Regina v Sid Zaiter

Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern Limited) [1953] 1 QB 401 R v Deng (1996) 91 A Crim R 80 R v Derbas (1993) 66 A Crim R 327 Director of Public Prosecutions Reference No 2 of 1995 (1995) 65 SASR 508 R v Carusi and Cassar (1989) 17 NSWLR 516 CASES CITED: R v Chow (1987) 11 NSWLR 561 R v Chiron [1980] 1 NSWLR 218 R v Ondrovcik Court of Criminal Appeal, New South Wales, 4 November 1977 R v Boag (1994) 73 A Crim R 35 R v BD (2001) 128 A Crim R 28 R v McCoy (2001) 51 NSWLR 702

D I Cassidy QC and G Jauncey COUNSEL: J Bennett SC

• 1 - IN THE COURT OF CRIMINAL APPEAL 2004/2349

GROVE J JAMES J BARR J

1 MARCH 2005 REGINA v SID ZAITER Judgment 1 GROVE J: I agree with Barr J. 2 JAMES J: I agree with Barr J. 3 BARR J: This is an application under s5E Criminal Appeal Act for leave to appeal against an order of Woods QC DCJ refusing the applicant leave to withdraw a plea of guilty previously entered before another judge. 4 The applicant was a drug dealer who had sold prohibited drugs to one Brendan McMullen. Investigating police lawfully listened to and recorded a series of telephone conversations between him and McMullen. The first of the series which is relevant to this application was a conversation the two had when the applicant telephoned McMullen on 6 December 2001. They had already had some dealings. McMullen told the applicant that he had already picked up the money. The applicant said - it's ready for ya anyway. …It's the right thing, don't worry, I swear to God. …You don't have to worry about nothin'.

5 The conversation continued - BM See, this guy (ind) Sidski? SZ You what? BM (ind), is Chuck down there? SZ Is what? BM Is Chucky down there? SZ Truck in? BM Yeah, Chucky. SZ Who - is there any chucky, yeah? BM Yes. 'Cause this guy's interested in buyin' that too. SZ Yeah, I can do - I can't get it from my mates at the moment… BM Yeah. SZ …but I can get ya some from elsewhere else, don't worry. BM Yeah. SZ Pretty good. BM Yeah. That he'd be … SZ Um … BM …thinkin' about him buyin' in bulk, d'ya know what I mean? SZ Oh, right. BM Alright? SZ If he wants to buy bulk I can probably go to my mates and get it, (ind) BM How much d'ya reckon? SZ I dunno, we'll see what happens when you get down here. BM Rightio, mate. SZ See how much money he's got to spend and see what he wants. 6 The two men had three telephone conversations on 14 December 2001. At 2:39pm McMullen complained about the poor quality of material that had been supplied and about the probable consequences. The conversation continued - SZ I'll gonna fuckin' bash 'em. BM Oh they're gonna cop more. Mate, they're gonna get something on the chin and it won't be a fuckin' punch, I'm tellin' ya. SZ Mm righto. BM They won't have a fuckin' chin to hit. These men are fuckin' pretty upset now eh. SZ Right. BM You know what I mean? I'm just at a meeting now. SZ Yeah. BM And they - there's ninety (90) here to grab two full ones, right, they got 90 here and they got money here for five (5) chuckies. SZ Okay. BM And they don't know what to do, they don't know whether to trust, who to trust, you know. SZ Yeah. BM They know it's not you. SZ Alright, I'll see what I can do, mate, I'm gonna go see 'em. BM Yeah, go see him and tell him like he's gotta replace, replace the cash, man. SZ Alright. BM Or he won't - they'll fix him, eh. SZ Alright. BM You know. SZ Right. BM Righto buddy, ring me back soon as, eh. SZ Alright. BM 'Cause they're all ready to go down tonight, they're freakin'. SZ Alright.

