Legal authority, both of the High Court of Australia and of this Court supports that construction of the word "importation". In Forbes v Traders Finance Limited (1970) 126 CLR 429 at 432, Barwick CJ said: "'[I]mportation' extends on both sides of the actual act of importing into the country. The importation does not cease at the moment of an import. But the relevant use of a vehicle must be proximate to the act of importing. Whether it is so or not is a question of degree for decision in the particular case." That question of degree has been clarified by a succession of cases in which meaning has been given to the term…
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Neither Commonwealth power nor the language of the Customs Act will follow the goods once they are imported, without limitation as to time and place. A time will be reached when involvement with them in their passage through the Australian community cannot properly be categorized as knowing concern in their "importation". Likewise, innocent transport of goods after their arrival, although amounting to concern in their importation in one sense, will not have the character of criminality to which the section is addressed. None of this is relevant to the facts of the present case. Nor is the narrow and technical construction of "importation" urged by the Appellant compatible with a series of holdings of this and other courts about the scope and duration of the "importation" with which knowing concern must be shown. For example in R v Shin Nan Yong (1975) 7 ALR 271, this Court made it plain that it was not necessary, to secure a conviction under s233B(1)(d) that the "concern" should be made manifest in a physical sense whilst the importation was actually in progress. It was sufficient if the "concern" is manifested in the venture which centred upon the importation. To similar effect was the decision of the Court of Criminal Appeal of South Australia in R v Kelly (1975) 12 SASR 389. See also Ashbury v Reid [1961] WAR 49."
114 The Court also regarded the decision in R v Lam to be particularly instructive on this question, in so far as Gleeson CJ had there stated that "the term 'importation' was one which must involve at least some measure of flexibility'". The Court held that:
"at least to the point where the imported product was still in a container held in a hired factory…before distribution to the markets for which it was intended, the process of 'importation'…(had) not relevantly ceased for this offence. Concern in that importation whilst the goods remained as they were qualifies for the application of the section".
115 The decisions in Lam and Courtney-Smith were also followed in R v Leff (1996) 86 A Crim R 212. That was a case in which the Appellant had a number of telephone conversations with the courier, at a time which followed his arrest and the seizure of the drugs which he had been carrying, that being a time while he was co-operating with the authorities. In so far as the Crown case was based solely upon an alternative that was confined to the post arrival/arrest conversations (there being another alternative dependant upon disputed evidence as to some earlier involvement on the Appellant's part in the planning for the importation) it was held that the venture was, as a matter of law, still in progress at the time of these conversations, and that there was sufficient evidence to show that the Appellant was knowingly concerned in it. Gleeson CJ there said (at 214):
"The concepts of importation, and of being concerned in an importation, are both sufficiently flexible to cover a case such as the present. As the authorities referred to by James J show, importation is a process, or a venture, not a physical act which occurs or ceases at the moment of import. Furthermore, concern in an importation can commence at a time when it has apparently broken down, and where efforts are being made to bring it to fruition."
116 James J, with whom Gleeson CJ and Allen J agreed, said (at 223):
"It is true that in the present case Raz was arrested at the airport and the cocaine being carried by him was seized by the Federal Police. However, I do not consider that the intervention by the authorities prevented the process or venture of importation from continuing so that a person might subsequently become concerned in the importation."
117 These decisions were also followed in R v Kwong Yue Cheung SCWA CCA 28 October 1997, and it is by reference to the principles which they establish that this ground falls to be decided.
118 Of some importance in relation to the asserted absence of any evidence of the Appellant's knowing involvement in the importation, was the defence submission that the columns had been unloaded, and all of the tablets removed before the Appellant arrived at the premises on the morning of 2 December. That was associated with his submission that the time of removal of the tablets, either on 24 November or on 2 December, marked the end of the process of importation.
119 Absent any evidence showing positively that the Appellant had a financial interest in the importation, and absent any direct evidence of activity connected with the venture on his part before 24 November, I would accept the Appellant's submission that the jury ought to have had a reasonable doubt of his knowing concern in the importation prior to that date. While the evidence would give rise to a strong suspicion of his earlier involvement, that would not suffice to support a conviction on that basis.
120 The prosecution case however does not depend upon the Appellant having been knowingly concerned in the importation before 24 November, or of having a financial interest in it. Its case was that the process of importation continued thereafter and that the conduct, on that day and subsequently, of the Appellant amounted to a knowing concern on his part.
121 On my assessment that submission is correct having regard to the extended concept involved in the process of importation which includes recovery of the goods after landing and anything which is done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process, that is the suppliers, shippers, customs agents, freight forwarders, and so on.
122 In support of its submission that the Appellant was not involved in the importation between 24 November and 1 December the defence pointed to the absence of any evidence, during that period, of him discussing the importation, or the problem, with his brothers, or with Choi, as might have been expected had he been knowingly concerned in it. To the contrary, the defence argued, he seems to have gone about his regular business and engaged in inconsequential social chatter with them.
123 That clearly was a factor requiring careful evaluation by the jury as was the evidence of his prior good character. Each must now be given appropriate weight in relation to a consideration of this ground of appeal. Similarly the jury were entitled to take into account the somewhat banal and brief nature of the Appellant's conversation on his return to the premises on the evening of 24 November, and the fact that Louis Sukkar seems not to have spoken to anyone by phone in relation to the substitution, until after the Appellant had left the premises with Choi.
