Somosi was convicted in 1996 of failing to file tax returns over a period of 17 years. At his trial, he admitted that he had paid no tax during all his years at the Bar." 90 The matter was immediately raised by Mr Somosi with the trial judge. Counsel revealed that he had discussed the matter with the Appellant and that he had obtained written instructions as to the course which his client wished to adopt. He went so far as to have those instructions marked for identification. The instructions were in the following terms: 1. I have read this morning a newspaper article appearing on pages 1 and 4 of the Sydney Morning Herald issue 26.2.2001 concerning my counsel, Mr L. Robert Somosi. 2. I note your advice to me, that in order to best potect (sic) my interests, I should apply for a discharge of the jury in this trial. 3. I understand that, in the event that I am convicted in these matters, that if I do not apply for a discharge of the jury now, I may be prevented from arguing on any prospective appeal that a miscarriage of justice resulted from failure to discharge the jury. However, despite your advice to me I hereby irrevocably instruct you not to apply for a discharge of the jury, and to continue with the trial. I wish to continue to retain Mr Somosi in this trial matter. 91 The trial judge then directed the jury upon their return to court about the matter. His Honour said: Members of the jury, today you may have seen on the front page of Sydney Morning Herald an article in which mention was made of Mr Somosi, counsel for Mr Kaddour. That article and anything said in it has nothing to do with this case. It is not evidence here. It will not be evidence anywhere, I expect, unless there are suits for defamation of character which is likely I imagine, but that is not an issue here. That article in no way reflects upon Mr Kaddour, the accused, or either of the other accused. I direct you as a matter of law that you should and must completely ignore it in the present case. As to the accuracy or otherwise of what is contained in the article with reference to Mr Somosi, I will not allow this trial to be a forum for its debate. The courts are very familiar with error by newspapers and other media. I know that Mr Somosi vigorously disputes various allegations in the article as totally wrong. However, I cannot allow this Court to be a forum for such debate. That matter is utterly irrelevant to these proceedings. It is irrelevant to this trial whether a barrister gets married or becomes a parent, has a birthday party or wins the lottery or goes bankrupt. I repeat, this trial is to be dealt with on the basis of the evidence in this trial. The article in today's Sydney Morning Herald is irrelevant to these proceedings and you should totally disregard it. 92 No request was made for any redirections and nor is complaint now made about the adequacy of those directions. 93 On 12 March 2001, Mr Somosi advised the trial judge that he anticipated that there would be "further publicity about my personal affairs on a program called 'A Current Affair'". Mr Somosi also indicated that his client nonetheless wished him to continue to act for him and for the trial to proceed and that accordingly there would be no application "in relation to that kind of issue". Counsel did however request the trial judge to give further directions to the jury about the matter. The trial judge then proceeded to instruct the jury in the following terms: Members of the jury, some of you may have noticed on the television an indication that there may be a program shown tonight which deals with Mr Somosi's position. Now you recall earlier in the course of the trial some weeks ago there was a piece on the front page of the Sydney Morning Herald dealing with Mr Somosi and mentioning that he had some dealings in relation to his taxation returns. Sometimes things that are said in the press are true. You will not have reached the age that you have without realising that sometimes they're false. This trial is not concerned with Mr Somosi's personal position. No doubt, he disputes some of the matters that are put forward. But as a barrister appearing for an accused person in trial, (sic) his personal situation has no relevance to the issues in this case. So whatever appears on television or in the newspaper is utterly irrelevant to the evidence in this case which relates to his client. It is important nonetheless that you put out of your mind any feeling which potentially might arise that because a barrister was involved in some argument with the Bar Association or the Sydney Morning Herald or channel 9 or channel 7 that it might reflect on his client. You can never do that. And it is important that in your role as sworn judges of the fact in this case you would avoid any such possible inference. Because he is involved in this trial which has taken some weeks and will take some more time, Mr Somosi may not be in a position to deal with the matters that are raised in relation to his taxation affairs. He may do so at the conclusion of the trial and presumably you can expect that. But, as I say, you must not hold against his client anything that may be mentioned on the television or the radio or the newspapers relating to his personal situation. For example, if it turned out that a member of the Bar had seven wives or the judge had six wives and it created some controversy, as it no doubt would, that would really be irrelevant to the evidence in the case. It may not even be true simply because of it being mentioned in a newspaper or indeed on the television. And you use your commonsense about that, members of the jury. So once again, I remind you that you just regard those matters as being irrelevant to the trial and I remind you, of course, that you should, as you would with every counsel, Crown, defence counsel, Mr Doris, Mr Hogan, Mr Somosi, pay careful attention to what they say. What they say is not evidence in the trial, but it is nonetheless important and you should give it your attention. 94 Again there was no request for redirections and nor is there now any complaint about those directions. 95 On 31 March 2001, the Sydney Morning Herald published an article which said that the NSW Bar Association had commenced proceedings to have Mr Somosi "struck off". The article indicated that the Association was seeking a declaration in the Court of Appeal that Mr Somosi was guilty of professional misconduct and an order that his name should be removed from the roll of legal practitioners. This article did not have the prominence of the earlier article either in its length or position in the newspaper. 96 When the trial resumed on Monday 2 April, which was the forty third day of the trial, Mr Somosi informed the trial judge about the article. He went on to say that, "I have concern that this may have an effect on the jury separate to other publicity that your Honour has directed them about. Your Honour had directed them about those matters but there is now another step or stage and I formally make an application to discharge the jury. They are my client's instructions. The concern is obvious, and there is nothing which I can say which would be helpful to your Honour apart from what I have just said." 97 Mr Somosi then went on to express his concerns about the real possibility of there being further adverse publicity as the Bar Association's application was listed for the following week in the Court of Appeal. Mr Somosi then said that, "my client asks that I continue in this matter whatever the result is. Consideration was given to me retiring from the case and have Mr Pike conduct further aspects of the defence and the address but it would just be far too pointed to the jury and my client advises that I continue. I accept that advice." Counsel for the co-accused indicated to the trial judge that he had no application to make. 98 The trial judge rejected the application. In the course of a short ex tempore judgement his Honour explained his reasons for doing so. His Honour said: I may direct the jury with regard to the position that Mr Somosi finds himself in but it does not seem to me, at this stage at least, that any irremedial (sic) damage has been done. Certainly at least so far as the early part of this matter was concerned, the mere raising of allegations in a newspaper article, I have no doubt that members of the public, from whom jurors are drawn, are perfectly capable of distinguishing between mere allegations and the fact. Nor, unless I am otherwise persuaded, do I think that much in the way of weight will have been added to the allegations merely because the Bar Association takes action as a result obviously of the newspaper campaign. Any reasonable member of the public is aware of the imperfections of institutions and is aware of the effect of pressures that can be brought to bear to take action. Nonetheless, were the matter to proceed to the point of there being a hearing in the Court of Appeal during the course of this trial such that ventilation of the matter before their Honours of the Court of Appeal would occur, the situation might become somewhat different. I cannot anticipate that at this stage and, as I say, I will take the step of communicating with the registrar of the Court of Appeal to alert the court to my concerns in this respect so that the difficulty to which I advert may be avoided, possibly by timetabling. Of course, I cannot direct the Court of Appeal or the Bar Association as to how they conduct, on the one hand, either the court's program of litigation or, on the other hand, the Bar Association's program of professional supervision, but I am concerned overall with the integrity of this trial. 99 The trial judge did write, as he had foreshadowed, to the Registrar of the Court of Appeal indicating his concerns that "any further publicity attending a strike-out application could possibly jeopardise the integrity of the present trial, or of any conviction flowing from it". 100 The Registrar wrote a letter in response in which he indicated that the summons was listed before him on 9 April for directions. The Registrar informed his Honour that "the President has directed that the matter not be listed on that day if the parties can agree on the filing of affidavits by this Friday with a view to listing it again for directions within four weeks. The matter should therefore not appear in the published list." 101 As it transpired, the jury returned with its verdicts on Tuesday 10 April and it appears that there was no further publicity concerning the Bar Association's application in the interim. 102 The evidence finished on 3 April and the addresses then commenced. Before addressing the jury, Mr Somosi indicated to the trial judge that he would be making certain remarks about his own circumstances. The trial judge indicated that it was appropriate that he should do so. Thereafter there was a short discussion as to whether the trial judge should also say anything further to the jury. His Honour said that in that respect he would, in effect, be guided by counsel. Counsel then said "Well your Honour could I consider that again at the end of my address and only ask your Honour to give the imprimatur to what I've said by not saying anything". 103 Mr Somosi then addressed the jury. He commenced his address by making the following remarks: Good afternoon ladies and gentlemen. Before I start my address and explain what I'll be addressing about, I want to say something that's fairly hard to say. Obviously certain things occurred in the last couple of months that may have distracted you in relation to me, but I'd like to say something. I've mentioned to his Honour that I'm going to be saying this and I'm saying this having told his Honour first. Firstly, a trial is not a popularity contest. You don't have to like anybody in order to listen somebody (sic). You don't have to approve of anything or disapprove of anything as reported in someone's private life. It has nothing to do with this case and as you know I've said nothing in rebuttal of any of the things that have said (sic) about myself, because it would have wrong to do so during this trial. I've desisted. You and his Honour have to do right by our system of justice, which required you to dispassionately review the evidence and all of the submissions that you hear. You cannot allow yourself to think about things that are happening outside this Courtroom, either in your lives or my life. They are kept outside. It would be equally irrelevant for me to speculate about your personal lives, as it would be if you were to speculate about mine and about what's happening outside. All we 20 of us, can only be concerned with the evidence and what's happening in this room. Because you see it's the evidence, and only the evidence that we concern ourselves with in this case and it is the evidence and only the evidence that defines the issues in this case. That also goes for feeling friendly towards the charming Crown Prosecutor and he is a charming man, or anybody else who you might or might not like as the case may be. I'm not suggesting that you have any reason to dislike me or like me as the case may be, but please, on behalf of our system of justice, do not be distracted by anything outside there please. 104 The complaint which is now made on the Appellant's behalf is that the adverse publicity concerning his barrister which appeared during the course of his trial caused it to miscarry. There is no complaint that the trial judge erred in the exercise of his discretion when he determined not to discharge the jury. His Honour was undoubtedly persuaded to adopt that course given a number of factors, not the least of which was the somewhat muted fashion in which the application was made. Nor, as we have said, was the application supported by the co-accused, who had by then completed his evidence. Indeed, evidence in the trial was all but complete and the trial itself had run for a considerable number of weeks. His Honour also clearly formed the view that the warnings which he had given, amplified by counsel's own observations, were sufficient to ensure that the jury was not distracted by the publicity from its task in determining the issues which arose for its consideration. The question, however, remains whether, in the circumstances, a miscarriage of justice has been occasioned. 105 The Appellant submitted that the trial miscarried because counsel "did not have at the time of the trial the necessary attributes to qualify for admission as a legal practitioner". He was not at the time "a person of good fame and character" by reason of his course of conduct over an extended period of time in not meeting his income tax obligations. Indeed, it was pointed out that he ultimately consented to the removal of his name from the Roll of barristers. Nevertheless, that development occurred after the trial, albeit that it related to conduct which preceded the trial, and accordingly is of no present significance. The matters concerning counsel were allegations, some of which at least were, the jury was informed, in dispute. 106 It is next submitted that the circumstances in which the Appellant found himself were analogous to those in which an accused person is represented by incompetent counsel, as to which see R v Birks (1990) 20 NSWLR 677 and TKWJ v The Queen (2002) 212 CLR 214. The submission was confined in its application. It was not suggested that counsel was incompetent in the manner in which he conducted the trial. Rather, it was contended "that the 'incompetence' of his trial counsel derives from the fact of his counsel not having the necessary qualifications to represent him in the trial, and upon this fact being disclosed to the jury in a manner which has rendered the trial unfair. The trial was unfair because the Appellant was effectively deprived of counsel." 107 In view of the concession that the trial was not conducted in a fashion that could be described as incompetent, it is difficult to conceive of how it can be now said that the Appellant was "effectively deprived of counsel". No other material has been placed before the court in support of such a submission and we would accordingly reject it. 108 It was submitted that the very fact that counsel felt obliged to make the remarks to the jury which he did is indicative of the dimension of the problem which confronted the Appellant. Allied to this submission was an argument that counsel's address assumed a particular significance in the case given that the Appellant did not give evidence and called only two brief witnesses in his case. 109 It was understandable that counsel felt particularly sensitive about the publicity not only on his own behalf but because of its potential impact upon the jury. The situation was scarcely ideal and it is unfortunate that the matter giving rise to the publicity occurred during the course of a criminal trial. Presumably, however, there is no optimum time at which such matters could be given publicity. None of those considerations can, however, be in any way determinative of the present application. 110 It is now also submitted that once the adverse publicity was generated, Mr Somosi should have withdrawn from the case. Quite apart from any other problems which such a step may have occasioned, it may have given greater currency to the allegations than would otherwise have been the case and thus have had a more pronounced capacity for impacting adversely upon the Appellant's trial. 111 Mr Somosi, as we have pointed out, informed the trial judge that consideration had been given to that issue. However, he said that the Appellant had expressed, in unambiguous terms, that he did not wish Mr Somosi to withdraw from the trial. Nor does he now express the view that counsel should have done so, notwithstanding the fact that he has sworn an affidavit in which has sought to explain his reasons for taking the course which he did. He swore in his affidavit that he initially did not wish to have the jury discharged largely because of the very substantial legal costs which he had incurred in relation to his representation at the trial. He was also, he said, meeting the costs of his co-accused, Mr Turkmani. Subsequently, he gave instructions to make an application for the jury to be discharged because he "felt that the jury's general attitude to my barrister changed after the publication of the newspaper articles about him". Nonetheless he did not, as we have said, wish Mr Somosi to withdraw. Indeed, it would have been difficult in those circumstances for counsel to have withdrawn and no legitimate criticism can be made of his decision not to do so. 112 Nevertheless when all is said and done, the adverse publicity related not to the Appellant but to his counsel. As we have said, it is most unfortunate that it occurred. There remains however no reasonable basis, in our view, upon which it can be assumed that the jury would have visited upon the Appellant its disapproval (assuming that it had formed such a view) of the actions of his counsel. They were, in short, completely unrelated to the matters which it had to determine. 113 Furthermore, the jury was given appropriate warnings, to which exception is not taken, that they were to completely disregard those matters as being irrelevant to their deliberations. In John Fairfax Publications Pty Ltd & Anor v District Court of NSW & Ors (2004) 61 NSWLR 344 Spigelman CJ observed: There are now a significant number of cases in which the issue has arisen as to whether or not an accused was able to have a fair trial in the light of substantial media publicity, indeed publicity much more sensational and sustained than anything that occurred here. Those cases have decisively rejected the previous tendency to regard jurors as exceptionally fragile and prone to prejudice. Trial judges of considerable experience have asserted, again and again, that jurors approach their task in accordance with the oath they take, that they listen to the directions that they are given and implement them. In particular that they listen to the direction that they are to determine guilt only on the evidence before them. … The perspective that jurors properly perform their task, are true to their oath and comply with a trial judge's directions has repeatedly been applied in appellate courts over recent years. (See R v Milat ; R v Bell ; R v Long ; R v Bijkerk [1999] NSWCCA 114; R v Dudko ; R v D'Arcy ; R v Burrell .) (at pars 103, 110) 114 The verdicts which the jury returned lend support to the observation that it did indeed concern itself only with the evidence which had been introduced at the trial. 115 Counsel for the Appellant candidly conceded during the course of oral argument that he faced a considerable obstacle in making out this Ground. Moreover, as we have already observed, this ground was not filed until 15 June 2004. For reasons which we have earlier expressed no satisfactory explanation has been advanced to explain that delay. 116 Accordingly, and particularly because there is no merit in it we are of the view that we should not grant an extension of time to allow this ground to be raised.

