Regina v R P Anderson

CITATION : Regina v R P Anderson [2001] NSWCCA 488 FILE NUMBER(S) : CCA 60196/00 HEARING DATE(S) : 29/11/01 JUDGMENT DATE : 7 December 2001

PARTIES : Regina Raymond Peter Anderson JUDGMENT OF : Sheller JA at 1; Dowd J at 2; Kirby J at 3

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0839 LOWER COURT JUDICIAL Sides DCJ OFFICER :

COUNSEL : P W Neil SC (Cth Crown/Resp) P Byrne SC (Appl) SOLICITORS : R Plibersek (Cth DPP) Michael Croke & Co (Appl) CATCHWORDS : Criminal Law - Whether beyond reasonable doubt should be explained - Directions where credibility of accused attacked. LEGISLATION CITED : Customs Act, 1901 (Cth) R v Lifchus 1997 118 CC (3d) R v Starr 2000 147 CCC (3d) Victor v Nebraska 127 L Ed 2d 583 (1994) Brown v The King (1913) 17 CLR 570 CASES CITED: Dawson v The Queen (1961) 106 CLR 1 Green v The Queen (1971) 126 CLR 28 R v W(D) [1991] 1 SCR 742 Knight v The Queen (1992) 175 CLR 495 Grant v R (1976) 11 ALR 503 DECISION : Appeal dismissed

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL

60196/00 SHELLER JA DOWD J KIRBY J Friday 7 December 2001 REGINA v Raymond Peter ANDERSON

Judgment 1 SHELLER JA: I agree with Kirby J. 2 DOWD J: I agree with the proposed orders and reasons therefor in the draft judgment of Kirby J. 3 KIRBY J: Raymond Peter Anderson (the appellant) was charged with having been knowingly concerned (between 29 November 1996 and 25 December 1996) in the importation of a prohibited import, cocaine, in not less than a commercial quantity (s233B(1)(d) Customs Act, 1901). Mr Anderson was convicted on 17 November 1999 after a trial before his Honour Judge Sides and a jury.

The Crown Case 4 On 29 November 1996 Mr Anderson and Mr Stan Hokafonu attended a travel agency at Bondi. They enquired about the purchase of four airline tickets to Los Angeles. Mr Viliama (Jimmy) Hokafonu and Mr Harry Sitorios would also be travelling. The agency made enquiries. Only three seats were available, although there was the prospect of a fourth seat. A booking was made in the name of Mr Anderson. On 3 December 1996 the agency telephoned Mr Stan Hokafonu and confirmed the seat of Mr Sitorios. Hotel accommodation for the group was also booked. Mr Stan Hokafonu paid the agency in cash. The cost of each airfare and hotel package was approximately $1,500. Mr Anderson said that he borrowed $3,000 from a friend and paid Mr Stan Hokafonu $1,500. The remainder was spending money. 5 On 6 December 1996 the group left Australia. They were scheduled to return on 16 December 1996. However, they extended their stay. They returned on 25 December 1996, on board United Airlines Flight UA.815 from Los Angeles to Sydney. 6 Customs Officers searched the aircraft upon its arrival in Sydney. Two garbage receptacles at the rear of the aircraft were found to contain 20 packages of white powder. The packages weighed almost 10 kilograms. Upon analysis they were found to contain 7.5 kilograms of cocaine. The Crown alleged that others were to collect the drugs from the garbage receptacles once the aircraft had reached Sydney. 7 Each of the 20 packages consisted of an inner and outer plastic bag. The inner bag contained the cocaine. It was placed inside a second plastic bag containing what appeared to be coffee beans. Each package had grey silver ducting tape adhering to it. Four pieces of that tape were found to have human hairs trapped in the adhesive. On one tape the hairs were mid brown in colour and identified as Caucasian body hair. They were subjected to DNA analysis, and were found to match the profile of Mr Anderson, such that he could not be excluded as the source. The remaining hairs, however, were not Caucasian. They were consistent with the body hair of a person of Tongan extraction. Mr Anderson was therefore excluded as the source. Messrs Stan and Viliama Hokafonu and Mr Harry Sitorios were of Tongan extraction. 8 The Crown invited the inference that Mr Anderson and his three Tongan companions had strapped cocaine to their bodies before boarding the aircraft. The packages had been removed once they were on the aeroplane, and had been placed in the garbage receptacles. 9 Mr Anderson's fingerprints were also found on the adhesive tape attached to one of the packages. When the package was recovered, the tape was adhering to the outer plastic bag. It was necessary to freeze the package at minus 80oC to remove the tape. At that temperature the adhesive glue froze and the tape could be plucked off. Once removed, the fingerprints of the right index finger and the left index finger of Mr Anderson were uncovered. They were on the adhesive side of the tape, that is, the side that had been stuck to the bag. No fingerprints were found on the non-adhesive side of the tape, nor on the bag itself. Three rubber gloves were found in the aircraft, two in the toilet, and one near a seat occupied by one of the group.

