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[2011] NSWCCA 29
Court of Criminal Appeal (NSW)
2010-08-13
McClellan CJ, Hulme J, Davies J, Mr J, Mr P
Original judgment source is linked above.
Judgment 1McCLELLAN CJ at CL: I agree with RS Hulme J. 2RS HULME J : On 13 May 2009 the above named Appellant was convicted of an offence which, in summary, was that between about 28 September and 17 December 2003 he did aid, abet, counsel or procure the commission of an offence by Anthony King and Mohamad Mr Alchikh against s11.1(1) of the Criminal Code Act 1995 and s233B(1)(b) of the Customs Act 1901 namely that Messrs King and Mr Alchikh attempted to import into Australia prohibited imports namely not less than the commercial quantity applicable to 3,4-methylenedioxymethamphetamine. 3On 20 July 2009 Zahra DCJ sentenced the Appellant to imprisonment for 9 years including a non-parole period of 5 years and 5 months. 4The Appellant had previously been convicted on that charge but his conviction was set aside by this Court - see Swansson v R [2007] NSWCCA 67; Swansson v R [2008] NSWCCA 56. 5The grounds of appeal are:-
Ground 1 There is a substantial risk that the trial proceedings miscarried by reason of the unfairly prejudicial submissions that were made by the Crown Prosecutor in his closing address to the jury. These submissions had no factual basis and were contrary to the evidence. 32The subject of the first part of this ground is the paragraph I have numbered (ii). Some appreciation of the evidence bearing on the topic of cigarettes is desirable. Both Federal Agent Millen and the Appellant gave evidence that in July 2003 the Appellant was under investigation by the Customs Service in relation to a "container" which had some cigarettes in it". Mr Millen also said that he believed some of the remarks in an intercepted conversation of 4 September 2003 between Mr Alchikh and Moafak Salhani was a reference to that investigation. 33The transcript of that conversation was in evidence as exhibit s14. On it Mr Alchikh is recorded as saying:- That donkey appears to have done something behind my back, but the name of my company is in their computer, and the name of the company has cigarette paper on it as well, that is cigarette work. ... An offer yes OK, the offer came from his computer and in his offer there are plates and there are cigarettes, in the same offer, you know what I mean, so now they have made a link, between this and this so he was... ... And up till now, they haven't laid a charge on this, this donkey, that means the case is dead anyway, it was dead at the beginning, because they were supposed to lay a charge and they didn't, because they don't have inclusive evidence, so at the end, the matter is dead. 34There were grounds for thinking that "the donkey" may have been a reference to the Appellant and the computer reference to his computer. The Crown Prosecutor had sought to cross-examine the Appellant on various aspects of the transaction involving the container and cigarettes but the applications were refused. It may well be therefore that the Prosecutor was aware of more information than the evidence before the jury revealed. 35There is no doubt that the Crown Prosector should not have made the remarks, the subject of this ground. However, as recorded in the paragraph I have numbered (xvi), there was a fulsome withdrawal of the remarks not long afterwards, a withdrawal of which the jury were reminded in defence counsel's submissions to them, and reinforced by directions of his Honour which I have quoted. 36In light of these matters, particularly in the context of the whole case, I see no reasonable possibility that the jury might have been influenced by what they were told was an error and unsupported by the evidence, a matter of which they may well have been aware in any event. 37The subject of the second part of this ground is the passage I have numbered (vii). In the written submissions advanced on behalf of the Appellant it was said that there was not evidence supporting the contention that Mr Alchikh and others were involved in money laundering and that the Crown's submission was unfairly prejudicial to the Appellant. 38However, although the matter was not further developed, during the course of oral submissions counsel for the Appellant conceded that there was some evidence of money laundering by Mr Alchikh though nothing to suggest it was anything to do with toothpaste. In light of the fact that Mr Hogan's objection was limited to the Appellant's involvement in money laundering, the Appellant would need leave under rule 4 to raise the matter in this court. Given that it was common ground that Mr Alchikh had been involved in the drug importation with which it was suggested the Appellant was involved, the suggestion that Mr Alchikh had also been involved in money laundering was a relevantly insignificant part of the trial. In these circumstances I would not be disposed to grant such leave. 39So far as the suggestion of the Appellant's involvement in money laundering activities, again there was a fulsome withdrawal by the Crown of the suggestion, a reminder of that withdrawal during defence counsel's address, and reinforcement of that withdrawal by his Honour's remarks. Again I see no reasonable possibility that the jury might have been influenced by any suggestion of laundering that was clearly withdrawn. Accordingly this second aspect of Ground 1 also fails. 40In arriving at my conclusions I have not ignored an argument advanced on behalf of the Appellant that the delay, between the Crown Prosecutor's original remarks and his Honour's repudiation of them, of some 5 days was so long that the prejudice they caused was irremediable, or a decision of R v R (1997) 99 A Crim R 327 upon which counsel for the Appellant relied. However, one cannot simply look at the passage of the 5 days, for the most significant matter was the withdrawal of the remarks the subject of complaint by the author of them and this within a reasonably short time of them having been made.