Ground 8 The trial proceedings miscarried by reason of the fact that one of the members of the jury was a person who knew the Appellant and knew of adverse information regarding the Appellant's character and reputation 117 Because notice of this Ground of Appeal was not filed until 24 August 2004, the Appellant requires leave to rely upon it. The Crown foreshadowed in its written submissions that it opposed leave being granted. There had been some notification prior to the filing of the Ground that the Appellant intended to rely upon it. There was, however, an impediment to the matter proceeding, at least in relation to this Ground, until it was established that the person thought by the Appellant to be a member of the jury was in fact one of the jurors. Orders were made by this Court on 12 October 2004 which had the effect of enabling the parties to ascertain the identity of the juror: See R v Kaddour [2004] NSWCCA 361. Various orders were nevertheless made at the outset of the hearing to preserve the anonymity of the juror. For example, he was provided with the pseudonym "XYZ" and his evidence in the proceedings was given in closed court. 118 During the course of the submissions, counsel sought leave to amend the Ground of Appeal so that it read: The trial proceedings miscarried by reason of the fact that the Appellant was deprived at his trial of information regarding the identity of juror XYZ in circumstances where if the Appellant had been aware of the identity of XYZ he would have exercised the right to challenge. 119 It will be necessary in due course to return to the question of whether leave should be granted and indeed the circumstances which gave rise to the application for leave to amend. 120 In support of this ground, as originally notified, the Appellant filed a number of affidavits in advance of the hearing. Material was raised in those affidavits which was capable of reflecting upon the conduct of XYZ whilst a juror in the Appellant's trial. Accordingly, with the concurrence of the parties, orders were made for the matters which had been raised to be investigated by the Sheriff's office in accordance with the practice authorised in R v Rinaldi; R v Kessey (1993) 30 NSWLR 605. Furthermore, the parties agreed that in the circumstances XYZ should also be interviewed. Indeed, there was agreement as to what matters should be canvassed with him. In due course XYZ was interviewed by a police officer by way of an ERISP. In that interview he denied knowing the Appellant, or knowing of him, prior to being sworn in as a juror. Nor, he said, did he recognise him by name or face at the trial. 121 When the matter was called on for hearing, the Crown took a "blanket" objection to the entirety of the evidence which was relied upon by the Appellant upon the basis that it was inadmissible. Nevertheless, the Crown accepted that it was appropriate for the court to receive the evidence, upon a provisional basis, in order that the question of admissibility could be determined: See R v K [2003] 59 NSWLR 431. 122 It is convenient to first deal with that matter. The principles which govern the question which presently arises for determination are well-established. In R v Emmett; R v Masland (1988) 14 NSWLR 327, Lee J (as his Honour then was) (with whom Enderby and Grove JJ agreed, with additional observations) said: I have taken some time to go through the authorities to make clear that the present proceedings are in no way a departure from accepted law as to nondisclosure of a jury's deliberations and the finality of a jury's verdict. The rule as to non-disclosure by a juror of what goes on in the jury room serves a valuable public purpose as has been explained. But the rule is not one which prevents a court from considering evidence of jurors on matters which are extrinsic to the matter of deliberations of the jury . What happened in the present case happened, in significant respects, in the jury room and it is for that reason that I am at pains to point out that none the less the course taken in this case is in no sense a departure from established law but, indeed, an application of established law. For there are a number of cases which make clear that when matters extrinsic to the jury's actual deliberations are brought to the notice of the court by members of the jury the court will in a proper case intervene and set aside a verdict. In the case of Ras Behari Lal v The King-Emperor [1933] All ER Rep 723 at 725; (1933) 50 TLR 1 at 2, the Privy Council expressed the view that evidence from a juror showing that he did not have a sufficient understanding of the English language to be able to grapple with the problems involved in the case was admissible and would be a ground for setting aside a verdict. Atkin LJ (at 725; 2) said this: "... The question whether a juror is competent for physical or other reasons to understand the proceedings is not a question which invades the privacy of the discussions in the jury box or in the retiring room. It does not seek to inquire into the reasons for a verdict." He went on to say that if the alleged defect in understanding English could be proved aliunde why could it not be proved from the evidence of the juror himself? He referred to the rule that the deliberations of the jury can never be inquired into and its significance in bringing finality to proceedings, but in the particular case with which the court was there dealing he went on to say (at 726; 2): "... Finality is a good thing but justice is better." It is interesting to note that in R v Chapman (1976) 63 Cr App R 75 at 76-77 the court refused to take evidence from jurors that another juror was deaf and it did so because the Juries Act 1974 (UK) , s 18(1)(d), had been passed which prevented a verdict being disturbed on the ground of unfitness of a juror after the verdict was given. We do not have that legislation in this country. Other cases where courts have acted upon affidavits of jurors or statements of jurors may be recorded here but I do not think it necessary to deal with them: R v Box [1964] 1 QB 430; R v Hood [1968] 1 WLR 773; [1968] 2 All ER 56 R v Booth [1983] 1 VR 39 at 43; 8 A Crim R 4 at 8; R v Bliss (1986) 84 Cr App R 1; R v Sumner (1985) 19 A Crim R 210; R v Spencer (1986) 83 Cr App R 277 and R v Chaouk [1986] VR 707. I make reference, however, to another decision in this State to make clear that it is well accepted that matters not impinging upon the jury's deliberations are the subject of proper examination by the court with a view to determining whether a verdict should be set aside. In the case of R v Woolcott Forbes (1944) 44 SR (NSW) 333; 61 WN (NSW) 219, the court, after taking the verdict received a statement from a juror that he had during the trial been offered a bribe, and it inquired into the matter. It refused to grant a new trial because the juror satisfied the court that he had not been influenced by the offer of bribe (at 343; 224). (at 334-335) (emphasis added) 123 In R v Minarowska & Koziol (1995) 83 A Crim R 78, Gleeson CJ, with whom James and Ireland JJ agreed, observed: A distinction has been drawn between evidence, first-hand or hearsay, as to the deliberations of a jury, and evidence, sometimes described as relating to "extrinsic matters", which proves a material irregularity in the proceedings. Thus, for example, it is permissible to lead evidence to show that inadmissible and prejudicial material of an evidentiary nature was sent into a jury room and was available to be considered by the jury ( Rinaldi (1993) 30 NSWLR 605; 68 ACrimR 284 ), or that a sheriff's officer wrongly intruded into the jury's deliberations and expressed a view that the accused were guilty ( Emmett (1988) 14 NSWLR 327; 33 ACrimR 340 ), or that a jury bailiff suggested to a jury that an accused had previous convictions ( Brandon (1969) 53 Cr App R 466), or that a juror was drunk, or could not speak English, or refused to participate in deliberations ( Tuia [1994] 3 NZLR 553). The distinction between evidence relating to a jury's deliberations, and evidence of an irregularity in their conduct or procedures, or in the conduct of the trial in a manner capable of affecting the jury, although it may be blurred in some cases, is of considerable antiquity. However the dividing line between proof of a jury's deliberations and proof of an irregularity in the proceedings may, as the present case illustrates, be difficult to draw. (at 85) (emphasis added) 124 See also Rinaldi (supra); R v K (supra) and R v Skaf (2004) 60 NSWLR 86. 125 The challenge which is made in the present case does not in any way bear upon the deliberations of the jury. It is concerned rather with the composition of the jury and, more especially, with the question of whether, in broad terms, XYZ was able to bring an impartial mind to the performance of his task as a juror. 126 It appears to us to be patently clear that the allegation which is made raises an "extrinsic matter" in the sense in which that expression is understood in the authorities. It follows, in our view, that the Crown's challenge to the admissibility of the material presently in issue must fail. 127 We now turn to consider the evidence which was led in support of this ground. The Appellant swore an affidavit on 3 August 2004. The relevant parts of that affidavit are set out below: A couple of months ago I followed the media reports on the appeal of Bilal Skaf and others concerning a juror in that trial doing something he was not supposed to. It was a topic widely discussed within the jail as most criminal matters are which are reported in the media. It is also particularly discussed in Goulburn because some of the persons who were co-accused to Bilal Skaf are in custody here and they have caused a lot of controversy within the jail because they are disliked. Five of his co-accused have been in the same yard as me. Following the media publicity about the juror I had a visit from my brother, Hicham Kaddour and my elder brother, Ahmad Kaddour. The visit was a couple of months ago, and was my first visit after the media reports on the juror issue in the Skaf matter. During that visit the topic of the Skaf matter with the juror came up. During the course of that conversations Hicham and I had a conversation to the following effect: Hicham said: " You know Frank's brother was in your jury in the drug matter? " I said: " Which one? The first one that got aborted or the second one? " He said: " No, the second one, for the same charge that John Doris and Somosi did. " I said: " Which Frank?" He said: "Frank who died on the Harbour Bridge with Dom " I knew straight away which Frank he was referring to. I said: "Why didn't you tell me ? " He also said: " I talked to him during the trial, he talked to me outside the Court". I also said: " Tell Chris and Abigail, and see if it will affect my appeal and anything can be done about it". When I referred to "Chris" I was referring to Chris Pike, barrister, who represents me from time to time, and when I referred to "Abigail" I was referring to Abigail Bannister, my solicitor at Galloways Solicitors.

