R v Shafiei

Criminal Appeal Act 1912 LEGISLATION CITED : Customs Act 1901 (C'Wealth) Criminal Appeal Rules 1952 Evidence Act 1995 Kingswell v The Queen (1985) 159 CLR 264; The Queen v Meaton (1986) 160 CLR 359; CASES CITED: Cheng & Chan Vol 107 Pt 4 ACR 460; The Queen v Yuill (1994) 77 A Crim R 314 at 320; Tripodina, Morabito (1988) 35 A Crim R 183 at 195. DECISION : (1) Leave be granted pursuant to rule 4; (2) Appeal allowed; (3) Verdict of the jury of 14 April 1999 is set aside; (4) There is to be a new trial.

FITZGERALD JA SPERLING J WHEALY J

1 FITZGERALD JA: The circumstances giving rise to this application and appeal are set out in the reasons for judgment of Whealy J. 2 The central importance of the circumstance of aggravation alleged in the indictment against the appellant, namely, that the quantity of opium which he had in his possession was not less than the trafficable quantity, is easily demonstrated. The maximum period of imprisonment applicable if the quantity of opium which the appellant had in his possession was not less than the trafficable quantity was 25 years, Customs Act 1901 (Cwth), s 235(2)(d)(i).. If the quantity of opium which the appellant had in his possession was less than the trafficable quantity, the maximum period of imprisonment to which he could lawfully have been sentenced was 2 years. Customs Act, s 235(2)(e). The appellant was sentenced to imprisonment for 6 ½ years. 3 At the appellant's trial, the judge, the prosecution and the appellant all proceeded on the basis that the quantity of opium which had been imported, and which the appellant intended to receive and possess, which was considerably in excess of a trafficable quantity, was the quantity which the appellant did possess. Although the prosecution maintained that position in this Court, no relevant authority in support was cited. Uncomplicated by authority, the language of the material section Customs Act, s 233(B) (1)(c) seems clear. The offence of which the appellant was convicted is concerned with what an accused person actually possessed, not with what he or she intended to possess. 4 The prosecution submitted that it is contrary to the public interest to give the section that meaning. However, there is no substance in that argument. Schedule VI of the Customs Act prescribes quite small quantities as trafficable quantities in respect of opium and other drugs, and controlled delivery samples slightly in excess of trafficable quantities can be utilised by law enforcement authorities without any particular risk to the public. Indeed, the prosecution informed the Court that the controlled delivery sample which the appellant received and possessed was not less than a trafficable quantity, although much less than the quantity imported. However, that was not proved at trial or before the sentencing judge. 5 Although the prosecution omitted to prove that the quantity of opium received by the appellant was not less than a trafficable quantity, the appellant contributed to that mistake. In the circumstances, the appellant did not dispute that, if leave is granted and the appeal allowed, this Court may appropriately order a new trial. That is the course which the prosecution sought. It did not seek to have the Court enter a conviction of the appellant for an offence against s 233B(1)(c) without the circumstance of aggravation and re-sentence the appellant on that basis. 6 The mistake which occurred is so fundamental that a conclusion that there has been a mistrial is inescapable. 7 I agree with the orders proposed by Whealy J. 8 SPERLING J: I agree with the orders proposed by Whealy J and with his reasons. 9 WHEALY J: On 12 April 1999 the appellant was arraigned on a charge of possessing a prohibited import, namely opium, being not less than the trafficable quantity applicable to that drug. 10 The indictment asserts that on 18 September 1997 at Whalan in the State of New South Wales, the appellant did without reasonable excuse have in his possession prohibited imports to which s 233B(1)(c) of the Customs Act 1901 applied, namely narcotic goods consisting of a quantity of opium being not less than the trafficable quantity applicable to opium which had been imported into Australia in contravention of the said Act. 11 Section 235(2)(d)(i) provides a maximum penalty in these circumstances. It is for a fine not exceeding $100,000.00 or imprisonment for a period not exceeding 25 years, or both. 12 Section 4 of the Customs Act 1901 defines trafficable quantity in relation to a narcotic substance, relevantly as follows: - "(a) Where the substance is named or described in column 1 of Schedule VI - the quantity that is specified in column 2 of that schedule opposite to the name or description of that substance." 13 Schedule VI to the Act provides, in effect, that 2 grams of opium is a trafficable quantity. 