REGINA v. GONZALEZ-BETES [2001] NSWCCA 226

JUDGMENT 1 DOWD, J: The court is in a position to give judgment in relation to the first appellant and Greg James, J. will give the first judgment. 2 GREG JAMES, J: This is an application for leave to appeal against sentence and an appeal against conviction by Beatriz Gonzalez-Betes Suarez, who was found guilty after a trial in the District Court of New South Wales on one count of having been knowingly concerned with Gregory Paul Meggett and Jose Manuel Campillo Vaquere in the importation into Australia of a prohibited import to which s.233B of the Customs Act 1901 (Cth) applied, to wit, narcotic goods consisting of a quantity of cocaine being not less than the commercial quantity applicable to cocaine. 3 The quantity in this case was some 224.84 kilograms impure, 172.2 kilograms pure of the prohibited drug. 4 The appellant in respect of that offence was sentenced to a head sentence of life imprisonment with a non-parole period of 22 years. The co-accused, Robert Scott Flavel, who was tried with this appellant, also appeals against conviction and seeks leave to appeal against the sentence imposed upon him, which was a sentence of life imprisonment with a non-parole period of 25 years. 5 The person Meggett referred to in the charge had pleaded guilty and agreed to assist the authorities. He gave evidence in the relevant trial. Having regard to his role and to his assistance a sentence had been passed upon him of 10 years imprisonment with a non-parole period of six years. 6 The grounds of appeal as to the conviction of this appellant include an initial four grounds which may be considered together. Those grounds are expressed in the grounds of appeal and the written submissions as follows:- "(1) Her Honour erred in not ordering a separate trial of the appellants. This caused a miscarriage of justice." 7 (That ground was expressed in the written submissions as follows, "The failure of trial counsel for the appellant to make a separate trial application and caused the miscarriage of justice".) "(2) Her Honour erred in admitting inadmissible material of previous importations by Gregory Meggett, Robert Flavel and Julian Del Prado, be led against the appellant. This caused a miscarriage of justice. (3) Her Honour erred in not directing the jury, before the evidence of Gregory Meggett was given of previous drug importations, that this evidence was only admissible and to be considered in the case alleged against Robert Flavel and not the appellant. This caused a miscarriage of justice. (4) Her Honour erred in not directing the jury that the evidence of Gregory Meggett of previous drug importations was only admissible and to be considered in their deliberations in the case alleged against Robert Flavel and not the appellant. This caused a miscarriage of justice." 8 These grounds all refer, as they have been argued, to evidence that had been admitted at the joint trial of some seven previous transatlantic journeys in which, as occurred on this occasion, a yacht was used to transport a Boston Whaler internationally. 9 A short summary of facts of what was alleged against the appellant makes it clear that it was contended that she had been party to an importation of the drugs into Australia by the use of a yacht, the Maeva, she had previously provided to one Del Prado. That yacht was used to carry a Boston Whaler, in which the drug was concealed, to the north coast of New South Wales to where she had come to meet the others involved in the importation and where she took steps to take possession of the Whaler. 10 Importantly, there was evidence from Meggett that at Varadero Beach in Cuba he had a conversation with the appellant in which she revealed knowledge of the use of a yacht for the purpose of carrying Boston Whalers as a technique for importing contraband into foreign countries. 11 That conversation included references to her saying to Meggett that she "knew of Robert [Flavel] and my involvement with Julian [Del Prado] and moving the dinghies to Europe". She said "that it was a good idea to put drugs in the dinghy", and that "it was difficult to have knowledge of Julian was doing and Rob and myself and then to pretend in front of [her husband] that she knew nothing, that everything was normal". 12 This conversation it was said occurred with Meggett at a time at which the appellant and her husband were the owners of the yacht, Maeva. 13 Following the conversation Meggett sailed the vessel with the appellant and her husband to the Netherlands Antilles. The appellant and her husband there left the vessel, having apparently sold it to Del Prado or a person or entity associated with him. 14 Meggett remained with the yacht, thereafter flew to Florida and met with Flavel. The two of them returned to the Netherlands Antilles where they met Del Prado, who instructed them to sail the yacht to the northern terminus of the Panama Canal. 