7 At 3pm the applicant telephoned McMullen. They spoke about the identity of those dealing with McMullen and the conversation continued - BM They're not…they're not upset with me or you or him, right? SZ Yeah. BM I explained to ya, I said you know like fuck and the big fella, you know big Pete… SZ How many of those kilos they want? BM Two. They've got the money there for two. SZ No. For chucky. BM Well…they…they've got the money right there for two…for two of them things they were supposed to have got, right? SZ Yeah. BM And they've got the money for five oz's of chuck. SZ Five oz's? BM Yeah. SZ Oh right. BM Right? SZ Yeah. BM And, yeah, so…oh I dunno mate yeah. Like…um…I just said to 'em like you…you're my friend, right? SZ Yeah. BM And all you're doing…you're doing me a favour, and you wouldn't have been doing me a favour to fuck me, you know what I mean? SZ No. BM Right? Because they were getting…they're dirty, right… SZ Yeah. BM And they said look, we can understand that, and they said they're rather give it to you right? And whoever took the money, right? SZ Yeah. BM …if they don't replace the money right? SZ Yeah. BM Monday, they'll be getting…they're gonna wish they fuckin' never ever fuckin' tried to fuck with you mate. SZ Alright, no worries. BM Right? SZ Yeah. BM And…I that's…I just made the agreement then with 'em, right? SZ Yeah. BM I said give my fuckin' friend the weekend, you know, not they want hour, they're talking hours, I said give him a few days, (ind). SZ Alright, no worries. Well I'll speak to you later alright? BM Right and…the big fella's happy to do with you he said right. SZ Yeah. BM And but…you know like it's just between me and you, you know what I mean? SZ Alright, no worries. 8 At 7:39pm McMullen telephoned the applicant and the conversation included this passage - BM (ind) I can hardly hear ya. If…if you can get the real McCoy thing, right? SZ Yeah. BM What it was supposed to be right? They're still interested, right? SZ Yeah. BM Um…he's got ninety odd here now, right? SZ Yeah. BM Can you…did you find out about when chuck was turning up? SZ Oh I'll find out tomorrow morning for ya. BM 'Cause um what it is… SZ What? BM …When he rang…when he rang his friends, right? SZ Yeah. BM From down there, right? SZ Yeah. BM Everyone's rung him back, right? SZ Yeah. BM And he's feeling like a fuckin' idiot, you know what I mean? SZ Yeah no worries. BM They've all turned up with…there's nearly a half…a half a…(ind) you know what I am saying? SZ Yeah. BM Half a big, big…you know what I mean? SZ Yeah go on. BM Yeah. SZ So they've still got a big one. What do they want, a big one or what? Of coke. BM Yeah a Key in it? SZ Yeah I'll get onto it. BM Right. [ind…overtalking] BM The bloke that wants that right, right? SZ Yeah. BM He's got like four hundred odd. SZ Right I'll get on to you tomorrow. BM Get onto it mate.