Ground 2 There is a substantial risk that the trial miscarried by reason of the unfair attempt by the Crown Prosecutor in his closing address to persuade the jury to draw inferences of fact, and accept argumentative suggestions that were not properly open on the evidence that were contrary to the evidence. 41The subject of this ground are the passages I have numbered (i) and (iii)-(x). Those remarks relate to a telephone call on 12 December 2003 between Mr Alchikh and Salhani, neither of whom were called. 42It is unnecessary to recount the full terms of the telephone call. Apart from the odd word in English the conversation recorded was in Arabic and included the following ("S" indicates the speaker was Salhani and "A" that the speaker was Mr Alchikh). A. If I try to find something before now... S. But it is (Ind) all with your friend, I mean selling and buying, work, you understand, papers, invoices, correspondence, he is good at that. A. Alright. S. You understand? A. But I'll tell you something so you know. I've done a few things with him in this matter but he is just not there, completely unaware of anything. You have to be careful. You understand what I mean. 43There was then an interruption in the form of another phone call after which the conversation continued:- Mr Alchikh: But I'll tell you something so you know. I've done a few things with him in this matter, but he is just not there, completely unaware of anything. You have to be careful you understand what I mean? There was then an interruption and a little later the conversation continued:- Mr Alchikh: I mean I talk to him, he talks to me as if he was an employee of that, I mean like Australians, like the ... so he is totally unaware of our thing. Salhani: Alright then, no problems now. There is another job. And later, Salhani: This one has a profit in the vicinity of 100 sterling. Mr Alchikh: A hundred is nice. What, in a period of 3 months? Salhani: Yes. Mr Alchikh: Alright. OK I will talk to you about it. Salhani: Alright, alright mate. Mr Alchikh: OK, bye bye. Salhani: But don't tell him like that. Mr Alchikh: No, no, I won't tell him anything. I won't tell him anything at all. Salhani: OK? But ... Mr Alchikh: I'll tell him we'll do a little bit of Gillette, a little bit of Kodak and things like that. Salhani: Yes, no problem. 44The interpreter who was responsible for the transcript of the above conversation was called and taken to the passage "he is just not there, completely unaware of anything". He agreed that while those words represented a communicative meaning of the Arabic used, the Arabic was a proverb that translated literally meant "he is like deaf person in a concert or a wedding". 45Obviously, one possible interpretation of the conversation is that the Appellant was being referred to and Mr Alchikh was saying that the Appellant knew nothing of consequence so far as the drugs were concerned. The extracts from the Crown's address the subject of this ground show that the Crown was concerned to persuade the jury that such an interpretation was not one they should accept. 46On behalf of the Appellant it was submitted that it was not open to the Crown to make the submission, the subject of objection in light of:- (i) The fact that the Crown did not call Mr Alchikh (who was apparently present in the court precincts) on 28 April 2009 and whom, it was suggested, the Crown could have cross examined; and (ii) Some evidence given by Federal Agent Millen. 47So far as the first of these matters is concerned, the Crown had reached a conclusion that Mr Alchikh was an unreliable witness who would be called only if the Appellant required him. Counsel for the Appellant, after conferring with Mr Alchikh, did not. 48In cross-examination by Counsel for the Appellant, Federal Agent Millen had disclosed that he was the officer in charge of the prosecution, that he had compiled a statement with Mr Alchikh and that there was a record of interview during which he had questioned Mr Alchikh at length. Mr Millen agreed also that he had prepared a Statement of Facts concerning the matter. He was taken to paragraph 