This was the first time I learned that Frank's brother was a juror in my trial . Throughout the trial I was not aware that he was a juror in the trial. I was in Court in the dock when the jury was empanelled. I did not recognise any of the jurors. Since Hicham told me this I have thought a lot about it and believe I may be able to identify which juror it was. Frank had 2 brothers to the best of my knowledge, whose names I know, and whom I will refer to as "XYZ" and "ABC". I was not friends with either of them. I do not know whether "XYZ" was a nickname or shortened version of a longer name.

I had a severe car accident in 1998 and I was charged with Dangerous Driving. I was convicted at trial and served a lengthy sentence for that offence. In the accident I suffered head injuries including a brain contusion. Since the accident my memory has been very poor. I did not remember anything about the accident for many years and there is still much that I do not remember. After the accident there were many important things that I could not remember. At one stage, I did not remember that I had a son. My former partner brought our child over to see me and I did not recognise him, I said "Who's this?" I feel that I cannot think as fast as I could prior to the accident and I feel that I have never recovered properly. Many of my memories are now like photographs, they have lost their depth. I have great difficulty remembering times and dates. However, to the best of my recollection, I would have seen Frank's brother XYZ maybe ten times over the last ten years. All of those occasions would be in passing, or because he was in company with someone that I knew. I have not spent any time with XYZ myself that I can remember. He may have been at one birthday party I attended but I do not remember speaking to him there. I never knew XYZ well and would only have said "hello" or made some other acknowledgment when I saw him. I did not recognise him at the trial if he was in fact a juror in the trial.

I grew up in the Chatswood area, which was a relatively small community. Most of the families in the area with teenagers were known to the other families with teenagers. I had two older brothers (one is now deceased) and one younger brother and 5 sisters. My nephews were a few years younger and lived around the corner. There are 3 brothers and 2 sisters in that family. We have a very close extended family. XYZ's family had a number of brothers and sisters in the same approximate age range and both families living in the area meant we had mutual friends. There were three main boys schools in the area being Crows Nest Boys High, North Sydney Boys High and Chatswood High and many students from these schools would hang out at Chatswood railway and bus station before and after school.

I became friends with Frank, XYZ's brother, at High school. I attended Crows Nest Boys High and he attended North Sydney Boys High which were around the corner from each other. We both caught the bus to school and became friends. As a teenager I met XYZ's family and had been to their house but I did not spend time there. I met XYZ when I was a teenager at XYZ's house but he did not spend time with Frank and I. Throughout the time that I was friends with Frank he lived at home with his family as far as I knew.

Frank used to spend a lot of time at my place fixing his cars as did a lot of boys in the area as my older brothers were good with their hands had (sic) a lot of mechanical equipment and knowledge. My brothers used to fix and do up go karts, dirt bikes, jet ski's, old boats and surf boards. Many students would come to our houses on weekends. It was a known place in the area where people would come and play when they were bored. Accordingly, our family and that of my nephew's, who lived around the corner, were well known in the area. Also, a friend, Peter, and I used to hire out speakers and lights for parties in the area to make extra money when we were teenagers. People in the area used to know us because of this. I am not sure whether it was when I was in my late teenage years or in my early twenties that Frank died in a car accident on the Sydney Harbour Bridge. At the time of the accident, Frank was in company with another mutual friend of ours, Dominic Lombardo. I attended the funeral as did some of my family members. At the time of Frank's death I was not on the best of terms with him. A short time before his death, perhaps a few months before, I had a fight with Frank in which we were both injured by each other. A fight developed between Frank and I over the way he was trying to recover the money from Hicham. Back then, and given our ages, $200 was a lot of money to us.

My eldest brother Ahmad has operated a tow truck business for over ten years in the North Shore area. Ahmad has made many friends through the business and employed many drivers from the area. I am aware that many of Ahmad's friends and/or employees were also friends of members of XYZ's family or known to them. …

In or about December 1999 I was charged with Soliciting the murder of a tow truck driver named Albert Brikha who was murdered in 1998 by Anthony Lo. I am not guilty of that offence and I was found Not Guilty at trial. My trial in that matter started in approximately June 2001, shortly after the trial in the present matter. Albert Brikha was a tow truck driver. I had never worked in the tow truck industry although my elder brother Ahmad operated a tow truck business. It was common knowledge in the area that I had been charged with that offence. After I was charged there were many rumours that Albert Brikha had been killed because of rivalry in the tow truck industry. To the best of my knowledge many tow truck drivers and people from the area were taken to the NSW Crime Commission to give evidence and were asked questions about me. The murder of Albert Brikha and my charging was often talked about in the Chatswood area and to my knowledge was known to many people. It was a topic for a long time as I did not go to trial until about two and a half years after Albert Brikha was killed. … If I had known that XYZ was called as a juror to serve in the trial, I would definitely have informed my counsel and solicitors, and instructed them that I did not want him to be a member of the jury in my trial. From what I know now of the manner in which potential jurors may be challenged I would have sought that XYZ be challenged for cause rather than have used a preemptory challenge. As a result of what I had read about in the media concerning the Skaf matter, I informed my solicitor that apparently one of the jurors in the trial was someone who knew me, to determine whether it would affect my appeal.

I have written the name of the person whom I have referred to as XYZ in this document on a piece of paper and dated that piece of paper. That piece of paper has been sealed in an envelope by me, and I have given that envelope to my solicitor. I have signed my name across the seal of that envelope. (The name which the Appellant wrote on the piece of paper was in fact the name of the juror XYZ) 128 In a supplementary affidavit, the Appellant swore that he had spent time in various establishments in the Chatswood area including the Fina café and the Naremburn Pizzeria and that he had attended various local nightclubs. 129 During cross-examination, he maintained that notwithstanding his assertion that he was unable to recognise any of the jurors during the course of his trial, he was nonetheless able to bring to mind the fact that XYZ had in fact been one of the jurors. He had been able to do so following the conversation he had had with his brother, to which reference has been made, three years after the trial. He had also been able to do so notwithstanding the fact that he had had more than one jury trial, or as the Appellant put it, "[there had been] so many juries that we went through". 130 Peter Agostino swore an affidavit dated 3 September 2004. He said that he had known the Appellant since they had attended high school together and that they were long-standing friends. He said that he also knew the Appellant's family and that he was friendly with them. He also said that he had worked in Ahmad Kaddour's tow truck business for a number of years. 131 He further said that he had known XYZ since primary school. He gave evidence of having had a conversation with XYZ in the "Fina Café" in Archer Street, Chatswood, although he expressed uncertainty as to when it had taken place. The following extract is taken from his affidavit: During our conversation, I recall saying to XYZ "Were you in [the Appellant's] case? XYZ replied "Yes I was". 132 In cross-examination he agreed that the contents of the conversation indicated that it must have occurred after the Appellant's trial. 133 A witness, who was referred to as Pasquale for the purposes of these proceedings, swore an affidavit on 12 August 2004. He said that he had known XYZ all his life and that he was distantly related to him. He said that he also knew the Appellant's family. He said that he had also worked for Ahmad Kaddour's towing company for a period. He said that he continues to have a business association with another of the Appellant's brothers, Hicham, whom he regards as a good customer. 134 He gave evidence that during the course of the Appellant's trial, his friend Peter Agostino had informed him that XYZ was one of the jurors in his case. Pasquale said that he had also had a conversation with XYZ, at a time which he conceded in his evidence was after the trial, in which XYZ had told him that "these people (the Kaddours) were involved in bad things, don't get too involved with them". He also gave evidence that he had heard a number of rumours about the Appellant and his apparent involvement in "illegal activity of various kinds". 135 Bartolomeo Parrino is the manager of a towing business. He said that he had been friendly with the brother of XYZ who had died in the car accident to which the Appellant referred in his affidavit. He said that it was through his brother that he had met XYZ. He said that he had last spoken to him about a year after his brother's funeral, which was in 1989. He said that when he was in his 20s he had frequented the Naremburn Pizzeria several nights a week. He said that a large group of other young people also used to attend that restaurant. Included in the group were the Appellant and XYZ. He said that he could recall occasions, before XYZ's brother died, when XYZ and the Appellant had been there at the same time, although he said that XYZ only attended there occasionally. 136 Anthony Stellino is a tow truck driver who had also worked for a period in Ahmad Kaddour's business. He gave evidence that he had known XYZ from primary school. He said that he was aware that XYZ's family home was located in Chatswood, within a couple of kilometres of the Appellant's family home. He said that he used to frequent nightclubs with friends from the Chatswood area. He said that he had seen the Appellant and XYZ in such clubs although he was unsure as to whether it had been at the same time. He said that he used to see XYZ in the Fina Café on occasions but that he had not seen him there for about 5 years. 137 He said that many young people in the area, including XYZ's brother, used to frequent the Naremburn Pizzeria but that many of them had gone their separate ways after his death. He said that the Kaddour family attracted attention because the brothers drove flashy cars. He suggested that the family was also the subject of rumours about some of their activities and that "there was often talk that they were involved in drugs". 138 XYZ gave evidence in which he agreed that he had attended the Naremburn Pizzeria. He also agreed that he still frequently attends the Fina Café in Archer Street in Chatswood. Although he admitted knowing Peter Agostino, he denied however ever having seen him at that café. He also denied having had the conversation with Agostino to which reference was earlier made. 139 Although he admitted having known Pasquale all his life, he denied having had the conversation with him which that witness said had taken place. He acknowledged that he had grown up in Chatswood and that he still lived there. He agreed that his brother had died in 1989. He said that he had known some of his brother's friends but said that he had his own group of friends. He denied however having heard the name Kaddour as being a friend of his brother. He acknowledged that there had been some evidence in the trial as to events which had occurred in the Chatswood area but denied, in effect, that it had occasioned him any difficulty. 140 At the completion of the evidence, counsel for the Appellant commenced to make submissions in respect of this Ground. After some debate, he candidly conceded that he could not, given the evidence which had been adduced, establish the ground in the form in which it had been filed. That is, he acknowledged that the evidence was not capable of establishing either (a) that XYZ "knew the Appellant" or (b) that XYZ "knew of adverse information regarding the Appellant's character and reputation". It was in those circumstances that counsel sought leave to amend the Ground in the terms earlier referred to. 141 Counsel then sought to explain what had occasioned the need for him to seek leave to amend the ground. He advised the court that as at the time when the ground had been filed, there had been an evidentiary basis for each of the propositions just referred to. It lay in the contents of an affidavit sworn by the Appellant's brother, Hicham Kaddour, on 12 August 2004. That affidavit was filed on behalf of the Appellant in advance of the hearing, together with the other affidavits which the Appellant read in his case on the hearing of the appeal. In his affidavit, Hicham Kaddour gave evidence of a conversation which he alleged he had had with XYZ during the course of the Appellant's trial. He said however that he had not told the Appellant about the conversation until some time in 2004, even though he himself had given evidence at the Appellant's trial in front of the jury of which, of course, XYZ was a member. The fact that such a conversation is said to have occurred is referred to, in somewhat oblique terms, by the Appellant in his own affidavit. Counsel for the Appellant accepted the fact that it was that conversation that had primarily given rise to the need for the issue of the alleged contact with XYZ to be referred to the Sheriff for investigation. For completeness, it may be observed that XYZ denied in his interview with police that he had had such a conversation with Hicham Kaddour. Notwithstanding those considerations and, perhaps more significantly, the prominence which the contents of Hicham Kaddour's affidavit had assumed in the Appellant's written submissions, the Appellant chose not to read it at the hearing of this matter. In those circumstances, we have of course had no regard to its contents except to the extent indicated in this paragraph. 142 We now turn to consider the submissions which were advanced in respect of the amended Ground. The Appellant contended in oral submissions that the evidence established that XYZ "is someone who was known to the Appellant and if the Appellant had been aware of the identify of juror XYZ then he would have been challenged him" as being a person "who might be adverse to him". 143 The Crown submitted that the complaint which is advanced had to be considered in the context of the legislative scheme which is established by the Jury Act. In short, it was submitted that the Jury Act now prevents the Appellant from obtaining the very type of information of which he complains he was deprived and that accordingly there is no substance in the amended Ground. The Crown placed considerable reliance upon this Court's decision in R v Ronen & Others [2004] NSWCCA 2004 in which Ipp JA, with whom Grove and Howie JJ agreed, observed that: The Jury Amendment Act 1997 (NSW) inserted the new ss 29 and 37 in the Jury Act . These sections came into force on 1 July 1998.