9 Negotiations took place between the applicant's legal representatives and the Crown Prosecutor. There were three charges against the applicant, relating to the supply of the large commercial quantity of cocaine, to the supply of the commercial quantity of methylamphetamine and to the supply of pseudoephedrine. An indictment signed on 21 October 2003 charged that the applicant - 1. Between 6 December 2001 and 18 December 2001, at Sydney in the State of New South Wales, did knowingly take part in the supply of a prohibited drug, to wit, 100 grams of Pseudoephedrine; 2. Between 1 December 2001 and 12 December 2001, at Sydney, in the State of New South Wales, did knowingly take part in the supply of an amount of a prohibited drug, to wit, 500 grams of Methylamphetamine being an amount which was not less than the commercial quantity; and 3. Between 6 December 2001 and 16 December 2001, at Sydney, in the State of New South Wales, did knowingly take part in the supply of an amount of a prohibited drug, to wit, 1 kilogram of Cocaine being an amount which was not less than the large commercial quantity applicable to that prohibited drug. 10 There had been an offer from the applicant to plead guilty to the pseudoephedrine charge if the Crown would withdraw the others, and that offer was renewed during the week before the trial was due to commence. The Crown Prosecutor told Mr Tabchouri, the applicant's solicitor, that the offer was unacceptable, but that if the applicant pleaded guilty to the charge of supplying the large commercial quantity of cocaine the Crown would remove the other charges from the indictment and consent to their being taken into account under the provisions of s32 Crimes (Sentencing Procedure) Act. 11 On Monday 23 February 2004 the applicant appeared before Hosking QC DCJ and, I infer, his legal representative told his Honour that the two sides were negotiating. The trial was adjourned to Wednesday 25 February. On that day, as appears from the transcript of proceedings before Woods QC DCJ on 19 August 2004 and from his Honour's judgment of 20 August 2004, the applicant entered a plea of guilty to a charge of knowingly taking part in the supply of a large commercial quantity of a prohibited drug, namely cocaine, and asked the Court to take into account in sentencing him his being knowingly concerned in the supply of amphetamine and pseudoephedrine. 12 Later on the applicant changed his solicitor and barrister. On 19 August 2004 his counsel moved on a Notice of Motion which had been filed seeking leave to withdraw the plea. Evidence was given by affidavit and orally. Woods QC DCJ was made aware of the text of the telephone conversations on which the Crown relied and was told something of the events which had led up to the plea. The substance of the case that was put to his Honour was as follows - 1. Taken at its highest, the evidence of what the applicant and McMullen said to one another was not capable of proving that the applicant had knowingly taken part in the supply of the large commercial quantity of cocaine; 2. The applicant did not appreciate the nature of the charge to which he had pleaded guilty; and 3. The applicant did not intend to admit his guilt of the charge to which he pleaded guilty. 13 There was evidence before his Honour that the terms "chuck", "chucky" and "chuckies" refer to cocaine and that "key" meant a kilogram. The large commercial quantity of cocaine is one kilogram: see Schedule 2 Drug Misuse and Trafficking Act. 14 His Honour held that the evidence of the conversations was capable of proving that the applicant was offering to supply McMullen, for sale on to others, a kilogram of cocaine. His Honour observed that under ss3 and 6 Drug Misuse and Trafficking Act there is an extended definition of the meaning of "supply". His Honour held that whether what was said was seen as an agreement or as an offer, there was a proper legal basis for the charge. The remaining arguments depended very much on his Honour's accepting the evidence of the applicant to the effect that he did not, when entering the plea, understand the instructions he had given to his legal advisors. His Honour rejected that evidence and the arguments based upon it. 15 The first ground in the application before this Court was that his Honour erred in law in his conclusion that the evidence was capable of proving the offence of which the applicant had pleaded guilty. 16 The offence of which the applicant pleaded guilty is a creature of the Drug Misuse and Trafficking Act 1985. The relevant parts of the Act are as follows. By s25(2) a person who supplies, or knowingly takes part in the supply of, an amount of a prohibited drug which is not less than the commercial quantity applicable to the prohibited drug is guilty of an offence. 17 By s3 "supply" includes sell and distribute, and also includes agreeing to supply, or offering to supply, or keeping or having in possession for supply, or sending, forwarding, delivering or receiving for supply, or authorising, directing, causing, suffering, permitting or attempting any of those acts or things. 18 Section 6 is in these terms - 6 Meaning of "take part in" For the purposes of this Act and the regulations, a person takes part in the cultivation or supply of a prohibited plant or the manufacture, production or supply of a prohibited drug if: (a) the person takes, or participates in, any step, or causes any step to be taken, in the process of that cultivation, manufacture, production or supply, (b) the person provides or arranges finance for any such step in that process, or (c) the person provides the premises in which any such step in that process is taken, or suffers or permits any such step in that process to be taken in premises of which the person is the owner, lessee or occupier or in the management of which the person participates. 19 The first submission of Mr Cassidy, QC, counsel for the applicant, was that before the applicant could be properly convicted the Crown had to show that there had been an actual supply of cocaine. The word "supply" was to have its conventional meaning, unextended by the definition in s3 of the Act. Mr Cassidy QC referred to Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern Limited) [1953] 1 QB 401, a case which concerned itself with identifying the point at which, in a self-service shop, the acceptance of an offer effects the conclusion of a contract for the sale and purchase of goods. 