R v Kokkinos [2004] VSCA 83

5. On 14 October 2002 his Honour heard a plea for leniency on behalf of the applicant and on 25 October 2002 he sentenced him as follows:

His Honour directed the sentences to be served concurrently, so that the total effective sentence was five years' imprisonment. A non-parole period of three years was fixed. His Honour also made a declaration as to pre-sentence detention, and made a forfeiture order, a pecuniary penalty order in the sum of $12,000 and a forensic procedure order.

11. The applicant has applied for leave to appeal against conviction on the ground that the conviction on count 1 was unsafe and unsatisfactory and for leave to appeal against sentence on the ground that the sentence was manifestly excessive.

14. Hortis has applied for leave to appeal against conviction and against the sentence which was imposed upon him, but it is unnecessary to refer to those applications as the Court granted an adjournment of them.

17. In the offences the subject of the presentment there were other co-offenders, namely, Maxwell Mundy, Jason Mundy, Petre Enache and Mark Tyrer. The last three pleaded guilty and were sentenced by a different judge in May 2000 and May 2001 respectively. Maxwell Mundy was committed for trial in the County Court, but failed to appear. A warrant of apprehension remains outstanding.

21. Before the applications can be considered it is necessary to state in summary form the evidence relating to the first count and the essence of the offending the subject of count 2. Each count alleged one instance of trafficking on a specified date. In May 1999 a member of the Victoria Police attached to the Covert Investigation Unit having the assumed name of Alex Baldwin was involved in an investigation of a suspected drug trafficker named Maxwell Mundy. His role was to purchase drugs and firearms from Mundy. He also had a number of meetings and conversations with Mundy's son, Jason Mundy, relating to the purchase of cannabis, cocaine, amphetamines and firearms. He made an arrangement with Maxwell Mundy for the supply to him, Baldwin, of three ounces of cocaine, to be delivered at a meeting on or about 28 August 1999 for the price of $12,000. Pursuant to arrangements made by telephone Baldwin arrived at the Vibe Restaurant or Café in Acland Street, St. Kilda, on 28 August at a time which police surveillance evidence showed to be 9.27 a.m. Mundy and another man were at a table and he joined them. The other man soon left. Mundy told him that, instead of providing three ounces of cocaine that was about 40 per cent pure, he was going to supply him with 1½ ounces double that strength, 84½ per cent pure, and also glucoden, the powder that is used to mix with the cocaine to dilute it. Mundy asked Baldwin to give him the $12,000 so that he could take that money, go away and obtain the cocaine and then come back to Baldwin with it. Mundy opened the newspaper that he had earlier been seen by police to purchase and Baldwin placed $12,000 in it, having received that money earlier from his police superior. Mundy closed the paper and left the restaurant. About 15 minutes later, according to Baldwin, he returned. He was carrying the newspaper, doubled over, as well as a white paper bag containing glucoden energy powder. The newspaper contained two parcels. One was a ball wrapped in freezer bag-type plastic and containing a white coloured material. The other, slightly larger, was wrapped in brown boxing tape and supposedly contained the near pure cocaine. Subsequent analysis showed that it did. Mundy handed Baldwin the white paper bag and the two parcels. After some conversation about further purchases they left the restaurant and parted company. Baldwin did not meet the applicant or know of his existence until the following day.

24. Police surveillance evidence established that Mundy left the restaurant carrying a newspaper at 9.34 a.m., walked to his white Holden Commodore sedan car and drove away in it. Further surveillance followed. Telephone intercepts on Mundy's mobile telephone of various conversations between Mundy and the applicant were made by the police before, on and after 28 August 1999. In one of them (call No.97), recorded as made at 9.34.42 a.m. on 28 August[1], Mundy telephoned Kokkinos and said, "I'll be there in five", to which Kokkinos replied "OK". Mundy then said that he would meet him "out the front", to which Kokkinos gave the same reply. Mundy then said "Right, bye" and Kokkinos, "OK". No other call from or to that telephone was made in the period between Mundy's leaving the restaurant and his return to it. Surveillance evidence further established that Mundy parked his Commodore sedan in Canterbury Road, St. Kilda West, in the vicinity of Mary Street at 9.37 a.m., that he alighted and entered the front door of Unit 1, 300 Canterbury Road[2] at 9.38 a.m. and at 9.46 a.m. left those premises with the applicant. This was the first time the surveillance team saw the applicant. At approximately 9.47 a.m. he and Mundy were photographed getting into Mundy's vehicle, Mundy into the driving seat and the applicant into the front passenger seat. They drove off together towards Acland Street and police conducted mobile surveillance. They parked in Belford Street at 9.52 a.m. and alighted. They parted company, the applicant crossing Acland Street. At 9.54 am. Mundy went back to the Vibe Restaurant. Some ten minutes later they met again, got back into the car and drove off. The applicant was carrying a brown paper bag containing a bread stick.