130 of that Statement that related to the particular telephone call and his evidence continued:- Q. And you state that Mr Alchikh also cautioned Salhani to be careful if he spoke to Swansson, because Mr Alchikh had not told Swansson that there were tablets in the shipment? A. That's Mr Alchikh had (sic), that's what is in his statement. Q. And that he wanted Salhani to make sure he didn't mention tablets to Swansson either? A. Yes. 49The topic was taken up again in re-examination where Mr Millen was asked and agreed that the information in paragraph 130 had two sources, viz. the telephone intercept itself and information from Mr Alchikh subsequent to his arrest. 50In support of the ground, Counsel for the Appellant in this Court drew the Court's attention to remarks of Gleeson CJ in Anderson (1991) 53 A Crim R 421 at 438-9 where the Crown was held to have been unfair in submitting that a photograph was of a particular witness Pederick when the Crown, having called the witness, had not asked him whether he was or might have been the man depicted. It was submitted that, by parity of reasoning, it was unfair for the Crown to have made the submissions it did when the participant in the conversation could have been, but was not, asked who and what he had been referring to. 51There are differences between the situation in Anderson and this case. Some are of no importance for present purposes and can be ignored. However, two which are of significance are firstly, that here the Crown had concluded the witness was so unreliable he would not be called unless required by the Defence and Defence did not want him and, secondly, in Anderson , as Gleeson CJ remarked, the Crown "not the defence, had access to Pederick and was able to confer with him". That was not the situation here. 52Where criminal charges arise out of what seem to be multi-party offending, much of the evidence will often consist of what one of the suggested offenders said. Such persons are not notoriously truthful and trustworthy even vis--vis their partners in crime and it does not seem to me that principles of fairness require the Crown, if it wishes to suggest that something said is not accurate, to be obliged in all cases to call the author of the statement to question him or her on that issue, particularly if the defence does not seek that the person be called. 53There was, of course, the evidence of Mr Millen. Quite why he was permitted to give the evidence is not apparent. However, the fact that that occurred did not prevent the Crown seeking to cast doubt on the source material upon which Mr Millen's evidence depended. 54I would reject this ground of appeal.
Ground 3 The learned trial judge erred in failing to discharge the jury following the closing address of the Crown Prosecutor. 55It follows from the conclusions already expressed that this ground fails. However, it is appropriate to add that the authorities make it clear that, given a trial judge's advantage in judging the atmosphere of a trial, this Court will be slow to overrule his or her exercise of discretion not to discharge a jury - see R v Hall (1960) 77 WN (NSW) 605 at p 607; Morgan v John Fairfax & Sons Ltd (1988) 13 NSWLR 208 at p 215; Crofts v The Queen (1996) 186 CLR 427 at p 440-1; R v El-Hayek [2004] NSWCCA 25 at [62].
Ground 4 After refusing the application to discharge, the learned trial judge erred in that he failed to give appropriate and immediate directions to the jury to cure the unfairly prejudicial submissions that were made by the Crown Prosecutor in his closing address to the jury. 56Clearly directions could have been given at the time suggested. However, it is very much a matter of judgment as to the time when any such directions are needed. In light of the Crown's retraction of the offending remarks, it was certainly not obligatory for his Honour to do so immediately. Although not determinative, relevant in that connection also is that defence counsel did not ask for such directions at the time. It is to be inferred that in the overall context of the trial, he did not regard them as then necessary. This ground also fails.