There can be no doubt that the legislature, in passing those amendments, intended to preserve the anonymity of jurors or prospective jurors and to provide that, during legal proceedings, they would not be required to give their names or any other details that might identify them (unless the person requesting the information were to be the sheriff). This intention is manifest from the Second Reading Speech and the Explanatory Note to the Jury Amendment Bill 1997 (NSW).

In the Second Reading Speech to the Jury Amendment Bill , the Attorney General explained that a large number of complaints had been received from former jurors concerning the practice of jurors being required to provide details of their names and addresses in open court. The Attorney General stated that jurors had become concerned about their security, which they believed was being placed in jeopardy by this practice. He gave examples of former jurors being harassed and, in one case, threatened. (pars 14-16) 144 His Honour acknowledged that the right of challenge is fundamental to our system of trial by jury and referred, in that context, to Roger Johns v The Queen (1978) 141 CLR 409. His Honour however observed that the right "has, nevertheless, varied substantially over time, it is not immutable" (par 43). Ipp JA then quoted from a passage from the judgment of Barwick CJ in Roger Johns (supra) in which his Honour had said: "When a prior view of the panel of jurors summoned for the sittings is allowed, some guidance in the exercise of the challenge may be gained from the knowledge of the names, addresses and occupations of those named on the panel. But, in my opinion, this advantage cannot displace the importance of a physical view of the jurors …" (at 418). 145 Ipp JA then remarked that:

This observation demonstrates the primacy that Barwick CJ placed on the accused person's physical view of the jurors - a part of the right of challenge that is not affected by the relevant sections of the New South Wales Jury Act (par 66) 146 The Crown drew the Court's attention to s 38(7) of the Jury Act, which is in the following terms: Before the selection of the jury at a criminal trial, the judge must, subject to the regulations:

(a) direct the person prosecuting for the Crown to inform the jurors on the panel of the nature of the charge and the identity of the accused and of the principal witnesses to be called for the prosecution, and

(b) call on the jurors on the panel to apply to be excused if they consider that they are not able to give impartial consideration to the case. 147 It was submitted that s 38(7) had been introduced, in its present form, at the same time as the provisions which sought to preserve the anonymity of jurors, in order to ensure that an accused person was not thereby disadvantaged in the exercise of the right to challenge. In support of that contention, our attention was drawn to the Second Reading Speech to the Jury Amendment Bill, during the course of which the Attorney-General said: In this instance, it is clear the withholding of a juror's name will not undermine the trial process or impinge upon the rights of an accused person by limiting his or her right to make a peremptory challenge. Providing a juror's name does not greatly assist the Crown or the accused in the decision as to whether a peremptory challenge should be made as a challenge solely based on a person's name is essentially a resort to stereotypes. The only possible instance in which the name of a juror might assist the parties in the exercise of their rights to challenge is when the name may be relevant in disclosing a possible relationship with the accused person or witnesses. However, this bill proposes to address that concern by requiring prospective jurors to be informed, prior to the commencement of every case, of the nature of the proceedings and of the identities of persons involved in the proceedings, such as the accused and witnesses, so that those jurors who feel that they are unable to give an impartial judgment in the proceedings can seek to be excused. Currently, section 38)(7) of the Jury Act only provides a trial judge with a discretion to make such an announcement. This bill will remove that discretion so that trial judges are required to make such an announcement prior to the commencement of every case. It is the Government's view that the systematic approach of informing jurors at the commencement of each case of the details concerning that case, including the names of the witnesses to be called, so that the jurors may seek to be excused should they feel that they are unable to give an impartial judgment in the proceedings, is preferable to the more haphazard method of the parties attempting to discover such a relationship through the naming of jurors in court. 148 In Ronen, Ipp JA rejected a submission that s 38(7) was an inadequate safeguard against bias on the part of potential jurors. His Honour said: "[a]fter all, the community relies on jurors to find accused persons guilty or not guilty of the crimes with which they are charged. It would be going far, then, to assert that they cannot be relied on to comply with s 38(7)". (par 85) 149 We accept the Crown's submission that the clear legislative intention in seeking to preserve the anonymity of jurors has the consequence that accused persons are, in a very real sense and for very good reasons, deprived of information about the identity of jurors. That is not to say however, that the scheme of the Act would inhibit a court from intervening to prevent a miscarriage of justice were a demonstrated case of bias on the part of a juror to arise. 150 Those considerations aside, what the Appellant must in any event demonstrate is that there has been a miscarriage of justice. The evidence does not, in our view, establish that XYZ knew the Appellant or that he knew of him before the trial. Indeed, as we have said, counsel for the Appellant frankly acknowledged as much. We would not be prepared, in any event, to arrive at such a conclusion, particularly having heard and seen XYZ give evidence. But even if we were wrong in so concluding, that would certainly not be the end of the matter. Even upon the assumption that XYZ did know, or know of, the Appellant prior to the trial, there is simply no evidence available to demonstrate that XYZ entertained any adverse view of the Appellant, or had information which could be said to have reflected adversely upon him, at the time when the jury was empanelled. Notwithstanding the fact that the trial judge gave the customary directions to the jury panel about the matters referred to in s 38(7) of the Jury Act, XYZ clearly saw no basis upon which to make an application to be excused. 151 The only material which was capable of giving rise to an inference that XYZ did in fact hold an adverse view of the Appellant came from the man Pasquale, who gave evidence of a conversation in which he asserted that XYZ had made critical observations about the Kaddour family. However, even if we were disposed to accept that the conversation took place as Pasquale maintained it had, that fact does not advance the Appellant's case because the witness agreed that the conversation had occurred after the trial. Accordingly, it could not be demonstrated that any adverse view which XYZ may have entertained was not acquired simply as a result of the evidence adduced in the trial itself. 152 A risk, even a substantial one, that XYZ may have held an adverse view of the Appellant would not necessarily lead to a conclusion that there had been a miscarriage of justice. In The Queen v Glennon (1992) 173 CLR 592, Mason CJ and Toohey J said: Likewise, the suggestion that there was a substantial risk that at least one juror would have acquired knowledge, before the verdict was given, of the respondent's prior conviction was again a matter of mere conjecture or speculation. The mere possibility that such knowledge may have been acquired by a juror during the trial is not a sufficient basis for concluding that the accused did not have a fair trial or that there was a miscarriage of justice. Something more must be shown. The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial. The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence. As Toohey J observed in Hinch, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them. In Murphy v The Queen , we stated: "But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury. The matter was put this way by the Ontario Court of Appeal in Reg v Hubbert : `In this era of rapid dissemination of news by the various media, it would be naive to think that in the case of a crime involving considerable notoriety, it would be possible to select twelve jurors who had not heard anything about the case. Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence."'