27. Other telephone intercepts on Mundy's mobile telephone should be mentioned. In the course of a call commenced two seconds before midnight on 27 August (call No.88) Mundy, after referring to a meeting with someone which was "average", said to the applicant, "Well at least I got the main fella tomorrow anyhow." The next call between them (call No.91) was made by the applicant approximately 50 minutes after midnight. In the course of it he said to Mundy, "I've got what you want." Whilst another part of that call shows that it did not relate to the transaction the subject of count 1, the conversation shows at least a relationship between the two men of a suspect nature. The same is true of a call made by Mundy later on 28 August at 4.01 p.m. (call No.140). In the course of it Mundy said, "I need something what you got" and "I've got a fellow who wants to have a look at something."

30. The foregoing evidence relates to count 1. For count 2, on which the applicant does not challenge his conviction, the following description is sufficient. At 8.39 p.m. on 2 September 1999 the applicant parked in front of the house at 32 Rothesay Street, Elwood, where the applicant was staying. Hortis and Enache arrived by car at the house and all three entered it. According to Enache, he had on instructions from his supplier collected from the nature strip a red plastic bag containing cocaine of the order of 1 pound in weight and handed it to the applicant (and possibly Hortis) at the front gate. The applicant put the bag with its contents in the bathroom of the house. The applicant and Mundy later left the premises. Shortly after 11.00 p.m. Baldwin parked opposite the premises and 2 minutes later the applicant and Mundy returned and entered them. Mundy came out and invited Baldwin into the house. Mundy and Baldwin counted (for the second time) the $97,500.00 produced by Baldwin, that sum having been agreed between them as the price payable by Baldwin for a pound of cocaine. The applicant came into the room where they were and Mundy asked him to fetch the cocaine in order to show it to Baldwin, the purchaser. The applicant went out and returned with a parcel containing white powder. The applicant put his finger into it and then into Baldwin's mouth, saying that it was cocaine. Shortly afterwards the police arrived and arrested those present. The foregoing does not account for the whole of the applicant's participation in the transaction. Thus, at meetings at various eating houses in St. Kilda and a St. Kilda park from Sunday 29 August to Thursday, 2 September (both inclusive), he had received in person Mundy's order from him of cocaine for supply to Baldwin, had discussed with Baldwin the availability and price of cocaine and had himself ordered the cocaine from Enache, who was at the time accompanied by Hortis. (Enache claimed he obtained cocaine to fill the order from an ultimate supplier, "John", in Dandenong.) In addition, the applicant had taken part in numerous telephone calls with Baldwin and Mundy arranging the deal.

34. The narrow nature of both of the applications of the applicant should be noticed. The application concerning conviction relates only to count 1. The application concerning sentence relates only to count 2 and is contingent in the sense that it is only pursued in the event that the application concerning conviction succeeds and the conviction on count 1 is quashed. With that introduction I turn to the application concerning conviction. The sole ground is that the conviction on count 1 was unsafe and unsatisfactory. More accurately, it is that, within the first limb of s.568(1) of the Crimes Act 1958, the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence. In considering that ground the appellate court does not consider as a question of law whether there is evidence to support the verdict. With the substitution of "a conviction" for "the verdict" that was the question which the judge was required to decide on the "no case" submission and did decide adversely to the applicant. The question now raised is different. It is one of fact which the appellate court must decide by making its own independent assessment of the evidence [3] and determining whether, notwithstanding that there is evidence upon which a jury might convict, none the less it will be dangerous in all the circumstances to allow the verdict to stand. The ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. These propositions are established by M v. The Queen[4]. The test formulated by the majority in that case must now be accepted as the appropriate test for determining whether the verdict is "unsafe or unsatisfactory", that is, unreasonable or not able to be supported having regard to the evidence: Jones v. The Queen[5] and, especially, MFA v. The Queen[6].