The Case for the Appellant 10 The appellant gave evidence. He was a man aged 49 years at the time of the trial. He had known his travelling companions for some 12 years or more. In August 1996 his mother became ill. He ceased work as a salesman in order to care for her. Her condition deteriorated through medical misadventure. She died in late August. His sadness was made the worse by the death, in early November 1996, of the daughter of his partner. One gathers that she died of a drug overdose. To dull the pain, Mr Anderson said that he drank to excess. 11 Mr Stan Hokafonu was a friend. He recognised Mr Anderson's problem and sought to help. He repeatedly asked him to come to Los Angeles in early December. At first Mr Anderson resisted. However, eventually he agreed to go. 12 Mr Anderson said that once overseas his companions went off together from time to time, leaving him alone. He thought nothing of it, since they had relatives to visit, and business to transact. The business was connected with a hotel in which they had an interest. 13 On Christmas Day 1996, the four boarded the aircraft at Los Angeles. Mr Anderson sat beside the youngest member of the group, Mr Harry Sitorios, aged 17 years. He said that he knew nothing of the drugs carried on board. The lights of the aircraft were dimmed during the course of the flight. Mr Sitorios had temporarily vacated his seat. Mr Anderson reached under Mr Sitorios's seat for a blanket. There was a Duty Free bag on top of the blanket. Mr Anderson said that he reached into the bag and removed its contents. He did so with both hands. He felt adhesive tape. It was loose inside the bag. It caught his arm, removing hairs as he withdrew his hand. He immediately suspected that the packages inside the bag were drugs. He said that he was horrified. He went to the toilet to examine the bag more closely. His suspicions were confirmed. It was obvious that the package contained drugs. He therefore took the package to Mr Stan Hokafonu. Mr Hokafonu said that he would deal with it. He assured Mr Anderson that he would dispose of the drugs.

The Notice of Appeal 14 The appellant relies upon two grounds of appeal, as follows: 1. The directions given by the learned trial Judge on the onus and standard of proof in relation to the account given by the accused were erroneous and inadequate.

