Wilson v R - [2019] NSWCCA 38 - NSWCCA 2018 case summary — Zoe

NSWNSWCCA

Wilson v R

[2019] NSWCCA 38

Court of Criminal Appeal (NSW)|2018-08-27|Before: Hoeben CJ, Walton J, Button J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2018-08-27

Before

Hoeben CJ, Walton J, Button J

Source

Original judgment source is linked above.

Judgment (66 paragraphs)

[1]

lson (Applicant) Regina (Respondent) Representation: Counsel: J Paingakulam and D New (Respondent)

[2]

Solicitors: Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2008/110792 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 9 August 2011; 13 April 2012 Before: King SC DCJ File Number(s): 2008/110792

[3]

TABLE OF CONTENTS EXTENSION OF TIME - paragraph 8 FRESH EVIDENCE - paragraph 13 THE GROUNDS OF APPEAL - paragraph 16 THE CONVICTION APPEAL The Trial - paragraph 17 Outline of the Crown Case at trial - paragraph 20 The appellant's case at trial - paragraph 43 Overview of the trial judge's summing-up - paragraph 44 Ground 1: The trial miscarried because "the appellant suffered undue influence to give evidence when he was unfit to do so" - paragraph 46 Ground 2: The verdict resulted in a miscarriage of justice or is unreasonable or cannot be supported by the evidence and by reason of the inability of the evidence to exclude rational hypotheses consistent with innocence - paragraph 56 Verdict: unreasonable or not available on evidence - paragraph 58 The "bricks inside" - paragraph 69 Inconsistent verdicts - paragraph 83 Alternative hypothesis - paragraph 86 Ground 2(b): The trial miscarried because the transcripts exhibits 48A and 48B were "incomplete and misleading". - paragraph 118 Ground 2(d): Relevance of recording of conversation on 10 March 2018 at the Novotel Hotel - paragraph 121 Ground 2(h): Exhibit 251 - Audio of 13-14 March 2008 at the premises - paragraph 126 Admission of evidence of a "hard drive" - paragraph 127 Error in admitting the opinion evidence of Federal Agent Thomson and failure to direct jury regarding that opinion evidence - paragraph 136 Ground 3(c): Failure of the Crown to present material evidence - paragraph 143 Ground 4: The trial miscarried because the judge failed to discharge the jury after a prejudicial event thereby causing a miscarriage of justice - paragraph 160 Incident on 16 June 2011 - paragraph 163 Incident on 19 July 2011 - paragraph 168 Relevant Principles - paragraph 171 Conclusion regarding ground 4 - paragraph 176 Ground 5: The trial miscarried by reason of the Crown's closing address - paragraph 182 Ground 6: The trial miscarried because directions to the jury were understated and in error and failed to give the defence case the same consideration that was given to the Crown - paragraph 187 Ground 7(a): His Honour erred in failing to allocate evidence to each conspirator therefore causing a miscarriage of justice Ground 7(b): His Honour erred in failing to give a clear separation of evidence - paragraph 199 Ground 9: A miscarriage of justice was occasioned as a result of the failure to direct the jury that it had to be satisfied that: (a) the Crown had proved a single conspiracy alleged and not separate conspiracies relating to the June/July, December/January and the March importations; and (b) the named co-conspirators and the appellant were each party to a single conspiracy spanning all 3 imports - paragraph 206 Ground 10: The trial miscarried because the Crown presented a conspiracy charge when the substantive [offence] was available - paragraph 210 Ground 12: The trial miscarried by reason of the failure of the circumstantial evidence to prove beyond reasonable doubt that the appellant had the requisite knowledge of the conspiracy and his Honour's failure to sufficiently direct the jury as to the law relating to knowledge - paragraph 219 Ground 14: His Honour erred in failing to direct the jury as to any alternate hypotheses to the Crown's hypotheses, that the reference to "brick inside"; being a reference to the appellant having knowledge of the heroin secreted in three items of furniture, was the only inference open to the jury upon the evidence - paragraph 224 Ground 15: Failure of the trial judge to direct evidence of mistake needed to be rebutted by Crown - paragraph 229 Ground 16: The trial judge erred in admitting evidence of the appellant's alleged involvement in the two previous importations as "relationship evidence" - paragraph 232 Ground 17: The trial miscarried because evidence of the appellant's bad character was admitted - paragraph 248 (a) Evidence of Prior Imports - paragraph 249 (b) Previous smuggling operation - paragraph 252 (c) Comments on news report relating to cocaine bust - paragraph 255 (d) Mr David Wilson's cut-throat defence - paragraph 262 (e) Evidence as to multiple wives - paragraph 263 Ground 18: Failure of the trial judge to direct jury as to favourable evidence given by Mr Xavier which supported the appellant's defence - paragraph 267 Ground 19: A miscarriage of justice resulted from the absence at the trial of fresh evidence Ground 19(c): Supplementary fresh evidence - Unsigned statement of "Moch Yusuf Pujiono" dated 28 November 2008/13 January 2009 Ground 3(b): Failure of the Crown to call material witnesses - paragraph 272 Mr Yusuf Pujiono - paragraph 275 Mr Rick Lee - paragraph 284 Federal Agent Thomson - paragraph 289 Other issues regarding evidence - paragraph 291 Grounds 19(a) and (b): Supplementary fresh evidence referring to 'bricks' - paragraph 295 Ground 20: The trial was tainted due to the conviction of Mr Mark Standen for conspiracy to pervert the course of justice and import of pseudoephedrine - paragraph 299 Ground 21: The trial miscarried because of the conduct of Crown and trial judge - paragraph 301 Ground 21(a): Error in summing-up - paragraph 337 Conclusion regarding conviction appeal - paragraph 346 SENTENCE APPEAL - paragraph 349 Role of the appellant - paragraph 351 Totality - paragraph 363 Parity - paragraph 371 Conclusion regarding sentencing appeal - paragraph 380 ORDERS - paragraph 381

[4]

Judgment

HOEBEN CJ AT CL: I agree with the judgment of Walton J and the orders which he proposes.
WALTON J: John Michael Wilson ("the appellant") was tried, together with David Kevin Wilson, the appellant's brother ("Mr David Wilson"), and Jose Manuel Xavier ("Mr Xavier"), before King SC DCJ and a jury at the Sydney District Court on 1 count of an offence under ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (Cth) ("the Code") expressed in an indictment in the following terms: Between about 1 February 2008 and about 21 March 2008, at Sydney in New South Wales and elsewhere, did conspire with each other and Gregory William Jones and David Wren and divers others, to import a substance, the substance being a border controlled drug, namely, heroin, and the quantity being a commercial quantity.
On 9 August 2011, the appellant was found guilty by a jury of that offence. The jury also convicted Mr Xavier but was unable to reach a unanimous verdict with respect to Mr David Wilson who was discharged on the same date.
Following the appellant's trial, he entered a plea of guilty to an offence under s 400.4(1) of the Code, with respect to the following charge: Between about 10 March 2008 and about 20 March 2008, at Sydney in New South Wales, did deal with money the value of which was greater than $100,000 and that he believed to be the proceeds of crime.
As to the sentences for the particular offences, his Honour imposed a term of imprisonment of 20 years for the offence of conspiracy to import a commercial quantity of a border controlled drug, namely, heroin, and 5 years for the proceeds of crime offence.
His Honour King SC DCJ sentenced the appellant on 13 April 2012 to a total term of imprisonment of 23 years, commencing 20 March 2008 and expiring on 19 March 2031. His Honour set a single non-parole period of 15 years expiring on 19 March 2023.
The appellant brought his appeal against conviction on 22 grounds of appeal which were said, without delineation, to be available pursuant to s 5(1)(a) and (b) of the Criminal Appeal Act 1912 (NSW). The appellant also sought leave to appeal against the severity of his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act. The appellant sought that the appeal be upheld and that the Court's convictions quashed upon the broad bases that: 1. first, the verdict of the jury should be set aside on the ground that it is unreasonable or cannot be supported having regard to the evidence; 2. secondly, "the judgment of the Court of trial should be set aside on the ground of the wrong decision of any question of law"; and 3. thirdly, that "on any other ground whatsoever there was a miscarriage of justice" (see s 6(1) of the Criminal Appeal Act). (Other particular bases are found in the grounds of appeal as outlined and discussed below).

[5]

EXTENSION OF TIME

The appellant's appeal is out of time and requires an extension of time to appeal. The Crown opposed the grant of an extension of time.
The notice of appeal was filed on 14 February 2018, almost six years after the sentencing of the appellant. A notice of intention to appeal was lodged following the appellant's conviction and a notice of application for extension of time for notice of appeal or notice for application of leave to appeal was filed on 24 October 2012 extending the notice of intention to appeal to 24 December 2012. The notice of intention to appeal was then extended on a number of occasions until 15 September 2015. On 14 September 2015, the Registrar declined to grant a further extension. The appellant was advised that he may lodge an appeal but an extension of time would need to be sought. It follows that, if allowance is made for earlier extensions, the notice of appeal was almost two and a half years out of time.
In disputing the extension of time, the Crown provided a summary as to the essence of the appellant's submission as to why an extension of time should be granted, principally derived from an unsworn affidavit dated 1 August 2016. That summary is a fair representation of the arguments advanced by the appellant and, in substance, is extracted below: 1. He gave notice of his intention to appeal within the required timeframe. 2. He waited 17 months for a "no merit" assessment to be completed by Legal Aid. 3. A local barrister was approached to deal with his appeal on a pro bono basis but after 13 months the barrister informed him that his case was difficult and that he would not have time to prepare the appeal. 4. The appellant therefore applied for the transcript and endeavoured to investigate his own appeal grounds, which required him to "study basic legal knowledge". 5. The appellant's ability to prepare his appeal in a timely fashion was impeded by the fact that he is "bi-polar 1". 6. The availability of material to investigate appeal grounds and computer time was limited and the appellant's computer time was restricted. Prior to 2016, he had no computer access at all. 7. His most difficult obstacle was to carry out international investigations into his defence. 8. He had regularly applied for extensions of his Notice of Intention to Appeal throughout the period when he was preparing his appeal.
The Crown submissions in opposing the extension of time were as follows: 1. The appellant's reasons for delay relate to matters prior to 2016 and do not address events since that time. 2. There is no evidence before the Court to explain the appellant's reasons for filing his notice of appeal and supporting grounds on 14 February 2018. 3. The prospects of success are poor. 4. Legal Aid has assessed the appellant's appeal as being without merit and the appellant has received additional advice to the effect that his case is "difficult". 5. The effluxion of time would make a retrial difficult in terms of both witness availability and ability to recall events, which relate to offending that occurred in excess of 10 years ago. 6. The interests of justice dictate that leave should not be granted to the appellant to file a notice of appeal well out of time.
Having regard to the reliance by the Crown upon the prospects of success of the appeal and the broad consideration of the "interests of justice", the determination of the extension of time application can await consideration of the grounds of appeal.

[7]

THE GROUNDS OF APPEAL

The 22 grounds of appeal were as follows: 1. Ground 1: The trial miscarried because the appellant suffered undue influence to give evidence when he was unfit to do so. 2. Ground 2: The verdict resulted in a miscarriage of justice or is unreasonable or cannot be supported by the evidence and by reason of the inability of the evidence to exclude rational hypotheses consistent with innocence. In written submissions, the appellant made submissions challenging the reliance by the Crown at trial on various aspects of the evidence. The Crown rightly treated these as subsidiary grounds to ground 2. That subject matter, as entitled by the appellant, appears below (except where an additional reference is made to clearly identify the designation given to an exhibit): 1. "Exhibit 40 Star City 21st February 2008"; 2. "Exhibit 48A, 48B and Highlight CD 8 Star City Casino 24th February 2008 room 1159"; 3. "Exhibit Star City - Room 1159 - 24th February 2008 HI disk and DVD 29" (exhibit 49); 4. "Phone call Exhibit Novotel 10 March 2008" (exhibit 124); 5. "Exhibit DVD 18 Star City… room 702… DVD 18… 10 March 2008" (exhibit 126); 6. "Exhibit 134… Time 12:33 DVD 61th (sic) March 2008… Novotel… Greg Jones… John Wilson (the appellant)"; 7. "Exhibit 12:03:08… Greg Jones and John Wilson (appellant) GYMEA/MAGAZINE 099507)" (the submissions went to exhibit 149); 8. "Hard Drive: Exhibit 251 - Transcript Stonehouse Avenue 2245-2300 13th March 2008 Costless, including the judgment of Judge King 24-05-2011". Ground 2(h) was expanded upon as follows: 1. "(a) His Honour erred in admitting the evidence of a hard drive said to have been recorded on a tracking device"; 2. "(b) His Honour erred in admitting the opinion evidence of Federal Agent Thomson"; and 3. "(c) His Honour erred in failing to direct the jury regarding how they should approach the opinion evidence of Agent Thomson". 1. Ground 3: The verdict is unreasonable or cannot be supported by the evidence by reason of: 1. the inability on the evidence to exclude a rational hypothesis consistent with innocence; 2. the failure to present material evidence; and 3. the failure of the Crown to present material evidence. 1. Ground 4: The trial miscarried because the judge failed to discharge the jury after a prejudicial event thereby causing a miscarriage of justice. 2. Ground 5: The trial miscarried by reason of the Crown's closing address to the jury; in that it contained mistakes of fact; and that the jury were misled by the evidence; and the failure of the evidence to dispel a rational hypothesis with innocence. 3. Ground 6: The trial miscarried because his Honour's directions to the jury were understated and in error and failed to give the case of the defence the same consideration that he gave to the Crowns case. 4. Ground 7: 1. His Honour erred in failing to allocate evidence to each conspirator therefore causing a miscarriage of justice. 2. His Honour erred in failing to give a clear separation of evidence. 1. Ground 8: 1. The appellant contends that the evidence was incapable of establishing, against the appellant, the conspiracy alleged by the Crown. 2. The appellant contends that the evidence failed to establish [to] the requisite standard the existence of a single conspiracy charged, as opposed to three separate conspiracies, one relating to the June 2007 importation, one relating to the December 2007 importation and one relating to the March 2008 importation (target heroin container). 1. Ground 9: A miscarriage of justice was occasioned as a result of the failure to direct the jury that it had to be satisfied that: 1. the Crown had proved a single conspiracy alleged and not separate conspiracies relating to the June/July, December/January and the March importations; and 2. the named co-conspirators and the appellant were each party to a single conspiracy spanning all 3 imports. 1. Ground 10: The trial miscarried because the Crown presented a conspiracy charge when the substantive [offence] was available. 2. Ground 11: The appellant contends that the trial miscarried by reason of the failure of the Crown evidence to exclude his alternate hypotheses that he intended that a border controlled drug (heroin) enter into Australia. 3. Ground 12: The trial miscarried by reason of the failure of the circumstantial evidence to prove beyond reasonable doubt that the appellant had the requisite knowledge of the conspiracy and his Honour's failure to sufficiently direct the jury as to the law relating to knowledge. 4. Ground 13: The trial miscarried because the Crown failed to exclude the appellant's alternate hypotheses to the charge of conspiracy in that he travelled to Adelaide to attend his parents' anniversary dinner. 5. Ground 14: His Honour erred in failing to direct the jury as to any alternate hypotheses to the Crown's hypotheses, that the reference to "brick inside"; being a reference to the appellant having knowledge of the heroin secreted in three items of furniture, was the only inference open to the jury upon the evidence. 6. Ground 15: His Honour erred in not directing that the appellant's evidence of mistake needed to be rebutted by the Crown on the basis of beyond reasonable doubt and his Honour's failure to do so caused the trial to miscarry. 1. His Honour failed to direct that the target container was sent by mistake. 2. His Honour failed to direct that the Crown's case of 3 containers when the appellant's case relied on evidence of 6 containers was a mistake of fact. 3. His Honour failed to direct the jury of the appellant's defence evidence that the Crown had made a mistake in the payments to David Wilson. 1. Ground 16: The trial judge erred in admitting evidence of the appellant's alleged involvement in the two previous importations as "relationship evidence". 2. Ground 17: The trial miscarried because evidence of the appellant's bad character was admitted. 3. Ground 18: The trial miscarried because of the failure of the judge to direct the jury as to the favourable evidence given by Xavier which supported the appellant's defence. 4. Ground 19: A miscarriage of justice resulted from the absence at the trial of fresh evidence. (It was apparent from the submissions of the appellant that the fresh evidence referred to under this ground included: 1. a recording of a television program referring to 'bricks'; 2. a website referring to 'bricks'; and 3. an unsigned statement of Mr Moch Yusuf Pujiono). 1. Ground 20: The trial was tainted due to the conviction of Mark Standon (sic) (investigating officer and head of Crimes Commission) for conspiracy to pervert the course of justice and the import of pseudo-ephedrine. 2. Ground 21: The trial miscarried because of the conduct of the Crown and the conduct of the judge in making prejudicial comments about the appellant to the jury during the trial. 3. Ground 21(a): The trial judge erred during the summing-up by stating that the appellant was not referring to the heroin container during conversations with the co-accused on 24 February (exhibit 48B) when the appellant was.

