SITU v R

Court of Criminal Appeal (NSW)|2008-04-03|Before: McClellan CJ, James J, Hoeben J, Clellan CJ

JUDGMENT OF: McClellan CJ at CL at 1; James J at 48; Hoeben J at 49

CATCHWORDS: CRIMINAL LAW - appeal against conviction - attempt to possess trafficable quantity of methylamphetamine - whether trial judge erred in failing to direct verdict of acquittal - whether act was merely preparatory - whether trial judge erred in directions regarding control of property - whether jury verdict unreasonable

LEGISLATION CITED: Customs Act 1901 Criminal Code (Cth)

COUNSEL: P Byrne SC (Appellant) M Bracks (Crown - Cth)

SOLICITORS: Ren Zhou Lawyers (Appellant) Commonwealth Director of Public Prosecutions (Crown)

IN THE COURT OF CRIMINAL APPEAL CCA 2007/2799

McCLELLAN CJ at CL JAMES J HOEBEN J

MONDAY 14 JULY 2008 SITU, Xue Zhong v R Judgment 1 McCLELLAN CJ at CL: The appellant was convicted following a trial by jury of one count under s 233B(1)(a)(iv) of the Customs Act 1901 and s 11.1 of the Criminal Code (Cth) being that, between about 28 and 30 September 2004, he attempted to possess goods that had been imported into Australia in contravention of the Customs Act, namely a trafficable quantity of methylamphetamine. He was sentenced to imprisonment for a term of 7 years with a non-parole period of 4 years.