15 Flavel was instructed to remain with the yacht on its passage through the Canal and they met again at Colon with Del Prado. Thereafter the yacht was sailed by Flavel and subsequently returned to the Canal. It was sailed with Meggett through the Canal. Meggett recruited two further crew members and in due course sailed to the east coast of Australia stopping at locations where Flavel met him. 16 On arrival on the east coast of New South Wales various activities associated with the arrival of the yacht took place by those then present in New South Wales including Flavel, Meggett, Campillo, who had rented certain premises at Taree, and the appellant. 17 Intercepted conversations and the observations of those activities provided a strong circumstantial case against the appellant, even setting aside the proof of her provision of the yacht to the conspirators, and the conversation to which I have referred. Objection was not taken to that conversation as being irrelevant or otherwise inadmissible at the trial. 18 However, when evidence was led at a prior trial concerning the previous yacht journeys with Boston Whalers, to which I have referred, an objection was taken by counsel then appearing. That counsel at that time submitted that the evidence of the prior yacht journeys would be highly prejudicial to the appellant and that it was:- "Irrespective of what your Honour says to the jury, the jury will by association link in Gonzalez with those so called Spanish excursions, yet she was not aware, she was not part of, so I am attacking it from the point of ... the prejudicial effect is something that simply is so great." 19 Consistently, counsel for the appellant asserted before that trial judge the prejudicial effect of that evidence on the appellant's case should she go to trial with her co-accused. 20 In response to that application the Crown in a passage in the transcript conceded that the evidence was not led against the appellant. However, that passage needs to be examined. 21 In what was said the Crown was plainly conceding that there would be no Crown case put that the appellant was in any way involved in those yacht journeys. It was clear that the Crown put that she was not party to nor could she be considered in any way involved in the journeys themselves and, as I understand it, it was not put against her that it could be found that those journeys in any way could be relied on to link her with drugs. 22 In the light of that concession by the Crown and following the discharge of the jury in that trial for an unrelated reason, the matter went forward before her Honour Judge Ainslie-Wallace in the present trial and the evidence of the journeys was led without objection. 23 No direction under s.165 of the Evidence Act 1995 as to unreliability of any evidence nor application for exclusion on the basis of any of the sections of the Evidence Act 1995 was in fact made before her Honour as applicable to the present trial. 24 No objection was made to the evidence of the conversation at Varadero Beach, to which I have referred, which plainly evidenced a knowledge on the part of the appellant of the technique of importing Boston Whalers by yacht as having previously been employed and which bore such a striking resemblance to the technique used on this occasion. 25 The matter went forward on the basis the conversation was to be used as evidence of the knowledge of the appellant of a technique which was used on this occasion for importing the Boston Whaler and as thereby relevant to the question of her involvement in and knowledge of the importation of drugs by this means into Australia. 26 It is notable that the intercepted conversation evidence showed clearly her concern, not with the yacht she had once owned, but with the importation into Australia of the Boston Whaler in which the drugs were concealed. 27 The argument that has been put in respect of these four grounds turns on a central theme that the Crown had undertaken that evidence of these importations was not to be used against the appellant in any way at all; that the trial judge failed adequately to quarantine that evidence from use in the case against the appellant by appropriate directions to the jury at all relevant times that they were not to consider it as in any way applicable to the case involving this appellant; that trial counsel failed to make an application for a separate trial, failed to make an application for appropriate directions, and thereby left the material before the jury in so far as it was before the jury, as evidence against the appellant. It was submitted that his Honour had not directed the jury they were not to use it at all and that therefore she had left it to them as evidence they might use. Further, it was said that, absent an appropriate direction, they might misuse the evidence as tendency evidence. 28 In her directions her Honour approached the summing-up by way of directing the jury as to what evidence was available to be considered in the individual cases of each accused and gave to the jury the customary direction that each case had to be considered separately. Rather than direct the jury as to what was not available in any particular case, her Honour directed the jury specifically as to what was available. 