[9]

Outline of the Crown Case at trial

On 2 February 2008, shipping container BXTU7202670 ("the container") departed Semarang, Indonesia carrying 86 pieces of wooden furniture. The consignor was CV Citra Buana in Semarang, Indonesia. The consignee was "Costless Group" at 2A Stonehouse Avenue Camden Park Adelaide ("the premises"). Costless Furniture was owned by Costless Group which was a business of Mr David Wilson.
On 16 February 2008, Mr Xavier arrived in Sydney from Indonesia. The appellant arrived in Sydney from Thailand on that date.
On 21 February 2008, Mr David Wilson and Mr Xavier met in Room 1159 at Star City apartments in Sydney ("Room 1159"). The authorities recorded various conversations between them: 1. Mr David Wilson told Mr Xavier that the money on offer was not acceptable and that he was not going away for 15 years for $100,000. 2. Mr David Wilson told Mr Xavier that he wanted $250,000 and that he had told the appellant that he wanted $250,000 for the first one but he got $55,000. 3. Mr David Wilson told Mr Xavier that he wanted $250,000 for the second one; "the last one before yours". He also said he only got $45,000 and "he did it all and he loses his son for 15 years". 4. Mr David Wilson told Mr Xavier that they could not continue to send him furniture that was not saleable and that when he burned it, people would notice. 5. Mr Xavier told Mr David Wilson that he was an integral part of the operation. 6. Mr David Wilson told Mr Xavier that he had told the appellant to wait for a while and that he could bring "as much shit in as you like mate" but there was no point if he could not move it.
On 24 February 2008, Mr Xavier rang Mr Gregory William Jones who said that he would arrive in Sydney on Thursday. Mr Xavier confirmed that Mr David Wilson had been to see him and was "in the picture". Mr Jones told Mr Xavier that "the Ant" (Mr David Wren) was leaving that day and they discussed when he was expected to work.
On 24 February 2008, a conversation took place between the appellant and Mr David Wilson in Room 1159 where the appellant was annoyed with Mr David Wilson for going behind his back to speak to Mr Xavier about payment for his participation. The appellant said to Xavier "I brought you into this and not him". Later, Mr Xavier arrived and the three of them discussed payment for participation in the import. Ultimately, the appellant told Mr David Wilson that even if there had been no agreement, the payment was unable to be changed.
On 26 February 2008, a shipping container of furniture arrived in Sydney, Australia from Semarang, Indonesia. As a result of an ongoing investigation by the NSW Crime Commission ("the Commission"), it had been brought to the attention of customs officers in advance of its arrival. The container, which was said to carry 86 pieces of wooden furniture, was sent from CV Citra Buana, addressed to Costless Group at an Adelaide address. It was x-rayed by customs officers and anomalies were identified. On further inspection, a chest of drawers was found to contain a white powder that tested positive for heroin.
The Australian Federal Police ("AFP") were informed. Examination by an AFP forensic officer found 69 individual blocks of heroin, weighing a total of 28 kilograms of heroin hidden inside three chests of drawers. The pure weight of the heroin was 9.098 kilograms. Its wholesale value was in the range of AUD $7 million to $8.12 million when sold in 700 gram deals. The heroin was substituted with an inert substance and a controlled delivery of the container was conducted by the AFP.
On 28 February 2008, the appellant returned to Indonesia.
On 4 March 2008, Agility Logistics in Adelaide telephoned Mr David Wilson advising that they had done the freight forwarding for his container from Indonesia and passed it onto Complete Freights to for clearance.
On 8 March 2008, the appellant returned to Australia from Indonesia and checked into the Novotel Hotel at Darling Harbour.
On 10 March 2008, the appellant, Mr Xavier and Mr Jones met in the cafe at the Novotel Hotel and discussed prices and costings relating to the purchase, importation and sale of the heroin imported and their respective share of the proceeds.
Mr Xavier and the appellant were videoed in Room 702 at the Novotel Hotel counting large quantities of Australian currency and discussing the division of money between the co-conspirators.
The appellant and Mr Xavier went to the Western Union Money Exchange situated in Roslyn Street, Darlinghurst ("Money Exchange"), where the Australian currency was exchanged for large denominations of foreign currency.
At 12:33 am on 11 March 2008, in Room 840 of the Novotel Hotel, the appellant and Mr Jones discussed whether Mr David Wilson knew which pieces of furniture needed to be pulled out from the container load and the distribution of funds between the conspirators.
At 5:23 pm on 11 March 2008, Mr Jones rang Mr Wren and told him about the three pieces of furniture in which the drugs had been secreted.
At 8:20 pm on 11 March 2008, the appellant telephoned Mr Xavier to ask whether he had told Mr David Wilson which bits of furniture to remove and Mr Xavier said that he had and that the pieces of furniture were numbered.
On 12 March 2008, the container was collected from the docks in Adelaide and transported to the premises. Mr David Wilson was observed to be present when the container was delivered and was observed to unpack the container with two other males. All of the contents of the container were moved into the storehouse area of the premises.
At about 4 pm on 12 March 2008, the appellant was seen leaving the Money Exchange in Darlinghurst. He then took a taxi back to Darling Harbour where he met up with Mr Jones.
Later that evening, in Room 840 of the Novotel Hotel, the appellant and Mr Jones discussed at length payments to each of the co-conspirators. This included the appellant getting $750,000 and Mr Jones receiving $800,000. The discussion then moved to transporting cash out of Australia. Finally, Mr Jones told the appellant about a cocaine "bust" in Sydney where authorities substituted the cocaine and sent the delivery. A discussion then took place as to whether "the other thing's alright."
On 13 March 2008, the appellant flew from Sydney to Adelaide where he was met at the airport by Mr David Wilson. He arrived at about 10.30pm and they went straight from the airport to the premises.
At 10:43 pm on 13 March 2008, the appellant and Mr David Wilson arrived at the premises. They went into the furniture warehouse and Mr David Wilson was recorded confirming with the appellant that there were "three packages". The appellant told him that they had "bricks inside….brick inside".
On 20 March 2008, police arrested all of the co-conspirators other than Mr Xavier who was, at that point, out of the country. At the time of their arrest, the appellant, Mr Jones and Mr Wren were found to be in possession of very substantial amounts of cash. Mr David Wilson was also in possession of a significant sum of cash. Much of the cash in the possession of the appellant was in foreign currency. Search warrants were conducted in the homes or hotel rooms of the conspirators together with Mr David Wilson's business. Among other things, the appellant was found to be in possession of a suitcase with a false bottom and a large amount of carbon paper.
In summary, the overall Crown case was that the members of the syndicate were involved in a conspiracy to import heroin in February/March 2008 and that the role of those persons were as follows: 1. The appellant, Mr Xavier and Mr Jones were the principals of the syndicate. They organised for the consignment of furniture in which the heroin was concealed to be shipped from Indonesia and delivered to Mr David Wilson's furniture shop in Adelaide. They provided Mr David Wilson with information to enable him to identify the furniture containing the heroin in order to have it shipped to a storage facility in Wollongong. They were responsible for organising payment to the other members of the syndicate for their involvement. The appellant and Mr Xavier also changed the money involved in the offence into various foreign currencies to facilitate its transportation out of Australia. 2. Mr David Wilson had a furniture business in Adelaide trading as Costless Furniture. He was responsible for receipt of the furniture consignment at his warehouse, using his name and business on all shipping documents. 3. Mr Wren organised for the transfer of the furniture containing the heroin from Adelaide to Wollongong and the storage facility for the furniture in Wollongong. 4. Mr Jones and Mr Wren met with Mr Adam Horne, a suspected drug supplier, to sell the heroin.

[11]

Overview of the trial judge's summing-up

The Crown made submissions as to the trial judge's summing-up which were uncontroversial and, in my view, correct.
It is convenient to extract that summary before dealing with the particular grounds of the appeal: 41. The summing-up took place on 25 to 27 July 2011. Prior to the commencement of the summing up, the trial judge provided a copy of his Honour's proposed written directions on the elements of the offence. Counsel for the appellant did not indicate that he had any difficulties with the document that was ultimately distributed. Nor did counsel for the appellant object to the direction that his Honour ultimately delivered in respect of the relationship evidence (as to which see Ground 16), about which specific input was sought. His Honour also sought a written summary of the case of each accused for the purposes of the summing-up and counsel for the appellant provided one in respect of his client. 42. The trial judge gave the parties an opportunity to raise any specific directions they were seeking. The appellant sought a circumstantial case direction and a Zoneff direction on lies, both of which were given by his Honour. 43. The parties were given an opportunity to raise any issues with the summing up both during and at the end of the summing-up. Counsel for the appellant had no difficulties with what had occurred during the first 2 days. The trial judge dealt appropriately with his concerns at the conclusion of the summing-up. 44. The Crown sought 2 directions to deal with the content of counsel for the appellant's closing address. Counsel for the appellant did not object to the first, correcting a statement which he had made concerning the Crown case. He did object to the trial judge's proposed direction concerning the appellant's outstanding charges. However the trial judge adopted the Crown's form of words. 45. The trial judge summarised the evidence of the Crown witnesses appropriately. His Honour presented the appellant's case in the terms provided by the appellant's counsel. Following the summary of the cases for the appellant's co-accused, his Honour gave a very brief outline of the Crown case. General directions 46. The summing[-up] included directions as to the following matters: a) The distinct roles of the judge and jury (SU 2); b) Assessing the evidence of witnesses (SU 2-4); c) The requirement to limit consideration to the evidence at trial, and not to take into account human experience where that contradicts the evidence at trial (SU 4-5); d) The burden and standard of proof, and in particular, the fact that the appellant gave evidence did not alter the burden of proof upon the Crown (SU 5-6); e) The requirement to give separate consideration to the verdict in respect of each accused and the ability return different verdicts in respect of the co-accused (SU 6-7); f) The requirement for unanimous verdicts (SU 7, 128); g) The ability to prove knowledge or intention by inference from the conduct of a person and/or words said by the person (SU 29-30); h) A direction on the drawing of inferences (SU 30-31); i) The standard direction on circumstantial evidence was given to the jury which his Honour then related to the facts of the case (SU31-33); j) The jury was reminded that transcripts of the audio and video recordings were not evidence, but an aid to help them determine what they heard (SU 113); and k) The procedure for the return of the verdicts (SU 127). Directions on Elements of the Offence 47. The trial judge gave the jury some general directions about the nature of a conspiracy before providing specific written and oral directions on the elements of the charge of conspiracy before the Court. Those directions included: a) The elements of the offence; b) The requirement to prove that the agreed crime was importation of a border controlled drug, but not specifically heroin; c) The requirement to prove only that there was agreement to import a quantity of the substance that at law was a commercial quantity of heroin and not the specific quantity imported; d) As a matter of law, heroin was a border controlled drug and a commercial quantity of heroin was 1.5 kilograms pure; e) A conspiracy occurred when two or more people intentionally entered into an agreement to commit a crime with the intention of committing the crime. The form of the agreement did not matter; f) The sufficiency of proving agreement with one or more co-conspirators, rather than all of them; g) The requirement to prove that the accused entered or continued to participate in the conspiracy within the stated time period, but not that the conspiracy existed during the whole of the stated time period or that the accused was involved in a conspiracy from the beginning; h) The absence of a requirement to prove that an accused had a particular role in the conspiracy; i) The fact that acts done and statements made by alleged co-conspirators in furtherance of the common purpose were evidence against all co-conspirators, even if they were not present at that time; and j) The need to scrutinise with care evidence of acts done or statements made by others in the absence of any particular accused, but which implicate that accused. [Footnotes omitted.]