37. It was submitted for the applicant that an independent assessment of the evidence relevant to count 1 reveals that it was not open to the jury to be satisfied beyond reasonable doubt of the guilt of the applicant of count 1. In elaboration it was said that there was no direct or circumstantial evidence to rebut the hypothesis that the applicant was at the premises in Canterbury Road for some other purpose including, but not limited to, his own purchase of drugs (whether cocaine, cannabis or methylamphetamines) for personal consumption. It was submitted that there was no evidence beyond presence at the Canterbury Road premises to infer knowledge of the cocaine transaction: there was no possession, no pre-concert and no evidence of enrichment. Counsel said that he was not suggesting that the applicant was doing anything lawful at the Canterbury Road premises, but, as he pointed out, correctly, it is necessary for the Crown to exclude all reasonable hypotheses consistent with innocence of the offence alleged in count 1. Reliance was placed on the fact that Baldwin did not know the existence of the applicant until the day after the date alleged in count 1 and upon the fact that the police surveillance officers had not observed the applicant until he was seen leaving the Canterbury Road premises. It was pointed out that the jury was directed to give separate consideration to each count, but it was submitted that notwithstanding the direction the verdict reflected an impermissible process of reasoning, the jury being faced with an impossible task of not taking into account at all the facts that constituted count 2. Counsel stated that that submission was made to suggest a risk which might explain the ground, and was not put forward as an independent ground. It was also submitted that the Crown material was not sufficient to draw any hypothesis consistent with guilt on count 1 beyond speculation: the jury could not be satisfied beyond reasonable doubt.

40. It will be seen that this is not a case where the applicant suggests that the evidence lacks credibility by reason, for instance, of discrepancies or its being tainted. None of the evidence is impugned. Rather, the argument is that it was insufficient to make out the case against the applicant. Now, that case was circumstantial or largely so, so that the question whether this Court thinks that upon the whole of the evidence relating to count 1 it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on that count may be re-phrased (to adopt and adapt the statement of the majority in Knight v. The Queen[7]) as whether this Court, making its own assessment of the evidence, considers that the jury, acting reasonably, could have rejected as a rational inference every inference consistent with innocence of that count and in particular the inference propounded by counsel for the applicant. Or, more simply, the question translates into the more specific question whether (to adopt the statement by Gaudron, McHugh and Hayne, JJ. in De Gruchy v. The Queen[8]) there was a reasonable hypothesis consistent with the applicant's innocence.

43. In my opinion, for the reasons which follow, the jury, acting reasonably, could have rejected as a rational inference the possibility suggested by his counsel that the applicant was present at the Canterbury Road premises for the purpose of obtaining drugs of one kind or another for his own personal use. More generally, my independent review of the evidence leads me to the conclusion that there was not a reasonable hypothesis consistent with the applicant's innocence on count 1.

46. Contrary to counsel's assertion, there is considerably more evidence against the applicant here than mere presence in the Canterbury Road premises (and, I would add, in the car and the general area of the restaurant), as I shall endeavour to show. Now, when Mundy received the $12,000 from Baldwin at the restaurant he did not have with him the agreed amount of cocaine to hand over to Baldwin and it is clear, even if one disregards Mundy's statement to Baldwin, that he left the restaurant in order to obtain the cocaine. When he returned he had it. The surveillance evidence shows that he was away from the restaurant from 9.34 a.m. until 9.54 a.m., only 20 minutes. In that period no call was made to or from Mundy's mobile telephone apart from Mundy's call at 9.34 a.m. to the applicant. Further, in that period Mundy went to one place only, the Canterbury Road premises. This appears from three facts. First, to judge from his telephone call Mundy expected to take five minutes to reach the applicant. He in fact entered the house within four minutes if all the timings are accurate, but the drive back took five minutes. Secondly, it is clear from the evidence that Mundy and the applicant were under surveillance from the time they left the Canterbury Road premises until the applicant went his way in Acland Street and Mundy re-entered the restaurant. Whilst the surveillance evidence of the journey to the Canterbury Road premises is not quite so clear, it is likely, and was open to the jury to find, that Mundy was under observation continuously from the restaurant to the Canterbury Road premises. Thirdly, there is no evidence suggesting that Mundy went to any other place during the 20 minute interval and it would seem impossible for him to have had time to do so. The position, then, is that Mundy left the restaurant in order to obtain the cocaine, he returned with it in 20 minutes, he had gone only to the Canterbury Road premises and he had come out from them with the applicant, to whom he had made his only phone call in the 20 minutes.