Ground 5 The verdict is unreasonable and cannot be supported having regard to the evidence, there being a deficiency of evidence as to the guilty mind. On the evidence available, it was not open to the jury to find beyond reasonable doubt that the Appellant knew or was aware, or believed, that the consignment of 54 refrigerators contained, or was likely to contain... ecstasy tablets or other narcotic drugs. The totality of the evidence was not capable of excluding a reasonable hypothesis of innocence. 57As has been indicated, the Appellant gave evidence that he had no such knowledge or belief. He explained his use of false names by saying that he was persuaded by Mr Alchikh to use "Steve Millen" and Mr Alchikh's explanation of the transaction. He asserted that apart from those matters, so far as he was concerned, the transaction was a simple commercial one in which, pursuant to an agreement with Mr Alchikh, he stood to receive one quarter of the price realised on the sale of the refrigerators. The Appellant denied that the expressions he used in intercepted conversations were in any sense a code. 58Much reliance was also placed on the parts of the conversation between Mr Alchikh and Mr Salhani which occurred on 12 December 2003 and which I have quoted above when dealing with ground 2. 59During the course of the Appellant's evidence there was further exploration of what had been said in the initial conversation between Mr Alchikh and himself and of events thereafter. It is not necessary that I detail all of those events, particularly those in which the Appellant misrepresented his identity or other details and sufficient if I refer to only the most salient. The Appellant said that in the original conversation all Mr Alchikh said by way of description of the refrigerators were that they were large. He himself made no inquiries in response to Mr Alchikh's statements which I have quoted about a scam although he was not comfortable with using a false name but was persuaded by Mr Alchikh's remarks as to the goods being held up in customs. He did tell Mr Alchikh that some storage would need to be arranged. The Appellant advised Mr Alchikh that if he was to sell the goods he would need a sample and Mr Alchikh said that he would arrange the sample. 60On 5 November, the Appellant made contact with retailers as to the prices of large single door refrigerators and noted in his diary, "white goods" and figures of 1390 and 995, apparently dollars. 61Some time during the next 9 days, the Appellant was informed by Mr Alchikh that the refrigerators were in fact small ones. 62On 10 or 11 November, the lease of the Botany warehouse was signed and on 11 and 12 November, the Appellant paid Mrs Tan a total of $2,600. At that time the Appellant told Mrs Tan the location was good for him because it was close to the port. The Appellant himself said that he was expecting the refrigerators to be shipped to Sydney. 63Two sample refrigerators arrived at the Botany warehouse on 14 November. The Appellant was there and paid $150 cash to a Mr Wood who delivered them. 64The Appellant took one of the samples to a Mr Zackta of an appliance retailer with whom he had previously dealt, and said that he wanted $300 each for them. After discussion about the absence of any warranty, a price of $270 was agreed for as many as could be supplied. At the time of this conversation the Appellant still believed that 100 were about to arrive. 65In late November the Appellant learnt that the refrigerators would in fact be arriving in Melbourne, not Sydney. On 25 November the Appellant wrote to Bayside Self Storage in Melbourne applying to rent a self-storage unit for one month from 28 November. Bayside apparently did not have a unit available and one was then obtained from Rays Storage. This was done on the instructions of Mr Alchikh who said that someone in Victoria might be interested in the refrigerators. The Appellant paid Rays Storage $250. 66On 29 November the Appellant also discussed with an auctioneer friend at Mudgee whether the latter could sell the refrigerators at Mudgee. The friend, a Mr Bateman, said that he could, advised that not too many should be put in the one auction and, on that basis, estimated the selling price at around $250 - $300. Mr Bateman acknowledged that there would be cost involved in transporting the refrigerators to Mudgee. 67On 1 December the Appellant on the letterhead of Alpha Star Australia forwarded the bill of lading, an invoice recording the cost of the 54 refrigerators as 4683 pounds (73.82 pounds each), and other documents to Roberts Shipping, advised that organisation that the container was ready for clearing and asked them to act on Alpha Star's behalf. This documentation was supplied by Mr Alchikh. In evidence in chief, the Appellant also said that he sighted documentation which he became aware that there were not 100, but 54 refrigerators. It seems not unlikely that this was the documentation forwarded to Roberts Shipping. On 9 December the Appellant paid Roberts Shipping $2053.76 for the clearance of the container and on the following day another $550.00 for the unpacking and cartage of the refrigerators to Rays Storage. 68On 12 December the Appellant received a phone call from an Andy Platten who offered to bring the refrigerators to Sydney for a price of $2,200 cash, an offer the Appellant accepted. Unbeknown to the Appellant, Mr Platten was a police or customs officer. 