[12]

Ground 1: The trial miscarried because "the appellant suffered undue influence to give evidence when he was unfit to do so"

In summary, the appellant's argument in support of ground 1 was as follows: 1. It had not been the intention of the appellant to give evidence in his own defence. He only did so after the admission of evidence concerning the statement "they've got bricks inside" and the advice of counsel that he needed to give evidence even though he had informed his counsel that he was not fit to do so because of his mental health, namely, bi-polar 1 and his medication. 2. In reply submissions, the appellant contended "he was unable to understand and/or respond to questions posed to him by the Crown". (The appellant referred to a passage of his evidence which does not, as I will discuss below, bear out this contention). 3. The trial judge refused to allow evidence as to the appellant's mental health issues in the trial and refused his counsel's application to have the jury appraised of the appellant's mental health difficulties and the taking of medication, namely, Zyprexa. 4. The trial judge's rulings in this respect caused great prejudice to the way the appellant was to conduct his defence and ultimately caused such unfairness as to cause the trial to miscarry. 5. The trial judge's refusal to allow evidence of mental health difficulties and his refusal to permit medication issues to be identified to the jury represented bias towards the appellant and that bias itself caused itself a miscarriage.
Irrespective of whether the appellant "reluctantly agreed" to give evidence upon the advice of counsel, there is nothing on the material before the Court which would suggest that the appellant's decision to give evidence was other than an informed one upon the basis of that advice. Nor is there any material which would suggest that counsel acted other than upon instructions in calling his client to give evidence. There is nothing in the appellant's submissions which demonstrate how strenuously counsel provided advice to the appellant but, even in circumstances where advice is given in a forthright and firm manner that does not amount, without more, to "undue influence".
As to the contentions of the appellant that the trial miscarried because he was afflicted with a mental illness and the trial judge refused to allow evidence of the same and that the mental health issues caused an unfairness to his defence, some three preliminary matters need to be taken into account.
First, there was no evidence, either at trial or before this Court, to suggest that the appellant's trial miscarried on account of his mental health. There was no evidence to support a contention that the appellant was unable to defend himself in cross-examination because he was unfit to be tried at that point.
Secondly, on the 9 May 2011, a fitness hearing was interposed to consider whether Mr David Wilson was fit to stand trial. The appellant's counsel did not at that point raise any fitness issues in relation to the appellant concerning his mental illness in contrast to the medication that he was taking at the time of the trial. Further, no such issue was raised at any other point during the trial. The contentions by counsel as to the taking of medication fell well short of an application with respect to the appellant's fitness to be tried. In short, no such application was made during the trial.
Thirdly, whilst the appellant contended that he was suffering "a full blown bi-polar episode" and had "no memory of events at all" during the trial, at no point during his cross-examination did he identify that he was unable to understand or respond accurately to the questions asked or properly focus or concentrate. He did not seek a break in his cross-examination for that purpose or, for that matter, for the purposes of the taking of his medication.
The appellant stated that he suffered bi-polar 1 disorder. The appellant further stated that, at the time of the trial, he was taking Zyprexa tablets (prescribed by his treating doctor, Dr Cook) and that this medication affected his level of concentration and his ability to give evidence in the witness box. The appellant submitted that the trial judge's refusal to notify the jury of his mental health amounted to a reasonable apprehension of bias and the trial judge's refusal "to listen to [the appellant's counsel's] application to have the jury apprised of the appellant's difficulties" caused the trial to miscarry because it "caused great prejudice to the way that the appellant was able to conduct his defence". As already mentioned, counsel for the appellant made no application as to the appellant's fitness to be tried at any point in the trial. Nor was an application made during the course of the appellant's evidence to take any step because of difficulties he was experiencing.
Again as mentioned earlier, the appellant gave evidence in chief from 31 May to 8 June 2011 and was cross-examined until 1 July 2011. It is true that the appellant did ask the Crown to play a tape to refresh his memory and there were some matters which the appellant was unable to recall when questioned. However, the transcript of the appellant's evidence does not substantiate the contention that he was experiencing difficulty in focus, concentration or in an overall sense memory. As counsel for the Crown submitted, he responded to questions put to him by accepting some propositions, refuting others and giving his account of what transpired. His responses demonstrated not only that he understood what was being put to him but he appreciated the significance of both the question and the answer, which he gave in the context of the broader narrative. That there may not be a satisfactory response to a given proposition does not substantiate the existence of cognitive difficulties but simply that there may be a difficulty in answering the proposition that was put in cross-examination. There was no illustration provided by the appellant as to where he experienced difficulties during the course of cross-examination.
Finally, there was no error in the trial judge refusing to disclose to the jury that the appellant was on medication prior to the appellant giving evidence. The appellant could have given evidence about that matter and, in fact, did so. He gave evidence that he was on medication, namely, Zyprexa and Tegretol, because he was bi-polar. He gave evidence that the effect of the medication was to slow brain function. In reply, the appellant relied upon part of his evidence given in chief on 31 May 2011 as follows: "some time I can't fully comprehend what's going around on me". However, he omitted the part of his evidence which immediately followed, namely, "but generally as now I'm quite okay". In giving that answer, he advised that he had just taken one Tegretol tablet.
In the circumstances, I consider ground 1 should be rejected.

[14]

Verdict: unreasonable or not available on evidence

The principles to apply where it is contended a verdict is unreasonable or unavailable on the evidence (including where inconsistent verdicts are assented) were recently re-stated in Stanford v R [2018] NSWCCA 249 at [49]-[55] (per Simpson JA with whom Walton and Wilson JJ agreed) as follows: [49] The test to be applied is well established, well rehearsed and well known. The starting point is the decision of the High Court in M v The Queen (1994) 181 CLR 487. It is worth repeating yet again what the High Court there said: "493. Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations." (internal citations omitted) [50] Their Honours, however, went on with some qualification of that principle. They said: "494. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence." (internal citation omitted) [51] These principles have been affirmed on many occasions since: for example, Jones v The Queen (1997) 191 CLR 439; MFA v The Queen (2002) 213 CLR 606; [2002] HCA 53; SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13. [52] It may therefore be seen that two competing considerations arise: regard that must be paid to the constitutional role of the jury in the determination of the guilt or otherwise of an accused person and the duty of an appellate court to make its own independent assessment of the evidence both as to its sufficiency and quality: Morris v The Queen (1987) 163 CLR 454 at 473, cited at [14] of SKA; MacKenzie v The Queen (1996) 190 CLR 348 at 365. [53] A particular line of authorities has developed in the application of those principles where the unreasonableness of the verdict is said to arise from inconsistency of verdicts - that is, where a person accused of multiple offences is convicted of one or more, but acquitted of another or others. In those circumstances the court must be astute to ascertain whether there is a proper way to reconcile the verdicts (MacKenzie at p 367); Markuleski v R (2001) 52 NSWLR 82; [2001] NSWCCA 290 at [8]. The test is one of logic and reasonableness: MacKenzie at p 366. That assessment must be made in the light of the facts and circumstances of the particular case: MFA at [34]. [54] In Jones v The Queen (1997) 191 CLR 439 a jury convicted an accused person of two out of three counts on an indictment, but acquitted on one count. The Crown case in respect of each count depended on the evidence of the complainant. The High Court found no basis for thinking that the quality of her evidence was higher in respect of the counts that led to conviction than it was in respect of the count that resulted in acquittal. When that circumstance was combined with two other factors - a lengthy and unexplained delay by the complainant in making complaint, and the uncorroborated nature of the allegations - the High Court concluded that the convictions were (in the language that then prevailed) unsafe and unsatisfactory (at p 455). [55] As comprehensively explained by Spigelman CJ in Markuleski, the decision in Jones is not authority for a generalised proposition that a mix of verdicts in a trial where multiple offences have been charged is indicative of the unreasonableness of verdicts of guilty. In MFA, a submission that Markuleski was wrongly decided was rejected (at [32]). Where the evidence on all counts is that of a single witness, however, careful scrutiny of the surrounding circumstances is required.
Reference should also be made to the High Court of Australia in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 ("Baden-Clay") (per curiam) as follows (at [65]-[66]): [65] It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. [66] With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." [Footnotes omitted.]
The Crown correctly submitted that the elements of the offence with which the appellant was charged were as follows: 1. the appellant intentionally entered into an agreement with one or more persons named in the charge, or referred to as divers others, to import into Australia a substance being a border controlled drug, namely heroin; 2. the appellant and at least one other party to the agreement intended that the offence be committed, that is, a border controlled drug be imported; 3. the object of the conspiracy was to import a quantity of a substance, being a border controlled drug, namely heroin; and 4. The appellant, or at least one other party to the agreement, committed an overt act pursuant to the agreement.
The appellant submitted that the Crown had charged a single agreement encompassing an importation in June and December 2007 and March 2008 and that it was "necessary that the Crown prove that the appellant was a party to a single agreement spanning all three importations as alleged, on the basis that the appellant knew of and approved of the original agreement". It was also submitted that it was "not sufficient to establish that some of the co-conspirators were in agreement relating to all agreements as portrayed throughout the trial and not a single over-arching agreement covering the three imports being advocated by the Crown". Nor was it sufficient to prove simply an awareness (either the past or future intentions) of others.
These submissions sprung out of a contention of the appellant that the Crown's case started from the proposition that, in June 2007, a container was sent to Sydney by Mr David Wilson "in identical circumstances as the items of furniture… sent to Sydney from the target heroin container which was sent in March [and was then] followed the December 2007 container…". It was further contended that the Crown did not present any evidence of the appellant's participation in the two previous containers which could be construed as the appellant being a member of an ongoing conspiracy to import heroin. The appellant contended that he had supplied cigarettes for those two previous containers and "as a consequence, while the Crown charged a single over-arching agreement that covered all importations, the evidence pointed to separate agreements, separate objectives and involving different participants".
I do not accept the legal premise underpinning the appellant's submissions in this respect. The Crown was only required to prove that the appellant entered or continued to participate in the conspiracy within the period 1 February to 21 March 2008 as charged in the indictment: R v Orton [1922] VLR 469 at 474 (per Cussen J) and R v Trudgeon (1988) 39 A Crim R 252 as 260-261 (per Lee CJ at CL).
The primary issue at the trial was whether the evidence was sufficient to prove an agreement between the appellant and his co-conspirators in the requisite period to import a border controlled drug. A significant proportion of the Crown case consisted of conversations and text messages of (or between) the co-conspirators recorded by telephone intercepts or the use of listening devices.
The Crown case relied on the drawing of inferences from proven facts to establish the existence of an agreement between the appellant and his co-conspirators in that period to import heroin. The facts relied upon the Crown in support of that inference included: 1. the appellant and Messrs Xavier, Jones, David Wilson and Wren were all known to each other; 2. there was a shipment of a container of wooden furniture from Indonesia to Costless Group which arrived in Australia on 26 February 2008 ("the shipment"); 3. the appellant and Messrs Xavier, Jones, David Wilson and Wren all had some involvement in the shipment and each was to be paid a sum of money for their participation; 4. Mr David Wilson understood that his role was to receive the shipment at his furniture business in Adelaide; 5. Mr David Wilson had received shipments of furniture from Indonesia to his furniture business in Adelaide in June/July and December 2007; 6. Mr David Wilson was aware of a risk that he would go to gaol as a consequence of his involvement in the shipment; 7. Mr Wren understood his role was to arrange for the shipment of certain items from that container to a storage facility in Wollongong; 8. the appellant understood that "bricks" were contained in three pieces of furniture that had been shipped to Mr David Wilson; 9. on inspection of the shipment, police found 69 packages of heroin wrapped as individual "blocks" in three chests of drawers which were the bricks referred to by the appellant; 10. on delivery of the shipment to Costless Group in Adelaide, the chests of drawers believed to contain heroin, together with a coffee table, were separated from the other items of furniture in the container and delivered to Wollongong; 11. the appellant exchanged large sums of money into various foreign currencies; and 12. on arrest, the appellant, Mr Jones and Mr Wren were found to be in possession of very significant sums of money. Mr David Wilson was also found to be in possession of a large sum of cash.
In the light of those factual circumstances the Crown made three submissions as to why the evidence was sufficient to prove beyond reasonable doubt the existence of the conspiracy charged as follows: 1. the appellant and at least one other party to the agreement intended that the offence be committed can be inferred from the fact that the shipment of furniture containing heroin was sent and arrived in Australia on 26 February 2008; 2. the object of the conspiracy to import a quantity of a substance, being a border-controlled drug, namely heroin, can be inferred from the fact that a quantity of heroin was imported from Indonesia to Australia arriving on 26 February 2008; and 3. there was evidence of numerous overt acts committed by the parties to the agreement pursuant to that agreement. At trial, the Crown relied upon the appellant's trip from Sydney to Adelaide on 13 March 2008.
In my view, there was ample evidence to establish the facts relied upon by the Crown. Those facts supported the inferences sought be drawn by the Crown and ultimately the existence of an agreement between the appellant and his co-conspirators in the charged period to import a border controlled drug, namely, heroin.
The requisite facts in that respect are as follows: 1. On 2 February 2008, the container departed Semarang Indonesia carrying 86 pieces of wooden furniture. The consigner was CV Citra Buana of Semarang Indonesia. The consignee was "Costless Group" at an address in Adelaide. As mentioned above, this was a furniture business owned by Mr David Wilson. 2. On 26 February 2008, the container arrived in Sydney. It was intercepted by customs and the AFP conducted an examination whereby 69 individual blocks of heroin weighing a total of 26 kilograms were hidden in three chests of drawers. 3. It is clear that the appellant and Messrs Xavier, Jones, David Wilson and Wren were all known to each other. The involvement of each person was demonstrated through the evidence of recorded conversations. That evidence permitted the jury to conclude that the role of the appellant was to arrange for the shipment of the container containing furniture which had bricks of heroin stored in three pieces of furniture (as will be discussed below). 4. On 21 February 2008, Mr David Wilson and Mr Xavier met in Room 1159 at Star City apartments, Sydney. Their conversations were recorded and included Mr David Wilson telling Mr Xavier that the money on offer was not acceptable and that "he was not going away for 15 years for $100,000" and that he had told the appellant that he wanted $250,000 "for the first one" but only got $55,000. Mr David Wilson told Mr Xavier they could not continue to send him furniture that was not saleable and Mr Xavier told Mr David Wilson that he was an intricate part of the operation. It is true that, as the appellant submitted, the appellant was not involved in the conversation. However, that submission needs to be considered in the light of the conversation he was involved in shortly thereafter. 5. The appellant arrived at Room 1159 later on 21 February 2008, having arrived some days earlier in Sydney from Thailand. The appellant offered to lend Mr David Wilson a suitcase which had carbon paper lining so that cash was able to be carried through the airport without being detected. Mr David Wilson asked if the bag had any drug scents and the appellant said that he did not think so. 6. On 24 February 2008, Mr Xavier rang Mr Jones who said that he would arrive in Sydney on Thursday. Mr Xavier confirmed that Mr David Wilson had been to see him and was "in the picture". Mr Jones told Mr Xavier that "the Ant" (Mr Wren) was leaving that day and they discussed when he was expected to work. 7. On 24 February 2008, a conversation took place between the appellant and Mr David Wilson in Room 1159 where the appellant was annoyed with Mr David Wilson for going behind his back to speak to Mr Xavier about payment for his participation. The appellant said to Mr Xavier "I brought you into this and not him. I'm the one whose [sic] decided what the… price was… [ind]… if you don't want to do it… [ind] … find right". Later, Mr Xavier arrived and the three of them discussed payment for participation in the importation. 8. Shortly after 24 February 2008, the appellant and Messrs Xavier and Jones left Australia. On 3 March 2008, Mr Jones rang Mr Xavier in Indonesia who told him that Mr David Wilson had the documents he needed to collect the container (which had recently arrived). Mr Jones told Mr Xavier that he would get Mr Wren to arrange the storage and Mr Xavier observed that it would take Mr David Wilson two or three days to have the furniture couriered to him. 9. Mr Xavier arrived back in Sydney on 6 March 2008 and the appellant returned from Indonesia on 8 March 2008. The appellant checked into the Novotel Hotel at Darling Harbour. 10. On 10 March 2008, the appellant and Messrs Xavier and Jones met in the cafe at the Novotel Hotel and discussed prices and costings relating to the purchase, importation and sale of the subject matter of the importation and their respective share of the proceeds. 11. Mr Xavier and the appellant were videoed in Room 702 at the Novotel Hotel counting large quantities of Australian currency and discussing the division of money. 12. At 12:33 pm on 11 March 2008, in Room 840 of the Novotel Hotel, the appellant and Mr Jones discussed whether Mr David Wilson knew which pieces of furniture needed to be pulled out from the container load and the distribution of funds between the conspirators. The recording (exhibit 134) showed Mr Jones stating "What you had to tell your brother. Which pieces to pull out" and the appellant replied "Oh, um, I don't know. He must know". The appellant said in submissions he had not given much thought to the issue at the time but Mr Jones showed his annoyance, stating "Oh god fuck me dead [background noise]… whispering… Two. Four six… Fucking hell I can't do much about this". 13. At 5:23 pm on 11 March 2008, Mr Jones rang Mr Wren and told him about the three pieces of furniture in which the drugs had been secreted. At 8:20 pm on 11 March 2008, the appellant telephoned Mr Xavier to ask whether he had told Mr David Wilson which bits of furniture to remove and Mr Xavier said that he had and that the pieces of furniture were numbered. He said: "Yeah because it's… it's there… it's there the same, yeah?" 14. The appellant's case is that he was a messenger and did not understand what was, in fact, the subject of the discussions. However, the explanation needs to be seen in the light of further recordings from the Novotel Hotel Room 840 on 12 March 2008 (exhibit 149) below. It may be noted that he relied on Mr Jones not carrying a phone. However, exhibit 194 records that there were three "identical telephone services" attributable to Mr Jones. 15. Mr David Wilson unpacked the container on 12 March 2008. All the contents were moved to a storehouse area. There were further discussions between the appellant and Mr Jones as to payments of each of the co-conspirators. When Mr Jones told the appellant about a "Cocaine Bust" in Sydney where authorities substituted cocaine and sent the delivery, a discussion followed in which the appellant questioned "the other thing's alright" to which Mr Jones relied "Is it?" and the appellant replied "yeah, yeah I just phoned him". I accept the Crown submissions that an inference is available that the appellant phoned his brother to ensure that all was well with the shipment given the furniture had been delivered to the premises. 16. At 6:55 pm on 12 March 2008, the appellant was recorded as saying "I would have been miserable at the loss of it. You'd be fucking sick as a pig, wouldn't you". He made that statement in the context of a news bulletin dealing with a "cocaine haul". The appellant contended, unconvincingly, that the last statement was referrable to him being sick from using cocaine and not a reference to a lost importation of the drug. (This issue will be discussed further under ground 17). 17. On 13 March 2008, the appellant travelled to Adelaide. 18. Mr Xavier and the appellant were videoed in Room 702 at the Novotel Hotel counting large quantities of Australian currency and discussing the division of money between the co-conspirators. 19. A critical component of the appellant's case was that his statement "they've got bricks inside" (noting he disputed the word 'they've') on 13 March 2008 was not a reference to blocks of heroin but to blocks of money. I do not consider that submission is sustainable but, due to its importance, I shall deal separately with the substance of the appellant's argument below. (Contentions as to the admission of the evidence and his application to deal with fresh evidence shall be dealt with separately below: see ground 2(h) and 19). 20. On 13 March 2008, Mr David Wren arranged for Pack & Send Wollongong to transport the furniture from Adelaide to Wollongong. Melinda from Pack & Send rang Mr David Wilson to clarify what was being collected. He said "coffee tables" and that there were three of them but he was not sure. Whilst the packages were contained in cardboard, Mr David Wilson was uncertain of what was being shipped and how many were being shipped. 21. Shortly thereafter, there was a telephone call between Messrs Wren and David Wilson in which Mr David Wilson said he had no "paperwork" and Mr Wren stated "Well, John's supposed to be there isn't he?" Mr David Wilson indicated that he would further respond at times which coincided with the attendance in Adelaide of the appellant. 22. On 14 March 2008, after the "bricks inside" conversation, Mr David Wilson rang Pack & Send and explained precisely what was being sent in contradiction to his earlier uncertainty. 23. On 17 March 2008, Pack and Send collected three sideboards and a small table from Costless for delivery to Wollongong. The same day they contacted Mr Wren and advised that the items were likely to arrive at their Wollongong depot on 20 March 2008, from where Mr Wren stated he would collect them. 24. At 10:45 on 19 March 2008, Mr Wren took delivery of the furniture from the Pack and Send Warehouse in Wollongong, in an AVIS rental truck and drove to Wollongong Mini Storage where the furniture was unloaded and placed it into a secure storage shed at the facility. 25. At 12:33 on 19 March 2008, Mr Jones called Mr Wren and Mr Wren confirmed to Mr Jones that nothing in the furniture appeared tampered with. They arranged to meet the following day and Mr Jones confirmed that he would have the balance of Mr Wren's payment. 26. At 16:13 on 19 March 2008, Mr Jones telephoned the appellant who told him that he had arrived back in Sydney and was staying at the Rydges Hotel, World Square, Sydney. They arranged to meet at the hotel in approximately 30 minutes. 27. On the following day, 20 March 2008, Mr Wren and Mr Jones met at Stanmore Park with suspected heroin supplier Mr Horne. 28. Further on 20 March 2008, AFP officers conducted a search warrant on Wollongong Mini Storage where they seized the 3 chests of drawers which were subsequently deconstructed by AFP forensic officers. 29. Later on 20 March 2008, the appellant and Mr Jones were arrested in the appellant's hotel room at Rydges Hotel, World Square. On searching the room, police seized a large amount of property, including a very significant amount of cash and a suitcase with a concealed section.