14 It is common ground that the Crown averred the aggravating feature regarding the quantity of the drug in the indictment in accordance with Kingswell v The Queen (1985) 159 CLR 264 and The Queen v Meaton (1986) 160 CLR 359. Moreover, as will be seen later, the learned trial judge directed the jury that they had to be satisfied (inter alia) that the appellant had in his possession on the relevant date, a quantity of opium not less than the trafficable quantity. 15 The appellant's trial concluded on 14 April 1999 when the jury found him guilty. The trial judge, on 24 May 1999, sentenced the appellant to six years and six months imprisonment to date from 14 February 1999. His Honour fixed a non-parole period of three years and six months. 16 The notice of grounds of appeal raises two grounds. These are as follows: - 1. The learned Trial Judge misdirected the jury with regard to the element of "not less than a trafficable quantity" of the prohibited import. 2. The sentence is manifestly excessive. 17 Counsel for the appellant accepts that rule 4 of the Criminal Appeal Rules 1952 requires that leave be obtained in relation to the first of these grounds. 18 Stated briefly, the Crown case was as follows: - 19 In September 1997 Mr Vaughan Cubitt worked with the Australian Custom Service. He and another officer attended the DHL Worldwide Express bond building in Mascot at about 10.30 on 16 September 1997. This is a bonded warehouse where parcels entering the country are accepted for customs examination or clearance. He examined a red parcel with some plastic wrapping. There were two plastic bags in there each containing a painting or, what were described at the trial as two wooden icons with paintings on the front of each of them. The parcels had come from Sofiya in Bulgaria. The recipient described on the shipment airway bill was the appellant whose address was given as 26 Talasea Street, Whalan, New South Wales, Australia. The document described the contents as "copies of wooden icons". The declared value was $10.00 although the currency was not nominated. The icons were taken to the Government Offices at Link Road where they were opened and examined. The Federal Police were called after a sample of an organic substance was tested showing a presumptive indication to the presence of an opiate substance. 20 The Federal Police examination showed that there were packages inside the icons. Inside those packages was a black sticky substance which, by appropriate evidence and certificates before the jury, was shown to be opium. 21 Federal Agent Geisler weighed the opium and found that together the amount of the opium in the two bags was 2,008 grams or just over 2 kilos. 22 Federal Agent Geisler prepared what are called controlled delivery samples. That is to say, a quantity of the opium is taken out from the bulk and placed in plastic inside a substitute package which is then placed back inside each of the icons. This was necessarily a small amount of the opium. The bulk of the material inside the icons was a form of black plasticine. Apparently this was used because it is a substance that resembles opium. 23 The packages and icons were reconstructed so that they would resemble their original condition. I understand that the purpose of this exercise was to enable the delivery of the parcel to the address in Whalan, containing within it the substitute packages which were mainly full of plasticine albeit containing as well a small quantity of opium. 24 A Federal Police Agent, Mr David Perry impersonated a DHL officer so that the proposed delivery would look genuine. He attended 26 Talasea Street, Whalan where delivery of the parcel was given to an apparent occupant of that house. A shipment delivery record was tendered as exhibit "K" which apparently was signed by the wife of the appellant. The delivery took place in the afternoon of 18 September 1997. 25 Later in the evening of that day a number of agents with the Australian Federal Police executed a search warrant at the Whalan address, made observations and arranged for certain photographs to be taken. The parcel was found in the roof of the premises inside a ceiling manhole. Evidence was given by a number of federal agents at the trial essentially sheeting home possession of the opium to the appellant, or at least in an endeavour to do so. 26 A reading of the case for the appellant shows that there was no dispute on his part about the "mechanics" of the Crown case. His case was that he was unaware of the nature of the items which came into his custody after they had been delivered to his home. 27 At page 9 of the transcript it is recited that "submissions" signed by the appellant were admitted without objection as exhibit "P". I understand that it is common ground that these were in fact admissions made pursuant to s 184 of the Evidence Act 1995 and that they were in fact admitted as exhibit "Q". 28 The admissions are in the following form: - "I Ali Shafiei, on the advice of my counsel, admit the following matters of fact; 1. That on or about 16 September 1998 a package (hereafter known as "the package") was imported into Australia addressed as follows - From: Aziz Habib, Aziz A Co. Chervena Zvezda, BL. 405, APT. 14 Sofia. Bulgaria. Phone: 6257286