To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge. (at 603) 153 In R v Stretton and Storey [1982] VR 251, three different incidents arose during the course of an affray trial which concerned members of the jury. The first incident involved a remark by a juror to the trial judge's tipstaff that the juror thought he knew one of the accused and knew one of their fathers and that the juror "felt biased already". The bias was said to be "related to ethnic grounds". The second incident occurred when a juror indicated that he felt genuinely fearful and intimidated by the presence in the public gallery of the court of three men, one of whom he knew and whom he believed was associated with one of the accused. He was sufficiently concerned in raising the matter to say that he wanted to publicise the fact in case something happened to him. The third matter related to the fact that one of the jurors and one of the accused played for different football teams in the same league. The team which the accused played for had a reputation for being very rough and violent. It was suggested that the juror may, in those circumstances, have been aware of the accused's prior convictions. The Full Court of Victoria held the view that the trial judge had erred in failing to discharge the jury in respect of the first two incidents. Relevantly however for present purposes, the court took the view that the third matter did not warrant the discharge of the jury. 154 In R v Booth (1982) 8 A Crim R 4, a woman visited a prisoner in gaol whilst she was serving on a jury. They had a discussion during the course of which the prisoner informed her that the accused had "done a lot of gaol". 155 Lush J, with whom Young CJ and Gray J agreed, observed that: The authorities show that a court may in some circumstances inquire whether a juror is or was affected by bias. Unless, however, the alleged bias amounts to a determination to reach a desired conclusion, no matter what the evidence, a verdict will not be quashed on this ground. This was established by Syme (1914) 10 Cr App R 284 and reaffirmed in Box [1964] 1 QB 430. These cases were referred to and applied in Re Matthews and Ford [1973] VR 199 at 205 and 209. The evidence of [the juror] does not in fact prove or even suggest bias. At most it suggests a possibility of bias. … Although the authorities show that the existence of bias of the degree to which I have referred may, at any rate if its proof depends on events brought to notice during the trial, lead to the quashing of a conviction, it is also established that the mere possession by a juror of knowledge of. prior convictions or of bad character which has been acquired from sources outside the trial will not provide ground for quashing a conviction. The relevant authorities are Thompson (1961) 46 Cr App R 72, where the foreman had a 'list of prior convictions; Box and Hood [1968] 1 WLR 773, where the juror's knowledge came from acquaintance with the mother of the prisoner's wife. In Hood the ratio decidendi may have been that the evidence was so strong that there was no miscarriage of justice, but it is clear that the Court of Appeal took the view that the conviction was not to be quashed merely by reason of the existence of this knowledge. (at 8-9) 156 It is unnecessary however to further consider those decisions, or indeed refer to any other similar authorities, because in the final analysis the Appellant is quite unable, in our view, to satisfy the test which was propounded by Mason CJ and McHugh J in Webb v The Queen (1993-4) 181 CLR 41. Their Honours observed that: It follows that the test to be applied in this country for determining whether an irregular incident involving a juror warrants or warranted the discharge of the juror or, in some cases, the jury is whether the incident is such that, notwithstanding the proposed or actual warning of the trial judge, it gives rise to a reasonable apprehension or suspicion on the part of a fair-minded and informed member of the public that the juror or jury has not discharged or will not discharge its task impartially. (at 53) 157 In that case, a majority of the High Court held that a fair-minded observer would not have had an apprehension of lack of impartiality on the part of a juror who, towards the end of the trial, had given a bunch of flowers to a person at the courthouse with a request that it be given to the deceased's mother. As Webb makes clear, it is "apprehension or suspicion on the part of a fair-minded and informed member of the public", rather than what was asserted in this case to be the perception of the Appellant, that is the touchstone for determining this issue. 158 However, there is another fundamental difficulty which confronts the Appellant. Pivotal to his case is his assertion, made well after his conviction and sentence, that he did not recognise XYZ as being one of the jurors who sat upon his trial. We were informed that the trial occupied 52 hearing days. On his own admission, the Appellant had seen XYZ "maybe ten times over the last ten years". He said that he did not know him well but would greet him or in some other way acknowledge him when he saw him. It is simply inconceivable that the Appellant would not, in those circumstances, have recognised XYZ at some stage during the proceedings. Moreover, given some of the matters about which he expressed concerns in his affidavit, it would be reasonable to assume that he would have been particularly vigilant to ensure that no-one, who may have had an adverse opinion of him, was selected on the jury trying his case. 159 His self-serving statement, unsupported as it is by any other evidence, that "since the accident [in 1998] my memory has been very poor", is an entirely unsatisfactory explanation for his asserted failure to recognise the Appellant at any stage during his trial. Moreover, it stands in sharp contrast to his professed capacity, after having been informed by his brother more than three years after the trial that XYZ was indeed on the jury, to recall the individual jurors at his trial with sufficient clarity to be confident that XYZ was in fact one of them. 160 It also beggars belief that Hicham Kaddour did not raise this issue with the Appellant until 2004 although, according to the Appellant's affidavit, he (the brother) had known at that stage for more than three years that XYZ had been on the jury. No explanation for that astonishing set of circumstances has been forthcoming. It is also puzzling that neither Pasquale nor Peter Agostino apparently saw fit to inform anyone of their alleged conversations with XYZ until 2004. In the circumstances, we are of the view that the Appellant's assertion that he did not recognise XYZ at his trial is inherently implausible and ought to be rejected. That is, of itself, a sufficient basis upon which this ground should be rejected. 161 There is one final matter which warrants consideration. The Court had made orders at the request of the parties, in advance of the hearing, for the attendance of various witnesses including XYZ so that they could give evidence and be cross-examined. It was expected that XYZ would be called by the Crown to respond to matters raised in the affidavits filed on behalf of the Appellant, and in particular to the matters raised in the affidavit of Hicham Kaddour. 162 Before the evidence was called, the Court was asked to rule upon the admissibility of various parts of those affidavits. It was at that stage, for the first time, that counsel for the Appellant indicated that he was not going to read the affidavit of Hicham Kaddour. At the same time, leave was sought and obtained to rely on two further affidavits which were in the nature of affidavits in reply to that of XYZ, and upon a further affidavit of the Appellant. Reference has already been made to that material. 163 Counsel for the Appellant then called XYZ as the first witness in his case. The evidence in chief consisted, almost entirely, of leading questions and cross-examination of XYZ. No leave was sought to embark upon either course. It is to be noted that no objection was initially raised by the Crown. The matter was however raised with counsel for the Appellant by the Court. Section 37 of the Evidence Act provides that a leading question must not be put to a witness in examination or in re-examination. There are however exceptions to the general rule, the relevant one for present purposes being the fact that no objection was taken. As no objection was taken, the examination then continued. 164 However, after members of the Bench again expressed concern as to the course which the matter was taking, counsel eventually sought leave to cross-examine the witness pursuant to s 38. Leave was opposed by the Crown. The Appellant relied upon s 38(1)(a) which entitles a party, with the Court's leave, to cross-examine a witness if the witness is "unfavourable" to the party. That expression has been given a broad interpretation and has been consistently held to mean that the witness is "not favourable" to the party calling the witness: See R v Souleyman (1996) 40 NSWLR 712. So much may be accepted. 165 Section 38(6) is in the following terms: Without limiting the matters that the court may take into account in determining whether to give leave or a direction under this section, it is to take into account: (a) whether the party gave notice at the earliest opportunity of his or her intention to seek leave, and (b) the matters on which, and the extent to which, the witness has been, or is likely to be, questioned by another party. 166 As we have pointed out, the first indication of the Appellant's intention to seek leave was when the court raised the matter as the evidence was being taken. It was clear that counsel for the Appellant was set upon having XYZ called as the first witness to give evidence at the hearing. It would seem that he could only achieve that objective by calling him in his own case. It was of course a matter for counsel as to how he conducted his case, but once he elected to pursue the course which he did, he was obliged to observe the provisions of the Evidence Act. As the matter proceeded, it became clear that counsel having abandoned a central plank of his case following his decision not to read the affidavit of Hicham Kaddour, was then unable to establish the evidentiary basis upon which the ground (as filed) depended. Indeed, as we earlier observed, counsel conceded as much. It also appeared that counsel was seeking to cross-examine XYZ with a view to establishing a basis upon which he could press the Ground, albeit in a different form. Moreover the tenor of the cross-examination was clearly designed to cast doubt upon XYZ's assertion that he did not know, or know of, the Appellant at the time of the trial. There is a certain irony in the Appellant's position given his own evidence that he did not recognise XYZ during the course of the trial. 167 It was not appropriate in those circumstances, in our view, to seek to invoke s 38 in an endeavour to obtain evidence from XYZ which may then have provided a basis for arguing this Ground. It was with those considerations in mind that we refused leave to the Appellant to continue with his cross-examination pursuant to s 38. Our observation was that counsel had already, in any event, canvassed those matters which he wished to raise with the witness before leave was refused. 168 In Booth (supra), Lush J made some general observations with which we wholeheartedly agree. His Honour said: …upon discharge the members of the jury should "sink back into the community" (Cussen J. in R Mann [1911] V.L.R. 171, at p. 177). They should not be subject to the danger that they may be approached and may even have pressure brought to bear on them (see Ellis v Deheer [1922] 2 K.B. 113, at p. 121, per Atkin L.J.). … In the present case the evidence will not support a case of bias of any degree, still less of the relevantly necessary degree, and the court should not embark upon or permit the applicant to embark upon an examination of the juror in search of such a case. (at 9) 169 It follows that the circumstances in which it will be appropriate for a former juror to be required to give evidence in the fashion in which XYZ was obliged to will be very rare. Indeed, given the vital role which jurors perform in the administration of justice, counsel must proceed with extreme caution in agitating matters in which claims of bias on the part of a juror are advanced. We are not persuaded that it was necessary, following the decision not to read the affidavit of Hicham Kaddour, for XYZ to have been required to give evidence in the present case. That is especially so as the focus by that stage was said to be not upon XYZ, but upon the Appellant's perception of the situation. 170 Given the stage of the proceedings at which it was asserted that the Appellant became aware of the matters giving rise to this Ground, we would grant him an extension of time to enable him to argue this ground and would also grant him leave to amend the Ground of Appeal. We would, however, for the reasons which we have given, reject the ground (as amended) as being without merit. The Proviso 171 Section 6(1) of the Criminal Appeal Act includes the qualification:- "… provided that the court may, notwithstanding that it is of opinion that the point or points raised by the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred". 172 Our conclusion that the first and fourth grounds of appeal are made out means that consideration must be given to this provision. In doing so it is necessary to make further reference to the evidence than has hitherto been required, particularly in light of the fact that at the trial there were issues of whether any process of manufacturing, with which the Appellant might have been involved had occurred and whether, given the limits of what was shown to be at the premises, manufacture was in fact possible. Consideration of the matter is made no easier by the fact that the investigation of the scene left much to be desired, there was no full analysis of the chemicals found, the chemist who carried out such analysis as did occur conceded the possibility of error in respect of a number of his conclusions, and counsel who appeared for the Appellant seems to have proceeded on the basis that it was necessary for the Crown to establish that the complete manufacture of some MDMA in which the Appellant was involved occurred. 173 Furthermore, apart from the state of the premises and of the equipment, the only evidence that any manufacture or process of manufacture of MDMA with which the Appellant was concerned had occurred came from Mr Koller. On the Appellant's behalf it had been submitted that Mr Koller was a police informer or plant, that he had or may have had at least much of the equipment previously and may have set up the equipment as he did to create the impression of manufacture and to incriminate others. 174 It must however also be said that there was a deal of evidence which was not in dispute. The analytical chemist involved, a Mr Judd, gave evidence to the effect that one way of manufacturing MDMA involved the following chemicals and steps: (i) Safrole combined with Hydrobromic Acid would yield Bromosafrole; (ii) Bromosafrole combined with Methylamine would yield MDMA. (iii) The liquid being or containing MDMA if appropriately salted yields a white powder form of MDMA suitable for distribution (iv) This powder is then collected by filtration and washed and dried. 175 Other evidence from Mr Judd included the following. Safrole can be distilled from sassafras oil, something commonly used in the flavouring industry. Such distillation is facilitated if the oil is placed under reduced pressure, a circumstance which will allow it to boil at a lower temperature than it would at normal atmospheric pressure. The method is termed vacuum assisted distillation. 176 The mixing of safrole with hydrobromic acid is typically done in a glass vessel which can be stoppered although Mr Judd volunteered that he understood the reaction could take place in any vessel. The bromosafrole produced from this combination is an oil, heavier than water and reddish in colour. 177 The next step in the procedure, the combination of the bromosafrole with methylamine is facilitated, and the yield of MDMA increased, if the mixture is heated under pressure, the reaction typically taking place at 130 degrees Centigrade. The object in which that procedure is effected then needs to cool down. This can be done by simple exposure to room temperatures although Mr Judd said that the object might need to be cooled further on ice to allow safe separation of its components. In it would be MDMA and residual reactants. It - (ii) proportions of reactants - - Cylinder is stage at which MDMA is produced. 178 Following this, the mixture of MDMA and residual reactants is boiled, the end reactant methylamine boiled off, leaving crude MDMA oil remaining. This boiling off also is facilitated by a rotary evaporator and vacuum. The rotary evaporator and vacuum pump would facilitate the boiling away of the end reactant methylamine after the combination of the bromosafrole and methylamine. 179 The crude MDMA oil can then be purified by a number of means. One method is to dissolve the oil in a solvent, e.g. acetone and hydrochloric acid, the effect of which is to precipitate MDMA hydrochloride. This exercise can be effected in a beaker and may be assisted by stirring.