2. The verdict of the jury is unreasonable having regard to the evidence. 15 I will deal with each ground in turn.

Ground 1: The Directions on Onus and Standard of Proof 16 His Honour gave conventional directions concerning the onus and standard of proof. The appellant, in written submissions, acknowledged that his Honour's directions were "entirely unobjectionable". However, his Honour added the following words, including the words underlined, about which complaint is made: "Suspicion and speculation do not amount to proof beyond reasonable doubt. The words 'beyond reasonable doubt' are ordinary English words and for obvious reasons they involve a very high standard of proof . You are only permitted to find the accused guilty if you are satisfied to that very high standard, that is beyond reasonable doubt, that each and every element of he offence has been made out." 17 It was submitted by the appellant that it was misleading to describe the words "beyond reasonable doubt" as ordinary English words, and "to presume that their meaning is obvious". Attention was drawn to recent Canadian authority, which appeared to accept the need to explain and define what is meant by that term (R v Lifchus 1997 118 CCC (3d) at 6; R v Starr 2000 147 CCC (3d) at 15). These authorities relied upon a decision of the US Supreme Court where it was held that the expression "beyond reasonable doubt" should be defined (Victor v Nebraska 127 L Ed 2d 583 (1994)). In that case, Ginsberg J, in a separate concurring opinion, said this: (at 603) "Because the trial judges in fact defined reasonable doubt in both jury charges we review, we need not decide whether the Constitution required them to do so. Whether or not the Constitution so requires, however, the argument for defining the concept is strong. While judges and lawyers are familiar with the reasonable doubt standard, the words 'beyond a reasonable doubt' are not self-defining for jurors. Several studies of jury behaviour have concluded that 'jurors are often confused about the meaning of reasonable doubt', when that term is left undefined ... Thus, even if definitions of reasonable doubt are necessarily imperfect, the alternative -- refusing to define the concept at all -- is not obviously preferable." 18 However, the position in Australia is quite different. The expression "beyond reasonable doubt" was described by Barton ACJ in Brown v The King (1913) 17 CLR 570 at 584 as a term "in ordinary and common use". In Dawson v The Queen (1961) 106 CLR 1, Dixon CJ said this: (at 18) "... it is a mistake to depart from the time-honoured formula. It is, I think, used by ordinary people and is understood well enough by the average man in the community. The attempts to substitute other expressions, of which there have been many examples not only here but in England, have never prospered. It is wise as well as proper to avoid such expressions." 19 That approach was adopted by Barwick CJ, McTiernan and Owen JJ in Green v The Queen (1971) 126 CLR 28. Nothing said by his Honour Sides DCJ was, in my view, misleading or erroneous. 20 Having retired to consider its verdict, the jury returned with a question. To understand the question, it is necessary to refer to written directions provided to the jury, identifying the elements of the charge, namely: 1. That the accused knew that the goods were cocaine or some illegal drug. 2. That the accused was concerned in the importation. 3. That there was an importation into Australia. 4. What was imported was a prohibited import, namely cocaine. 21 There was, as his Honour said in the summing up, no dispute in respect of elements 3 and 4. The issue was whether the accused stumbled across a crime being committed by one or more of his companions, or whether he was involved in that crime. In that context the jury asked the following question: "We, the jury, request to be provided with a copy of your final summary in relation to the absolute definitions of the elements one and two in the annexure." 22 His Honour repeated the directions which had been given in respect of those issues. The appellant acknowledges that such directions were "unobjectionable". Having completed those directions, his Honour invited comment from counsel. Counsel then appearing for the appellant said this: "If your Honour will also add the rider that in relation to the first part, element one, if the jury was satisfied, because the accused's evidence was true, that they would not find, based on what he said that he had the relevant knowledge" 23 The question was obscure. It was a question characterised by the appellant in written submissions as "not likely to assist the jury, or for that matter the appellant ...". There followed an exchange between his Honour and counsel in these words: "His Honour: Yes, well I think that follows from what I have said. If you were satisfied beyond a reasonable doubt that the accused's account was a truthful one then you could not find either element one or two to have been made out. Somosi: Sorry, your Honour. I think with respect, the jury don't need to be satisfied of the accused's account beyond reasonable doubt. His Honour: Did I say that? Somosi: Your Honour did say that. His Honour: I am sorry. What I meant is, if you were satisfied that the accused's account were true. That was a slip of the tongue. I remind you the accused does not have to prove or disprove anything. It is for the Crown to prove each of the elements including these two beyond reasonable (doubt). Thank you, Mr Somosi. Would you now continue your deliberations please." 24 Counsel for the appellant described the exchange as "unfortunate". It was an error made at a critical time. The written submissions for the appellant included the following: "It is submitted that the essential effect of what was said was to leave the jury with a misapprehension regarding the burden and standard of proof." 25 Counsel for the appellant drew attention to a decision of the Canadian Supreme Court, R v W(D) [1991] 1 SCR 742, where Cory J formulated what have apparently since become standard directions in Canadian criminal trials. His Honour said this: (at 757/8) "Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines: 'First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit. Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.'" 26 Directions along these lines are customarily given, although I prefer the following formulation: "First, if you believe the evidence of the accused, obviously you must acquit. Second, if you find difficulty in accepting the evidence of the accused, but think that it might be true, then you must acquit. Third, if you do not believe the accused, then you should put his testimony to one side. The question will remain; has the Crown, upon the basis of evidence that you do accept, proved the guilt of the accused beyond reasonable doubt?" 27 Counsel's request to his Honour was presumably directed to the first of these issues. His Honour's answer initially included, inappropriately, the words "satisfied beyond reasonable doubt". That was then corrected. Incorporating that correction, the jury was told that if they were satisfied that the accused's account were true, then they would not find elements 1 or 2 had been made out. That was the direction sought by counsel for Mr Anderson. Having made the error, his Honour wisely added a reminder of his previous directions on the onus and standard of proof. He said: "I remind you the accused does not have to prove or disprove anything. It is for the Crown to prove each of the elements including these two beyond reasonable (doubt)." 28 In these circumstances, I cannot accept that the jury would have been under any misapprehension as to the burden or standard of proof. Moreover, his Honour had, moments before, in the directions responding to the jury's question, said the following: "And I remind you, in relation to each of these elements, the Crown relies upon a circumstantial case in the absence of direct evidence, to make out its case beyond a reasonable doubt, and I remind you that you could not find these elements, or either of them made out, unless you were satisfied beyond reasonable doubt that the element had been made out and that you could exclude, beyond a reasonable doubt, the possibility that the accused came across the drugs in an innocent fashion as he described in his evidence." 29 I would, therefore, reject the first ground of appeal.