49. Now, the things unsaid in that call are eloquent of the purpose of the two men. It is obvious both that each knew before the call was made what it was that Mundy wanted to meet the applicant about and that, if the applicant was not at the time at the Canterbury Road premises[9], he knew where "there" was. The applicant did not query why Mundy was coming. He was expecting the call. Contrary to counsel's submission, there was pre-concert. It cannot, in my opinion, be doubted that Mundy obtained the cocaine from the applicant at the premises in Canterbury Road or in the car on the way back to the Acland Street area. The statements by Mundy in call 97, in which the applicant agreed or at least acquiesced, taken with the purpose for which Mundy had left the restaurant, the small amount of time he had or took, the coming together of the two men inside the premises in Canterbury Road, and the fact that there was otherwise no reason for either to be there, show that the applicant had cocaine at the premises. The answer to counsel's rhetorical question, "Why did Mundy go into the premises when they had arranged to meet outside?" is, "Because the applicant did not meet him outside and he needed to see the applicant." When it is learned that Mundy obtained cocaine in the presence of the applicant just after call No.97 it can confidently be said that this coy and cautious call (and earlier ones) related to drugs.

52. The facts that Baldwin did not meet the applicant until the following day and that no surveillance officer had seen the applicant before he left the Canterbury Road premises that day cast no doubt upon the views expressed, for it may be thought that not infrequently a person dealing with a drug trafficker does not meet the latter's supplier and that not infrequently police investigating a drug trafficker are ignorant of the trafficker's supplier or superior, at least for some time into their operation. Finally, it should be noted that, since the items of circumstantial evidence discussed above constituted pieces of a mosaic or strands in a cable as opposed to successive links in a chain of reasoning, it was not necessary that each be accepted and relied on by the jury.

55. Besides the evidence on which I have so far relied there are other telephone conversations between Mundy and the applicant, both earlier and later than the carrying out of the transaction between Mundy and Baldwin. Thus, calls Nos. 88, 91 and 140 show on their face not merely a relationship between Mundy and the applicant but (because care was taken in them to avoid any mention of the subject or substance of their discussions) a relationship that was improper, if not criminal. When it is seen that subsequently Mundy obtained cocaine in the presence of the applicant the relationship is shown to concern illicit drugs. Further, having regard to what occurred the next morning, the expression "the main fella" in call No.88 might reasonably be taken as referring to Baldwin. The applicant should be taken to have known during the call that Mundy had a cocaine transaction arranged with a purchaser for the following morning. Calls Nos.91 and 140, taken together, show that the applicant had merchandise that Mundy from time to time needed and sold to other persons and that, because each was careful not to disclose the nature of the merchandise, it was at least likely that the merchandise was illicit. Finally, call No.91 shows that a transaction between the two speakers was to occur in the early hours of 28 August by which the applicant would deliver to Mundy some of his illicit merchandise. The fact of that proposed transaction, which was to be completed about 1.30 a.m. on 28 August, tends to make it more likely that the applicant's telephone conversation and personal contact with Mundy later that day (from 9.34 a.m. to about 10 a.m.) were for a guilty rather than an innocent purpose and is thus probative of count 1, as was the prior relationship or dealing in Plomp v. The Queen[10] and Harriman v. The Queen[11]. No direction about relationship evidence was given, but, having regard to what the prosecutor put[12] to the judge in answer to the "no case" submission, it appears likely that this view of the first two telephone calls at least was put by him to the jury. That the charge did not deal with those calls does not mean that the jury may not be taken to have so used the evidence either at the prosecutor's invitation or on their own initiative. Be that as it may, the fact that regard is to be had to the charge[13]

in the making of this Court's independent review of the evidence for the purpose of the first limb of s.568(1) seems no reason why the Court should not also have regard to the evidence of relationship, at least where (as here) the jury was not directed not to use it. I stress, however, that I would reach the same conclusion if I had no regard to it.