20 The authority for the submission was said to be R v Deng (1996) 91 A Crim R 80. Deng appealed against her conviction of knowingly taking part in the supply of the large commercial quantity of heroin. The case against her was that she knew that a man called Huang had ten kilograms of heroin for sale and agreed to provide him with mobile telephones and pagers for the use of both of them in arranging the sale of the heroin, to introduce Huang to potential buyers and to assist him to collect money owing on sales. It was submitted by Mr Cassidy that Deng was found to have assisted Huang in attempting to supply heroin and that it was submitted on appeal that she should have been charged with supply (in its extended definition) and not with knowingly taking part in the supply. Mr Cassidy submitted that Mahoney P upheld that submission in relation to a smaller quantity of some 700 grams of heroin that Huang had succeeded in selling, and that Deng could not be correctly charged with taking part in its supply. 21 I think that that submission misunderstood what Mahoney P said in Deng. The appellant succeeded because the directions of the trial judge misstated the way in which the Crown had put its case. The Crown case was that Huang supplied the drug in that he attempted to sell and distribute or offer to supply the drug. However, the trial judge told the jury that they could convict the appellant if they found her to have taken part in an agreement to supply. 22 This Court in R v Deng did not decide that the "supply" component of a charge of knowingly taking part in a supply must be restricted in the manner now contended for. To the contrary, Hunt CJ at CL observed that this Court had previously held in R v Derbas (1993) 66 A Crim R 327 that the extended definition of "supply" was applicable where the Crown had charged the accused with knowingly taking part in supply. I agreed with his Honour's judgment. 23 Mr Cassidy sought to draw support from Director of Public Prosecutions Reference No 2 of 1995 (1995) 65 SASR 508. In my opinion the case does not support his argument. All that was there decided was that where the alleged actual sale of a drug is a component in a charge of taking part in the sale of a drug, there does not need to be a completed sale. The Court had no cause to consider any extended definition of "sale", much less "supply". 24 Mr Cassidy referred to the judgments of this Court in R v Carusi and Cassar (1989) 17 NSWLR 516 and R v Chow (1987) 11 NSWLR 561. those cases were concerned with charges of conspiracy to supply a prohibited drug where the meaning of supply was, by statutory extension, an agreement to supply. R v Carusi was concerned with the Drug Misuse and Trafficking Act but R v Chow with the predecessor to that Act, the Poisons Act 1966. The term "supply" was defined in the latter Act as including agreeing to supply. 25 In R v Chow the Crown case was that the appellant had agreed to sell or supply to one Lee and that Lee had agreed to purchase from the appellant the heroin the subject of the charge. That would have been a supply as that term was defined in the Poisons Act. Yet the appellant was charged with and convicted of conspiring to supply. The act of conspiracy was the very agreement that constituted a supply. The Court said at 570 that it would be absurd to say that the charge meant that there was an agreement between the appellant and Lee that the appellant would agree to sell or supply the heroin to Lee. 26 In R v Carusi and Cassar the appellant had been convicted of conspiring with another to supply a prohibited drug. The supply alleged was an agreement to supply. The charge was brought under s26 of the Act, which made it an offence to conspire with another or others to commit certain offences, including the offence of supply. The appellants took delivery of a quantity of heroin, intending to sell it at a profit, but were arrested before they could do so. They were charged and convicted of conspiring to supply. They appealed to this Court, relying on the decision in R v Chow. The appeal was dismissed. There was not present the absurdity that accompanied the conviction in Chow, because all they were charged with and convicted of was agreeing to supply. The word "supply" in that context had its ordinary, not its extended, meaning. 27 I do not think that either R v Chow or R v Carusi and Cassar supports Mr Cassidy's argument. This is not a case in which conspiracy was alleged. As a matter of ordinary construction, there seems no reason why a person should not be convicted for taking or participating in any step or causing any step to be taken in the process of supply of a prohibited drug where supply is given its extended meaning. It is possible for a person so to take part in offering to supply, in keeping or having in possession for supply, in sending, forwarding, delivering or receiving for supply or in authorising, directing, causing, suffering permitting or attempting any of those things to be done. In the present case his Honour found that the applicant knowingly concerned himself in agreeing or offering to supply the cocaine. 28 Of course, if found to be true, the facts alleged in the present case would prove guilt of supply, extending the meaning of that word to agreeing or offering to supply. But that gives rise to no particular difficulty. There is not the objection that there was in R v Chow. This Court observed in R v Deng that there will be cases where the facts are capable of proving supply or the knowing participation in supply. Sometimes the Crown will have to choose which offence it will charge. Sometimes it may be wise for the Crown to prefer charges in the alternative. But none of these things means that a person convicted of knowing participation on facts which would have made out supply has been wrongly convicted. There is no rule that if the facts are sufficient to make out the offence of supply the accused must be charged with that offence and not with knowingly taking part in supply. 29 The next submission was that a person accused of knowing participation in the supply of a prohibited drug must be a third party to the supply. The accused must be shown to have lent assistance in some relevant way to a second person, the supplier, to a third person, the receiver. An accused person cannot knowingly participate in a relevant arrangement to which the accused is a party. 30 Mr Cassidy was able to offer no authority for his contention. While the words "take part in" are apt to contemplate participation in the activities of another or others, they are not so confined by the definition in section 6. On the contrary, causing any step to be taken in the process of the relevant activity, whether cultivation, manufacture, production or supply, is apt to embrace the participation of a person in his own enterprise. The provision or arrangement of finance is apt to include the underwriting of the accused's own process as much as another's. The same may be said about the provision of premises. There is, to be sure, a certain awkwardness in describing the activities of the applicant as having knowingly taken part in his own offer or agreement to supply the cocaine, but in my opinion the language of the Act is not unduly strained thereby. I do not think that Mr Cassidy's submission should be accepted.