The Crown case 2 On 19 September 2004 a package was consigned in Guangzhou, China for carriage by air to Sydney via the Express Mail Service. The package carried a consignment note indicating that it was addressed to "Ben Chan" at 86 Mercury Street, Narwee. The consignment note did not record, at least not in English, the nature and value of the goods. The package was given the bar code reference number EA473524526CN. The package arrived in Sydney on 21 September 2004 and was given the parcel post control reference number N239542. It was then taken to the International Mail Handling Unit at Clyde. 3 All packages imported into Australia by post must be cleared by the Australian Customs Service before being released to the recipient. If the value of the goods is less than $1,000 the Customs Service requires an invoice describing the nature and value of the goods and an informal clearance can be given. However, if the value of the goods cannot be ascertained from the accompanying documents, the package is referred to the commercial area of the Sydney Gateway Facility at Clyde and only released after proof of the value of the goods has been provided. 4 On 22 September 2004 the Customs Service prepared and posted a document known as a First Notice in respect of the package. The notice recorded the reference number: N239542, as well as the fact that the declared contents and the sender of the package were "not readable in Chinese". It also recorded that the value of the goods was "not stated" and that demurrage in respect of the package would commence on 29 September 2004. 5 The First Notice was posted to 86 Mercury Street, Narwee. The evidence disclosed that a person using the name "Ben Chan" but whose correct name was Chan Wai Choeng had lived at the boarding house at that address until 23 September 2004 when he flew from Sydney to Melbourne and then to Hong Kong. 6 By 29 September 2004 the copy of the First Notice which had been mailed to 86 Mercury Street, Narwee was in the possession of the appellant. At 1.21 pm on that day, the appellant made a call from the vicinity of Chinatown on his mobile telephone. The call was made to a woman named Alice Guan. The police intercepted and recorded the call. The conversation was in Mandarin and the appellant said, inter alia, "No, I am right now in here where you guys are. Well, I want to ask you to make a phone call for me, is it okay?" and "No, you come down, you come downstairs to make a phone call for me. Is it okay? Now." The appellant concluded, "Okay, I shall wait for you down here, okay?" 7 Guan left her premises and went downstairs where she met the appellant on the footpath. She asked the appellant what the call was about. The appellant said that some friends in China had sent a package to him or to his friends and that he did not receive it. The appellant asked her how he could obtain the package. Guan asked what the package contained. The appellant responded that it contained a belt that was filled with a traditional Chinese medicinal liquid that could be used for the treatment of sore backs. The appellant showed Guan the First Notice and asked her to make a telephone call and to enquire about how to obtain the package. The appellant told her that, if she was asked, she should state the value of the goods was about $200. The appellant told Guan that it was the last day on which the package could be obtained. 8 They went to a public telephone and, at 1.34 pm, in the presence of the appellant Guan dialled the telephone number that was printed on the First Notice. During the telephone call with a Customs Officer Guan said that she was calling on behalf of a friend who did not speak good English. To her question as to how the package could be retrieved, the Officer said that her friend should take identification to the post office. 9 After the call Guan repeated to the appellant the advice she had received. She told him that the appellant should take identification to the post office. The appellant said "It shouldn't be like that". Guan said "If you don't believe me you can just make a phone call yourself and you can ask". At 1.38 pm the appellant dialled the second number that was recorded on the First Notice (a 1800 number) and spoke to a Customs Officer by the name of Andrew Donnelly. 10 Mr Donnelly, in his evidence in chief, gave the following account of the conversation: "Q: How did that conversation commence? A: It commenced with me answering the phone and I said 'Good morning, Australian Customs'. The voice on the other end said 'I'm calling about my package'. I asked for - I said, 'Do you have a reference number'? The person said 'What is the reference number'? I indicated the reference number would begin with an N followed by six digits. They then said the reference number is N239542. I then asked to put them on hold so that I could go to the receptacle to collect the corresponding card to that reference number. Q: When you refer to the corresponding card, do you refer to the remaining part of the document that was kept by Customs after the perforated slip was removed from it? A: Yes. Q: And did you locate that card in the receptacle? A: I did. Q: What did you do then? A: I then returned to the phone call and said 'how can I help you with this'. The caller said 'I want you to send me my package.' I said 'it must be cleared through Customs first'. They said 'But you'll send me my package', and I said, 'You will need to send us some documentation indicating what is in the parcel and how much it is worth'. He then said 'I don't have an invoice.' I said, 'We need to get something, you need to send something through either by fax or you have to attend the facility in person.' They then said 'I will get a friend to get an invoice' and then terminated the phone call." 11 At the conclusion of the conversation Mr Donnelly made a note on the Customs Service computer database that stated "going to get friend to get invoice". On the following day he made a detailed note of the conversation and when cross-examined he gave the following evidence: "Q: You made it clear to the caller what it was Customs needed to clear the goods, correct? A: Yes. Q: When he was responding to what you were saying it was reasonably clear to you he did not understand precisely what you were saying, is that fair? A: Yes. Q: So you had to repeat yourself a number of times, correct? A: Yes. Q: For you to understand him he had to repeat himself a number of items, is that correct? A: I would say yes. Q: The up shot of the conversation was to the effect it was clear to you who ever the caller was he did not appear to be aware of Customs procedures, is that right? A: That is correct. Q: Whatever the up shot of the conversation that person, who ever the caller was, was asking questions as to how the goods could be released, is that correct? A: They were not asking questions on how it was to be released. Q: Just saying he was calling about having the goods released? A: He was requesting them to be released, yes. Q: If they had been released they would have been sent to 86 Mercury Street, Narwee wouldn't they? A: I presume so, yes. Q: That was the address you had in front of you, correct? A: Yes. Q: When the person spoke to you about whatever the parcel was he was saying the parcel is for somebody at 86 Mercury Street, Narwee, is that correct? A: Yes. Q: And even when you tried to remember on the 30 September