29 There was little dispute at the trial except as to the matter of knowledge. Her Honour in her summing-up reflected this when she said:- "Now in this case there is no dispute that there was an importation of a considerable quantity of cocaine which was concealed in a Boston Whaler dinghy and which was carried on the 'Maeva' which had been sailed from Varadero Beach in Cuba to Coffs Harbour by Mr. Meggett, nor is there any dispute that on 7 December Mr. Meggett lowered the dinghy from the 'Maeva' and motored across the harbour to a boat ramp where it was put on a boat trailer which was towed by a four wheel drive which was driven there by Campillo and accompanied by Mrs. Gonzalez. That dinghy was hooked on to the trailer and Meggett, Mrs. Gonzalez and Campillo got into the car and they were arrested". 30 Her Honour continued to point out that there was no dispute that between the two skins of the dinghy was found the cocaine in blocks amounting to some 187 kilograms of pure cocaine. Her Honour pointed out that the real issue in the trial is whether each of the accused was knowingly concerned in the importation. 31 Her Honour directed the jury that mere involvement or participation in the importation was not enough to make out the charge. Her Honour directed the jury that what the jury needed to be satisfied of beyond reasonable doubt was whether the Crown had proved the particular accused, when they participated in the importation, knew that what was being imported was the relevant narcotic goods, and then set out those categories of evidence on which the Crown relied from which the jury might, if they accepted that evidence, conclude that the case was made out. 32 Her directions concerning Mr. Meggett in particular gave emphasis to disputes as to the conversations of which he gave evidence, to his status as an accomplice, and how that might affect the jury's regard for his evidence. She said:- "… and in the case of Mrs. Gonzalez there is a dispute concerning the conversation which Mr. Meggett said he had with her in Varadero Beach in which he said she said to him 'it was a good idea to hide - conceal drugs in the dinghies' and in which she said to him she knew of his involvement with Julian and the movement of the dinghies." 33 At that point her Honour turned to direct the jury as to the care and caution which had to be taken when considering this evidence as a result of the accumulated experience of the courts concerning the reliability of such persons. 34 There was discussion by her Honour in the summing-up as to various matters to which the jury could have regard concerning the reliability of Mr. Meggett's testimony. At no point was it suggested that the jury could have regard to those prior yacht journeys as in any way assisting, as far as their acceptability of Meggett's evidence against this appellant on the question of the conversation was concerned, the reliability and acceptability of Meggett's evidence. 35 Indeed the trial judge turned to the alternative submission made by the Crown of its circumstantial evidence case and at that point again gave no direction to suggest that the prior yacht journey evidence might be relied upon in the case against the appellant as a circumstance pointing to guilt or even as context. 36 At the close of the summing-up no application for redirection was made to suggest any deficiency in her Honour approaching the case in this way. 37 At the trial there was no relevant application for any redirection in respect of the summing-up to suggest that the case for and against each individual accused was not put to the jury in a way that fairly reflected the trial and fairly enabled the jury to consider the appropriate questions for each accused. 38 In my view, her Honour did leave to the jury the evidence of the prior journeys but only in the context of it being evidence against Mr. Flavel. 39 Before us it has been contended in respect of the four grounds to which I have referred that the evidence was completely prejudicial to the appellant. When counsel for her was questioned as to how that prejudice arose, it was put that the jury might well have concluded or suspected that she had some involvement in previous drug importations carried out by that technique. 40 On a careful examination of the summing-up I can see no basis to conclude that the jury might have misused that evidence in that way, put to them as it was. I do not for myself consider that the prior importations or prior yacht journeys, as perhaps they should be better described, would have occasioned any disadvantage to the appellant in making the case that she sought to make, which was that Meggett had invented the conversation attributing to her knowledge of those importations and a willingness to involve herself in a further importation. 41 Rule 4, in the absence of the prospect of a substantial miscarriage of justice, would lead to a rejection of leave to argue this matter. However, it has been necessary to deal with it fully. Having done so, I do not see that the prejudice, which it is contended underlies the four grounds, could arise. Counsel were not even able to suggest to me how the trial might differently have been conducted if the trial defence counsel considered that the importations might have had availability for the Crown to use in evidence against her. 42 In my view there is no substance in any of the first four grounds of appeal and it is not necessary to turn to such issues as to whether counsel was flagrantly incompetent. I am of the view that the trial judge adequately summed up to the jury on the differing cases and adequately explained to the jury what evidence was available for them to consider. I would reject those grounds of appeal. 