To: Ali Shafiei 26 Talasea Street, WHALAN. Sydney. New South Wales. Australia. Phone: 9652.6535. 2. Upon its arrival in Australia "the package" was found to contain 2.008 kilograms of opium. 3. That all exhibits (with the exception of "the package" between the hours 4.30pm and 9.42pm on 18 September 1997) and produced during the trial had been in continuous safe custody and had not been improperly interfered with or altered". 29 After the admission of exhibit "Q", the presiding judge said this to the jury (transcript p 9): "Now what that means is this members of the jury, that the accused admits those facts. If he didn't the Crown would have to call everyone who handled the package from the time it arrived and where it went to and how it was kept and how it was brought to the court and so on, they would also have to provide proof of all these other aspects. The accused in effect says well look I don't argue that the package was sent here, it was addressed as indicated and it contained that amount of opium, so he doesn't require the Crown to prove all those facts. But the fact of his admitting those facts doesn't mean he is guilty of the offence, it is simply an easy way of saving a lot of time by the accused admitting facts that are not really contested. But it still leaves the vital question for you as to whether he is guilty or not guilty of the offence charged in the indictment. But that's the admission of facts in that matter." 30 At that point, the Crown case closed. 31 The appellant's case mainly relied upon the version of events he had given to the Federal Police during his long record of interview. This story was that an unknown person named George had asked him to take delivery of a parcel in exchange for George paying him approximately $1,000 to $1,500 along with some other benefits. The jury clearly rejected this story when they found the appellant guilty of the charge. 32 The trial judge at p 3 of the summing-up told the jury the matters which the Crown had to prove in order that the appellant might be found guilty beyond reasonable doubt. He said that the Crown had to prove every element or ingredient of the charge. He read out the charge and he then recited the matters which had to be proved as follow: - "First of all, that on 18 September 1997 at Whalan the accused had a quantity of opium in his possession; (2) that it was not less than the trafficable quantity; (3) that opium is a prohibited import; and (4) that the opium had been imported into Australia in contravention of the Customs Act." 33 He went on to say - "However, counsel for the Crown and the accused have both indicated that most of those things are not contested. For a start it is admitted that the contents of the package were imported into Australia. It was a parcel that came to Sydney from Bulgaria so the importation is proved. Next, opium is a prohibited import. The Customs Act says so, therefore as a matter of law, I can tell you that the opium that was in the package that arrived in Sydney is a prohibited import. Next the amount that was in the package, over two kilograms, is more than the trafficable quantity. The trafficable quantity is twenty grams so this was well in excess of that. The fact that the parcel was intercepted by the Customs people, and most of the opium was removed and replaced with black plasticine, does not make any difference. It is quite a legitimate procedure for the authorities to do what they did, to remove most of the opium and leave just a sample in the package and reconstruct it so that it looks like it was when it originally arrived, then to have the parcel delivered as if it was the original two kilograms of opium". 34 There then follows the words which the appellant urges on this court constituted a misdirection to the jury. The learned trial judge continued: - "Provided there is some opium in the parcel, then the recipient is fixed with liability for the whole two kilograms as if the whole parcel had not been interfered with. So you can find all of those elements proved beyond reasonable doubt."

35 As I have said earlier, the appellant urges upon this Court that there was in fact no evidence before the jury of the precise quantity of opium that was contained in the controlled delivery samples which were ultimately delivered to the appellant and which came into his possession at his home in Whalan. Secondly, it is said that the admissions made (exhibit "Q") were no admissions as to the quantity of opium contained in the parcel received at his home. Thirdly, it is said that the learned trial judge misdirected the jury with regard to the element of "not less than a trafficable quantity" of the prohibited import. 36 In these circumstances, the appellant argues that there should have been a verdict by direction on the count at the end of the Crown case. 37 It appears to be a legitimate inference that it never occurred to counsel for the appellant to seek a correct direction from the judge (assuming the direction he gave was incorrect); nor did the Crown see the need to seek the relevant correction; nor did it occur to anybody that a verdict by direction be sought at the end of the Crown case. It seems, for whatever reason, that the learned judge and counsel all proceeded on the assumption that the relevant admissions (or agreements evidenced by those admissions) did not require the jury to make any finding on the issue relating to the trafficable quantity or opium in the actual possession of the appellant at his home in Whalan on 18 September 1997.