you were not able to tell Felicity Galvin whether the person was asking for the goods for themself or for a friend of his, is that fair? A: Um, he only said 'send the goods', ' send me the goods'. Q: But you tried because you were asked by Felicity Galvin to tell her in your note whether or not he was asking for the goods for himself or for a friend and you actually made a note that you were not confident to say which it was, correct? A: Yes. Q: Once you had conveyed to the person an invoice was required to indicate the value of the goods the person said words to the effect he would get his friend to get the invoice and he hung up, is that correct? A: That is correct. Q: Well you are not confident to say whether or not he said he would get the invoice from the friend or get the friend to bring the invoice? A: Yes, he said he would get his friend to get the invoice. Q: Get his friend to get the invoice? A: Yes." 12 After the conversation with Customs the appellant joined Guan in a coffee shop. She asked him what had happened to which he answered "Nothing happened". The appellant and Guan then drove to a shopping centre in Burwood. The appellant had asked Guan to accompany him to a home unit in Hurstville for the purpose of cleaning it. The appellant told Guan that the flat belonged to a friend. They went to the unit but left when Guan asked to be driven to Darling Harbour. 13 At approximately 4 pm on 29 September 2004 police obtained a warrant to search unit 904 at 600 Railway Parade, Hurstville. At that time the police were not aware that a package addressed to "Ben Chan" and containing methylamphetamine had been imported into Australia. The search warrant related to the home unit but not to the appellant or to methylamphetamine. 14 At about 7.30 pm that evening the appellant returned to the unit at Railway Parade. He arrived by car with a woman. The police observed their arrival and entry into the building. At 7.55 pm a group of police went to the door of the unit. Detective Johnston knocked and the door was opened by the appellant who was wearing only a towel. The woman was inside the unit, also wearing only a towel. The police explained that they had a warrant to search the premises and allowed the woman to get dressed. 15 The appellant then asked "Can I get dressed now?" Det Johnston and Det Watson escorted the appellant into the bedroom where he put on a top and a pair of jeans. The appellant then said "I need to go to the toilet". He was escorted from the bedroom into the adjoining bathroom where the appellant approached the toilet bowl and faced the wall. He pulled down his jeans to just below his buttocks and then turned to face the detectives and bent forward. He held the waist band of his trousers with his left hand and moved his right hand from the waistband into the front right pocket. His right hand was in the pocket up to his wrist. He leaned forward, lowered the jeans to just below his knee, moved his buttocks towards the toilet bowl and said "Privacy please" and then bent down to sit on the toilet. 16 Det Watson said "Stop, I have not searched those pants yet". He approached the appellant and put his left hand on the outside of the front right pocket of the jeans. The appellant's right hand was still in the pocket. The appellant withdrew his hand from the pocket and presented an empty palm. Det Watson ordered the appellant to remove the jeans. The appellant kicked them off as he sat on the toilet. Det Watson said "You may go to the toilet now". 17 Det Johnston searched the pockets of the jeans and located the First Notice. He also removed other items including a wad of bank notes from the left pocket. He placed these items on the floor. The appellant stood and faced the detective and once the items were removed from his jeans said "I don't have to go [to the toilet] now". The appellant put on the jeans and walked out of the bathroom without flushing the toilet. Det Watson inspected the bowl and found that the appellant had not used it. 18 The police carried out a search of the premises after which they told the appellant that he was free to go although they may need to speak to him later. Shortly after leaving the unit Det Watson rang the Customs Service and asked them to locate the package referred to in the First Notice. The police left the First Notice on the kitchen bench. 19 On the morning of 30 September 2004, at about 4 am, the appellant returned to his home at Northwood and spoke to his wife, Airi Kawata. She gave evidence that the appellant looked pale and was holding the First Notice. He told her that he had been in trouble with the police because of the First Notice. He said to her that the Notice was from the Australian Customs Service and asked her to translate it. Kawata read the document and asked the appellant who Chan was. The appellant said that he did not know. The appellant then told Kawata that he was going to China or Hong Kong and that he would call her later. He said that he was going because he was in trouble with the police. He put the First Notice into his pocket, packed some clothes and money into a bag and left. 20 At about 6.30 am on 30 September the package was located at the Customs Service premises at Clyde. It comprised a cardboard box in which there was a sealed Styrofoam box which contained 4 liquid-filled pillows as well as tassels, bamboo mats, wall hangings and cushion covers. A small amount of liquid from one of the pillows was tested and found to be methylamphetamine. The weight of pure methylamphetamine was calculated to be 6,127.9 grams. 21 By 7.36 am on that day the appellant arrived at the airport. He purchased a seat on a China Southern Airlines flight from Sydney to Guangzhou that was due to depart at 9.50 am. The ticket cost $2,043.86, which the appellant paid in cash. The ticket provided for a return journey. The appellant planned to travel to China using his Australian passport. It was a condition of travel to China that a person travelling on an Australian passport have a return or onward ticket. 22 Following the notification by the Customs Service about the contents of the package, the police went to the departure gate in the Sydney International Airport terminal where the appellant was waiting for his flight. The appellant was detained. 23 At about 5.50 pm on 30 September 2004 police officers went with officers of the Customs Service to the premises at 86 Mercury Street, Narwee. A resident named Wang Yun Long told them that a person named "Mr Chan" had stayed at the premises until 23 September 2004 but had departed for Hong Kong on that date. The evidence disclosed that a person by the name of Chan Wai Choeng had flown on that day from Sydney to Melbourne and boarded a flight to Hong Kong. The same person had arrived in Australia from Hong Kong at Cairns International Airport on 25 August 2004. 24 The Crown case relied on the evidence that the appellant had come into possession of the First Notice by 29 September 2004. It was the Crown case that the appellant intended that the package would be delivered to the Narwee address. It was submitted that when the appellant himself telephoned the Customs Service he did more than merely inquire but was requesting that the package be sent to the consignment address. It was submitted that these acts went beyond mere preparation to obtain the package but constituted an attempt to obtain possession of it.