43 There are further grounds of appeal asserted. Firstly, ground 5, that her Honour erred in allowing the Crown to lead evidence from its principal witness which only went to that witness' credibility. This caused a miscarriage of justice. 44 It is submitted that evidence that was led of Meggett having pleaded guilty, being sentenced, serving the sentence, and having given and signed an undertaking to co-operate to give evidence, having also received a 50% sentence discount because of that undertaking, was evidence which should not have been led since all it went to show were matters to his credit. 45 The credibility rule is expressed in s.102 of the Evidence Act 1995. That section provides that evidence that is relevant only to a witness' credibility is not admissible. Credibility is defined in the dictionary to the Evidence Act 1995. It includes:- "Credibility of any part or all of evidence of a witness and the witness' ability to observe all broad facts or events." 46 The objection appears to be that the Crown was seeking to increase the credit of its own witness improperly. 47 Since well prior to the Evidence Act 1995, indeed since Regina v. Booth (1983) 8 A. Crim. R. at 81, it has been incumbent on the Crown when utilising the evidence of an indemnified accomplice, or a person to whom some benefit has or might be extended by dint of that witness' testimony, to reveal that fact in evidence and the true status of the witness, not for the purpose of increasing the witness' credibility but to enable the jury properly to consider those matters on the question of whether the witness' credibility is thereby diminished. 48 I do not understand there to be any provision of the Evidence Act 1995 the effect of which might be that that practice or rule of law should be changed. It would be most unfair to an accused not to put those matters into evidence. It is not suggested here that those matters should have been reserved to the cross-examiner to expose. If that were the suggestion then no harm could be said now to have been occasioned by the jury being informed of those matters. I do not see there being any substance in ground 5 and would reject it. 49 Ground 6 relates to one of those unfortunate occasions in which, at a trial, a matter which is better not referred to, was inadvertently referred to. Almost at the end of the Crown's cross-examination of the appellant questions were asked by the learned Crown Prosecutor about matters to which the appellant's brother-in-law had referred also in evidence, but the brother-in-law's evidence had been given in the absence of the jury on a voir dire. 50 The Crown asked the following questions and received the following answers:- "Q. Yes, the one that was listened to by your brother-in-law, and about which he gave evidence? A. The one that he could only understand a few words? Q. I am sorry, I may be wrong in saying he gave evidence about it. It was one to which your brother-in-law listened, is that right? A. Yes, I think we all listened to it." 51 The appellant's submissions point out there was an immediate reaction from the jury and there was reference to that in what her Honour then said. The Crown Prosecutor at that point conceded that what he had done had been to overlook that the brother-in-law had given evidence in the absence of the jury and suggested that he had made a mistake but it was probably best left exactly where it was. 52 It is contended that what has thereby occurred has caused the trial to miscarry. It was put that s.189 of the Evidence Act 1995 which deals with the determination of preliminary questions, provides that preliminary questions are not to be heard and determined in the presence of the jury. 53 Section 189(2) provides that such questions are to be heard and determined in the jury's absence. Further, s.189(4) provides if there is a jury, the jury is not to be present at the hearing to decide any other preliminary question, ie., other than as to admissibility, unless the court so orders. 54 In addition, evidence given by the witness on the voir dire is not to be adduced in the proceedings - s.189(8) - except in certain limited circumstances, which did not operate here. 55 It is submitted that thereby there is a total statutory prohibition applicable to what occurred here and the conduct of the Crown was totally impermissible. However, that submission is made on the basis that the Crown introduced material in breach of the section. When one examines what has occurred, all that was said in the question was, that it was a conversation about which the brother-in-law had given evidence. The content of that evidence was nowhere described any more particularly. 56 I see no basis on which it might be concluded that there was any substantial effect on the trial or indeed that any possibility of a miscarriage of justice might have occurred. 