60. As for the hypothesis propounded by counsel for the applicant, there is no evidence supporting the view that the applicant was present at the Canterbury Road premises to obtain drugs for his personal use or for any reason not connected with count 1. As Eames, J.A. said during argument, the hypothesis is rank speculation. But, if the applicant were so present, Mundy would have had no occasion to need to meet him or himself to be at the premises, both of which are contrary to fact. Nor does the hypothesis explain why the applicant travelled to and from the Acland Street area in Mundy's car. The suggestion, made during argument, that Mundy might have arranged previously to take the applicant to the Acland Street shopping area is quite unrealistic: it is contrary to human experience for a person with a short time to obtain some important goods to spend virtually the whole of the time available in affording another person a lift for some very minor shopping. Moreover, one would expect the applicant to have said in call No.97 something like, "I'll pick you up in five minutes". The purchase of a bread stick was to provide an alibi or an air of innocence. In fact, however, it was open to the jury to consider that the applicant travelled with Mundy and stayed in the general vicinity of the restaurant while Mundy was handing over the cocaine to Baldwin in order to see that the transaction was carried out without mishap and, when it was, then rejoined Mundy. It was also suggested during argument that Mundy might have had the cocaine in his car. Had that been so, one would expect him to have retrieved it and completed the transaction as soon as possible. The visit to the Canterbury Road premises could have waited.

63. The respondent also relied upon the fact that the applicant, the one person besides Mundy (who had absconded) who knew both what he and Mundy were talking about by telephone and what occurred inside the Canterbury Road premises and inside the car, did not give evidence. The respondent's counsel relied upon the statements made by the Full Court in R. v. Neilan[14] and approved by this Court in R. v. Doherty[15] that the failure of an accused to give evidence in a circumstantial case was "not irrelevant for all purposes" in the appellate court where the first limb of s.568(1) was in question and that the jury was entitled, as the appellate court was, to consider that the silence of the accused permitted a more ready acceptance of the Crown case. Counsel also relied on the similar view expressed in R. v. Cengiz[16]. Counsel contended that Doherty was not inconsistent with Dyers v. The Queen[17] and the earlier cases of RPS v. The Queen[18] and Azzopardi v. The Queen[19], in each of which statements in the yet earlier case of Weissensteiner v. The Queen[20] were qualified and restricted, the last-mentioned case, though not the first three, being cited in the passage in Doherty. Counsel for the applicant in his reply did indeed say that where there was no defence evidence it was easier to draw an inference relied on by the Crown. Without meaning to cast any doubt upon the passage in Doherty I have found it unnecessary to consider whether it is in any way inconsistent with the three High Court decisions as I have reached a firm conclusion without reliance on the failure of the applicant to give evidence.

66. Counsel for the respondent pointed out that apparently no submissions at trial were directed towards the admissibility on count 1 of the evidence (if accepted by the jury) of the part played by the applicant in various aspects of the offence the subject of count 2. Accordingly, he did not rely on that evidence, particularly because of the separate consideration direction, though he claimed that, properly, the evidence, if accepted, was admissible and, if used, would have made the Crown case on count 1 unanswerable. In view not only of the course of proceedings below and the proper attitude of respondent's counsel in this Court but especially of the firm conclusion I have otherwise formed, I place no reliance upon the evidence relating to count 2.

69. To conclude: I consider, to use the oft-cited statement of Dixon, J. in Martin v. Osborne[21], that, according to the common course of human affairs, the degree of probability that the occurrence of the facts proved in evidence and discussed above would be accompanied by the occurrence of the fact to be proved (namely, that the applicant supplied the necessary cocaine to Mundy[22]) is so high that the contrary cannot reasonably be supposed. The evidentiary circumstances bear no other reasonable explanation. It follows that I would answer the "ultimate question" stated in M v. The Queen[23] by saying that I think that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty on count 1. The view which I have expressed necessarily involves the rejection of the applicant's additional (though logically anterior and more far-reaching) submission that, quite apart from competing hypotheses, the evidence was not sufficient for any hypothesis consistent with guilt to be drawn beyond reasonable doubt.