Ground 1: the trial judge erred in failing to direct a verdict of acquittal at the conclusion of the Crown case. 25 At the conclusion of the Crown case, an application was made on behalf of the appellant that there should be a directed verdict of acquittal. The application was rejected. The trial judge's ruling was challenged by the appellant in this Court. 26 It was submitted that the statements made by the appellant in his conversation with Mr Donnelly could not constitute an attempt but, at their highest, were indicative of an act by the appellant which was merely preparatory. Secondly, it was submitted that the conclusion by her Honour that the appellant's words could be interpreted as a direction to "send it", that is, to send the parcel was erroneous. 27 The foundation for the appellant's submissions was that without express identification by the appellant of where he required the parcel to be sent and to whom it was to be addressed, the appellant's exchange with Mr Donnelly could not constitute an attempt to commit the offence. It was submitted that there was nothing in the evidence to link the appellant with the premises at Narwee. It was further submitted that when the appellant said to Mr Donnelly "but you'll send me my package" he should be understood to be merely making an enquiry with respect to a potential future outcome rather than making a request that Mr Donnelly send the package. 28 Before the appellant could be convicted of attempting to commit the relevant offence, the evidence was required to satisfy the test in s 11.1(2) of the Criminal Code (Cth) which provides that "the person's conduct must be more than merely preparatory to the commission of the offence." As the subsection indicates the question as to whether conduct is merely preparatory is one of fact. In the present case the appellant's conversation with Mr Donnelly was capable of the inference that the appellant was requesting that the package be sent to the address recorded on the First Notice, namely 86 Mercury Street, Narwee. Had Mr Donnelly acted upon that request and arranged for the package to be released, having no other information, he could only have sent it to that address. Given that the appellant had possession of the First Notice which bore that address, there is reason to infer that he had sufficient contact with the Narwee premises to enable him to retrieve the package if it had been sent there. The appellant's actions in engaging Guan to make contact with Customs are consistent with him endeavouring, at least initially, to separate himself from the request of Customs. To the extent that he spoke of the involvement of a friend with Mr Donnelly, the jury were entitled to conclude that this was a further attempt to disguise his involvement in the illegal activity. 29 The appellant challenged the evidence of Mr Donnelly and submitted that his recollections were unclear and his evidence was unsatisfactory. To my mind that challenge has little merit. Even if his recollection was not certain this would not have been a reason to direct a verdict of acquittal. It was for the jury to assess the reliability of Mr Donnelly's evidence. 30 I would reject ground 1.

