His Honour then went on briefly to outline the circumstances upon which the Crown relied from which "you could infer that the accused intended or meant to cause Mr Gurvich to import the prohibited substance into the country".
35 This was repeated at the end of his Honour's review of the evidence in the following way -
"But we really come down to this question of the evidence and whether or not, on the evidence, you can find beyond a reasonable doubt that the accused intended or meant that David Israel Gurvich import a prohibited substance into Australia."
36 The ambiguity of language was never corrected. However, no application for re-direction was made by either counsel as to this characterisation of the crucial question for determination. His Honour's charge to the jury continued on the following day and this question was repeated to the jury without significant change.
37 The question left to the jury following these directions as implicitly agreed to by counsel on both sides was not the question distinctly presented by the terms of the indictment, namely whether Gurvich having been guilty of the offence of importing heroin, Kaldor had induced him to commit it. Rather, the case left to the jury was whether Kaldor had used Gurvich as his (innocent) agent to import the heroin. Having regard to Gurvich's account at the hotel reception and the airport, there can be no doubt that Kaldor was indeed importing the guitar case into Australia, whether or not Gurvich was also doing this.
38 The introduction of agency, whether under s11.2(1) or 11.3 of the Code, was an unnecessary complication in what was essentially a very simple case. Indeed, there was no need for the Crown to insert Gurvich's involvement in the indictment at all. It is clear that, by the time the guitar case was at the fragile baggage counter it had then been imported, although no doubt the process of importation continued up to the time it was seized by the customs officers. It was never a part of the case or of anybody's understanding of it, that Gurvich had himself committed an offence, despite the terms of the indictment.
39 In this Court, counsel for Kaldor noted the problem with the indictment but took no point about it on the ground that, at all events, it could be cured by application of s7(2) of the Criminal Appeal Act 1912. That provision permits the Court of Criminal Appeal to substitute a verdict on an alternative charge where "on the finding of the jury it appears…that the jury must have been satisfied of facts which proved the appellant guilty of that charge" but only where "the jury could on the indictment have found the appellant guilty of" the alternative offence (emphasis added). Here it could not be said that a verdict on the basis that Gurvich was an innocent agent was an alternative open on the indictment, which alleged that he had committed an offence procured by Kaldor.
40 The only answer, as it seemed to me, is that there was an implicit, pro tanto amendment of the indictment so that the charge which went to the jury alleged that Kaldor was the principal offender and Gurvich was his innocent agent within the meaning of s11.3 of the Criminal Code. Alternatively, the words "did procure the commission of an offence by David Israel Gurvich against s233B(1)(b) of the Customs Act 1901 having" were implicitly omitted as surplusage with a consequential omission of the reference to "subsection 11.2(1)" of the Criminal Code. As I understand it, this is the solution proposed by the other members of this Court, for the persuasive reasons set out in the judgment of Howie J.
41 Although I was initially attracted to this solution, I have ultimately come to the view that it is unsatisfactory, essentially for the reason that the indictment was not actually amended at all. At common law, an indictment cannot be amended: Maher v The Queen (1987) 163 CLR 221 at 230. Sections 20 and 21 of the Criminal Procedure Act 1986 provide for amendment of indictments but this can only be done by the prosecutor (by leave or with the consent of the accused) or by order of the Court. There was no order and the prosecutor did not actually amend the indictment.
42 In R v McKinney and Judge (NSWCCA, 6 September 1993, unreported), the indictment charged the appellants with, amongst other offences, "breaking and entering a dwelling house, assaulting and inflicting grievous bodily harm while therein (s110 Crimes Act 1900)". It was contended that, as this charge required proof both of an assault and the infliction of grievous bodily harm, it disclosed no offence. It was clear that the elements of the offence did not require proof of assault, which was a mistaken reference to another offence in the relevant section of the Crimes Act 1900 creating the offences. Accordingly, the indictment specified all three necessary elements and one unnecessary element. The error was held to be merely technical and of no consequence. If I may respectfully say so, this is plainly correct. However, the situation in this case is significantly different. The charge here was entirely correct and undoubtedly disclosed an offence. In its terms, however, the accused could only be "taken to have committed the principal offence" if the Crown proved that Gurvich had himself committed the principal offence. R v Smith and Kirton (1990) 47 A Crim R 43 was a case where the Court rejected the submission that the contentious phrase (assault and robbery) was duplicitous, holding that the reference to assault was mere surplusage.