69As incidents of the above transactions the Appellant paid in all the following amounts:- Mrs Tan $2,600.00 Mr Wood 150.00 Rays Storage 250.00 Roberts Shipping 2,053.76 Roberts Shipping 550.00 Andy Platten 2,200.00 $7,803.76 70He was asked about the source of at least the money for Roberts Shipping and Mr Wood and said that cash for the payments came from Mr Alchikh. 71I should mention also that at one stage the Appellant had a conversation with a Ms Shondra Hill from Rays Storage and there was a suggestion she might acquire one or more of the refrigerators. The Appellant said that Mr Alchikh forbade such a transaction and it was submitted that the proposal as between the Appellant and Ms Hill (who might have acquired one of the refrigerators containing drugs) indicated his ignorance of their existence. A recording of the conversation between the Appellant and Ms Hill was in evidence and the Crown suggested that it was obviously of a joking nature. There was also no compelling evidence that any fridge that went to Ms Hill would have been randomly selected. 72A number of other disparate matters were also relied on by Counsel for the Appellant in this Court - documents concerning another refrigeration importation, the absence of obviously incriminating evidence in the intercepted conversations, the fact that the Appellant while in the witness box was not shaken in his denial of knowledge of the presence of drugs and the fact that he had previously worked with police as a helicopter pilot in the detection of marijuana crops. Though possibly of persuasive value, none of these matters are compelling and their weight was properly for the jury. 73Quite apart from the use of false names and features of the phone calls to which I have referred, there are obviously some unusual features of the Appellant's account. Under it the United Kingdom supplier left to Mr Alchikh the price that the supplier was to receive for the refrigerators - 50% of Mr Alchikh's selling price. Mr Alchikh's engagement of the Appellant to assist him with selling is a fair indication that Mr Alchikh was unlikely to have had a reputation for selling refrigerators so as to inspire any confidence that he would obtain a good price for the supplier. Of course, the documents received by the Appellant and forwarded to Roberts Shipping argue against what the Appellant said he was told being accurate but the issue is incapable of resolution. Secondly, there seems on 3 November and when the Appellant was making inquiries as to prices for refrigerators some days later to have been no greater knowledge of the type of refrigerator other than it was of a large single door variety. Thirdly, although in the conversation of 3 November, it was asserted the container holding the goods was on its way from the United Kingdom (and its time of arrival suggests it was), the Appellant was informed of a change to both the size and number of items during the month. Fourthly, after the Appellant's conversation with Mr Zackta, the maximum gross return that the Appellant and Mr Alchikh could expect from the particular transaction was $7,290 (50% of $270 x 54). Yet he continued to make payments that totalled more than this figure. (It is fair to say that, while the Appellant was cross-examined to a limited extent on the relativity of payments and expected receipts, counsel for the Crown seemed to have accepted the Appellant's evidence that there was still good money, which the Appellant assessed would at the end be roughly $3,000 to $3,500 to be made.) Of course it should be remembered that the Appellant's version of what he was told by Mr Alchikh was that the arrangements with the United Kingdom's supplier would be ongoing. 74There can be no doubt that the intercepted conversation of 12 December does provide some evidence that the Appellant was ignorant of the presence of drugs. However, as the Crown Prosecutor submitted in passages I have quoted, there were other possible explanations. In light of the matters referred to in the paragraph immediately preceding this one, the jury was quite entitled to reject the Appellant's evidence of ignorance and his explanation of involvement in the importation of the refrigerators. Although because the evidence in the trial from which the present appeal is brought differed from that under consideration in Swansson v R [2008] NSWCCA 56 I have formed my own view on the evidence here, I would echo the words of Simpson J in that earlier appeal, at [36] that there is "much to be said in respect of the Crown's arguments, particularly in relation to the use of false names, going well beyond what could reasonably have been necessary to achieve the purpose stated by the appellant ..." 75In light of the fact that the refrigerators did contain drugs, of the notoriety that drug importations achieved (well before 2003), the Appellant's involvement in importations previously, and the extent of his activities and deception in and about the importation of the refrigerators, I am satisfied that the verdict was one at which the jury were entitled to arrive.
Conclusion 76In my view the appeal against conviction should be dismissed. 77DAVIES J: I agree with RS Hulme J.
Amendments 21 March 2011 - Correct lower court date of decision to read: "13/05/2009". Amended paragraphs: Cover sheet 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. Decision last updated: 21 March 2011
Swansson
R