[15]

The "bricks inside"

At 10:43 pm on 13 March 2008, the appellant and Mr David Wilson arrived at the premises. They went into the premises. In a transcription of an audio recording of 13 March 2008 (exhibit 251), Mr David Wilson is recorded as saying "how many? There was three, yeah? Three? Three?". The appellant responds "Three what?" to which Mr David Wilson says, "Three packages. Yeah". Some little time later the appellant states, "they've got bricks inside" to which Mr David Wilson responds, "huh?" and the appellant responds, "got brick inside" and Mr David Wilson states, "I had a good look inside… it was x-rayed" (there are various indistinct portions of those conversations).
In relation to the statement "they've got bricks inside", the appellant made a submission that the reference to "they've got bricks inside" was a reference to the appellant carrying a $150,000 from Sydney to Adelaide by the airport on behalf of his brother. It was submitted: The appellant contends that he agreed, based on the transcript, that he said "they've got bricks inside" but which he correct to "It's got brick inside". The appellant's best recollection would be that he told [Mr David Wilson] "careful, "there's [sic] brick in there" to which [Mr David Wilson] replied "what" the Appellant then answered "it's got brick inside" this being reference to the money in his suitcase. At the time [Mr David Wilson] was rummaging through the appellant's suitcase looking for some duty free whisky. The Appellant contends that the official listening device records him talking about the duty free whisky in his suitcase about this time adding weight to the Appellants (sic) explanation of events. The appellant contends that the term "brick" is a colloquial reference to money in the U.K. "Also that 'packages of money' are often referred to as bricks"
As to the conversation between the appellant and his brother at the premises, the appellant submitted that the statement derived from Mr David Wilson picking up his case and finding it heavy. The bricks concerned money and particularly that he had large amounts of money in the case.
It might be noted that the appellant said that he could not recall the conversation. It was contended the $150,000 concerned the sale of cigarettes. The entry was indecipherable. Further, the appellant submitted the evidence of Federal Agent Thomson that he could hear the reference to "they've got bricks inside" should not have been admitted. The appellant accepted that that evidence as to money was not given at trial but that is because "no one questioned me on it".
The appellant, it was contended, travelled to the premises after he had collected his brother from a hotel. His brother was "drunk". The whole overt act which involved the conversation regarding the bricks inside was "less than two minutes" and without any knowledge of what was in the furniture.
The appellant contended that he had given evidence-in-chief that the bricks inside concerned the money in his suitcase. Further, it was said that it was not possible to hear the disc properly.
The appellant contended the references to "it was x-rayed" by Mr David Wilson in the same conversation were a reference to the chalk marks on the appellant's suitcase. Chalk marks on a suitcase are a universal identification system used by airport staff to indicate that items of luggage should be x-rayed.
The appellant's explanation as to his 'bricks inside' statement was inconsistent with the evidence he gave at the trial.
In his evidence-in-chief at trial as to the recording of a conversation (vis-à-vis the "bricks"), the appellant did not give evidence that the word (either itself or used in the context of the recorded conversation) had that meaning, namely, a reference to money. Rather, his explanation as to the subject reference in the recording of 13 March 2008 was as follows: Q. There is indistinct conversation and then the transcript records that you say, "They've got bricks inside" and David Wilson say, "Huh". Then you say some indistinct words. Then, "Got brick inside", according to this transcript. What was that conversation referring to? A. It was a reference to my security bag. Q. How is that a reference to your security bag? A. He was lifting the bag and he said it was heavy and I said it's got bricks inside. Q. Was that a reference to the concealment of border controlled drugs inside furniture? A. No.
The appellant submitted that no one asked him what bricks meant. However, that explanation cannot be accepted for two reasons.
First, the omission in the evidence-in-chief occurred notwithstanding the fact that a short time earlier in his evidence in chief (on 3 June 2011), the appellant dealt with his "last telephone calls and actions" in Sydney before travelling to Adelaide on 13 March 2008 including visiting a money changer (to exchange $150,000 to euros). He gave evidence that he carried that money to Adelaide in his suitcase.
Secondly, the appellant was asked squarely "how is that a reference to your security bag?" and he made no reference to either money or the weight of it.
The appellant did not retreat from this explanation when cross-examined, notwithstanding that he agreed that, at the time of the conversation with his brother, he had departed the taxi he had been traveling in, moved inside the premises for over 10 minutes and bag that he was referring to was on wheels and had been moved inside the premises. It was put to him that the explanation was "just a nonsense" and he replied "that's the only thing that makes sense to me". He disagreed that what would make sense of the reference to bricks was a reference to blocks of heroin.
The Crown's reliance on the 'bricks inside' statement by the appellant both at trial and on this appeal was clearly available to both establish the charge and the reasonableness of the verdict.

[17]