43 The words that I have identified as possible surplusage, were not surplusage at all in respect of the charge to which the indictment explicitly referred. As the indictment stood, proof that Gurvich had committed the offence alleged against him was an essential element of the charge against Kaldor and not merely a particular of evidence. In this respect the Code is no different to the common law. The result of the error made below is that the record wrongly shows that Gurvich committed a serious crime of which he was not even charged. It is clear that, in a practical sense, Kaldor has not suffered any substantive or procedural injustice, except to the extent that he must have been acquitted on the indictment as it stood. But to my mind the record - which cannot now be corrected unless this appeal be upheld and a new trial conducted on a proper indictment - demonstrates a judgment which was simply never made and, with respect for those with whom I differ on this point, I do not agree that this is of no moment. I add for completeness that s11.2(1) of the Code does not assist, since Kaldor had not aided, abetted, counselled or procured the commission of an offence by Gurvich.
44 There was certainly a misunderstanding - shared by all participants in the trial - as to what proved the elements of the charge in the indictment, but its terms were unambiguous. When Kaldor pleaded not guilty, issue was taken with every element necessary to be proved in the charge laid and he must have been acquitted if the Crown failed to prove every element. In the result, he was convicted upon an indictment that required proof beyond reasonable doubt of the element that he had procured the commission of a crime by Gurvich when there was no evidence that Gurvich had committed such a crime. Put otherwise, he was convicted of an offence upon which he had not been arraigned, to which he had not pleaded and which the jury had not been sworn to try. To my mind, this is a serious error of law.
The relevant knowledge
45 It was necessary for the Crown to establish beyond reasonable doubt that Kaldor intended to import a narcotic drug. Proof of this intention would be satisfied if the prosecution established that Kaldor knew that the guitar case contained or was likely to contain a narcotic drug of any quantity: Kural v The Queen (1987) 162 CLR 502 at 505; Pereira v DPP (1988) 82 ALR 217; 35 A Crim R 382; R v Vergara [2001] NSWCCA 24. It appears that the Code does not affect this requirement: Regina v Narongchai Saengsai-Or [2004] NSWCCA 108.
46 The Crown submitted that the following circumstances lead to the inference, beyond reasonable doubt that Kaldor was aware that the guitar case contained a prohibited drug or it was likely that it did so -
(i) Kaldor did not tell Gurvich whom the guitar was for;
(ii) it was inherently unlikely that someone would want to bring a guitar to Australia from Vietnam when that guitar was described by Kaldor as "probably cheap" and which was heavy;
(iii) Kaldor did not examine the guitar;
(iv) there were no receipts or documents for the guitar;
(v) Kaldor's behaviour at Sydney airport when he suggested that Gurvich should collect the guitar, leaving Gurvich after indicating that he was going to the toilet and stating to Gurvich on the telephone that he was "nearly outside" and asking him (expressly or implicitly) to "come out and bring the guitar" with him;
(vi) it was inherently unlikely that a man fitting Kaldor's description of Sandford would want a cheap electric guitar;
(vii) the inconsistency between Kaldor telling Gurvich in Vietnam that the guitar was to be delivered to Melbourne and his statements to customs officers that Sandford was waiting at Sydney airport for the guitar; and
(viii) the inherent unlikelihood of Sandford travelling to Sydney to pick up a cheap electric guitar.
47 Of course, all these matters need to be considered together as strands in a suggested cable of guilt. However, it remains necessary to examine each one, if only because the Crown contended that each is suspicious and, taken together, demonstrated Kaldor's guilt. It seems to me that some of these matters are trivial, if not irrelevant, whilst none is decisive and that, even when taken together (as, of course, they must), they fall far short of proof beyond reasonable doubt of Kaldor's guilt.