31 It is convenient to deal with the next two submissions together, since they attacked his Honour's findings of fact. It was submitted that there was no evidence upon which his Honour could find that there was a supply within the extended definition of that word. The next submission was that there was no evidence upon which his Honour could find that the supply was to be of the large commercial quantity of cocaine. 32 His Honour's finding was as follows - It seems to me that the material contained in Exhibit VD1B, the telephone transcripts, is capable, with (no doubt) other evidence that the Crown might have, of proving that the accused was offering to supply McMullen for on-sale to the Rebel motor cycle gang a kilogram of cocaine. Under s3 and s6 of the Drug Misuse and Trafficking Act there is an extended definition of supply, and whether as an agreement or as an offer, it seems to me that there was a proper basis in law upon which the charge could have been made up. 33 I have set out in this judgment the text of the conversations and it seems to me that it was well open to his Honour to find, particularly when in the last of the conversations the applicant said, "Yeah I'll get on to it", that he was offering, if not agreeing, to supply cocaine. As to proof that he had a kilogram in mind, his Honour was entitled to have regard to the affidavit of the Crown Prosecutor, John Norman Bowers, sworn 12 May 2004, which annexed a draft statement of facts arrived at after negotiations with the applicant's representatives. Included in that statement is the following - Expert evidence confirms that a "key" is coded reference to one kilogram. 34 His Honour had in addition evidence that the applicant, having conferred with his legal advisers and having signed written instructions prepared by them, had entered a plea of guilty before Judge Hosking. 35 It was submitted that there had to be a nexus between whatever the applicant was shown to have done and the supply, even in its extended definition, and that in the absence of evidence that he had carried out his undertaking to make inquiries and get back to McMullen there was no evidence that he had taken a step in the supply. Making an offer was not enough. Reference was made to cases dealing with the acquisition and transport of raw chemicals and the processing of chemicals which were incapable of producing a prohibited drug, preparatory to a manufacturing process: see R v BD (2001) 128 A Crim R 28 and R v McCoy (2001) 51 NSWLR 702. 36 These submissions do not seem to me to be to the point. If an offer to supply or an agreement to supply constitutes a supply, it must follow that the taking of the step which constitutes the making of the agreement or offer also constitutes supply. 37 In my opinion the first ground in this application has not been made good. 38 The Court may grant leave to withdraw a plea of guilty if it appears that there has been a miscarriage of justice: R v Chiron [1980] 1 NSWLR 218; R v Ondrovcik Court of Criminal Appeal, New South Wales, 4 November 1977 unreported. Whatever the particular circumstance put forward as demonstrating that there has been a miscarriage of justice, it must be shown that the plea of guilty was not really attributable to a genuine consciousness of guilt: R v Boag (1994) 73 A Crim R 35. The first submission by Mr Cassidy was that the evidence could not prove the offence charged. I have already rejected that submission. 39 The second submission was that the applicant did not understand the charge and did not intend to plead guilty to it. A substantial body of evidence was put before his Honour about what had led up to the plea of guilty. The applicant gave evidence. So did his former barrister and solicitor and the solicitor's clerk who had attended the applicant. The clerk was a qualified man, apparently, who was shortly after these events admitted to practise as a solicitor. The applicant admitted the general tenor of the telephone conversations but asserted that he was really playing for time and never intended to supply cocaine. If that had been true it would not have assisted the applicant, of course, but the story was so implausible that his Honour, understandably, was unprepared to give credence to the applicant's evidence. So an attempt by the applicant to shift blame onto his advisers went nowhere. 40 Mr Korn, the applicant's former barrister, gave evidence of conferences with the applicant in which the Crown evidence and the charges were discussed. Mr Korn advised the applicant and, having received his oral instructions, drafted written instructions for his signature. His evidence was that he was concerned about the state of wakefulness of the applicant and suggested to his solicitor that written instructions be prepared overnight and that the applicant be invited on the following day, when he was fresh, to sign them if he wished to do so. That is what happened. 41 Mr Cassidy drew attention to the difference between the form of the written instructions signed by the applicant and the form of the charge to which he pleaded guilty. The written instructions were as follows - I, Sid Zaiter, acknowledge that I have had a conference with Mr Korn and Elias Tabchouri in the presence of Elie at the offices of their firm. I confirm that I have given instructions to my lawyers to enter a plea of guilty to the principal count of supply large commercial quantity of cocaine on the basis that the other two matters will be put on a schedule. I agree that I do not believe that I can adequately explain the conversation on the phone that the Crown alleges is a conversation to which I am a party and that the topic is the supply of cocaine. Since I agree that I cannot explain this conversation, it makes sense for me to enter a plea of guilty to this count. On this basis, once I enter this plea, it then becomes a question whether it is in my best interests to fight the remaining two charges. On balance I have decided it is in my best interests to agree to put the two remaining charges on a schedule. I know that the judge will take these two matters into account in fixing a sentence for the principal matter to which I will plead.

