Regina v Marchando

Court of Criminal Appeal (NSW)|1999-12-03|Before: Wood CJ, Sully J, Simpson J

Background 5 On 14 February 1998 the applicant, a US citizen, was arrested at Sydney Airport having just arrived on a flight from Los Angeles. Two alleged co-offenders, Ms Diana Popescu and Ms Jennifer Howard were arrested shortly before the applicant. Strapped to the legs of the women was a quantity of methorphan and methylamphetamine, both drugs the importation of which is prohibited by s 233B of the Customs Act 1901 (Cth). The Crown case is that the two women identified the applicant as a person who had, in Los Angeles, coached them in the techniques of secreting the drugs around their bodies, and advised them (wrongly) on the nature of the drugs and the possible consequences to them if they were apprehended, of the financial rewards they would receive for their participation, and what to say to Australian Customs officers should they be questioned. The three had travelled to Australia on the same flight, and although the applicant sat separately from the women, he made contact with them from time to time to check the security of the packages. A fourth person, Bogdan Bigic, travelled to Melbourne on an earlier flight. 6 On their apprehension both women quickly admitted their guilt; they identified the two men and co-operated in the investigation that followed. They gave a number of statements to police in which they detailed their own involvement in the offence and that of Bigic and the applicant. They undertook to give evidence in the proceedings against the two men. Both women entered pleas of guilty to charges of importing not less than the trafficable quantity of the drugs. They were sentenced on 12 June 1998 by Judge Morgan, to identical terms of imprisonment for three and a half years with non parole periods of eighteen months. Her Honour expressly stated that the sentences were reduced by reason of past and promised co-operation with and assistance to the authorities and would otherwise have been (after the reduction made necessary by s 16G of the Crimes Act 1914 (Cth)) terms of six years with non parole periods of four years. Bigic pleaded guilty on 8 February 1999. On 8 April he was sentenced by Judge Coleman to imprisonment for nine years with a non parole period of six years. An application for leave to appeal the sentence was heard by this Court on the same day as the present application. 7 Bigic's plea was entered on the day fixed for a joint trial of the two men. At that time the applicant maintained his plea of not guilty. Before a jury was empanelled Judge Coleman heard argument concerning the admission of certain prosecution evidence. Relevantly for present purposes this evidence included evidence taken by video link from a US witness, George Shandi. It will be necessary to consider the nature and admissibility of this evidence in more detail below. 8 On 10 February 1999 Judge Coleman ruled that the evidence (subject to certain minor excisions) would be admitted. Following that decision the applicant also pleaded guilty. Counsel for the applicant then asked that the proceedings be transferred to Judge Morgan for sentence but the transcript shows that this request was not pursued. 9 Before the sentencing hearing (for which, because substantial dispute over the facts alleged by the Crown was anticipated, several days were set aside) the applicant sought leave to withdraw his plea of guilty. At the same time he asked that Judge Coleman disqualify himself from hearing the application. Having refused that request Judge Coleman proceeded to hear and determine the application to reverse the plea. After a hearing that occupied several days he refused the application on 3 May and proceeded to hear the evidence relevant to sentence. Before that matter had progressed very far, however, it became apparent that the applicant, through cross-examination of the Crown witnesses, was seeking to traverse essential elements of the offence to which he had pleaded guilty. Judge Coleman resolved to continue with the sentence hearing but to entertain a further application, if made, at the conclusion of the evidence on sentence. On 9 June he again refused the leave sought.

The Applications in the District Court 10 The first application to Judge Coleman was made on the basis of affidavit and oral evidence of the applicant, together with affidavit evidence of three solicitors and one barrister who had at different times represented him. Essentially, the case he sought to advance was that, except for the occasion on which he had pleaded guilty, he had at all times maintained his innocence and had maintained an intention to defend the charge. The plea of guilty, on his case, was a temporary aberration brought about by a combination of factors, including:

• the judge's decision of 10 February to admit the video link evidence of Mr Shandi;

• advice given to him in strong terms by his legal representatives that he was likely to be convicted and that his best prospects of minimising the sentence to be imposed lay in taking advantage of the discount on sentence to which he would be entitled on a plea of guilty;

• his desperation to return home to the United States of America, and his belief, based on legal advice, that if he pleaded guilty he would be sentenced by Judge Morgan and the sentence would be of similar duration to those imposed on the two women - hence, having been in custody since February 1998, he would be released in about September 1999;