124 Equally the jury needed to take into account that while there were intercepted conversations between Joseph and Louis between 24 November and 1 December, relating to the importation, none seems to have occurred at a time when the Appellant was present, as might have been expected had there been the "Councils of war" which the Crown contended had taken place that week, involving the Appellant, at the time of his visits to the premises. Nor was anything said by Louis or Joseph or Choi in their discussions over this week suggestive of the Appellant having been involved in the venture, any discussion involving or concerning him having been related to entirely different topics.
125 The Crown submission, that it was not credible that the accused was informed of the importation only on the night of 1 December, however, has considerable force, having regard to the terms of his telephone conversation with Choi that night, the absence of any indication to Choi that he had just been brought in to assist, the absence of any apparent indication of shock or surprise on his own part, and his obvious awareness of the prior importations.
126 There is also the fact that the arrival and storage from 24 November of portion only of a cool room, at a private dwelling would, as a matter of common sense, inevitably have attracted strong suspicion and concern on the part of the owner of those premises unless he had some knowledge of what was involved. It would also be somewhat surprising for a valuable consignment of drugs to be taken to those premises unless it was certain that this could be safely done, or for there to be no discussion as to why the freezer had been brought to Consett Street, and as to what was intended for it, if it was involved in some legitimate commercial activity.
127 The Appellant's adoption of an alias when speaking to Max Messina on 1 December, his presence on 24 November when the columns were unloaded, in the course of which steps to remove the tablets were commenced, being the occasion when he was reported as having tasted some of the tablets, and his presence at the premises over the succeeding days, together provide strong support, in my view, for the Crown case, as do the facts that Choi and the Appellant had discussions away from the premises on the afternoon of 24 November, and that when Choi phoned Louis Sukkar at 18:37:48 he had obviously been informed of the fact of the substitution, a circumstance which, while not conclusive, was at least consistent with him having had an opportunity of discussing it with the Appellant. It must, however, be recognised that there was a competing inference open, namely that Louis had earlier driven from Consett Street to meet Choi, to warn him of the discovery, and that this had deliberately occurred in the absence of the Appellant, so as to keep him in the dark.
128 The Crown submitted however, that it was noticeable from the surveillance video of 24 November, that the body language of the Appellant, along with that of his brothers was consistent with each being disappointed at the discovery of the loss. While a viewing of the video, does tend to support that submission, there being obvious indications of despair on the part of all present, I accept that some caution needs to be exercised in drawing a conclusion too quickly from body language. At best it can be taken into account as a factor in a circumstantial case, not being an essential intermediate fact requiring proof beyond reasonable doubt. Much the same observation can be made in relation to the 2 December surveillance video, where a somewhat sombre mood is obvious, on the part of those present, particularly during the segment where they took a mid morning break sitting around a table, before the columns and other bits of the freezer, were loaded onto a truck.
129 While it was the defence case that the only purpose or involvement of the Appellant from 1 December onwards was to have the tablets, columns, and the remains of the freezer cabinet removed from his premises as quickly as possible, that contention cannot stand, on my assessment, with the evidence of his conversations, or of his actions from the night of 1 December onwards.
130 I would accept that if the evidence as to his involvement, after being informed of the importation, revealed nothing more than a commitment to secure the removal from his premises of any evidence concerning it, then the offence charged, as distinct from one of being an accessory after the fact, would not have been made good.
131 However, on my assessment, the extracts from the intercepts earlier noted convincingly show that the objective and involvement of the Appellant went well beyond that.
132 The continued presence of the recovered tablets on the Consett Street property up to and including 5 December, the Appellant's instruction on 2 December that the tablets be put in the shed, and the tenor of his conversations concerning his plans for Choi, clearly belie the suggestion that all he wanted to do was to have everything removed from his property, and the suggestion that he lent his physical assistance for that purpose alone.
133 His coded conversation with Paul Sukkar on the night of 1 December, in which he refers to "our little dilemma" and to his concern about "Korean style calling the coppers" similarly suggests far greater involvement than that for which the defence contended, even taking into account his observation "I'm not prepared to leave it overnight". Had he truly been unassociated with or not concerned in the venture, it would seem more probable that he would have had nothing whatsoever to do with the matter other than to forcefully insist on his brothers getting rid of every trace of the importation from his property.
134 Of substantial significance in relation to the Appellant's evidence that his concern on 2 December was only to get the drugs off the Consett Street property, as quickly as possible, is the surveillance and listening device evidence of what actually happened that day. Far from an early morning urgent move of everything from the property, the evidence shows that there was hammering and emptying of columns, a careful sorting of tablets, which the Appellant acknowledged knowing to be ecstasy, so as to make them available for sale, and discussions about the recovery rate and likely proceeds, which went on for a lengthy period. Moreover while the rental truck took the remnants of the freezer cabinet away for storage elsewhere, the tablets remained at Consett Street.
135 The observations made during the earlier intercepted conversations concerning the number of the columns that had been emptied and of those that had yet to be checked, the discussions about examining the remainder, the surveillance evidence of 24 November and 2 December, and the conversations in relation to what was occurring on 2 December clearly show that the unloading and attempted recovery of genuine tablets, including the opening of some of the columns at the other end to search for more tablets, and the sorting and bagging of the "genuine" tablets, all of which formed part of their recovery, was continuing up to and including 2 December.
136 The evidence of the Appellant's conduct from 1 December in attempting to find where the drugs were, and the supply of information to his brothers concerning his inquiries, which was then used by them in their dealings with Choi and with the European end, also provided in my opinion, cogent evidence in support of the jury verdict.