180 Mr Judd attended the scene on the morning of the fire, inspected what was to be seen there, assisted in the removal of various items and in due course made some analysis of what was found. He said that the equipment, chemicals and his analysis of what was at the scene was consistent with the above method of making MDMA having been adopted. So was a recipe which was found there. 181 One particular item of equipment found was a rotary evaporator. It, its components and items attached or set up apparently to be used in conjunction bear further description. From the photographs in evidence it is apparent that the main element of the unit stood some 600 to 800 mm high above a table or bench on which much of the equipment was situate and was connected to an electric power cord. Off one side of the unit near the top was a bracket or mount angled at something of the order of 20 degrees to the vertical. Connected to the upward facing part of the bracket was a cylinder, part of which or a tube from which appears to protrude through the mount. To that tube was connected a flask. The lower part of the flask was a sperical bulb and the neck or upper part, i.e. the part connected to the tube, was cylindrical. This flask was labelled A2 in the course of the investigation. 182 The bulb of A2 was situated something of the order of 250-300 mm above the bench. On the bench immediately below A2 were 2 bricks and on the bricks a large round frypan or large saucepan with heating unit below it. 183 The cylinder above the mount had two long lengths of what looks to be garden hose attached which led into the next room where there were water taps and a sink. At the bottom of the lower end of the cylinder was attached another flask which was labelled A4. At the top of the lower end of the cylinder another hose was attached, leading into the stopper in the top of a conical flask standing on the bench. The conical flask was labelled A3 and Mr Judd said that its function was a "vacuum filter trap". From the side of the conical flask but near its top another hose led, via some piping to a vacuum pump. 184 Both on the basis of evidence given by Mr Judd and the form of the unit, it is apparent that its operation involved the contents of the container A2 being boiled and the vapour escaping being cooled and collected in A3 and/or A4. 185 According to Mr Judd, A2 was a 1 litre flask and contained 325.1 grams of a 2 phase brown liquid. Mr Judd agreed that a good example of a 2 phase liquid was a mixture of oil and water in a salad dressing. Left for some time the 2 liquids would separate. 186 A3 was a 1 litre filter flask and contained 296.1 grams of a pale yellow liquid. A4 contained 474.6 grams of safrole.

187 Also scattered about on the bench, as we shall call it, were numerous other items, largely containers of one form or another including Coca Cola and other bottles, jars and beakers but also 2 funnels, a magnetic stirrer, and sundry other small items. Many items contained liquids, including safrole. The description and contents of what seem to me to be the more significant of these, as given by Mr Judd, and the numbers which were assigned to them, were:- A5 a 2 litre beaker containing a yellow-brown liquid contained 2.081.8 grams of safrole. A8 a bottle labelled methylamine which would seem to have been empty.

A24 a large bottle containing 750.4 grams of some liquid containing or consisting of safrole and bromosafrole. A27 a 1 litre beaker containing 55.3 grams of a 2 phase liquid including safrole and 2 other chemicals unconnected with the manufacture of MDMA but typical residues from the manufacture of methylamphetamine. Mr Judd agreed that this indicated that the beaker had probably been used for the manufacture of that different product.

A36 a 4 litre separating funnel (incorporating a tap) supported some 500mm or so above the bench on a stand and containing 528.1 grams of a dark brown liquid including safrole and isosafrole. 188 Other items found in the same room included:- A15 A second bottle labelled methylamine containing 259.5 grams of safrole and bromasafrole. It did not contain methylamine. As to this item, Mr Judd agreed that the presence of safrole and bromasafrole and the absence of methylamine indicated that something had been poured into an empty methylamine bottle. Elsewhere Mr Judd said the methylamine would in any event have changed form because of the PH of the other matter present in the bottle. A19 a 2 litre apple juice flagon containing a 2 phase red liquid containing safrole. However it should perhaps be said that when asked to find this item on the video or still photographs taken of the scene, Mr Judd could not do so. [He also did not know whether it was capped or uncapped when he first saw it. A23 a 2.5 litre soft drink bottle containing acetic acid. A28 a plastic bottle marked methylated spirits. A29 a 2.5 litre container labelled "Hydrochloric Acid" although Mr Judd did not analyse the contents. He accepted that hydrochloric acid has a number of uses including cleaning bricks. A49 a 20 litre plastic drum containing acetic acid.

A55 a 20 litre drum labelled Ajax Chemicals and estimated by Mr Judd to contain 300 grams of diethyl ether. A56 a second 20 litre drum labelled Ajax Chemicals and estimated by Mr Judd to contain diethyl ether. [T160, 181-3, 1845 189 In the main part of the premises other items were found. These included other containers of liquids and an electronic balance. Also found, although there was a conflict of evidence as to where, and given the reference B2 was a steel cylinder, some 59 cm long and variously said to be 10 or 15 cm and 6 or 8 inches in diameter. The cylinder had a flanged top which could be affixed to the cylinder by means of some 10 substantial bolts. Attached to the top of this cylinder was a digital thermometer. When found the cylinder contained 14.1 grams of safrole. 190 Mr Judd said this object was suitable for the heating and creation of the pressure useful in the combination of the bromosafrole and methylamine. In the premises also were 2 objects capable of being used as oil baths for the heating of the cylinder. In one of these objects there was a heating element and in one there appeared to be oil. 191 Although a number of the chemicals to which reference has been made are not included within those to which Mr Judd specifically referred when describing the method of manufacture of MDMA outlined above, he also indicated that they could be used in the process. Thus he said that ether is a common solvent, and is widely used in this type of laboratory. Mr Judd agreed that the methylamine bottles were labelled "aqueous methylamine" although the recipe found called for the use of alcoholic methylamine. Conversion of the former to the latter required alcohol, a substance he did not look for. However he also gave evidence that methylated spirits consists of over 90% alcohol. 192 Mr Judd agreed that he had not found anything he suspected to be hydrobromic acid and nor did he find any methylamine or ice. 193 During the cross-examination of Mr Judd, Mr Somosi also directed attention to the topic of a gasket between the 2 parts of the steel cylinder B2 suggesting, by analogy with a car engine, that a gasket would have been required if the cylinder was to achieve its function. Mr Judd said that in the case of similar objects he had seen before, he had never seen one with a gasket, did not know if one would be needed, thought the fitting would be reasonably snug without one, when dismantling the item had not made a mental note of inspecting it for any gasket and there was nothing to suggest that there had been any ooze on the outside. He said that he believed the temperature inside a car engine would become considerably higher than the 130 degrees desirable for the combination of bromosafrole and methylamine. 194 When first called, Mr Judd gave evidence to the effect that testing of some 8 (sometimes referred to by participants in the trial as 7) of the objects or contents to which reference has been made revealed that they contained MDMA. The testing done was by spectrographic analysis which can detect minute quantities, possibly as low as one part per billion and no quantitative testing was undertaken. It became apparent during the course of cross-examination of Mr Judd and otherwise that there was the possibility some of these contents may have been contaminated by Mr Judd's handling of them. Later Mr Judd gave evidence to the effect that some of his earlier analyses may have been erroneous. In the result, on the thirty-sixth day of the trial, Judge Woods withdrew from the jury's consideration the evidence as to the presence of MDMA in everything but the contents of the flask A2. The sole evidence that remained as to the presence of MDMA was to the effect that MDMA was present in the upper layer of the liquid in this container. 195 The reason his Honour excepted A2 from his ruling concerning the other items seems to have been because of evidence that it had been sealed to a degree that other items had not. 196 Taken to his evidence as to the presence of MDMA in the contents of A2, Mr Judd agreed that he could not exclude the possibility of contamination "by use of a previous cook" (sic). Asked whether he could discount the possibility of the indications of MDMA being present in A2 were the result of contamination of the vessel prior to it being brought to Chard Road, Mr Judd said:- "It's true I cannot discount the possibility of just about anything. But in my view, as an expert, the feasibility or the probability of contamination accounting for the whole of the findings of A2 is slight." 197 Mr Judd agreed that a standard operating procedure to ascertain whether a room has been used as a place to manufacture MDMA is to swab the walls but, by oversight, this had not been done at the Chard Road premises. The issue of whether the premises had been used for the manufacture of MDMA was also explored in the following questions and answers:- Q It is a fact, isn't it, that given all that has gone in your cross-examination today, and given the things that weren't done such as swabbing, you cannot say that those premises were used to manufacture MDMA, can you? A No. Q In fact, you would go so far as to say, I repeat that, you cannot say that MDMA was ever manufactured at those premises? A Correct. Q And in fact, what you found are chemicals and objects that can be used in the process of manufacture of MDMA? A Yes. Q Whether those things were brought there and nothing further was done is an open question as far as you are concerned? A Whether they were brought there it's possible, but from my inspection of the scene it would indicate something more than merely bringing the chemicals to the premises. Q I meant bringing them and setting up? A Bring and setting up as though it would appear that an active process had been taking place. Q You can't say that an active process of manufacture in terms of a cook, not bringing the ingredients for the cake home in the kitchen, turning on the oven, getting things in the bowl, mix it up, put it in the cake tin and putting it in the oven, you can't say whether that happened? A I can't say that manufacture took place on the site. 198 Mr Judd also agreed with the suggestion that, even if all of the items in which he found MDMA were the result of some process of manufacture, it was possible that they were the product of seven different aborted manufactures. Asked a little later, "… we cannot say it happened at the factory (at Chard Rd)", Mr Judd answered "No". 199 When Mr Judd was later recalled, Mr Somosi returned to the topic:- Q Now, you agreed with me you could not say that the premise at Chard road you observed had in fact been used for a cook? A Yes, I did agree with that. Q And you still agree? A I still agree. However, it was the apparatus was such and it was in such positions as it would indicate to me that it could have been used. Q Somebody could have driven it over from Bondi, set it up on the table ready to go? A Yes, the key is-- Q Is that correct? A Yes. However the presence of liquids in the items A2, A4 and A3 indicate to me that some process had been completed or was about to be undertaken, otherwise you would find those vessels which could have been detached or to be the detached or emptied from the apparatus. Q You see, it all depends on what the person wanted to do correct? A Well. Q Obviously? A It is my view that liquids in a such an apparatus which is the rotary evaporator, in a position which is ready to go would indicate an active process or preparation for same. Q I have been shaking this replica now for about ten seconds, seems to fit quite well? A Yes. Q And it is designed for a security fit on the rotary evaporator, isn't it? A Yes. Q So it is not meant to move? A Yes Q You could put a solution in the item A2 ready to go, couldn't you? A You could, but you wouldn't normally transport it that way. Q I am not suggesting someone was idiotic enough to leave it connected to the rotary evaporator and throw it in the back of the Volkswagon and drive to Brookvale. I am suggesting somebody who has the liquids skill and components set the table up to look that way. You can't say that didn't happen, can you? A No, I can't. Q So you cannot discount the theory that what you saw at Chard Road had been transplanted lab, can you? A I can't discount that theory, nor can I discount it was part of an active plant. Q Just one thing at a time. You agreed with me, correct? A Yes. 200 Later there was this exchange:- Q What I am suggesting to you, as a theory, that this was a transplanted lab from another place, might be supported if you don't see some things are necessary for the production, correct? A I think I have agreed to that possibility of it being a transported lab. I can't rule that out. 201 Mr Judd also agreed that he did not know where B2 was used and could not say that any methylamine was used or at the premises. 202 Before commenting on the above, we should refer to some of the other evidence in the case. 203 Mr Bhanji, one of the Appellant's co-accused, had become lessee of the premises on or about 1 June 1996. Mr Bhanji gave evidence. He said that the Appellant, with whom he had become friends, had had a panel-beating business at Artarmon which he had sold. A term of the sale was that he would not open up another panel beating shop. However the Appellant wished to do so - or at least work on racing cars - and offered Mr Bhanji that if the latter took a lease of premises in his name, the Appellant would do certain work on a car Mr Bhanji owned for nothing. Later the Appellant told Mr Bhanji that he had found premises that would be suitable and it was of those premises that Mr Bhanji came to lease. Some particular clauses were included in the lease as a result of requests by the Appellant for them. The Appellant provided an initial $500 paid to the real estate agent. Asked who made the rent payments, Mr Bhanji said that the Appellant made them initially and after that Mr Koller did so. At some time the Appellant told Mr Bhanji that Mr Koller was paying the rent and wished to take over the lease. 204 Mr Bhanji also gave evidence that he had purchased, in two lots, 5 bottles of methylamine. His explanation for doing so was that Mark Watts, a friend of his sister asked him to do so for someone else whose account with the chemical supplier was overdrawn. Mr Bhanji registered another business name to effect this. Mark paid Mr Bhanji the cost of the methylamine and called by on 2 occasions and picked them up. This evidence of Mr Bhanji was corroborated by evidence from his sister and Mark Watts. 205 Counsel for the Appellant did not challenge any of Mr Bhanji's evidence. 206 There was also other evidence indicating that the bottles of methylamine Mr Bhanji purchased came from a batch of 48 bottles only 6 of which were sold in New South Wales and that one of the methylamine bottles found at the Chard Rd premises came from the that batch. 207 In the main part of the premises at the time of the fire there was a Falcon motor vehicle, the body and some parts of a Honda vehicle which Mr Bhanji said was the subject of the repair arrangement to which reference has been made, a motor cycle, a substantial number of parts of vehicle bumper bars, a limited number of other vehicle parts, tools and sundry other items. Photographs show one pile of brick, one pile of Besser blocks, a bag of cement, another bag of some other plaster and a concrete mixer in that area. There was evidence, particularly from a brother of the Appellant that that part of the unit had been used for the repair and storage of vehicles needing repair. Mr Hicham Kaddour said that in connection with such vehicles he had visited the premises quite often over a period of 6 weeks prior to the fire, he had not seen any signs of excavation or glassware and had been unable to use the toilet because it was locked. Pressed, he said that the last time he was there was probably 2 weeks before the fire. His visits extended to about 10 to 15 hours a week. When he was there Mr Koller would show interest in what was being done to the vehicles. 208 Also tendered was evidence that the Appellant's fingerprints were found on a number of items, viz:- Ex H - A recipe for MDMA.