• a decision of the Legal Aid Commission, which was providing his legal representation, not to fund the travel to Australia of three US witnesses who might be able to assist in his defence, a decision that led him to conclude that he had no prospects of successfully defending the charge. 11 The applicant, more than once in his affidavit, asserted his innocence. He claimed, in short, that the plea of guilty should not be seen as an acknowledgment of guilt, but rather was brought about by the pressure of a variety of circumstances that, in combination, led him to plead guilty to a charge of which he was innocent. 12 Some aspects of the applicant's evidence were confirmed by the evidence of his various legal advisers. For example, one of the solicitors deposed that he had advised the applicant to "take the benefit of a guilty plea". The barrister's evidence in this respect was to similar effect. However, there is no suggestion that any improper pressure was brought to bear, or that the advice was other than the result of an objective, dispassionate and realistic assessment on the strength of the Crown case. The same solicitor confirmed that the Legal Aid Commission had refused to fund the three potential witnesses to travel to Australia from the US. 13 In one important respect the evidence of the barrister is at odds with that of the applicant. The barrister deposed that, far from advising the applicant that on a plea of guilty he could expect a sentence similar to the sentences imposed upon the female co-offenders (those sentences having been reduced to a significant and identified extent by reason of their co-operation with authorities) the applicant's sentence was likely to fall within the range specified by Judge Morgan as the appropriate sentence before the discount for co-operation and assistance was given. The barrister also said that he advised the applicant that another determinative factor would be the assessment of the role played by the applicant in the importation relative to that of the two women. It may here be interpolated that the advice given by the barrister was correct. 14 The applicant gave oral evidence and was extensively cross-examined. He presented himself as a person ignorant of Australian legal procedures. At one point he said that he did not appreciate that the charge to which he had pleaded guilty was a charge that he had been knowingly concerned in the importation of narcotics.

The Judgment of 3 May 1999 15 Judge Coleman took a highly unfavourable view of the applicant's credibility. He expressly rejected the applicant's claim that he believed that, if he pleaded guilty, he would be sentenced similarly to the two women. Judge Coleman referred to the contradictory evidence of the applicant's then barrister, and also to evidence, elicited from the applicant in cross-examination, that he had read Judge Morgan's remarks when sentencing the women. As Judge Coleman observed, in those remarks her Honour made it quite plain that the reason for the reduction in sentence was co-operation and assistance provided by those prisoners, a reduction the applicant obviously could not expect in his own sentence. In the subsequent judgment the judge remarked on the applicant's obvious intelligence. 16 Judge Coleman disbelieved evidence given by the applicant orally that he had not understood what was alleged against him and declared himself satisfied that there was no misunderstanding. He concluded that the applicant had entered the plea in recognition and acceptance of the advice he had received that his prospects of acquittal were minimal and the best he could hope for was the discount attendant upon a plea of guilty. 17 Judge Coleman also noted the evidence and argument that the applicant had decided to plead guilty as a matter of expediency when advised that the US witnesses would not be available. Notwithstanding that consideration his Honour was satisfied that when the applicant entered the plea he intended to admit his guilt, that no circumstances had been demonstrated that indicated that the plea was other than attributable to a genuine consciousness of guilt and it was not induced by any impropriety or other factor calling its integrity into question. 18 The judge then proceeded to hear evidence relevant to sentence including oral evidence of Popescu and Howard each of whom described an occasion when they, with the help of Bigic and the applicant, had practised strapping packages to their legs. During cross-examination of these witnesses on the applicant's behalf a new scenario emerged. It was suggested to them that they had travelled to Australia for purposes of prostitution and that the applicant and Bigic travelled with them as bodyguards. 19 The applicant himself gave evidence denying any knowledge of the drugs strapped to the women's legs. In the course of his evidence he asserted, inconsistently with what had been put to the two women, that he had no arrangement or agreement to protect them or to act as body guard, and he was travelling to Australian only for a vacation. 20 At the conclusion of the evidence on sentence his Honour permitted the applicant to make a further application for leave to withdraw the plea, based upon asserted changes in circumstances since the earlier refusal. The changed circumstances relied upon were the nature of the defence now foreshadowed by the cross-examination of the women, a denial of knowledge of the drug importation. Such knowledge is, of course, an essential element of the offence with which the applicant was charged.

The Judgement of 9 June 21 Judge Coleman again disbelieved the applicant. He described him as "an unreliable witness who was prepared to factor and change his case as the evidence in the Crown case progressed". 22 However, he reconsidered the application and found nothing in the evidence that caused him to change the views earlier formed. He found the applicant to be "an intelligent and articulate witness who plainly understood what was happening". He adhered to the conclusion previously reached that when the applicant entered his plea of guilty he did so with a genuine consciousness of guilt and with an understanding of the circumstances in which it was alleged that the importation took place. He acknowledged that, unless he was satisfied beyond reasonable doubt that the applicant knew of the presence of the drugs, he would have been obliged to permit the change of plea, and declared himself satisfied to the requisite standard that the applicant did have the necessary knowledge. He proceeded to make a number of other findings of fact which it is not necessary here to detail.