Ground 2: The Jury Verdict was Unreasonable 30 His Honour identified for the jury the circumstances relied upon by the Crown in these words: "1. The accused going to the US with the three companions, Stan and Jimmy Hokafanua (sic) and Harry Sitorios, and that they left on 12 December; (sic 6 December) 2. The accused returning from the US with the same three individuals arriving here on Christmas day and that that return journey was some considerable days after what was originally planned; 3. The accused's general association with the other three men who I've named and who have been referred to as the Tongan men; 4. The finding of the twenty packets of powder containing 7.5 kilograms of cocaine in the two bins in the rear galley of the aeroplane that had conveyed the accused and the three other men from the US to Australia; 5. The fingerprints of the accused found on the tape, exhibit P, that had been on exhibit O, the plastic bag which was an outer bag that was item 1/14a shown in exhibit N41; and 6. The final circumstance is the body hair that could have come from the accused in the sense that he was not excluded as being the source of it, that was on the tape, that was on a bag and was number item 1/5b that is depicted in exhibit N, photographs 19 and, I think, 49. In combination with Dr Robinson's evidence that it was hair from a Caucasian and not from an islander." 31 The appellant pointed to a number of suggested defects in the proof offered by the Crown. First, the Federal Police Officer who gave evidence of hair adhering to the adhesive tape was "distinctly unconvincing". He had not made a note of his observation. Nor had he incorporated that observation in the statement he made some months afterwards. The photographs taken at the scene did not include photographs of the hair. 32 Secondly, the account given by the accused provided a reasonable and plausible explanation for the only evidence which may be thought incriminating, namely, the fingerprints and the hair. The jury, in these circumstances, in the appellant's submission, ought to have regarded the appellant's version as being possibly true. The Crown had not established that his account was necessarily false. An acquittal should therefore be entered. 33 I am not persuaded by either of these arguments. Although it was perhaps surprising that the Federal Police Officer had failed to make a note of his observation, and had failed to incorporate that observation into his statement, there can be no doubt that hair was adhering to the tape. Indeed, it was adhering to four tapes. Hair was observed by a number of scientists. A specimen of the Caucasian hair, said to be consistent with that of Mr Anderson, was mounted on a slide by one scientist for the purpose of microscopic examination. The appellant, moreover, said in his evidence that he could recall losing hair on three occasions as he fumbled with the package and his arm snagged the tape. 34 Moving to the second argument, an appellate Court must enquire whether a reasonable jury ought to have found that an inference inconsistent with guilt was open on the evidence (Knight v The Queen (1992) 175 CLR 495). That requires a determination as to whether the jury was entitled to reject as a reasonable possibility the alternative explanation proffered by an accused. If they were, then there is no basis for interfering with the verdict. It is only where the Court concludes that the jury were not so entitled that it may interfere, as it did in Knight v The Queen. 35 Here the Crown case was considerably broader than the fingerprints and hair, important though they were. Mr Anderson acknowledged that, in the course of the aeroplane journey to Australia, it became clear to him that his three companions had knowledge of the drugs. One infers that the purpose of the short trip was the importation of drugs. Why, in these circumstances, would Mr Stan Hokafonu have repeatedly invited Mr Anderson to accompany the group to the United States? Whilst it may be accepted that Mr Anderson was depressed, the suggestion that his friends recognised his need for a holiday with them, when their purpose was drug importation, was implausible. Further, it was clear that the drugs had been taped to the bodies of Mr Anderson's Tongan companions. That, no doubt, was the explanation for Tongan body hair on three pieces of tape. Mr Anderson provided a different explanation for the Caucasian hair on the fourth tape, namely accidental contact. Acceptance of that possibility involved, amongst other things, acceptance of the evidence of Mr Anderson that the tape inside the bag was loose. The evidence was, however, that the tape with the fingerprints on the under side was adhering to the package. The removal of the tape was effected by freezing the package, as described. The jury was entitled to reject accidental contact as a reasonable possibility. It was entitled to infer that Mr Anderson went to the United States for the purpose of assisting in the concealment and transportation of a significant quantity of drugs. 36 The Crown, in its submission, drew attention to the remarks of Barwick CJ in Grant v R (1976) 11 ALR 503, which are apposite: (at 505) "The case was in truth a very simple one. The jury were presented by the accused with an issue which turned entirely upon his own credit. He gave evidence, and quite evidently from the verdict they returned the jury did not believe him." 37 In my view, the jury was entitled to reject the appellant's version as the way in which the fingerprints and hair came to be on the adhesive tape. Having rejected that version, they were entitled to convict. 38 I believe, therefore, that there is no substance in the second ground.

Order 39 I therefore propose that the appeal should be dismissed. **********

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