Ex AX - the cover of a "Victory Notebook". Ex BN - an invoice addressed to Altaf Bhanji dated 22/7/96 from Schweinsberg Granger, the agents of the owner of unit 4/42-44 Chard Rd for rent, bond, stamp duty etc. Ex BO - another invoice addressed to Altaf Bhanji dated 1/8/96 from Schweinsberg Granger and a receipt dated 31/7/96. Ex BP - a "National Hire" invoice dated 7 July 1996 for the hire of a 2 ton Tipper, a Kanga (jackhammer) and chisel resharpening fees (formerly part of EX AY and MFI 56). Ex BV - a cash sale invoice from The Steel Store dated 29/7/96. Ex CM - a receipt from Brookvale Sand Company dated 10 August 1996 for goods including 3 floats, a shovel and what may be cement. Ex CN - a handwritten document which contains reference to chemicals and equipment and which takes the form of notes, a check list or instructions, in part under the headings, "Step 1", "Step 2" etc. The chemicals and equipment referred to include "Sep Fun - big", "safrol", "pump", "acetic acid", "methyl amine" "ether", "M stirrer", "ice" and "rotary & pump" although there is mention also of a number of chemicals not referred to in the formula for MDMA which Mr Judd outlined. Ex CO - A "Test Tube Factory Laboratory" catalogue print N102,3. Ex CP - p 675 of a book being the first page of an Article "An Evaluation of the Potential for Clandestine Manufacture of 3,4-Methlenedioxyamphetamine (MDA) Analogs and Homologs". Ex CQ - p 623 of a textbook describing chemical reactions and the yield of, at least, crude bromide from them. 209 Other evidence indicated that:- Exhibits H, CP and CQ were found on the bench where the majority of the laboratory equipment was. Exhibits AX, BN, BP, BV, CM, CN were found on or in the area of the stairs from the ground and laboratory level to an upper level which had been adapted as living quarters. Exhibits BO and CO were found on the upper level. 210 Evidence was not needed to establish that the items the subject of invoices BP and CM were appropriate for the work involved in the excavation under the shower floor. 211 The evidence established also that the Appellant had a deal to do with the obtaining of the steel cylinder B2. On 9 April 1996 he attended the Steel Store with another man and purchased steel, including one piece approximately 6 inches in diameter. The other man attended on a later occasion and purchased more. Some of that purchased could have been incorporated into B2. The Appellant and others also attended on a toolmaker, a Mr Dowling, took him steel and a drawing and as a result the toolmaker made the item B2. During an early contact, one of the men, probably the Appellant, told Mr Dowling that "it was a new method for refining oil and if it worked they were going to go on a big scale but this was only a little model to see if it worked efficiently". 212 It is against the background of this evidence that we turn to consider the question of whether, notwithstanding the errors or omissions the subject of the first and fourth grounds of appeal, one can conclude that there was no substantial miscarriage of justice. We are of the view that one can so conclude. 213 Although extracts which we have quoted from the transcript of Mr Judd's cross-examination demonstrate that the question whether manufacture had occurred at unit 4/42-44 Chard Rd, Brookvale was the subject of contest in the trial, it is apparent that at least in large part that cross-examination and Mr Judd's responses were directed to manufacture of the completed product. However in Thomas (1993) 67 A Crim R 308 at 311, Gleeson CJ, with the concurrence of the other members of the Court made it clear that offending is not confined to that situation and that "where … a person manufactures something with a view to going on to use it in the manufacture of a desired end product then it is normally proper to regard that as a step in the process of manufacturing the end product (and) the fact that the process is interrupted at an intermediate stage does not take the case outside the terms of s6 of the Act". 214 Certainly there were questions and answers directed to the possibility that what was seen was a "transplanted lab" as distinct from an "active plant" and Mr Judd conceded the possibility that the former was the case. However in context it is impossible not to regard Mr Judd's concessions as little, and perhaps nothing, more than a reflection of the fact that he had not seen manufacture occurring and an approach apparent in one of his answers that "I cannot discount the possibility of just about anything". At one stage during the trial counsel for the Appellant conceded that at the premises "they" were "attempting to make something illegal" and said that there was no dispute about that and although this was said in the absence of the jury there could be no doubt that that was the intent of the participants. The jury's conviction of the Appellant on the first and fourth counts demonstrate that they were satisfied that the Appellant was one of the participants and the "something" was MDMA. 215 When to these last mentioned matters is added the evidence of the presence, nature, relative positions and set up of the various pieces of equipment and chemicals found on the bench in the laboratory and depicted in photographs, it is impossible to conclude otherwise than that the process of manufacture had commenced at the Chard Road premises. (We put to one side the possibility that the Appellant may have been involved in manufacture elsewhere since any such conclusion depended entirely or at least almost entirely on the evidence of Mr Koller.) 216 In so concluding we do not ignore the suggestion, made during the trial by the Appellant's counsel, that Mr Koller was a police informer or set up the laboratory and involved the Appellant at the instigation of the police or to cover up some other criminal network to which he belonged circumstances which may well have made any manufacture at the premises less likely. Although, as conceded by the Crown, one or other of these situations is a theoretical possibility, when one has regard to the Appellant's interest in the premises, his involvement in the obtaining of B2, his fingerprints on the number of items which bore them, the nature of those items and that they were somewhat spread out, the excavation on the one hand and the construction materials in the main area (which it was common ground the Appellant visited) on the other the suggestion strikes us as fanciful. In any event, it is to our minds necessarily implicit in the jury's verdicts (including that on the fourth count where Mr Koller's evidence was the only direct testimony as to the Appellant's involvement) that they must have rejected these possibilities. Certainly is this so in the case of the second of the possibilities mentioned when regard is had to the remarks we have quoted at the end of our consideration of Ground 1. 217 In arriving at our conclusion that there was no miscarriage of justice, we take account also of the error in the trial which was the subject of the fourth ground of appeal. Although the conclusion is open that at the time of the discovery of the laboratory and earlier there were not and had not been in the premises all of the ingredients and, perhaps in the absence of a gasket, all of the equipment necessary to the manufacture of MDMA, sufficient appears to exclude, even as a possibility, the hypothesis that the manufacture the subject of the charge was confined to the use of the chemicals and other items which were on site at the time of discovery or had been there earlier. This was not a case such as R v McCoy where the case put to the jury was confined to a process actually under way at the time, and the use of the chemicals there present, and where this Court concluded that while "(t)hose directing the enterprise could have made another attempt using different chemicals, … that would have been a different process of manufacture of methylamphetamine from that put before the jury". 218 Accordingly, although the Appellant has made out 2 of the grounds of appeal relied on, his appeal against conviction should be dismissed.

The Sentence Appeal 219 For the offence of knowingly taking in part in the manufacture of MDMA his Honour sentenced the Appellant to imprisonment for five years and six months, commencing on 2 March 2003 and expiring on 1 September 2008 and fixed a non-parole period of three years and five months, expiring on 1 August 2006. For the offence of malicious damage his Honour sentenced the Appellant to imprisonment for one year, commencing on 2 March 2003 and expiring on 1 March 2004. 220 The delay in the prosecution of this appeal has already been referred to and more will be said about the matter when the fourth ground of appeal against sentence is dealt with. Unlike the delay that has taken place in the prosecution of the conviction appeal, delay in the prosecution of the application for leave to appeal against sentence appears not to have led to any particular injustice towards the Crown. Since, if the application for leave to appeal is successful, orders can be framed apt to do justice to both sides, we do not think that the Appellant should be shut out from arguing any of the grounds he now wishes to advance. 221 It is convenient to deal together with the first and the sixth grounds of appeal. They are as follows - 1. The sentencing judge erred in failing to consider whether the sentence to be imposed on the charge of knowingly take part in manufacture should be served partly concurrently with the sentence on the charge of dangerous driving. 6. In determining whether there were "Special Circumstances" for the purpose of section 44(2) of the Crimes (Sentencing Procedure) Act 1999, the sentencing judge failed to have regard to the fact that the sentence was being ordered to be served wholly cumulatively upon an existing sentence. 222 When he came before his Honour, the Appellant was already serving a sentence for the offence of dangerous driving causing grievous bodily harm, which incorporated a non-parole period of three years, expiring on 2 March 2003. His Honour ordered the sentences now appealed against to commence upon the expiry of that non-parole period, and the combined effect of all the sentences was a non-parole period of six years and five months with a further period of two years and one month during which the Appellant would be eligible for release on parole. 223 As to the first ground, it was submitted that there was no presumption that the latter sentences should be made wholly cumulative upon the former, particularly when, as was the fact, the incident leading to the earlier sentence took place after the manufacture of MDMA. It was conceded that it was appropriate for his Honour to regard the two incidents as separate but was submitted that his Honour erred in having "apparently no regard at all" to adjusting the commencement date of the sentences he imposed to take into account the totality of the Appellant's criminality. It was submitted that this Court ought to infer from his Honour's not having mentioned totality of criminality that there was no reason for not making the sentences partially concurrent. 224 Having in mind the totality of the Appellant's criminality it would not in our opinion be correct to say that the three sentences were not partially concurrent. The malicious damage sentence was made wholly concurrent with the manufacturing sentence and the practical result was that the Appellant received no additional punishment for it. That is a consequence which must be given weight in any argument based on totality of criminality. 225 The facts of the dangerous driving offence were put before his Honour. On 14 September 1998 the Appellant drove a high performance sports car in a suburban arterial road. For about six kilometres before it crashed, several witnesses saw the car driving at high speed. At a speed of about 100 kilometres per hour the car crossed the median strip and collided with a car travelling in the opposite direction. A person travelling in that car was seriously injured. The Appellant had a bad record of speeding offences and was unlicensed at the time. There was no contrition. Even on appeal, the Appellant was asserting that the collision was caused by a mechanical defect of his car. The Court of Criminal Appeal substituted a sentence comprising a total term of four years and a non-parole period of three years. 226 It seems to us that the totality of the Appellant's criminality in all three offences well justified the commencement date of the sentences appealed against and the total effective non-parole period which resulted. We would not infer from his Honour's not having used the expression "totality of criminality" that his Honour did not have in mind the totality of the Appellant's criminality when deciding to accumulate the sentences. His Honour mentioned the dangerous driving offence and described it as "the grave matter for which he is now serving a sentence". In our opinion the first ground of appeal has not been made good. 227 As to the sixth ground, it was submitted that in determining whether there were special circumstances for the purposes of s44 Crimes (Sentencing Procedure) Act his Honour failed to have regard to the accumulation of sentences. His Honour found as a special circumstance the harsh conditions in which the Appellant was being kept in custody and reduced the non-parole period so that it comprised about sixty-two per cent of the head sentence on the manufacturing charge. It was submitted that the effect of accumulation was a non-parole period for all three offences of seventy-seven months out of a total head sentence of one hundred and two months. Thus the non-parole period was about seventy-five per cent of the head sentence. That, it was submitted, did not reflect a finding of special circumstances. 228 It is correct to say that his Honour did not, in considering s44, refer to accumulation, but that does not in our view lead to any inference that his Honour was unaware of the dangerous driving sentence. His Honour was well aware of it. We have already quoted something that his Honour said about it. 229 It is not the law that the accumulation of sentences must be regarded as justifying an adjustment of the proportions between non-parole and parole periods. It is simply a factor that may do so. 230 It seems to us that his Honour must have considered whether the accumulation on the existing non-parole period justified any further reduction of the non-parole period for the manufacturing offence and decided that it did not. Such a decision would be unsurprising in view of the totality of the Appellant's criminality in committing the two later offences. His Honour was bound to impose an effective non-parole period that reflected their objective criminality. A period of three years and five months seems not to be excessive for that purpose. 231 The second and third grounds of appeal are as follows - 2. The sentencing judge erred in making positive findings of fact in regarding the quantities intended to be produced in the course of the manufacturing process. In circumstances where the applicant had been acquitted by the jury on a charge of knowingly take part in the manufacture of both the large commercial quantity and the commercial quantity. 3. The sentencing judge erred in making findings of fact adverse to the applicant regarding the nature of his knowledge of the illegal manufacturing process findings which were inconsistent with the verdicts of the jury on the charges involving either the commercial quantity or the large commercial quantity. 232 The jury had acquitted the Appellant of the first and second charges, each of which depended on proof of a certain amount of MDMA, and convicted him of the alternative count which did not require proof of any particular weight of the drug. In imposing sentence his Honour said this - While the precise quantity of a prohibited drug could not be established, there is no doubt that it was an elaborately arranged exercise, the purpose of which was to manufacture, if it were possible, as much of the drug as they could for the purpose of making as much money as they could.