The Grounds of the Application for Leave to Appeal 23 As filed, the grounds for the application to this Court were stated as follows: "1. The appellant (sic) did not intend to admit that he was guilty to the charge of being knowingly concerned in the importation of prohibited imports under Section 233 B(1)(d) of the Customs Act 1901.

There was evidence before His Honour demonstrating that there would be a miscarriage of justice if the applicant were held to his plea of guilty.

His Honour erred in the exercise of his discretion in refusing to permit the appellant (sic) to change his plea." 24 In written submissions filed on behalf of the applicant leave was sought to add an additional ground of appeal in the following terms: "His Honour erred in ruling admissible, and in declining to exercise his discretion to refuse to admit, the video link evidence of Mr Shandi …" 25 Because, as the application was conducted in this court, reliance was placed on the comprehensive written submissions, and no additional oral argument was proffered, this court did not rule on the application for leave to amend. In my opinion leave to rely upon the additional ground ought be granted. It is convenient to deal with that ground first.

The Shandi Evidence 26 On the Crown case George Shandi was a Los Angeles travel agent from whom the airline tickets for both men and both women were purchased. He identified the applicant as the person who had picked up the four tickets and a visa for himself. The evidence was clearly significant to the Crown case. However, Mr Shandi was not prepared to travel to Australia for the purpose of giving evidence and no means of compulsion were available to the prosecution. Accordingly an arrangement was made for his evidence to be taken by video link. Such a procedure is authorised by statute. The relevant statutory provisions are to be found in the Mutual Assistance in Criminal Cases Act 1987 (Cth) ("the Mutual Assistance Act") and the Foreign Evidence Act 1994 (Cth). They may conveniently be set out here.

Mutual Assistance Act s 12. The Attorney-General may, in his or her discretion, request an appropriate authority of a foreign country to arrange for: (a) evidence to be taken in the foreign country: or (b) documents or other articles in the foreign country to be produced; for the purposes of a proceeding in relation to a criminal matter in Australia. The Foreign Evidence Act s 3.(1) "foreign material" means: (a) for the purposes of Part 3---the testimony of a person that: (i) was obtained as a result of a request of a kind referred to in section 21; and (ii) complies with the requirements of section 22; including any exhibit annexed to such testimony; and

s 21. This Part applies to testimony, and any exhibit annexed to such testimony, obtained as a result of a request made by or on behalf of the Attorney-General to a foreign country for the testimony of a person, and any exhibit annexed to such testimony, to be made available.