Ground 2: the directions given by the judge in response to questions asked by the jury on the issue of possession, specifically on the issue of "control" of property, were erroneous having regard to the evidence and the circumstances of the case. 31 After the trial judge had completed summing up the jury asked two questions. They were as follows: "A. If a person makes a request or demand for an item to be sent to another person, does this request constitute an attempt to gain control of the property? B. Does the definition of attempt to possess include exercising control of the property on behalf of another." 32 Her Honour discussed the matter with counsel and then gave further directions. With respect to the first question she said: "If A asks B to send a parcel to C, and at the time that A makes that request, he believes that the parcel contains drugs, and A's role is simply to make that request, then A is not guilty of attempting to possess the drugs because it is not contemplated that A will, at any stage, himself actually exercise physical control of the drugs. But there is a proviso to that. If you were satisfied beyond reasonable doubt that A asked B to send this parcel which A believed to contain drugs, to C, and the ultimate plan in A's mind was that both that A and C would exercise physical control of the drugs at some time in the future, then that would be an attempt to possess because it would be an attempt to have joint possession at some future time. However, you would have to be satisfied beyond reasonable doubt that that was the plan. A plan in A's mind to have joint possession at a future time." 33 In response to the second question her Honour gave the following direction: "I think that is really a question about possession rather than attempt possession. Just in relation to possession, if A or the accused whatever we want to say, if a person, let us say A, intentionally exercises physical control of the parcel, that is he exercises control of the parcel believing that it contains drugs, then A is in possession even though he plans at a future time to give the parcel to C. That would be an example of temporary possession. The issue is whether A was intentionally exercising physical control of the parcel. I think that your questions, in a general sense, really come down to this. It is a question of whether the purpose of the accused's act - the act which the Crown relied upon was the phone call to Donnelly - whether the purpose of that act was that, at some stage, the accused himself would actually exercise physical control of the drugs, either by himself or in conjunction with another person. So I think that perhaps what you should be asking yourselves is - are you satisfied beyond reasonable doubt that the purpose of that call to Donnelly, in the accused's mind, was that, at some stage in the future, he himself would actually exercise physical control of the parcel which he believe contained drug[s]? Whether it was his purpose in making that call that, at some stage, he would exercise actual physical control of the drugs, whether by himself or with another person? That is what you would have to be satisfied of beyond reasonable doubt." 34 Following a request from the jury her Honour repeated the directions although not in identical terms. I refer to the differences in [35] below. No complaint was made by the representative of the appellant (who was not his advocate at the trial) with respect to the content of these directions, either in their original form or when repeated. 35 The appellant now has two complaints about these further directions. The first complaint is that in her initial response to the first question her Honour introduced the concept of whether a particular outcome was "contemplated" by the appellant when she should have referred to whether the outcome "was intended." It was submitted that an outcome may be contemplated without being intended. 36 I reject the submission. Her Honour's directions made clear that the Crown was required to prove that the appellant intended to exercise physical control over the narcotic drugs. Her Honour had already explained the concept of possession to the jury saying on three occasions that possession involves the circumstance that the "possessor intentionally has the ability to control" the relevant property. When her Honour first gave the direction she spoke of the ultimate plan in A's mind by reference to the exercise of physical control of the drugs. However, of particular significance is that when she repeated the direction it was slightly reformulated and her Honour said "the proviso to that is that, if you are satisfied beyond reasonable doubt that, at some future time, A did intend to exercise actual physical control of the drugs …" Reference to intention is made on 2 further occasions. 37 In these circumstances I am satisfied that the jury would have understood that the Crown was required to prove beyond reasonable doubt that the appellant intended to possess the narcotic goods. Rule 4 applies. I would refuse leave to raise this matter. 38 The second complaint made by the appellant is that the trial judge did not give directions which were related to the evidence in the case. It was submitted that, because there was no evidence of any intention on the part of the appellant to jointly possess the prohibited drugs with another, the directions should not have included reference to joint possession. 39 There is no substance in this complaint. To properly deal with the jury's question it was appropriate for her Honour to deal with the circumstances where a request was made on behalf of another to send goods to the other person and contrast that with the circumstance where the request was to send goods to another person, but with the intention that the person making the request would also jointly with the other person, exercise physical control over the goods. Although her Honour made these remarks in response to the jury's question, the Crown case was, and remained throughout, that the appellant himself sought to obtain possession of the narcotic goods. In cross-examination of Ms Guan and Mr Donnelly defence counsel had suggested that the appellant may have been seeking to obtain the package for a friend. In its closing address the prosecutor, anticipating the defence submission, submitted that no friend had been identified in the evidence and sought to counter any suggestion that the friend might have been "Ben Chan" (Chan Wai Choeng), Sam Guo Wei Ho or any person that the appellant might have met in Burwood on 29 September 2004. The Crown did not advance a case of joint possession but merely sought to maintain its case that the appellant sought possession of narcotic goods in its own right. 40 The manner in which her Honour's directions were given did not open up the possibility of the Crown obtaining a conviction on a basis different to the manner in which the Crown case had been presented. Again rule 4 applies. I would refuse leave to raise this matter.