48 As to the first, Gurvich's evidence was far from categorical that he asked Kaldor whom the guitar was for. I have already pointed to this evidence. Not only did he say that he thought he asked the question, he also said that he "probably" did not get an answer. At all events, not every question is answered by friends in conversation. It would depend, amongst other things, upon whether Kaldor was paying any attention to Gurvich at that point. If the point is that, asked for or not, Kaldor did not tell Gurvich who requested him to bring the guitar home, this seems to me to be inconsequential. As to the unlikelihood of anyone - in this case Sandford or someone in his position - wanting to have a guitar brought from Vietnam which was heavy and "probably cheap", it is clear that Kaldor did not assert that the guitar was cheap. His answer, as reported by Gurvich, was obviously a speculative explanation for somebody wanting to buy a Vietnamese guitar which, Gurvich supposed, could not be very good. It is clear that Gurvich himself was speculating about the quality of Vietnamese guitars. More fundamentally, there was no evidence that suggested that the guitar was Vietnamese or that Kaldor or Gurvich for that matter knew its place of manufacture. As to its being heavy, it appears that Gurvich had but one bag and it was not reasonable to infer that carrying the additional item comprising the guitar was an unreasonable imposition in any sense. The reason for its weight was obvious: the additional weight of the heroin would be unlikely to be noticed. But this would be effective also to conceal the concealed parcels from Kaldor.
49 The third alleged circumstance relied on by the Crown is that Kaldor did not examine the guitar. This is not correct. It seems certain that that Kaldor did not examine the guitar once it had been delivered to the hotel but this is understandable when it was shrink-wrapped and he was bringing it for Sandford whom he knew. There is no evidence one way or another as to Kaldor's previous contact with the parcel. It follows that there is no basis for concluding that he had not examined it. There was also no evidence that he asked or inquired about its provenance. But that cannot justify the conclusion that therefore he made no such inquiry or that he probably did not or even that he apparently did not. It is simply a matter about which there is no evidence, one way or the other. Accordingly, I am respectfully unable to agree with Howie J that the jury were entitled to infer that there had been such a failure and from that fact to draw an adverse inference about his guilt. For all that is known, Kaldor may well have seen the guitar, examined it, seen it placed in the case and shrink-wrapped and arranged for its delivery to his hotel.
50 It is worth, perhaps, making the point that a person who went so far as to open up the guitar to make sure it contained no drugs, would almost certainly have the suspicion that it might contain them. As there is no basis for concluding that he did not examine the guitar, short of unscrewing the back plate, it follows that the truly crucial fact was not lack of examination but that Kaldor agreed to bring the guitar case into Australia on behalf of someone else when it contained drugs that could only be discovered by disassembly.
51 On the face of it, this might be a suspicious circumstance. But how far does it really go? It is one thing to accept a parcel from a stranger, quite another to accept one from a friend. After all, Gurvich (who knew Sandford, but not perhaps all that well) obviously had no suspicions at all about the guitar - he was perfectly happy to take it through Customs at Sydney airport, presumably because he trusted Kaldor. There was no evidence about the relationship between Kaldor and Sandford. So far as the evidence went, he may have been a close and trusted friend or he may have been a mere acquaintance. No assumptions about this matter can be made and commonsense does not help. It was for the Crown to prove that the reason that Kaldor brought the guitar from Vietnam to Australia was that he intended to import prohibited drugs. It seems to me that the mere fact that he brought in a guitar, which he had not troubled to disassemble, for someone else whom he knew, and possibly knew well, is no more than sufficient to give rise to a suspicion of guilt, there being no evidence at all as to the circumstances in which the guitar case came into his possession, except that it was at Sandford's request. I appreciate that this was not the only incriminating circumstance but, so far as it goes, I do not think that it amounts to much.