72. 22 It follows that the application for leave to appeal against conviction must be dismissed.

76. Since the contingency on which the application concerning sentence depended is not, in my opinion, satisfied, that application must be dismissed, as counsel accepted would be the case if the conviction application failed. But I would add this. The argument accepted that a total effective sentence of five years' imprisonment for the two offences was within the range open to the sentencing judge.[24] The argument was that the sentence on count 5 reflected not only that offending but also the offending the subject of count 1. I do not accept that his Honour made that sentencing error. In my opinion, the sentence on count 2 was within the range open to his Honour for the offence the subject of that count, having regard to the seriousness of the offending (including the amount of cocaine agreed upon), the maximum penalty provided, and the fact that the applicant had a prior conviction for a serious drug offence.

81. I agree, for the reasons given by Batt, J.A., that the applications for leave to appeal against conviction and sentence should be dismissed.

86. For the reasons given by Batt, J.A., I agree that the applications for leave to appeal against conviction and sentence should be dismissed.

[1] The telephonic and surveillance times were not synchronised, but the accuracy of neither was challenged.

[2] There was no evidence as to the ownership or occupation of this unit.

[3] In the context of the whole trial, including the summing up ordinarily (Gaudron, J.) or directions to the jury (Callinan, J.): Gipp v. The Queen (1998) 194 C.L.R. 106 at 114, para.[18], and 164, para.[171], respectively.

[4] [1994] HCA 63; (1994) 181 C.L.R. 487 at 492-493.

[5] (1997) 191 C.L.R. 439 at 450-452. See also, for example, Gipp at 114, para.[18]; 123, para.[49]; and 162-164, paras.[169] and [170].

[6] (2002) 77 A.L.J.R, 139 at 144, paras.[25], [26], and 148-150, paras.[52] - [59].

[7] [1992] HCA 56; (1992) 175 C.L.R. 495 at 503. A recent case where the question was posed and answered favourably to the appellant is R. v. Cervelli [1998] 3 V.R. 776 at 782-785. Compare R. v. Moran and Mokbel [1998] VSCA 64; [1999] 2 V.R. 87 at 94-95, per Kenny, J.A. Despite some seemingly wider statements in Knight, that decision requires, as Ormiston, J.A. pointed out in R. v. Cingez [1998] 3 V.R. 720 at 722, that the innocent inference or hypothesis be reasonable or rational.

[8] [2002] HCA 33; (2002) 211 C.L.R. 85 at 94, para.[36].

[9] On this there seems to be no evidence, though, if he was not at the premises, the applicant must have been even closer than Mundy to the premises.

[10] [1963] HCA 44; (1963) 110 C.L.R. 234 at 243.

[11] [1989] HCA 50; (1989) 167 C.L.R. 590.

14] [1992] VicRp 5; [1992] 1 V.R. 57 at 65-66.

[15] [2003] VSCA 158; (2003) 6 V.R. 393 at 410, para.[27].

[16] [1998] 3 V.R. 720 at 722 per Charles, J.A. and 737 per Harper, A.J.A.

[18] [2000] HCA 3; (2000) 199 C.L.R. 620.

[20] [1993] HCA 65; (1993) 178 C.L.R. 217.

[21] (1936) 55 C.L.R. 567 at 375, expounded by his Honour, when Chief Justice, in Plomp v. The Queen [1963] HCA 44; (1963) 110 C.L.R. 234 at 243. Both judgments are quoted in Knight at 502 and 503. See also Doney v. The Queen [1990] HCA 51; (1990) 171 C.L.R. 207 at 211 and the cases there cited.

[22] It appears from the judge's charge (T426 and 435-6) and sentencing remarks (T520) that this was how the Crown case on count 1 was put.

[24] Presumably, there seemed to be no point in challenging the sentence on count 5 if the conviction application failed because it was expected that on any re-sentencing a cumulation direction would restore the amount by which the sentence on count 5 was reduced.