Alternative hypothesis

On pages 12 to 49 of the appellant's written submissions, the appellant makes various submissions which variously concern the refutation of his involvement in the conspiracy and an alternative hypothesis to demonstrate that he was not involved in the conspiracy. Central to those submissions was a contention that the discussions he had with the co-conspirators concerned his business of importing contraband cigarettes from India and not the importation of heroin. He pointed to the evidence which he submitted sustained those contentions.
In a series of propositions, the appellant described his "role" as being the following: 1. He used his knowledge/experience of furniture manufacturing/import/ trade between Indonesia and Australia to provide a medium for the import. It was contended, there was no evidence to support any participation in the import of heroin. Mr Xavier was quoted as saying the container which has been sent to Mr David Wilson was sent by mistake. It was Mr Xavier who took full responsibility for exporting the container to Adelaide. 2. He accepted he exchanged large quantities of Australian currency into large denomination euro notes and other foreign currencies at the Money Exchange in Darlinghurst but the money was from the sale of cigarettes and not the proceeds of heroin importation. All money transactions were prior to the container containing the heroin arriving. 3. His travel during the offence period, namely twice to Australia, was for the purposes of receiving payment from cigarette sales and to conduct the bio-fuel business. 4. The appellant did not recruit his brother to be the importer or recipient of the furniture or discuss his brother's remuneration for that participation. It was contended that the appellant was recorded as saying that he should not receive the container. 5. He did not facilitate the meeting between Mr David Wilson and Mr Xavier to discuss payment for accepting the container. On 24 February 2008, the appellant was recorded as telling Mr David Wilson and Mr Xavier not to discuss the business in front of him and he made reference to the container being their business. 6. He accepted that he telephoned Mr David Wilson at the request of Mr Xavier to ask Mr David Wilson to attend the hotel where he was staying. However he submitted there was no evidence to support that the appellant had prior knowledge of what Mr Xavier intended to discuss with Mr David Wilson. 7. He did not transport currency out of Australia to Indonesia to pay for drugs imported "and to remove his profits". Payments for drugs were made by syndicate members via Ms Fiona Jang's "money" exchange. The failure to call Ms Jang as a witness interfered with the fair running of the trial. (It was not explained why this conclusion would follow). 8. He was not a financier in respect to payments made. The only monies provided by the appellant were $40,000 from a loan made to Mr Xavier in order for him to pay Mr David Wilson. This money is recorded as being returned by Mr Jones. The appellant acted as a courier in the payments to Mr David Wilson and in doing so would make payment on behalf of Messrs Xavier and Jones. 9. There is no evidence to support "the Crown case that the $750,000 came from any drug import". The appellant repeated that the evidence did not establish that any of the monies "associated with the appellant were proceeds of the heroin import". The appellant seemed to make a complaint about evidence led as to monies received but the nature of the complaint is unclear. 10. The evidence does not support the appellant ever having knowledge of the drugs imported in the container or that he had "the requisite knowledge to identify the items of furniture to be sent to Sydney by his brother …". 11. The Crown, it was submitted, supressed the evidence of Mr Lee in unloading the container and placing the items of furniture ready for sending to Sydney prior to the appellant arriving in Adelaide. The appellant sought to lead fresh evidence in these proceedings but a ruling on that question became unnecessary because the Crown accepted Mr Lee's evidence. 12. It was submitted that the Crown/AFP "also supressed evidence of Mr Lee's involvement in the unloading of the container in the placing of the items of furniture ready for sending to Sydney prior to the appellant arriving in Adelaide". The basis for this submission was not identified. In any event, I will later discuss in dealing with ground 19 that no miscarriage arose from Mr Lee not being called in the trial. 13. He did not travel to Adelaide to meet with Mr David Wilson to ensure the correct identification of the chest of drawers but only to attend an anniversary dinner being held for his parents. There was evidence that the appellant often returned to Australia to attend family functions. At the time the appellant travelled to Adelaide the container had already been imported. It was open to the trial judge to "direct the jury on the alternative charge of accessory after the fact". 14. There was no evidence of a phone call by the appellant to Mr Xavier reporting back when the drugs had been handed over to Mr David Wilson. 15. The evidence of his knowledge of the 69 blocks of heroin secreted in the three items of furniture derived from "the hard drive evidence" (there was a reference to the recording at the premises). That knowledge should not have been accepted because it was "not of sufficient quality or quantity".
The appellant then made a submission in response to the Crown case in sub-paras 2(a)-(h) of his submissions (from pages 17 to 60). I shall deal with paras 2(b), (d) and (h) separately below.
In oral submissions, the appellant contended that the crux of the appellant's case was that stated at para 61 of his written submission: "the appellant contends that his defence relating to his cigarette business and the cigarette container being caught by Indonesian authorities and his trip to Adelaide to attend the anniversary dinner for his parents was wholly consistent with the evidence and which the Crown failed to disprove". He attended upon the premises because he had picked his brother up when he was drunk in a hotel and had to drive him home. The cigarette business was a new business operating out of Indonesia.
As mentioned earlier, the reliance upon the cigarette business and a container of cigarettes is the crux of the alternative case. The appellant was the supplier of the cigarettes. Mr David Wilson did not wish to be involved in the import of cigarettes because there was more money to be made in the other syndicate. The container which had arrived was one involving cigarettes whereas the one on the "high sea" discussed by Messrs Xavier and David Wilson concerned drugs.
The sum of $250,000 discussed by the appellant concerned the importation of cigarettes. The container which had arrived was one container out of five (not three as contended by the Crown). Two of the containers concerned the appellant and involved the importation of cigarettes and the "other three had nothing to do with me". The cigarette syndicate consisted of the appellant as the supplier and Messrs Xavier and Jones. This accounted for the large amount of money owed by Mr Jones to the appellant. The reference to Mr David Wilson saying that he did not wish to work with the appellant any longer concerned the importation of cigarettes. The first two containers were supplied by Messrs Xavier and Jones because they were "able to do a better deal than me". The conversation at page 325 of the appeal book concerned a container which had been sent (when the appellant's container is "languishing in the docks in Indonesia" for which the appellant will be offered $20,000). The evidence showed that Messrs Xavier and David Wilson planned the importation of heroin behind the appellant's back - Mr Xavier says "you don't wanna fucking talk behind his back…".
Three matters should be mentioned at the outset about these contentions. First, the appellant conceded in his reply submissions that it "may have been open to the jury to disregard the appellant's defence that he was only dealing with the syndicate in relation to cigarettes". Nonetheless, he attributes this to a failure by the AFP to investigate (see ground 3) and further dealt with some aspects of his appeal as to the existence of an alternative hypothesis. In the result, I will further deal with his contentions in this respect, below.
Secondly, a recording of a conversation at a café at the Novotel Hotel on 10 March 2008 reveals that "money" was being split three ways, contradicting the contention by the appellant that there was a two person conspiracy (see exhibit 124).
Thirdly, I will return to the plausibility of the appellant's evidence as to the existence of his cigarette business but a preliminary observation might be made in that respect. The evidence as to the cigarette business came principally from the appellant's evidence-in-chief. The appellant's evidence was that the cigarettes were sold in Indonesia and handed over at the location but, unconvincingly, final payments (for contraband cigarettes) were not made until close to his arrest. His evidence of the English cigarette business was that he sold cigarettes to a purchaser he could neither name nor nominate an address for. There was not an agreed price and profits were never to be divided. Again, the proposition is unconvincing.
The appellant's submissions have, as their foundation, a contention that the trial miscarried because the trial judge failed to exclude transcript evidence and surveillance recordings which were not relevant to the charge against the appellant or were inadmissible on other grounds such as the evidence was hearsay or was tendency evidence for which no notice had been served under s 97(1) of the Evidence Act 1995 (NSW). (The challenged evidence was principally exhibit 40, namely, transcript of DVD 8, Star City, Room 1159 on 21 February 2008). There is no expansion upon this submission. In my view, the challenged surveillance recordings were admissible against the appellant in respect of the charge brought against him.
As to the surveillance material recorded in Room 1159 of the Star City apartments, the appellant submitted that there were, in fact, five container loads. He contended that only the first two containers went to Mr David Wilson and they only contained cigarettes. The remaining three containers were arranged by Messrs Xavier and Jones and fell outside the conspiracy which had been charged. The summing-up by the trial judge in which it was said that there were three containers was an error. Reference to $350,000 by Mr David Wilson concerned an agreement that the appellant would pay his brother that amount after the first container had been received from his new business. The appellant contended that Mr David Wilson was using these discussions as a bargaining gambit to get Mr Xavier to increase the price for him to receive "not only the target heroin container but also containers for the future". At no time during the meeting of 21 February 2008 did Mr Xavier or Mr David Wilson refer, it was contended, to the appellant being involved in the import of the "targeted container" and the conspiracy to import only involved Mr Xavier and Mr David Wilson.
Submissions were then made as to recordings in Room 1159 of the Star City apartments on 24 February 2008 (ground 2(c)). The transcript was, it was contended, not a true representation of the conversation between the appellant and the "convicted" because the conversation was recorded "piecemeal" (being selected sentences of the conversation that appear in the transcript). It was submitted that the evidence recorded hearsay conversations between the "co-accused" and related to the appellant having knowledge of the import of heroin. Although the appellant accepted that parts of the recordings for those dates were "prejudicial to him", there was nothing in the nature of direct evidence in those recordings capable of connecting the appellant to the conspiracy to import the "targeted container".
In grounds 2(e), (f) and (g), the appellant made submissions concerning recordings on 10 March 2008 (exhibit 126); 11 March 2008 (exhibit 134); and 12 March 2008 (see exhibit 143).
With respect to ground 2(e), the appellant submitted: After the meeting at the Novotel Cafe on the 10th March 2008, the appellant is further recorded in conversation with Xavier in which further money discussions took place. During the conversations there was much talk about sums of $80,000 which had to be paid to David Wilson. At trial, the appellant was having trouble trying to explain this money due to the fact that he had no "first hand" knowledge as to what the payment was for. It can be seen from the evidence that Xavier asked to borrow $40,000 from the appellant in order to pay David Wilson and that he would be reimbursed by Greg Jones when he next met him. The appellant was initially led to believe that this payment was a loan from XAVIER / JONES to help David refurbish his shop. The appellant gave evidence to this effect. It was not until after the trial that the appellant was able to work out that it was for the previous import of the December / January container. At no time was it suggested that this was a payment from the appellant to David Wilson. The appellant contends that throughout the Crowns cross-examination he was being asked to give an opinion as to what the money was for. It was the appellant's evidence that David Wilson had received 2 payments of $80,000, a suggestion which the Crown rejected and would later form part of his closing argument that the appellant was trying to mislead the jury. What the appellant was not able to explain at the time and which the evidence shows quite clearly was that David Wilson was receiving $60,000 in euros which he had negotiated with Xavier during their secret meetings at Star City apartments (Exhibit 40), and in addition was receiving $80,000 for the December/January import. After the meeting at the Novotel coffee shop lounge (10th March 2008), both Xavier and the appellant went back to Xavier's hotel room at Star City where they continued to discuss aspects of the conversation that had previously taken place. Both the appellant and Xavier discussed a whole range of money matters relating to the monies from previous imports but at no time is there any discussion about the forthcoming heroin container. (The appellant contends that at 1pm he can be heard telling Xavier that he doesn't want to be involved in any other business with Xavier and only wanted to pursue his cigarette business).
The appellant further submitted: Throughout the appellants cross-examination the appellant attempted to explain the two amounts of money being paid to D. Wilson but by this time the appellants bi polar symptoms were high and the appellant was suffering confusion and unable to express himself. In addition the Crown kept insisting that D. Wilson was only being paid one amount of $80,000 thereby insinuating the appellant was a liar which was also adding to the appellant's confusion.
It was submitted that the surveillance evidence did not establish that the appellant had the knowledge to notify Mr David Wilson of the heroin secreted inside the three items of furniture. The appellant relied upon his bi-polar symptoms and medication preventing him from giving more accurate account in his evidence to the jury (this was discussed earlier in relation to ground 1).
The appellant referred to the following passage from the transcript to demonstrate that he had no memory of what Mr Jones was telling him in this respect: Q. Mr Jones then said to you, "Did he tell you what those things were that brother Dave had to put aside." What do you think he was talking about when he said that? A. I don't recall, but obviously the previous conversation. Q. You went on to indicate, may I suggest to you, that perhaps you hadn't got the fine detail of it, but I will take you through it. "You said, "Did he say what?" Greg Jones said, "Those things that brother Dave had to put aside. You know when I spoke to you yesterday". You said, "Things that he put aside." He said "You know when I spoke to you yesterday I said ask him about what you had to tell Dave." You said "About what?" He said "What you had to tell your brother. Which pieces to pull out["], You said, "Oh, um, I don't know he must know." Jones said, "Huh?" You said, "He must know. I'll check when I go down there tomorrow." Q. You were indicating that your understanding was that your brother David already knew? A. Yes. Q. What understanding di you have as to why your brother would be pulling pieces of furniture out? A. I just know there was some pieces of furniture to be sent to Sydney. Q. Why? A. I don't know.
Another example of the argument put under this ground may be found on page 44 of the appellant's written submission where, under the heading "Jones tells the appellant it's three chiffoniers", the appellant extracted the following passage from the evidence: A. yes. Q. how did you know to ask about what bits there were opposed to saying to your brother: Listen what's the information that I've got to give my brother? A. I wasn't actually asking what bit there were. I'm asking Xavier whether he's notified my brother about which bits there are. Q. did you get curious about why bits of furniture would need to be pulled out to be sent to Sydney? A. No. Q. When you, in the conversation with Xavier, he explained it was "that one marker: 1, 2, 3" And so he knows, he knows it and he'll pass it on to the "middle guy".
The appellant then submitted: The appellant contends that Xavier told him during the course of the phone call that David Wilson already knew which items had to be sent to Sydney so there was no need for him to pass on any message. The appellant now accepts that Jones first told the appellant about the three items of furniture while travelling to meet him 10th March 2008.
As to ground 2(g), the appellant contended the conversation recorded on 12 March 2008 concerned monies to be paid to Mr Jones for previous separate containers plus payments in relation to the forthcoming heroin container. The conversation also related to monies to be taken to a money exchange by the appellant as well as monies the appellant was taking to Adelaide on behalf of Mr David Wilson. The appellant accepted the payments of $60,000 to Mr David Wilson, $79,000 to Mr Wren and $20,000 to the appellant were, in fact, "references to payments for the target container but which the appellant contended that he had no knowledge of the heroin".
As noted above, these submissions as to the evidence (which have been partially summarised above) were advanced by the appellant to support an alternative hypothesis that he was not involved in the conspiracy and that any discussions which he had with the co-conspirators concerned the business of importing cigarettes from Indonesia.
In that respect, it is as well to recall what the High Court stated in Baden-Clay with regard to findings of guilt based on circumstantial evidence (at [46] and [47]): [46] … The principles concerning cases that turn upon circumstantial evidence are well settled. In Barca v The Queen, Gibbs, Stephen and Mason JJ said: "When the case against an accused person rests substantially upon circumstantial evidence, the jury cannot return a verdict of guilty unless the circumstances are 'such as to be inconsistent with any reasonable hypothesis other than the guilt of the accused': Peacock v The King. To enable a jury to be satisfied beyond reasonable doubt of the guilt of the accused it is necessary not only that his guilt should be a rational inference but that it should be 'the only rational inference that the circumstances would enable them to draw': Plomp v The Queen; see also Thomas v The Queen." [47] For an inference to be reasonable, it "must rest upon something more than mere conjecture. The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon a consideration of all the facts in evidence" (emphasis added). Further, "in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighed in deciding whether there is an inference consistent with innocence reasonably open on the evidence" (emphasis added). The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal". [Original emphasis. Footnotes omitted.]
It is important to bear in mind that the substance of the appellant's hypothesis was put to the jury as the appellant's defence case. Propositions of that kind were advanced during the course of cross-examination of the Crown's evidence. Similarly, the appellant's explanation for the evidence including, for the most part, inferences the appellant now invites the Court to draw from the evidence, were put to the jury.
The jury rejected the appellant's narrative including the appellant's explanation for recorded conversations that were in issue.
As earlier pointed out, there was evidence to enable the jury to conclude: 1. first, that the appellant and at least one other party to the agreement intended that the offence be committed; 2. secondly, the object of the conspiracy was to import a quantity of a substance, the border controlled drug, namely heroin; and 3. thirdly, there were a number of overt acts committed by parties to the agreement pursuant to that agreement, including the appellant's trip from Sydney to Adelaide on 13 March 2008.
The Crown contended that it was unremarkable that the jury reached such a conclusion given the patently implausible explanations that the appellant, in cross-examination, gave for various aspects of the evidence.
Having examined that evidence carefully, I consider that the Crown was correct to refer to the implausibility of the appellant's explanation based upon the following considerations: 1. The appellant contended that Mr David Wilson was whispering to him during the conversation contained in exhibit 40, because his brother knew that he could hear better if he whispered to the appellant, notwithstanding that he had a hearing problem. 2. Exhibit 48B was a discussion of an accounting of money with Mr David Wilson (and that they were in a partnership to do with that money), but the appellant's involvement with the money was just to listen to what his brother was saying and he contended that it had nothing to do with him - he was just doing his best to help. 3. The money which the appellant gave to Mr David Wilson recorded in exhibit 51 (where he gave his brother $80,000, being $70,000 and $10,000 for expenses) was a loan and that the appellant contended that he did not know why he told his brother that $10,000 was for expenses. However, the word loan was never said by him to his brother. 4. In relation to a conversation contained in exhibit 215, in which the appellant told Mr Xavier that "You've gotta tell me what I've gotta let my brother know", the appellant contended that he had no understanding of what it was that he had to find out, why he had to find it out, or what it was that he had to convey to his brother, rather he simply repeated to Mr Xavier what Mr Jones had told him.
Even aside from implausibility, I also accept the Crown's submissions that, in a number of important areas, the appellant was unable to offer any real explanation for those events in cross-examination. The examples given by the Crown amply bear out this conclusion as follows: 1. The appellant had no interpretation of why Mr David Wilson, in the course of a conversation recorded in exhibit 51, was complaining about having to come to Sydney all the time, saying "it's not good for me". 2. The appellant accepted that it was logical to keep his cash in large Australian dollars if he was going to spend it within Australia. He chose to keep it in 500 euro bills saying "there's no why. I just chose to do it that way." 3. The commission that the appellant was being charged at Kings Cross for money exchange (presumably a reference to the Money Exchange at Darlinghurst) was the same as he would be charged anywhere, but he went to the one in Kings Cross rather than going somewhere closer. There was no reason why the appellant could not go somewhere closer other than he had an arrangement to exchange money with the "guy" in Kings Cross.
A matter of real significance is that the appellant's contentions in favour of his explanation and alternative hypothesis leave out of account that the jury had the benefit of hearing and seeing the appellant and Crown witnesses before rendering a verdict. I accept the Crown's submission that appropriate weight should be given to that consideration as well as the implausibility of aspects of the appellant's case.
In R v AZ [2018] NSWCCA 294, the following observations were made which are applicable in this matter (per Walton and Wilson JJ at [150]-[156]): [150] The High Court gave particular emphasis to the fundamental role of the jury in determining questions of fact in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, at [65] - [66] where it said, 65. It is fundamental to our system of criminal justice in relation to allegations of serious crimes tried by jury that the jury is "the constitutional tribunal for deciding issues of fact." Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is "unreasonable" within the meaning of s 668E(1) of the Criminal Code is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial. Further, the boundaries of reasonableness within which the jury's function is to be performed should not be narrowed in a hard and fast way by the considerations expressed in the passages from the reasons of the Court of Appeal explaining its disposition of the appeal. 66. With those considerations in mind, a court of criminal appeal is not to substitute trial by an appeal court for trial by jury. Where there is an appeal against conviction on the ground that the verdict was unreasonable, the ultimate question for the appeal court "must always be whether the [appeal] court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty." [Footnotes omitted.] [151] In making that statement, the High Court referred to and was informed by a history of twentieth century Australian jurisprudence that has consistently given primacy to the responsibility of the jury to determine matters of fact, and rejected the notion that an appellate court should or could substitute its view of such matters for that of the jury. [152] In Hocking v Bell (1945) 71 CLR 430, one of the decisions referred to in Baden-Clay, Latham CJ said, at 440, In a trial by jury the jury is the constitutional tribunal for deciding issues of fact. As Lord Wright said in Mechanical and General Inventions Co. Ltd. v. Austin: "The appellate court is never the judge of fact in a case where the constitutional judge of fact is the jury." Where there is a conflict of evidence it is not for the judge at the trial, or for any tribunal on appeal, to determine which witnesses should be believed - that is the responsibility of the jury. If a verdict is against evidence and the weight of evidence a new trial may be ordered. If the evidence on one side so greatly preponderates over the evidence on the other side that it can be said that the verdict is such as reasonable jurors, understanding their responsibility, could not reach, a verdict may be set aside and a new trial may be ordered. Caution is necessary in applying the principle that a verdict may be set aside if it is against evidence and the weight of evidence. That principle must not be interpreted in such a manner as to deprive the jury of its right of believing one witness on one side against twenty (or any number) of witnesses on the other side. [Footnotes omitted.] [153] Part of the importance of the role of the jury in the operation of the criminal justice system is the participation of the community through twelve of its members, and the significance of that participation in maintaining confidence in the administration of justice. The advantage of involving the community in the judicial process was described as "inestimable" by French CJ in Alqudsi v The Queen (2016) 90 ALJR 211 at 715 [2]; [2016] HCA 24. [154] In Kingswell v The Queen (1985) 159 CLR 264 Deane J said, at 301 - 302, The institution of trial by jury also serves the function of protecting both the administration of justice and the accused from the rash judgment and prejudices of the community itself. The nature of the jury as a body of ordinary citizens called from the community to try the particular case offers some assurance that the community as a whole will be more likely to accept a jury's verdict than it would be to accept the judgment of a judge or magistrate who might be, or be portrayed as being, over-responsive to authority or remote from the affairs and concerns of ordinary people. The random selection of a jury panel, the empanelment of a jury to try the particular case, the public anonymity of individual jurors, the ordinary confidentiality of the jury's deliberative processes, the jury's isolation (at least at the time of decision) from external influences and the insistence upon its function of determining the particular charge according to the evidence combine, for so long as they can be preserved or observed, to offer some assurance that the accused will not be judged by reference to sensational or self-righteous pre-trial publicity or the passions of the mob. [155] Considerations such as these are of importance when considering whether a verdict returned by the representatives of the community in the form of the jury is unreasonable or unsupported by the evidence. [156] Ultimately, the question for this Court is whether, upon the whole of the evidence, it was open to the jury to reach the verdicts it did. In a trial such as the present, examination of the evidence of the complainant will be of greatest importance to answering that question, but that does not detract from the necessity of examining the whole of the evidence, and assessing the whole taken together. Whilst, in common with the jury, the Court could view the recorded evidence of the complainant, there remains to the jury the advantage of participating in the whole of the trial, and observing all of the witnesses give evidence, in the particular environment of a trial court.
In my view, the jury verdict could not be said to be unreasonable or unavailable on the evidence. Having regard to the aforementioned discussion of the evidence, particularly as to the cigarette business as an explanation of the appellant's involvement, it was open on the jury, on the evidence, to dismiss as a reasonable possibility the appellant's alternative hypothesis that the evidence before the Court concerned a cigarette import/export business. That conclusion derives from an independent assessment of the evidence having regard to the appellant's contentions in this appeal.
Accordingly, grounds 2 (including sub-grounds 2(a), (c), (e)-(g)), 3(a), 8, 11 and 13 should be dismissed.