52 Except for what happened on arrival at Sydney Airport, the other circumstances relied on by the Crown are insignificant. The lack of documentation proves nothing. The Crown prosecutor at the trial and, for that matter, the Crown prosecutor in this Court was unable to suggest how the lack of documents was material. The sixth point relied on by the Crown depends upon an assumption as to the value of the guitar, which had no evidentiary basis, but is at all events a non sequitur. Persons of any description might want an electric guitar. Indeed, persons of any description might want a cheap electric guitar and they might want it for many reasons. There is nothing in this point. So far as the inconsistency about the destination of the guitar is concerned, I do not think this amounts to much either. At the most, the appellant told Gurvich that it might be necessary to deliver the guitar in Melbourne. The fact that he apparently knew or at least believed that Sandford was in Sydney waiting to collect the guitar is simply evidence that, after the conversation with Gurvich, it was no longer necessary to request this favour of him. His apparent readiness to permit Gurvich to carry the guitar to Melbourne, should that prove necessary, suggests that he was unaware of its cargo rather than incriminates him. As to the last point made by the Crown, there is no evidence that Kaldor suggested that Sandford had travelled to Sydney for the specific purpose of picking up the guitar, cheap or otherwise. Kaldor said nothing about why Sandford might be in Sydney, simply asserting that he believed he was waiting at the airport.
53 This brings me to what happened on arrival in Sydney. There is nothing of itself suspicious in Kaldor going to the toilet and asking Gurvich to collect the guitar from the fragile baggage counter. There is no evidence that Kaldor did not go to the toilet and no reason to suppose that he did not. The time involved was not, it seems, unusually long. In light of Gurvich's concession in cross-examination as to when Kaldor asked him to bring the guitar through Customs, two possible scenarios arise. On the assumption that Gurvich's evidence in chief is accepted, the suspicious circumstance is that, having asked Gurvich to collect the guitar, Kaldor went through Customs without seeking Gurvich out to carry the guitar through Customs himself. On the assumption that Gurvich's concession is accepted, Kaldor might well have thought that Gurvich had picked up the guitar and would go through Customs without waiting for him. On this scenario, the suspicious circumstance is that Kaldor asked Gurvich to take the guitar through Customs. The crucial question is: why did Kaldor act in this way? A consideration of the possible explanations is therefore inescapable. This is not to deny the Crown of the probative value of the evidence but to evaluate that probative value.
54 The Crown case assumes the correctness of the first scenario. It is submitted that Kaldor had not acted thoughtlessly in going through Customs by himself without waiting for Gurvich, but deliberately manipulated Gurvich into carrying the guitar through Customs because Kaldor knew that it contained prohibited drugs. The strength of this reasoning depends upon a number of assumptions, of which the major one to my mind, is that Kaldor could not reasonably have supposed that Gurvich had collected the guitar and already moved through Customs. If this were an inference rather than assumption, then it would be a significant pointer to Kaldor's guilt. It depends, in part, on the times involved, on the geography of the baggage collection area and the extent to which it was crowded. There was no evidence on either of the latter matters (indeed, the evidence does not disclose where the fragile baggage counter was in relation to the Customs barrier) and the important time lapse - between Kaldor's going to the toilet and his passing through Customs - remained vague. The problem with going beyond suspicion in respect of this circumstance depends, I think, upon assumptions which the Crown made no attempt to establish by evidence and, in the result, are no more than speculative. I respectfully agree with Howie J that "the possibility that, having gone to the toilet, the appellant merely forgot about Gurvich and the guitar case" should be rejected. However, it is unnecessary to suppose that Kaldor forgot about Gurvich and the guitar case. Inferring that Kaldor made a deliberate decision not to worry about bringing the guitar case through Customs as he (correctly) thought Gurvich would do, if he asked, the question is whether this proves that he knew it contained heroin or merely that he took convenient advantage of Gurvich's helpfulness. Or, as I have mentioned, he may simply thought that Gurvich had already taken it through. It seems to me that Kaldor's behaviour is entirely explicable by his simply taking advantage of Gurvich's apparent willingness to carry the guitar for him. After all, it appears that Gurvich had far less luggage that Kaldor to carry. Moreover, such behaviour is consistent with a belief that the guitar was not especially valuable. If Kaldor was not all that concerned about the guitar, why would he bother to take it through personally? Thoughtless, careless, impolite it might be, but I do not think that it is possible to conclude that it established that he knew that there were drugs in the guitar.