57 Ground 7 is couched in very broad terms. Ground 7 contends that the Crown infringed the appellant's right to silence. This caused a miscarriage of justice. There were no oral submissions on this ground. 58 In the written submissions of the appellant it is contended that the Crown Prosecutor, when he cross-examined the appellant, acted impermissibly and in breach of a fundamental right when he asked the appellant why she did not tell the police certain matters when she was questioned by them after her arrest. 59 She said in answer to a question as to why she had not told the police about a matter:- "Because it was the advice I had from my solicitor. He said to me that not to mention anything in relation to the boat." 60 Not surprisingly, that answer having been given, she was asked whether she had been told by her solicitor to mislead the police by concealing her activities in Coffs Harbour. There was an objection followed by some examination of the proposition of what was being put and the cross-examination continued as to whether she had lied to the police or not. She contended she had not lied to the police but was trying to hide the fact that she was waiting for the yacht because that is what her solicitor had advised her to do. 61 Her contention was that her answers to the police, which might well otherwise have been considered inadequate and reflecting on her credit at trial, were explained since she was relying on what she had been told by her solicitor when she answered as she did, not attempting to deceive the police. 62 It is submitted in that regard that the effect of s.89 of the Evidence Act 1995 which provides that an inference unfavourable to a party must not be drawn from that party's failure or refusal to answer questions or to respond to a representation reflecting, as it is submitted it does, a common law principle, was such that there should not have been cross-examination of this kind. 63 That submission appears to go so far as submitting that if lies are told to the police, either actively or by omission, such a matter cannot be used in aid of a Crown case or a later account tested in cross-examination by reference to the police interview. It is submitted that in effect the appellant could not be cross-examined on what she said to the police and even more importantly what she omitted saying to the police. 64 The section simply does not go so far. I see no substance in this ground of appeal. I would reject it. 65 It follows that in my view the appeal on conviction should be dismissed. 66 I turn to the appeal on sentence. In that regard it has been submitted that the appellant was wrongly treated by her Honour as though she were a "mid-level executive" in an organisation, which treatment by her Honour exaggerated the role played by the appellant. 67 It was, however, conceded in argument by her counsel, that the appellant performed important and essential tasks in this importation. However, to suggest her culpability had been overrated, there was an attempt to draw an analogy with the courier role referred to by the court in Regina v. Pang (1999) 105 A Crim R 474. 68 In this case in a careful and detailed judgment her Honour found that the role of the present appellant was much more important than that considered by the court in Pang (supra). Although it was submitted it was not open to her Honour to conclude that the appellant was a "mid-level executive" in the written submissions, in oral submissions it was conceded that there was evidence and whether it had been conceded or not, that evidence plainly was there, such as to support her Honour's findings of the actions and involvement of the applicant. 69 The amount of drug involved in this case was enormous. This was a carefully planned sophisticated importation in which the appellant was not the ring leader, chief operative or chairman of the board. She was, however, a person who involved herself early and whose activities seem to be such as to be essential to the operation of this small group of criminals bringing into Australia a very large quantity of the pernicious drug for a challenge to distribution. The precise terminology describing by analogy that role, misses the point. 70 I am unable to see that her Honour's conclusion as to the appropriate sentence was in error. I am unable to see that it was not open to her to find as she did on the evidence which was before her. 71 This court sits as a court to consider whether error in the sentencing discretion of the trial judge has been shown or whether the sentence is on its face manifestly excessive. I see no error either in the way in which her Honour came to her conclusion or in the result. 72 I would propose that leave to appeal against sentence be granted and the appeal dismissed. Thus the orders I would propose are:- 73 As to the appeal on conviction, the appeal be dismissed. As to the appeal on sentence, leave to appeal be granted and the appeal dismissed. 74 DOWD, J: I agree with the orders proposed by Greg James, J. and his reasons therefore. 75 BARR, J: I also agree. 76 DOWD, J: The orders of this court will therefore be as proposed by Greg James, J. ***********

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