[21]

Admission of evidence of a "hard drive"

On 23 May 2011 (day 36 of the trial), the Crown sought to adduce an audio recording of conversation recorded in four transcripts which occurred at the premises between the appellant and Mr David Wilson in the period 13 to 16 March 2008. The audio recordings of those conversations were obtained from the placement of a listening device in the furniture consignment delivered as part of the controlled delivery.
At trial, counsel for the appellant objected to the admission into evidence of the conversation recorded in all four transcripts. However, the appellant confines his appeal to the admission of the conversation transcribed in exhibit 251, being two transcripts which convey the period from 10:44 pm on 13 March 2008 to 12:40 am on 14 March 2008.
Counsel for the appellant objected to the admission of that material at trial on the following bases: 1. prejudice caused by late disclosure and the consequent lack of opportunity of the defence to study the material and take instructions; 2. a large amount of the conversation that was unable to be heard by the transcriber and recorded in the transcript as "indistinct"; 3. the effluxion of time since the conversation took place was such that the appellant could no longer recall the conversation and there was an absence of any video to provide a context for them; 4. the irrelevance of some of the material; and 5. the references to "three packages" with "bricks inside" was unfairly prejudicial to the appellant because it was known that there were 69 packages of drugs and the evidence invited the jury to speculate that the appellant was referring to the three chests of drawers in which the heroin was found when there was no reason to think that was the case. In that respect, the appellant relied upon all three limbs of s 135 and s 137 of the Evidence Act.
On 19 May 2011, Federal Agent Thomson gave evidence on the voir dire that he had only become aware the previous week that the files of the video footage of the outside of the premises and the audio recording from a microphone which was placed inside the furniture were accessible.
In admitting all of the evidence being the subject of the objection, the trial judge found that it "must have substantial probative value in relation to the Crown case, in particular in relation to the knowledge of Mr David Wilson and the appellant as to the actual chests of drawers and the heroin contained in them." In the course of his judgment, the trial judge also found the following: 1. It was "highly regrettable" that the material was not realised as being available earlier, but that the late discovery was the result of very poor communication/incompetence rather than a deliberate effort to suppress relevant material. 2. There was ample opportunity for counsel for the appellant to take instructions from his client as to the material, once it was provided to him, as it was only 1.25 hours of conversations. 3. There may have been unfair prejudice to the appellant if his case had been conducted in such a manner that there was reliance on the fact that no recording had been available from the premises, but counsel for the appellant did not deal with the facts in opening, other to say that everything was in issue. 4. The material was not unfairly prejudicial to the appellant merely because it tended to support the Crown case. 5. The potential inability of the appellant to recall the conversation without the benefit of video footage to provide a context was a circumstance that applied to all of the audio recordings at trial which were not accompanied by video footage and, to the extent that there was anything exculpatory or inculpatory, he would have had cause to remember with considerable clarity. 6. It was entirely within the capacity of the jury to form its own conclusion about those parts of the conversation notated as "indistinct". 7. Mr David Wilson sought to have the material admitted as potentially relevant to his defence.
None of those reasons demonstrate any error as to the admission of the conversation transcribed in exhibit 251.
There was a further submission by the appellant to the effect that the trial judge erred in admitting the impugned evidence as the tracking device was "not a listening device in accordance with Listening Devices Act". There was also a submission that prejudice arose because of the late disclosure of the material, as earlier mentioned, because he would not have given evidence at the trial without that material.
Those additional contentions should also be rejected. Neither of those matters were raised at trial. As to the first matter, the audio recording was not obtained from the tracking device or hard drive but a microphone transmitter placed in the furniture. In that respect, the first additional submission advanced by the appellant is incorrect. The recording was obtained by means of a listening device as defined in s 4 of the Surveillance Devices Act 2007 (NSW) (see also s 3 of Listening and Surveillance Devices Act 1972 (SA) (repealed)).
As to the second additional matter, no submissions were made by the appellant that the evidence would impact upon the way the appellant's defence had been run. This is notwithstanding that fact that the appellant's counsel was asked to identify the prejudice to his client in this respect.

[22]

Error in admitting the opinion evidence of Federal Agent Thomson and failure to direct jury regarding that opinion evidence

The evidence given by Federal Agent Thomson was evidence given on the voir dire. He gave evidence that he had listened to the whole recording of exhibit 251 on a number of occasions including the segment which the appellant placed great reliance, namely, the words attributed to him - "they've got bricks inside…brick inside", seven or eight times.
It may readily be appreciated from that summary that the ground of appeal concerning a direction to the jury, in this respect, is misconceived. The evidence of Federal Agent Thomson was not before the jury.
The appellant contended that he was denied a fair trial by the Crown not playing the evidence from "the hard drive" from the premises prior to 13 March 2008. It was submitted that had the exhibit been played in full to the jury they would have heard the conversation between Mr David Wilson and Mr Lee as the shipment was being unloaded. It was submitted this was significant evidence because it was not, as the Crown had contended, Mr Roubi Abdelsattar Zaied who unloaded the furniture. It also demonstrated that Mr David Wilson knew which furniture contained the heroin without input from the appellant.
The difficulty with the appellant's submission is that his counsel did not seek to have the listening device audio recording of 12 March 2008 played to the jury. Rather, he sought to have excluded all audio material from the listening device inside the furniture.
As to the submission that the recording was of particularly poor quality and that Federal Agent Thomson had changed his evidence as to who uttered the words "I'll talk to you about it later", it is apparent that the procedure adopted in the trial for the playing of this evidence was, in fact, fair to the appellant. The same conclusion applies to the further submission of the appellant that the manner in which the jury was asked to evaluate Federal Agent Thomson's evidence was unfair in that the jury was asked to listen to the recording first and then again with the transcript.
That procedure gave the jury an opportunity to form its own opinion as to what was recorded before being influenced by the transcript prepared by Federal Agent Thomson. It may be noted, in that respect, that the approach was adopted as a consequence of the objection to the admission of the audio recording by counsel for Mr Xavier.
In my view, this ground of appeal should be dismissed.