233 It was submitted that those words amounted to a finding of fact which contemplated the production of "an almost infinite quantity of drugs on a continuing basis". Since the quantity of drugs to be considered for the purpose of sentence was an amount less than the commercial quantity, this finding was impermissible. 234 It seems to us that the words complained of are not a finding that the Appellant contemplated the production of any quantity of MDMA exceeding the commercial quantity or that he knowingly took part in the manufacture of any such quantity, let alone "an almost infinite quantity". All his Honour was doing by the use of the words, it seems to us, was describing the degree of planning that went into the enterprise. That was a legitimate consideration. Moreover, immediately after the words complained of, his Honour said this - It was a very serious offence, although I repeat that the offender is not being sentenced on a basis in relation to which he was found not guilty. 235 Elsewhere in the remarks on sentence his Honour said this - The offender was found guilty of the alternative to count two, that is to say, the version of the offence which found him guilty of knowingly taking part in the manufacture simpliciter of the prohibited drug with no reference in the charge to a particular quantity.

236 These considerations, together with the fact that the sentence would have been manifestly inadequate for the manufacture of the commercial quantity of the drug, satisfy us that his Honour did not divert himself by failing to give the Appellant the benefit of his acquittals on the first and second counts. These grounds of appeal have not been made good. 237 The fourth ground of appeal is as follows - 4. The sentencing judge failed to have sufficient regard to the delay that had occurred between the time of the commission of the offences of which the Appellant was convicted and the time of his sentence being determined. 238 The offence took place in 1996. The Appellant was found guilty in April 2001 and requested his Honour to defer sentence pending an appeal he had lodged to this Court over his dangerous driving offence. His Honour complied and the result was that sentence was not handed down until 17 May 2002. His Honour referred to this delay in imposing sentence. It was submitted on behalf of the Appellant that his Honour failed to have sufficient regard to the time that had elapsed between the offence and the imposition of sentence. Reference was made to R v Todd [1982] 2 NSWLR 517 and to the principle dealt with therein, that delay may produce the need for peculiar flexibility in sentencing and even the need to impose a sentence that might otherwise be regarded as unduly lenient. 239 The law is uncontroversial. Central to the consideration of the sentencing court must be an assessment of the length of time that has passed, the state of uncertainty in which the offender has been kept and any effect it may have had upon him and whether in the intervening period the offender has rehabilitated. It is therefore appropriate to consider what happened between the commission of the Appellant's offence and his sentence and why. 240 The Appellant was arrested on 25 August 1996. He was granted bail. His committal hearing was fixed to commence on 28 July 1997, but he successfully applied to have it vacated. A new date was fixed and he was committed for trial on 27 November 1997. His trial was fixed to commence on 15 March 1999. He successfully applied to vacate the date. The trial was fixed to begin on 6 September 1999. Again the Appellant applied to vacate the date. It was vacated and the trial was fixed to begin on 1 May 2000. He applied again to vacate the date. Again he was successful and the trial was set to commence on 24 July 2000. Through no fault of the Appellant that trial was aborted and the trial at the conclusion of which he was convicted began on 29 January 2001. It thus appears that one fixture in the Local Court and three in the District Court were vacated on the application of the Appellant. It does not appear whether on any such occasion the application was precipitated by any action or inaction on the part of the prosecution. On at least two occasions the proffered reason was the desire of the Appellant to have appear for him particular counsel who were not then available. 241 During the currency of bail, between 22 August and 9 December 1998, the Appellant knowingly involved himself in the manufacture of MDMA in a laboratory at Dural. He also caused malicious damage of property by fire. He was arrested on 10 December 1998. 242 On 14 September 1998 he committed the offence to which we have already referred of dangerous driving causing grievous bodily harm. 243 The Dural drug charge was mentioned many times in the District Court. On a number of occasions the matter was fixed for trial and on a number of occasions the trial dates were vacated on the application of the Appellant. Finally, on 28 October 2002, on the first day of yet another trial fixture, he pleaded guilty. Although it does not appear how it has come about, the Appellant has still not been sentenced for the offences he committed at Dural. 244 This short summary of events is sufficient to establish two things, first that the delay which took place between the present offences and the sentences appealed from has not adversely impressed itself upon the Appellant. Rather, he has welcomed it and, for the most part, has caused it. The second thing is that the circumstances give no reason to suppose that the Appellant has made any attempt at rehabilitation. 245 In our view the Appellant was not entitled to any reduction of his sentence because of delay. This ground of appeal has not been made good. 246 The fifth ground of appeal is as follows - 5. The sentencing judge did not give adequate weight in the assessment of the sentence to the fact that the Appellant had been detained in custody since 25 September 2001 as an "Extreme High Risk Inmate". 247 It was submitted that there was evidence before his Honour about the nature and duration of the Appellant's confinement which entitled the Appellant to a reduction in the length of time to be served in custody. 248 This was a matter that was drawn to his Honour's attention and to which he paid particular regard in the remarks on sentence. The harsh conditions in which the Appellant had been kept in custody had been raised in his dangerous driving appeal. It had been there submitted that those conditions warranted a further reduction of the non-parole period. This Court considered that they did not because it was not known for how long the onerous conditions would continue. 249 The evidence before his Honour was different, of course, and his Honour gave the matter long and detailed consideration, as this extract from the remarks on sentence shows - I asked counsel what material had been put to the Court of Criminal Appeal, and I gather from what counsel tell me that this issue was not agitated in any great detail in evidence before the Court of Criminal Appeal. By contrast, on the last occasion when I sentenced Turkmani, a great deal of material was put before me. There is some evidence that on 1 February 1999 the offender Turkmani and his then co-accused, Khalid Kaddour were assaulted by one or more prison officers. Neither Turkmani nor Kaddour has given evidence about it and I do not know to what extent provocation or other misbehaviour might have been involved in that situation. Nonetheless, there is before me, in exhibit TSK, an internal Department of Corrective Services report, summarising statements by various prison officers who either came forward or had been interrogated about the alleged incident. This exhibit was edited in a form such as to provide protection under the Protected Disclosure Act (1994) , that is, the "Whistleblowers Act", popularly so known. As well, I have the benefit of a number of coloured photographs of the co-offender Turkmani (and I should say, co-inmate, relevantly) which were taken apparently on 4 February 1999. I refer to exhibits TSJ and TSC, and I also have the advantage of the medical reports, exhibit TSB. In general I find this material disturbing. It is unhappily reminiscent of the material which was put before his Honour Nagle J in the Prisons Royal Commission which reported in 1978. In the present proceedings I cannot and do not make any findings against particular prison officers. I am not engaged in a Royal Commission. Nonetheless, the material before me is, as I have said, disturbing. It is coupled with evidence that both Turkmani and Kaddour have been classified as "extreme high risk" inmates. (See exhibit TSD and KA/TSH) These exhibits make it plain that such a classification entails a markedly onerous prison regime for the offender who falls within it. Visits are restricted, telephone access is limited, and such prisoners are regularly moved. This inhibits normal activities. I accept that the solicitors, both for Turkmani and Kaddour, have written several times to the High Risk Inmates Management Committee seeking termination of the high risk classification and at least disclosure of the reasons for the classification. Nothing before me indicates that the offender or his solicitors have been told these reasons. Normally the Court would not concern itself with the internal classification of an offender within the prison system. However, in the present case we have good reason for doing so. Firstly, on the limited evidence before me, I think it likely that the offenders Turkmani and Kaddour were the subject of excessive force while in custody in early February 1999. As I say, while there is no evidence from Turkmani himself on the subject, it seems that several prison officers who were present were concerned at what happened and in the vernacular, "blew the whistle', thus provoking the internal inquiries which have generated the documentation before me. The medical evidence reports of Dr Burns, exhibits TSB and photographs exhibits TSJ and TSC corroborate this. Whether there is any link between the classification of Turkmani and Kaddour in the extreme high risk category and the allegations of excessive force I cannot positively say. Relevant to my present task however, is the fact that the offender Kaddour has been classified to a situation within the prison which is distinctly more burdensome for him than ordinary incarceration is expected to be. There is no evidence before me that this onerous classification is the fault of the offender and will not continue. In the comments made by the Court of Criminal Appeal, to which I pay the most respectful attention, it is notably said that: "The Court does not know when the Appellant might have his classification reassessed." (para 46) It seems that that learned Court did not have the material which has been put before me. … In the present matter I regard the evidence before me relating to the conditions of likely future incarceration as constituting special circumstances in terms of s44 of the Crimes (Sentencing Procedure) Act 1999 .

250 His Honour obviously gave substantial weight to the conditions of the Appellant's custody, and the resulting sentences do not suggest that any less weight was given to that matter than was appropriate. In our opinion this ground of appeal has not been made good. 251 We grant leave to appeal against the sentences but dismiss the appeal. 252 Accordingly the orders of the Court are:- 1. The appeal against conviction is dismissed. 2. Grant leave to appeal against sentence. 3. Dismiss the appeal against sentence. **********

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