s 22.(1) The testimony must have been taken; (a) on oath or affirmation; or (b) under such caution or admonition as would be accepted, by courts in the foreign country concerned, for the purposes of giving testimony in proceedings before those courts. (2) The testimony must: (a) purport to be signed or certified by a judge, magistrate or officer in or of the foreign country to which the request was made; and (b) purport to bear an official or public seal of: (i) the country; or (ii) a Minister of State, or a Department or officer of the Government, of the country. S 24.(1) Subject to subsection (2), foreign material may be adduced in a proceeding to which this Part applies. (2) The foreign material is not to be adduced as evidence if: (a) it appears to the court's satisfaction at the hearing of the proceeding that the person who gave the testimony concerned is in Australia and is able to attend the hearing; or (b) the evidence would not have been admissible had it been adduced from the person at the hearing. S 25.(1) The court may direct that foreign material not be adduced as evidence if it appears to the court's satisfaction that, having regard to the interests of the parties to the proceeding, justice would be better served if the foreign material were not adduced as evidence. (2) Without limiting the matters that the court may take into account in deciding whether to give such a direction, it must take into account: (a) the extent to which the foreign material provides evidence that would not otherwise be available; and (b) the probative value of the foreign material with respect to any issue that is likely to be determined in the proceeding; and (c) the extent to which statements contained in the foreign material could, at the time they were made, be challenged by questioning the persons who made them; and (d) whether exclusion of the foreign material would cause undue expense or delay; and (e) whether exclusion of the foreign material would unfairly prejudice any party to the proceeding. 27 ss 21, 22, 24 and 25 are all contained within Part 3 of the Act. 28 On 31 August 1998 the Australian Attorney General made a request, under s 12 of the Mutual Assistance Act, to the appropriate US authorities for assistance. The requested assistance included, inter alia, evidence to be taken from Mr Shandi and recorded on video. 29 An assistant US attorney (Mark A Young) was appointed by the US District Court as Commissioner to obtain the evidence and was authorised to administer, or to oversee the administration of, an oath. The instrument of appointment specified certain rules according to which the proceeding was to be conducted and contained a specific order that, in taking the evidence, the Commissioner was permitted to be accompanied by persons whose presence he authorised including (without limitation) representatives of the Attorney General of Australia or the Australian Federal Police. 30 On 22 December 1998 the Commissioner, Mr Shandi, and others, (unidentified) assembled in a room in Beverley Hills, California. In a room in Sydney the applicant, Bigic, their respective counsel and counsel representing the Commonwealth Director of Public Prosecutions ("DPP") also assembled. The two groups were linked by video connection. The Commissioner administered an oath to Mr Shandi who was then examined by counsel for the DPP, and cross-examined by counsel for the applicant and Bigic. Mr Shandi's evidence plainly incriminated the applicant. 31 The Crown proposed to tender the video recording in the applicant's trial and it was this evidence that was the subject of the pre trial voir dire on 10 February and which Judge Coleman decided would be admitted. It was following that decision that the applicant entered the plea of guilty. 32 Notwithstanding the terms in which the additional ground of appeal is framed, it has never been the applicant's position that the evidence was inadmissible. Both in the District Court and in this Court his argument has always been that, as a matter of discretion, it should have been excluded. In particular it was expressly conceded on the applicant's behalf that no challenge was raised so far as compliance with the formal requirements of the relevant legislation is concerned. The applicant therefore assumes the heavy onus of establishing that the exercise of discretion miscarried: House v R (1936) 55 CLR 499. 33 If he could establish that the ruling to admit the evidence was erroneous, that is, or may be, sufficient to provide the foundation for leave to withdraw the plea of guilty: R v Chiron, above. 34 The applicant relied upon a number of statutory provisions expressly conferring on the judge a discretion to exclude the evidence. These provisions include ss 15 and 25 of the Foreign Evidence Act, and ss 135 and 137 of the Evidence Act (NSW) 1995. 35 Only two factual matters were identified as supporting the argument that the evidence ought to have been excluded. The first concerned the presence of the unidentified persons besides Mr Shandi and the Commissioner in the Los Angeles room where the evidence was taken. Their presence cannot be discerned, at least not with any clarity, from viewing the video recording, but that they were there appears from a question asked of Mr Shandi by counsel for Bigic. When asked who else was in the room with him, Mr Shandi, said: "They … there are five other people here … I don't know them, they're … they're here." 36 When asked if he had been assisted by any of them in any way in giving his evidence he said that he had not. 37 Judge Coleman rejected the suggestion that Mr Shandi may have been influenced in the evidence he gave by any of these individuals. Having watched the recording, he said that his observations of Mr Shandi were such that he was not satisfied that Mr Shandi reacted in any way suggesting he had accepted a prompt or was communicating either with the Commissioner or with others in the room. His Honour noted that Mr Shandi addressed the camera directly and made no attempt to initiate communication with those off camera and did not address questions to them but spoke directly to the examiner or cross-examiner at the Sydney end. I should add that I have also viewed the recording and my observations accord with those of his Honour. 38 Associated with this matter was a reference to what might be termed an altercation between counsel for Bigic and the Commissioner, demonstrating (so it was argued) that the Commissioner misunderstood his role in the proceedings. The following exchange occurred: "Counsel: Well, when you say you don't recall, is that a possibility?