[23]

Ground 3(c): Failure of the Crown to present material evidence

Ground 3(a) was dealt with as part of the cluster of grounds concerning whether the verdict was unreasonable. Ground 3(b) will be dealt with below in conjunction with ground 19.
The appellant submitted that the Crown had failed to investigate the appellant's defence in circumstances where he was unrepresented at the committal proceedings and where notice of the "failure" to investigate was only given well into the trial.
Additionally, the appellant contended there was a miscarriage of justice resulting from the Crown failing to call the following evidence at trial: 1. A telephone call between the appellant and Mr Jones on 10 March 2008 when the appellant was travelling by taxi to meet Mr Jones. The appellant contended that the phone call proved that there had been no communication between Mr Xavier and the appellant in relation to the three items of furniture to be sent to Sydney because the phone call recorded that that was the first occasion that the appellant had heard about any furniture. 2. A conversation between Messrs Xavier and David Wilson on 21 February 2008 about giving the appellant $20,000 in relation to the expected container ("on the high seas"). 3. A telephone call between the appellant and Mr David Wilson when the appellant arrived at Adelaide Airport on the evening of 13 March 2008. This evidence was exculpatory as it gave another explanation as to why the appellant went to the premises (other than for the purposes of identifying three items of furniture). The evidence was to the effect that, as his brother was too drunk to drive them, the appellant should pick him up from the pub and then drive to the premises. 4. Evidence of previous heroin imports and money laundering by the "syndicate". This had a number of components. It was suggested that the evidence would show that the syndicate had been operating from 2006-2008 and that there was no evidence that the appellant was involved in these activities; this would cast doubt on the appellant's involvement in the syndicate's later activities. It also meant that the appellant was precluded from making reference to Ms Jang who was supposed to transfer the appellant's "cigarette payment" into his bank account. 5. Evidence of Mr Mark Standen's involvement with the "syndicate". It was submitted that Mr Standen had an association with Ms Jang and that the Crown supressed his involvement with the syndicate when the Crime Commission, of which he was the "commander", had an involvement in the "hard drive" recording relating to the premises. 6. The interview between the appellant's wife and daughter and Federal Agent Stephen Cook, together with Indonesian police. It was submitted that the appellant's wife had made a statement about the confiscation of the appellant's cigarette container. The appellant did not become aware of this evidence until 2015 when informed by his wife and daughter.
The appellant also made a further submission regarding his request to play evidence of the "hard drive" recording prior to 13 March 2008. This was addressed earlier in relation to ground 2(h).
Finally, there was a reference by the appellant to the Crown having run the trial with full knowledge that Mr Xavier was committing perjury. The failure to challenge his evidence was unfair to the appellant.
There was no concession by the Crown that the material in [145(1)] and [145(3)] above actually existed. The appellant put no material before the Court which went to either to the existence of the recordings or their content other than his submission. It was not suggested that the material had been provided to or raised with the Crown, or that there had been a refusal to introduce the additional telephone intercepts. Counsel for the appellant took the opportunity to tender material during cross-examination where it assisted the appellant's case, for example, in the cross-examination of Mr Jones, counsel tendered transcripts of a number of SMS messages and a telephone intercept which had not been part of the Crown case.
As to [145(2)] above, the evidence was before the jury. The complaint rises no higher than the Crown failed to draw attention to the conversation.
As to [145(4)] above, the admission of the evidence in question was plainly prejudicial to Mr Xavier. As the Crown submitted before us, counsel for the appellant could have made an application for a separate trial had he wished to rely upon that evidence in his defence. He did not do so.
Further, the appellant objected to the introduction of evidence relating to earlier importations both prior to and during the trial. In ground 16, the appellant contends there was a miscarriage of justice because evidence of previous shipments was admitted in the case and the evidence invited impermissible tendency reasoning by the jury in relation to the subject heroin import.
The issue raised in [145(5)] above is addressed in ground 20, which was to the effect that the trial was tainted due to the conviction of Mr Standen.
In addition to the issue raised in this context, the appellant submitted that Mr Standen was responsible for most of the evidence upon which the appellant was convicted and had an integral part in the syndicate with whom the appellant was said to have been involved in the import of heroin. Mr Standen's involvement was said to cast doubt on the veracity of the evidence upon which he was convicted.
Mr Standen was a former Assistant Director, Investigations of the New South Wales Crime Commission. He was convicted in 2011 of three offences including conspiring to import a commercial quantity of pseudoephedrine and conspiracy to pervert the course of justice. The appellant was aware of his conviction and association with the investigation because the Commonwealth Director of Public Prosecutions ("the Commonwealth DPP") wrote to the appellant on 9 February 2011 stating that, while Mr Standen had authority to exercise the Commission's powers in terms of approving the use of resources to facilitate the police in their investigation concerning the appellant, he was not involved in the day-to-day operational activity. Further, the investigation had been conducted jointly with the AFP.
The appellant's submissions in this respect proceeded upon the premise that it is axiomatic that the conviction of Mr Standen would have cast doubt on the evidence in the trial. That is not a correct premise. No other basis was put as to how Mr Standen's criminal association may have affected the gathering of evidence in his case. The communication from the Commonwealth DPP casts doubt upon any such proposition.
In any event, the appellant abandoned this question in the trial.
During the trial, counsel for the appellant cross examined New South Wales Plain Clothes Police Officer Daniel Jones concerning a meeting that occurred on 5 March 2008 in relation to the investigation (which was attended by Mr Standen) and the lack of video surveillance in certain hotel rooms used by the conspirators in the subject offence. Plain Clothes Officer Jones' evidence was that he was not at the meeting attended by Mr Standen but that Detective Sergeant Dipple did attend. Counsel for the appellant did not pursue that matter when cross-examining Detective Sergeant Dipple. Counsel for the appellant later stated, in relation to the involvement of Mr Standen in the investigation, that he had determined after reviewing further material, that it was not in his client's interests to pursue the matter further, so it was not pursued.
As to [145(6)] above (and by reference to the terms of ground 19), the appellant's wife did not give evidence at trial. The affidavits that the appellant sought to rely upon on appeal from these persons suggested, in fact, that they had no direct involvement in or knowledge of the container to which the appellant refers in this ground and the later ground. The appellant failed to call this evidence at trial which would have been available had his wife had a firsthand knowledge of, or involvement with, the container. The issue of the fresh evidence of the appellant's wife and daughter is addressed further in ground 19.
Ground 3(c) of the appeal should be dismissed.

[25]

Incident on 16 June 2011

The relevant "outburst" from Mr David Wilson giving rise to the application to discharge the jury was as follows: [Strikeout begins] ACCUSED DAVID WILSON: Your Honour, I would like to ask when I can see my evidence, please, 120 DVDs which I have not seen. This is what they did to my brief every day in gaol okay? You are not listening to me. How can I prepare my brief? [Strikeout Ends] HIS HONOUR: Ladies and gentlemen, would you mind leaving for a moment. [Strikeout begins] ACCUSED DAVID WILSON: When I can see my evidence, please, that you are saying I have had? This is bullshit. When am I going to see my evidence, you Honour? I have been asking for 12 weeks. I have been asking for the phone calls, your Honour, at the start the of [sic] trial-- [Strikeout Ends]
Counsel for the appellant applied for a discharge of the jury because of the duration of the trial and the "patently obvious" fact that much time had been lost in the trial "by indulgences made to Mr David Wilson." Counsel for the appellant further submitted that Mr David Wilson's remarks may have "aggravated… a justifiable discontent in the jury room and that there is a danger now that the trial of the appellant will be prejudiced by that view in the jury room."
A similar application was made on behalf of Mr Xavier by his counsel. The Crown accepted that the outburst was "deliberate and calculated".
The trial judge refused the application. His Honour ruled the outburst made could be dealt with by direction to the jury on the basis that the outburst sought to invoke sympathy for Mr David Wilson but made no reference to the appellant or Mr Xavier and, in that regard, it did not prejudice their cases. His Honour also noted that no information had been provided to the jury to the effect that any adjournments were as a consequence of Mr David Wilson's requests for time or to access material, and that if the jury had surmised that this was the case, it was not a matter of prejudice to the appellant. The jury had in fact been advised that an adjournment on 23 May 2011 was as a consequence of Mr David Wilson. Needing time to prepare cross-examination of Constable Daniel Jones. However, as found by the trial judge, that was not a matter which occasioned prejudice to the appellant.
The trial judge gave a direction to the jury inviting the jury to ignore the outburst. His Honour directed the jury that the co-accused had "no responsibility in any way for that outburst and nothing that was said can be in any way used in respect of them": see R v Bartle [2003] NSWCCA 329 ("Bartle") at [82] (per Mason P and Barr J).

[26]

Incident on 19 July 2011

On 19 July 2011, Mr David Wilson called Constable Jones of the NSW Police as a witness in his case and began to lead evidence from him. Following objections being made and sustained in relation to a series of questions concerning the involvement of Mr Standen in the investigation, the following incident occurred: ACCUSED DAVID WILSON: Your Honour, I wish to plead guilty to the charge of pseudoephedrine and my brother and Jose Xavier - BRASSIL: I object RADOJEV: I object HIS HONOUR: I reject that comment. ACCUSED DAVID WILSON: --are guilty as charged. They fabricated evidence against me, okay. (Objections from the Bar Table from counsel) Evidence gone missing, which proves I am innocent of this charge. HIS HONOUR: Ladies and gentlemen would you please depart. ACCUSED DAVID WILSON: John Wilson and Jose Xavier are guilty as charged."
As a result, counsel for the appellant sought a discharge of the jury, submitting that the prejudice that arose to the appellant by that outburst could not be overcome by direction to the jury. A similar application was made in respect of Mr Xavier. The Crown submitted that the outburst could be cured by a firm and direct direction to the jury to disregard what David Wilson had said.
His Honour refused to discharge the jury, instead determining to give them a direction in respect of the outburst. His Honour made that ruling based on an assumption that the jury heard all of what was said. The direction given by his Honour, which was consistent with the one given in Bartle, was as follows: Now you heard obviously just before you left an emotional outburst from Mr Wilson in relation to this particular matter. I am striking out all that he said. He was in the process of asking questions of the witness. What he said was not a question. It contained various statements and I don't intend to remind you of what he said because I want you to put it entirely out of your mind, that is the whole of the outburst as being entirely irrelevant to these proceedings. To the extent that you may have heard him say something about the co-accused, that is Mr Xavier or Mr Wilson, it is imperative that you pay absolutely no regard to any statement made by him in respect of either of his co-accused.

[27]

Relevant Principles

In Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, Toohey, Gaudron, Gummow and Kirby JJ stated (at 440-441): No rigid rule can be adopted to govern decisions on an application to discharge a jury for an inadvertent and potentially prejudicial event that occurs during a trial. The possibilities of slips occurring are inescapable. Much depends upon the seriousness of the occurrence in the context of the contested issues; the stage at which the mishap occurs; the deliberateness of the conduct; and the likely effectiveness of a judicial direction designed to overcome its apprehended impact. As the court below acknowledged, much leeway must be allowed to the trial judge to evaluate these and other considerations relevant to the fairness of the trial, bearing in mind that the judge will usually have a better appreciation of the significance of the event complained of, seen in context, than can be discerned from reading transcript. Nevertheless, the duty of the appellate court, where the exercise of discretion to refuse a discharge is challenged, is not confined to examining the reasons given for the order to make sure that the correct principles were kept in mind. The appellate court must also decide for itself whether, in these circumstances, the result of the refusal to discharge the jury occasioned the risk of a substantial miscarriage of justice. In other words, can the appellate court say with assurance that, but for the admission of the inadmissible evidence, the conviction was inevitable? In our view, in the particular circumstances of this case, that could not be said. [Footnotes omitted.]
After noting that the above test was well established, this Court (Beazley P, R A Hulme and Fagan JJ) in Curran v R [2017] NSWCCA 123 set out the principles in relation to the discharge of a jury as follows (at [29]-[31]): [29] This Court may only interfere if error is established in accordance with the principles in House v The King (1936) 55 CLR 499; [1936] HCA 40: see Barber v R; Zraika v R [2016] NSWCCA 125 at [24]. [30] In R v Bartle [2003] NSWCCA 329, Mason P and Barr J observed, at [80], citing Crofts, that "[t]he criterion for the exercise of the discretion [to discharge the jury] was the maintenance of the fairness of the trial" and that "[t]he test for the discharge of the jury was one of necessity". In their Honours' view, at [82], the trial judge in that case had been "correct in observing that a jury is generally likely to follow an instruction to ignore evidence which has been struck out", and they rejected the appellant's argument that the jury would have been unable to comply with a direction to put certain prejudicial material out of their mind. [31] Likewise, in Qing An v R [2007] NSWCCA 53, Beazley JA (as her Honour then was) observed, at [51], that it is clear from the authorities "that it is a matter for the discretion of the trial judge as to what course to take when an irregularity has occurred" and that "appropriate directions may, in certain circumstances, be sufficient". (This passage was cited with approval in Hughes v R [2018] NSWCCA 2 in a joint judgment of this Court at [35]).
In Bartle, Mason P and Barr J held the following at [82]: [82] His Honour was correct in observing that a jury is generally likely to follow an instruction to ignore evidence which has been struck out. The experience of the Courts is that reliance on the integrity and sense of duty of jurors is not misplaced: The Queen v Glennon (1992) 173 CLR 592 per [Brennan] J at 614-5.
The reference to The Queen v Glennon (1992) 173 CLR 592; [1992] HCA 16, in the last extracted paragraph was a reference to the following passage from the judgment of Brennan J (at 614-615): Of necessity, the law must place much reliance on the integrity and sense of duty of the jurors. The experience of the courts is that the reliance is not misplaced. In Munday, Street CJ repeated an unreported passage from one of his Honour's earlier judgments: " … it is relevant to note that the system of jury trial is geared to enable juries to be assisted in every possible way to put out of mind statements made outside the court, whether in the media or elsewhere. There is every reason to have confidence in the capacity of juries to do this. Judges do not have a monopoly on the ability to adjudicate fairly and impartially. Every Australian worthy of citizenship can be relied upon to discharge properly and responsibly his duty as a juror. Particularly is this so in the context of being one of a number or group of others all similarly charged with this responsible duty. I have great faith in the multiple wisdom and balance reflected in the verdict of a jury'." If the courts were not able to place reliance on the integrity and sense of duty of jurors, not only would notorious criminals or heinous crimes be beyond the reach of criminal justice but there would have to be a change in venue for many trials now held in circuit cities or towns where knowledge of the crime and of the alleged criminal easily acquires a wide currency outside the courtroom. Our system of protecting jurors from external influences may not be perfect, but a trial conducted with all the safeguards that the court can provide is a trial according to law and there is no miscarriage of justice in a conviction after such a trial. [Footnotes omitted.]
Appellate courts have consistently proceeded on the basis that jurors accept and obey the directions given to them by the trial judge: Gilbert v R (2000) 201 CLR 414; [2000] HCA 15 at [31]; Zoneff v R (2000) 200 CLR 234; [2000] HCA 28 per Kirby J at [65].