Ground 3: the verdict of the jury is unreasonable having regard to the evidence 41 In relation to this ground of appeal the appellant in effect repeated his submissions with respect to the first and second grounds. 42 The appellant also drew attention to paras 40 and 43 of the summing up where her Honour said: "[40] Of course, in this regard, the accused submits that the Crown case is based on Donnelly's recollection and that Donnelly took dozens of calls that afternoon before he was asked to recall what was said by Ms Galvin. The accused submitted that the conversation on his part was in broken English and that Donnelly had difficulty understanding it. And Mr Jeffreys pointed you to the concession which Mr Donnelly made in cross-examination that, although the accused said, 'Send me the goods', he could not be sure if the accused was asking on behalf of himself or someone else. [43] The accused submitted to you that, at the time he spoke to Ms Guan and his wife, he was trying to find out what was required, trying to understand the first notice, before he proceeded any further to try to obtain possession of the parcel. Consistent with that, the purpose of the conversation with Donnelly may also have been mere information - gathering, preparatory to an attempt to possess. Further, the accused submitted that, had the parcel been sent, it would have been sent to 86 Mercury Street, Narwee. That was not the accused's address. So it could not necessarily be the case that the accused intended that he would obtain possession. The accused submitted that, on 29 September, at the time he spoke to Ms Guan, immediately before making the call to Donnelly, she was not clear whether the accused wanted the parcel for himself or a friend. At the time, she did not pay attention to whether it was for him or a friend, though he did mention a friend. She could not tell whether it was his parcel or his friend's parcel." 43 The appellant submitted that the jury should have entertained a reasonable doubt with respect to the appellant's knowledge of or belief in the fact that the parcel contained prohibited drugs. It was further submitted that if there was a reasonable possibility that the appellant may have been seeking to have the parcel sent to another person, then the case against him was not made out. 44 The possession by the appellant of the First Notice, his engagement of Ms Guan to make the telephone call, his reluctance to collect the package from the mail facility, his effort to dispose of the First Notice after the police had arrived at the home unit, his admissions to his wife and his attempt to flee the country provided powerful evidence that he knew the package contained narcotic goods. 45 The further question which the jury had to determine was whether in his conversation with Mr Donnelly the appellant had attempted to obtain the package for himself. The appellant emphasised that Mr Donnelly, when cross-examined, said that he was not able to say with confidence whether the caller was asking for the goods for himself or a friend. 46 Mr Donnelly's recollection was clear that the appellant had said "Send the goods", "Send me the goods." His hesitation was with respect to whether the appellant was asking for the goods for himself or a friend. Of course, this was not his concern and required him to interpret the appellant's intention beyond his immediate request. Because the appellant had mentioned "a friend" his hesitation was understandable. However, the content of the conversation was clear and it was plainly open to the jury to conclude, beyond reasonable doubt, that the appellant was requesting that the package be delivered to him. The jury were obliged to consider Mr Donnelly's account of that conversation together with the other evidence of the steps which the appellant had taken to retrieve the package. In my opinion, and, having reviewed the entire record, this was a strong Crown case. 47 In my opinion the appeal should be dismissed. 48 JAMES J: I agree with McClellan CJ at CL. 49 HOEBEN J: I agree with McClellan CJ at CL and with the order he proposes. **********

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