55 The second scenario differs for the first to the extent that Kaldor's request to Gurvich to take the guitar through Customs together with their agreement to meet, could well have meant that he expected Gurvich to collect the guitar case and meet him outside the Customs area, even though Gurvich apparently thought that they would meet after he had collected the guitar and Kaldor had finished in the toilet. The suspicious circumstance is said to be that Kaldor asked Gurvich to take the guitar through Customs. However, Kaldor's need to go to the toilet may well have been genuine and to ask his companion to collect the guitar, he having the receipt and far less luggage, and make his (Gurvich's) way through Customs (implicitly) without waiting for him does not seem to me to be more than suggestive. Of course, if Kaldor did not think that the guitar contained anything illicit, there is nothing suspicious in his asking Gurvich to take it through Customs for him. Thus the conclusion that the request is suspicious depends upon an assumption about the very fact that it is suggested it proves. Nor do I see that assumptions about what most people might or might not do about asking travelling companions to take innocent luggage through Customs, which anyway strike me as largely speculation (and really as code for what I might do), provide a sound basis for drawing an inference about what Kaldor's reasons actually were.
56 I am very far from suggesting that Kaldor's conduct at the airport was not suspicious at all but, in my view, innocent explanations remain reasonably and ineluctably open and their hypothetical character is logically no different from those urged by the Crown. Shortly put, what Kaldor did is consistent both with his guilt and his innocence.
57 Howie J considers that it would be extremely unlikely that an innocent person would be entrusted with the delivery of a cargo so valuable as half a kilogram of heroin, mentioning the possible failure to comply with the request, for example because of excess baggage costs. The evidence demonstrated that arrangements to avoid excess baggage costs were made by Gurvich at his own instigation at the last minute when he and Kaldor were at the airport. This argument was not put to the jury, nor was it mentioned by the prosecutor in this Court. With respect, I find it unconvincing. Once Kaldor had agreed to take the case, it seems to me highly unlikely that he would leave it behind. It was delivered to his hotel and placed with his luggage by the hotel staff, without his inquiry. Once it got to the airport it was going to Australia. Maybe there was some slight risk that Kaldor would simply decide that he could not be bothered but he could scarcely leave the case at the airport. The assessment of this risk involves far more speculation, including about the nature of the relationship between Kaldor and Sandford, which I have already discussed, than I feel justified in undertaking and I do not consider that it would have been appropriate for the jury to undertake. There may be significant advantages, moreover, in using an innocent agent to carry drugs past a Customs' inspection. With respect, I cannot see that this point is much more than a straw in the wind.
58 Militating to some extent against the likelihood of Kaldor's guilt are the facts that he drew attention to himself at Hanoi Airport by having excess luggage, for which it is obvious he was not ready, mentioned Sandford to the police immediately and, so far as it went, what he told the police about the telephone number was correct. Furthermore, it appears that Sandford was known also to Gurvich. Gurvich's description of Kaldor's conduct when he saw him after the telephone call was that he was "waiting" for Gurvich to come through Customs. By that time it must have been obvious to Kaldor that all items were being X-rayed as they went through the Customs barrier and, therefore, that if there was indeed heroin in the guitar it would be detected. Yet he made no attempt, so it seems, to abscond.
59 All the circumstances to which I have referred must, of course, be considered together. The only really significant suspicious facts - that Kaldor carried a sealed item for another person and that he acted in a way that meant that his companion rather than himself ran the gauntlet of Customs' inspection at the airport - together raise a substantial suspicion of guilt. But, absent assumptions with no evidentiary basis, they are also consistent with his innocence.