Issues before the Court 38 The submissions as originally framed pose three issues for determination by the court. These were: - 1. Should leave be granted pursuant to rule 4 of the Criminal Appeal Rules in relation to the direction given by the learned trial judge at the hearing? 2. If so, was the direction in question incorrect? 3. If so, should the appeal be allowed or should it be dismissed having regard to the proviso in s 6(1) of the Criminal Appeal Act 1912 (as amended). 39 At the commencement of the hearing, counsel for the appellant emphasised that the principal ground of appeal in effect focussed upon his assertion that there was in fact no evidence before the jury as to the quantity of the opium contained in the icons which were delivered to and came into the possession of the appellant on 18 September 1997. 40 It is critical to the determination of this appeal to ascertain whether this assertion is correct. The court was informed it is common ground between the Crown and the appellant that in fact there was no evidence before the jury in relation to this important matter. As a consequence, it became clear that the appellant had been convicted and sentenced on the basis that the jury had been satisfied beyond reasonable doubt that on 18 September 1997 the appellant had a quantity of opium in his possession at his home in Whalan that was not less than the trafficable quantity, whereas in fact there was no evidence to show the amount of the opium inside the icons at the time when the appellant took them into his possession. 41 It was argued by counsel for the respondent that the appellant's intention to bring into his possession a quantity of opium not less than the trafficable amount would be sufficient even were there no evidence of the amount of opium actually in his possession at the relevant time. Counsel was unable to refer us to any authority which supported this proposition other than to give the court a reference to Cheng & Chan Vol 107 Pt 4 ACR 460. This was a South Australian case involving charges under s 233B(1)(d) of the Customs Act 1901 (C'Wealth). The appellants in that decision were charged with being knowingly concerned with importation of a prohibited import. I do not consider that this is authority for the proposition advanced by counsel for the respondent. 42 The second matter raised by counsel for the respondent was that the appellant had in fact been charged with an offence against sub-s (1)(c) of s 223B of the Customs Act 1901 (C'Wealth) and that he had been convicted only of this charge (namely being in possession of narcotic goods which had been imported into Australia in contravention of Act) and the matter relating to the trafficable quantity was to be regarded as no more than a particular relevant to the issue of penalty: (Kingswell v The Queen (supra); The Queen v Meaton (supra)). It is not necessary for this court to address this issue as a matter of substance for a number of reasons. First, the Court was not addressed, other than peripherally, in relation to this issue. Secondly, (unlike Kingswell) there is no doubt on the facts of this case the indictment asserted that the appellant did without reasonable excuse have in his possession certain prohibited imports "being not less than the trafficable quantity applicable to opium" which had been imported into Australia in contravention the said Act. Moreover, the learned trial judge told the jury they would have to be satisfied that the appellant had a quantity of opium in his possession on 18 September 1997 that was not less than the trafficable quantity. The trial was conducted and the appellant was sentenced on the basis that he was guilty of possession of opium of more than the trafficable quantity. 43 In those circumstances, it is not necessary for the court to consider this aspect of the matter further.

Resolution of the issues 44 Insofar as the appeal concerns a misdirection by the learned trial judge, it is necessary to consider whether the court should grant leave. Authorities on this point make it clear that leave will be granted sparingly but will be granted where the irregularity is such a departure from the essential requirements of the law that it goes to the root of the proceedings (Tripodina, Morabito (1988) 35 A Crim R 183 at 195; The Queen v Yuill (1994) 77 A Crim R 314 at 320). 45 In my opinion, the direction given by the learned trial judge may properly be categorised as such a departure from the essential requirements of the law. It was manifestly incorrect and went to the essence of the conviction. I am of the view that leave should be granted. 46 The larger question is whether the appeal should be allowed under s 6(1) of the Criminal Appeals Act. As there was no evidence before the jury that "a trafficable quantity" (within the meaning of the Customs Act) was delivered to and in the possession of the appellant at his home in Whalan on 18 September 1997, the verdict cannot be supported. Secondly, the misdirection proceeded on the assumption that no such evidence was necessary; thirdly, the written admission made by the appellant proceeded on the same assumption but did not provide any admission as to the critical matter. 47 For these reasons, I am of the opinion that a substantial miscarriage of justice has actually occurred in relation to the trial and that the appeal should be allowed. 48 It is accepted by both the appellant and the Crown that if the Court comes to this conclusion, it is appropriate that a new trial be ordered. 49 I propose that the following orders be made: -

(3) Verdict of the jury of 14 April 1999 is set aside;

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