42 The applicant signed the instructions, which were dated 25 February 2004. 43 In giving judgment his Honour said this - There is no evidence that the accused is illiterate. There is no evidence that he could not read the document, that he did not have the opportunity to read the document, that he was pressured into signing the document, or that he did not understand the document. He now says that he did not understand the document, but I reject his evidence on that point. 44 His Honour observed that the applicant had made no explanation of the words he used in the recorded telephone conversations other than his assertion that he did not in fact intend to supply the drug. His Honour observed that the charges at committal each asserted that between named dates at Sydney the applicant "did knowingly take part in the supply of" an amount of the drug with which the charge was concerned. There were three charges, one for cocaine, one for methylamphetamine and one for pseudoephedrine. The indictment prepared by the Crown Prosecutor after committal was put before his Honour. In each case the form of the charge used the words "did knowingly take part in the supply". 45 Mr Korn and his instructing solicitor were well aware of the form of the charges outstanding against the applicant when they interviewed him and advised him. There was no evidence before his Honour that the difference between the forms of words "did knowingly take part in the supply" and "supply" was considered to be of any consequence. His Honour concluded that Mr Korn had inadvertently drafted instructions which used the word "supply" when he should have used the words "knowingly take part in supply". That was a conclusion to which I think his Honour was entitled to come. 46 It seems possible that the applicant did not appreciate the distinction between the charge to which he pleaded guilty and the charge described in the instructions which he signed, but the only reasonable conclusion that his Honour could draw was that the advice to the applicant and the applicant's instructions to his advisers were that he was guilty of the charge which the Crown was bringing against him. 47 His Honour rejected the submission that the applicant did not appreciate the nature of the charges, that he did not intend to admit his guilt and that he entered his plea by reason of imprudent and inappropriate advice. It has not been shown that his Honour erred in coming to those conclusions. 48 His Honour concluded that the reason for the application before him to withdraw the plea of guilty resulted simply from the applicant's getting cold feet after the event. It has not been shown that this was not a conclusion reasonably open. 49 In my opinion this second ground had not been made good. 50 I would refuse leave to appeal from his Honour's order.

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.