60 It seems to me, with great respect, that the argument articulated by Howie J (with which Dunford J agrees) in substance reverses the onus of proof. His Honour states that it is inappropriate "to deprive a piece of evidence of its potential value in proving the Crown's case simply because its probative force may have been affected by some other fact that was not in evidence". This reasoning, in substance and effect, is that a suspicious fact, or collection of facts, that potentially establishes guilt, actually does so unless some other fact not in evidence, though reasonably possible (or, in other words, not excluded), is established. The only possible source of the justifying fact is the accused and to reason in this way, in my respectful view is implicitly either to reverse the onus of proof or draw an impermissible inference from the accused's silence. With unfeigned respect for Dunford and Howie JJ, I think that this is a fundamental error of principle for which it is unnecessary to cite more than Azzopardi v The Queen (2001) 205 CLR 50 and Peacock v The King (1911) 13 CLR 619 per Griffiths CJ at 634: "[The] circumstances must be such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused."
61 I wish to take up one other matter of principle. Dunford J, whose judgment in draft I have also had the benefit of reading, considers that "a jury is generally better able to judge a case based on circumstantial evidence than a single judge or this Court". Although these observations are obiter dicta, they raise such an important question that I feel a brief respectful response is necessary.
62 There is no doubt that jurors are well qualified to make the determinations of fact that are entrusted to them in criminal trials and I do not see any distinction in this regard between circumstantial and other cases. However, the assertion that juries are generally superior to judges in this regard is, if I may respectfully say so, a speculative and, ultimately, unhelpful supposition. Our system of trial by jury does not assume - and has never assumed - that any such superiority exists. Rather, it is a fortunate accident of our history that, since early times, citizens have been involved as jurors in the administration of justice, especially criminal justice. The benefits of this involvement are obvious and substantial. But this does not arise from or depend upon any assumptions about the relative fact-finding abilities of judges or juries, a matter which is necessarily guesswork since, although judges must give reasons for their decisions, the process of decision making by juries is completely opaque.
63 At all events, it is the inescapable duty of this Court, under s6(1) of the Criminal Appeal Act on any appeal against conviction to "allow the appeal if it is of the opinion that 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…". The proper approach to this matter is the subject of well-settled authority, which I have set out above. The deference to be properly allowed to the jury's verdict results from its constitutional position as the primary fact-finder and the advantage that will usually flow from having seen and heard the evidence about which it is necessary to make a judgment: it does not depend upon any assumption about their superior ability to assess "the conduct of persons", especially, I might add, where - as here - they know nothing or next to nothing about the individual whose conduct is in question. I have no difficulty in acknowledging the considerable usefulness of a jury's ability in evaluating general standards of behaviour but it seems to me to be self-evident that the question of what has motivated or what is known or believed by particular individuals is a very different question indeed and the supposition that what would generally be the case establishes what is so in an individual case is plainly unreasonable, for all that it might give rise to a suspicion or even a probability. Indeed, it seems to me, that it is likely that this flawed reasoning has led to the guilty verdict in this case.
64 Commonsense judgments, of course, are both necessary and appropriate but this cannot mean that analysis of the facts is not also essential, in particular an examination of the assumptions upon which the commonsense conclusions are based. It is this examination that, in this case, establishes that the verdict is unreasonable in the relevant sense.
65 For these reasons I consider that the verdict is unreasonable in the sense that the jury ought to have had a reasonable doubt about Kaldor's guilt and, accordingly, the appeal should be allowed, the conviction quashed and a verdict of acquittal entered.
66 As I am in the minority in respect of the conviction appeal, it is necessary for me to consider the Crown appeal against sentence. Given Kaldor's guilt, I agree with the other members of the Court, for the reasons given by Howie J, that his sentence was significantly less than the learned sentencing judge's discretion permitted. I also agree with the orders proposed by his Honour and the reasons for them.
67 HOWIE J: I have had the considerable advantage of reading the judgment of Adams J in draft and gratefully adopt the facts of the matter as set out in his reasons. Unfortunately I cannot agree with his Honour's conclusion that the evidence in the Crown case was insufficient to justify the conviction of the applicant and, in particular, I do not believe that the conviction is either unreasonable or that it cannot be supported having regard to the evidence. I also wish to add some further comments as to the form of the indictment.