Commissioner: Counsel, the witness has already answered the question multiple times and I think his testimony stands on its own. Let's move on. Counsel: Mr Attorney, you are not a judge. You are there to not regularise the process, and I would ask you not to interfere anymore. Commissioner: Counsellor, for your information, I am appointed by the Magistrate Judge to oversee these proceedings and, as such, I am acting in a judicial, quasi judicial function, and it is my job here to protect the interests of witnesses and not to let them be badgered by yourself or by the other side, and to make sure that this proceeding proceeds in a fair, timely and a mostly fair matter [sic], and that is the way it has been up to this point. Counsel: Well, Mr Attorney, there is a Crown Prosecutor here who is quite capable of intervening if he thinks my questioning is in any way unfair. Commissioner: Well, it is my job … Counsel: [interrupts] Your function … Commissioner: Ah, excuse me, I will tell you what my function is, and my function as being appointed by the District Court as a Commissioner is to maintain the interests of the United States in this matter and to make sure that this proceeding runs in a fair way as far as I am concerned, and we can move on at this point. Counsel: Well, I'm sorry Mr Attorney, but if you are to persist in interfering when I am asking questions, the proceedings will now go off and we will not participate any further. The question I asked was fair, you have intervened in order to protect the witness and the prosecution from an answer which was damaging to them. Now, in the circumstances, either you agree not to interfere, or we will walk out on these proceedings. Do you agree not to interfere? Commissioner: I will disagree with your characterisation of what I am doing, because it is incorrect and wrong, but I will agree to let the Prosecutor on that side make any further objections on my behalf in the interests of the United States. Now you may continue." 39 It was argued that the Commissioner misconceived his function and that that misconception gives cause for concern that he might have used his position to influence the evidence Mr Shandi gave. In my opinion the complete answer to this argument is that given by Judge Coleman to whom the argument was also put. He said: "It is important to bear in mind that Assistant Attorney Young's interpretation or understanding of his role is irrelevant. What is relevant is the effect that his actions and statements produced on the proceedings." 40 There is no basis, either in the presence of the unidentified individuals in the room, or in the intervention of the Commissioner, for a ruling that Judge Coleman's discretion miscarried. Despite the exchange between the Commissioner and Counsel, a proper assessment of the manner in which Mr Shandi answered the questions discloses no foundation for a belief that his evidence was in any way influenced by others present in the room with him. 41 The next factual matter raised was the absence of any representation of the applicant in the Los Angeles room, although the applicant was present and represented at the Sydney end of the link. It was pointed out that in the correspondence pursuant to which the request for assistance and the arrangements were made, the Attorney General acknowledged that it might be necessary to pay for such representation. That, however, does not appear to have been pursued. There is no reason to conclude that the absence of any representation of the applicant in Los Angeles gives rise to any concern about the integrity of the proceeding. 42 I would reject the argument that the ruling to admit the evidence was incorrect. 43 The remaining grounds can be disposed of relatively shortly. As argued, they amounted to an assertion that Judge Coleman failed to take into account relevant facts and circumstances and that the conclusion that the plea of guilty was attributable to a genuine consciousness of guilt was not sustainable. The facts and circumstances were identified as:

(i) the applicant's evidence in his affidavit that he was innocent of the charge; (ii) confusion about the nature of the charge to which the plea was entered; (iii) pressure imposed on the applicant by his legal advisers and fear concerning his position; (iv) the refusal of the Legal Aid Commission to fund the travel of witnesses from the United States to Australia to give evidence in the defence case; (v) the applicant's "pressing desire" to return home as soon as possible; (vi) the time at which the plea was entered, coinciding closely with the ruling on the admission of the videotaped evidence. 44 His Honour expressly rejected the applicant's claim to have been confused about, or ignorant of, the charge; and that his plea was entered for any reason other than as an acknowledgment of guilt. In the second judgment, having heard evidence from the applicant as well as the Crown witnesses, he expressly found, on the criminal standard, that the applicant was aware of the importation. 45 Having regard to the timing of the plea of guilty in relation to the ruling on the admission of the Shandi evidence, I regard it as a reasonable inference that that determination was, at least, a factor in the applicant's decision to plead guilty. However, in the light of my conclusions above, concerning the correctness of that determination, the coincidence of the timing does not advance the applicant's case. His Honour made express mention of the refusal of the Legal Aid Commission to fund witness travel to Australia but did not find this a compelling basis for casting doubt on the integrity of the plea. In this he was clearly correct. There has never been any elaboration of the identity of the proposed witnesses, the evidence the applicant expected them to give, or even the issues to which their evidence was supposedly relevant. His Honour could not properly have given any weight to that fact in the circumstances. 46 The judge's findings of fact, especially those relating to the applicant's credit, conclude the case against the applicant. There is no reason to doubt the correctness of either of the decisions to refuse leave to reverse the plea. Because the fresh ground raises issues in relation to relatively untravelled statutory territory I would grant leave to appeal but dismiss the appeal. 47 I propose the following orders:

the applicant be granted leave to amend the grounds of the application by adding the proposed new ground;

the applicant be granted leave to appeal the decisions of 3 May 1999 and 9 June 1999 refusing leave to withdraw his plea of guilty;

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

Applicant Crimes Act 1914(Cth)

Mutual Assistance in Criminal Cases Act 1987(Cth)

CITATION : Regina v Marchando [2000] NSWCCA 8 FILE NUMBER(S) : CCA 60307/99 HEARING DATE(S) : 3 December 1999 JUDGMENT DATE : 11 February 2000

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