[28]

Conclusion regarding ground 4

In my view, no miscarriage of justice was occasioned to the appellant on account of the trial judge's refusal to discharge the jury on 16 June 2011. The incident occurred more than a month before the jury retired to consider its verdict and the trial judge was well placed to have an appreciation of the significance of the outburst in the context of the trial and the direction he proposed to give to the jury. That fell within his judicial discretion and was consistent with the decision in Bartle, namely, that reliance may be placed on the integrity and sense of duty of jurors who may be expected to accept and obey directions given to them by the trial judge.
It may be accepted that the incident of 19 July 2011 raised more difficult issues. The circumstances of that outburst were different to those under consideration in Bartle in two respects. First, the outburst occurred just over a week before the jury retired to consider its verdict and, secondly, Mr David Wilson specifically mentioned the appellant during his outburst.
Nonetheless, the question of whether or not to discharge the jury remained an exercise of the judicial discretion of the trial judge. In my view, there was no error in the exercise of that discretion and no miscarriage of justice arose from the refusal of the trial judge to discharge the jury. That conclusion is predicated upon three reasons: 1. the trial judge was well placed to assess the significance of the outburst in the context of the trial; 2. an appropriately strong direction was given to the jury; and 3. as submitted by the Crown, the deliberations undertaken by the jury over a period of six days, together with questions asked during that period, indicated that they conscientiously undertook the task given to them. They illustrated a diligent approach to their task of weighing all of the evidence rather than an approach reflecting views formed out of the outburst or some superficial examination of the prosecution of the appellant.
A complaint was also made by the appellant that the trial judge had erred in failing to discharge a jury member who had a close relative suffer a serious medical illness and pass away during the trial (the jury member returned to service after the funeral).
This ground must fail as there was no application to discharge the jury member by the appellant, either when the medical incident first occurred or after the relative had died.
Ground 4 of the appeal should be dismissed.

[29]

Ground 5: The trial miscarried by reason of the Crown's closing address

The appellant submitted the trial judge did not sum up the Crown's case and, in the result, the Crown's address is left "unchallenged". It was submitted that the Crown address thereby had the same effect as the trial judge's summing-up. As the Crown's address was seriously flawed, so too must the summing-up be flawed and misleading. The appellant contended that it must follow that there was a substantial miscarriage of justice.
In support of that submission, the appellant made a lengthy written submissions (pages 78-89 of his written submission) refuting various aspects of the Crown's closing submissions. Much of that analysis argued for alternative inferences being drawn from evidence other than those sought by the Crown. It was submitted it followed that, because alternative inferences may be drawn from the evidence the Crown's suggested interpretation of the evidence contained mistakes of fact. The appellant also returned to the question of confusion which had arisen from the fact that the Crown dealt with three containers when there were five (as earlier discussed) and further, "the ambiguity and the presentation of the evidence was unfair and caused a miscarriage of justice".
The question of an available alternative hypothesis has been addressed earlier in this judgment in the context of ground 2. To the extent that the appellant raises an issue regarding the failure of the Crown to call Mr Yusuf Puijono, the issues will be addressed in the context of ground 19 (and ground 3(b)).
In this respect, there are two bases upon which the appellant's submissions, should be rejected. First, it is incorrect to say that the trial judge did not sum up the Crown's case. His Honour did so, albeit in a short form, after summarising the submissions for the co-accused as well as making shorter references to the Crown's case earlier in the summing-up (the appellant later stated the trial judge declined to sum up the Crown case "in any great length"). Secondly, counsel for the appellant sought no correction or direction from the trial judge concerning the content of the Crown's closing address (r 4 of the Criminal Appeal Rules will be discussed further below).
This ground should be dismissed.

[30]

Ground 6: The trial miscarried because directions to the jury were understated and in error and failed to give the defence case the same consideration that was given to the Crown

The submissions in support of this ground 6 traverse matters dealt with in ground 2, namely, the evidence did not support the verdict, and ground 19, namely, that there was a failure of the Crown to investigate the appellant's defence. It is unnecessary to repeat the conclusions already reached in relation to ground 2 and ground 19 shall be addressed separately below.
The appellant's submissions in support of this ground fell into two broad categories as follows: 1. The trial judge failed to direct the jury as to the factual issues which they were required to determine. It was contended that his Honour failed to address "the extensive matrix of circumstantial evidence presented by the Crown and by the appellant to the elements of the indictment". It was argued that it was insufficient to merely summarise the evidence without identifying all the important circumstantial evidence which had a bearing upon the Crown case and the appellant's defence. It was also submitted that the trial judge failed to direct the jury as to "essential facts" arising from the police surveillance records, which would disprove the appellant's involvement in the import of the heroin. 2. The trial judge's statement of the appellant's case was "materially deficient and materially incorrect causing significant unfairness" to the appellant, thereby resulting in a substantial miscarriage of justice. Some particular elements of the failure of the summary were identified. One example was the failure to refer to evidence tendered by the appellant that he sold cigarettes to "the syndicate who it appeared upon the evidence were also involved in heroin into Australia". It was contended there was a failure to take into account the possibility of at least two separate transactions taking place at the same time. The appellant argued the trial judge continually dismissed the appellant's defence as to "the second container of cigarettes", although the trial judge identified that the Crown case was based on circumstantial evidence concerning the movements of the container containing the heroin, the meetings of the co-accused and "the counting of money". Further, it was contended the trial judge failed to draw attention to "exactly what circumstantial facts of this evidence was capable of supporting the elements of the indictment or what the appellant's alternative hypothesis was to the Crown's theories".
In dealing with these issues, it should be observed at the outset that none of the issues raised by this ground of the appeal, including the particular matters which have been summarised above, were the subject of objection by counsel for the appellant to the trial judge's summing-up. The Crown submitted that the appellant should be denied leave to ventilate matters with respect to which his counsel took no issue at trial. Reliance was also placed upon r 4 of the Criminal Appeal Rules which applies to the appellant's counsel's failure to raise any objection with respect to the directions given by the trial judge or the admission of evidence (with respect to grounds 2(b), (d) and (h)). The same issue was raised with respect to grounds 5, 7, 9, 12, 14, 15, 18 and 21(a).
The appellant's submission in this respect (which is found within the submissions as to ground 7 but will be treated, by virtue of his self-represented status, as a general contention) was as follows: The appellant contends that there was a failure on the part of the defence to raise many matter now raised in this appeal and in particular to seek directions which it is now argued were necessary if a fair trial were to be had. Throughout this appeal the appellant seeks leave under rule 4 to introduce these arguments that were not put forward at trial. In particular was the judge's failure to direct the jury as to the necessity to separate the evidence in relation to the appellant and that of his co-accused and to direct the jury as to the alternate hypothesis of his defence.
Rule 4 of the Criminal Appeal Rules is in the following terms: 4 Exclusion of certain matters as grounds for appeal etc No direction, omission to direct, or decision as to the admission or rejection of evidence, given by the Judge presiding at the trial, shall, without the leave of the Court, be allowed as a ground for appeal or an application for leave to appeal unless objection was taken at the trial to the direction, omission, or decision by the party appealing or applying for leave to appeal.
The duty of trial counsel to take objections or seek redirections at trial has been stressed repeatedly by this Court. In R v Abusafiah (1991) 24 NSWLR 531, Hunt CJ at CL said (at 536): The requirements of r 4 of the Criminal Appeal Rules do not constitute some mere technicality which may simply be brushed aside. One purpose of the requirement that no misdirection or non-direction may, without leave, be allowed as a ground of appeal unless objection was taken at the trial is to ensure that the trial judge receives the assistance from counsel to which he or she is entitled in the task of giving appropriate directions to the jury. If a summing-up contains some error which could easily have been cured once the judge's attention had been drawn to it, and if counsel for the accused to whose detriment the error operates fails to comply with his or her duty to draw the judge's attention to that error (R v Knight (Court of Criminal Appeal, 18 December 1990, unreported at 46), any suggestion that such detriment automatically entitles the accused to a new trial does not strike a sympathetic cord in the hearts of those who see the right to a fair trial as operating in favour not only of the accused but also of the Crown, which prosecutes on behalf of the whole community. The Criminal Appeal Act 1912 (NSW) does not exist to enable an accused who has been convicted under one set of issues to have a new trial under a new set of issues which he could and should have raised at the first trial. There are, of course, cases in which the error made is of such a nature that, notwithstanding the failure of counsel for the accused to comply with that duty, leave will be granted to avoid a miscarriage of justice.
In Flood-Smith v R [2018] NSWCCA 103 ("Flood-Smith"), Hoeben CJ at CL relied at [116] upon the following passage from Bathurst CJ (with whom James and Johnson JJ agreed) in ARS v R [2011] NSWCCA 266 in setting out important considerations in respect of the operation of r 4: [148] … The requirements of r 4 are not mere technicalities. The Criminal Appeal Act does not exist to enable an accused who has been convicted on one set of issues to have a new trial under a new set of issues which could or should have been raised at the first trial: R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340 at [94], citing with approval R v Fuge [2001] NSWCCA 208; (2001) 123 A Crim R 310, 319. See also Darwiche v R [2011] NSWCCA 62 at [170]. The appellant must establish that he or she has lost a real chance (or a chance fairly open) of being acquitted: Picken v R [2007] NSWCCA 319 at [20]-[21]. A failure by counsel to take objection or to raise an issue on summing-up may be explicable by the fact that counsel said nothing hoping to gain an advantage at a later stage, or that counsel took no objection as, in the atmosphere of the trial, counsel saw no injustice as to what was being done: Germakian v R [2007] NSWCCA 373; (2007) 70 NSWLR 467 at [10]-[13]; Sanchez v R [2009] NSWCCA 171; (2009) 196 A Crim R 472 at [58]-[61].
At [117] of Flood-Smith, Hoeben CJ at CL relied upon the decision of Bathurst CJ (with whom Leeming JA, R A Hulme J, Hamill J and N Adams J agreed) in Obeid v R [2017] NSWCCA 221 in addressing those circumstances in which leave might be given pursuant to r 4, as follows: [24] … To that extent, they raise matters which, if correct, would constitute a miscarriage of justice and thus r 4 would have no application. Whilst I accept, as Basten JA has pointed out in Greenhalgh v R [2017] NSWCCA 94 at [14], that the exercise of the discretion to grant leave conferred by r 4 cannot be proscribed, the discretion in my opinion will be exercised in the appellant's favour where there has been a miscarriage of justice such that the appellant has lost a real chance of acquittal: see ARS v R (No 2) [2011] NSWCCA 266 at [147]; Greenhalgh supra per N Adams J at [47]-[48].
Turning specifically to the first issue, there was no objection made by counsel for the appellant to the trial judge's directions of the kind relied upon by the appellant in this appeal. Given the conclusion reached with respect to ground 2, I do not consider that there is a proper basis to exercise a discretion to grant leave in favour of the appellant to bring this ground of appeal.
As to the second issue raised by the appellant, no objection was taken by counsel for the appellant to the summing-up by the trial judge of the appellant's submissions. The trial judge gave a reasonably lengthy and adequate summary of the appellant's case both in absolute and relative terms (compared to the summary of the other co-accused and the Crown). The trial judge's summing-up could not be described as unbalanced in favour of the Crown.
The Crown drew particular attention in this respect to some observations made by his Honour to the jury which were apposite and set out below: You might think I am not doing service to the Crown case, but the fact is that you have had the experience of listening and reading the calls, both the conversations from the hotel rooms, the intercepted telephone calls, the SMS messages, et cetera. You have had the opportunity during the production of that material in the Crown case for it to be replayed so that you could better discern what varying opinions were put by parties at the bar table and occasionally by me as to what could be heard or not. You have also had during the course of the cross-examination of Mr Xavier and Mr John Wilson the Crown putting, in effect, its case in respect of what it said you would make of those calls, or conversations - whether or not that was accepted by Mr John Wilson or Mr Xavier, allowing of course for the fact that questions are not evidence, it at least gave you some idea as to what the Crown case was, and in particular, I remind you that the Crown has taken you through in detail all of that material in the course of his address. And that is, apart from some documentation and matters of that nature, that is the heart of the Crown case.
Ground 6 should be dismissed.

[32]

Ground 7(b): His Honour erred in failing to give a clear separation of evidence

Some aspects of ground 7 have similarities to those raised with respect to ground 6 and, in that respect, my observations in this context may be taken as having a bearing upon the issues raised under ground 6.
The primary errors contended for by the appellant with respect to this ground were as follows: 1. issuing the jury with a common set of written directions without specific directions relating to the differences in the evidence as to each of the accused, thereby indicating that the case should be considered against each of the co-accused as a whole and not individually; 2. giving the jury a set of written directions and leaving them to "fathom the case for themselves….especially…in relation to the Crown's case"; 3. directing the jury that they could rely upon the Crown's address as evidence; 4. providing no directions on matters of law; 5. failing to direct the jury that the overt act of the appellant travelling to Adelaide did not constitute sufficient proof of the conspiracy charged; and 6. giving the jury the same written directions and asked to consider the evidence as a whole in which the judge failed to separate the admissible evidence against each of the accused upon which the jury were asked to consider their verdict. The appellant contended the manner in which the trial judge presented his written directions to the jury may have "left the jury believing [their] task was to consider together with the whole of the evidence, relating to three separate imports, to determine whether each of the accused were party to the conspiracy charge; in effect, directing the jury to consider a single conspiracy which involved three different imports".
I have earlier extracted with approval the Crown summary of the summing-up of the trial judge. Within that summary is a reference to the direction given by the trial judge to the jury to consider the case for each of the accused individually. The direction given in that respect was as follows: In this trial there are three accused. Each is charged with the same offence. There are in reality three separate trials occurring at the same time. It is really a matter of convenience that all three trials have been heard at the one time. It is convenient for the accused to be tried together because the evidence in the trial is admitted in respect of all accused with the exception of Exhibit 220, being the Vodafone SIM cards and fax located during the search of Room 1255 at Rydges Hotel on 20 March 2008, when Mr John Wilson was arrested. When you retire to consider your verdicts, you need to give separate consideration to your verdict in respect of each accused. There is nothing in law, or for that matter, common sense which requires you to return the same verdict in respect of each individual accused. It is not a matter of one in, all in, or one out, all out. You may find all accused not guilty or guilty, or one or more accused not guilty, and one or more accused guilty. You are required to give separate and individual consideration to your verdict in respect of an individual accused. Under our system of law, your verdict, separately considered in respect of each accused, whether it is guilty or not guilty, must be unanimous. As this is a prosecution for a Commonwealth offence, majority verdicts are not recognised. That is not to say that each of you must agree upon the same reasons for your verdict. You may individually rely on different parts of the evidence or place a difference emphasis upon parts of the evidence. However, by whatever route you each arrive at your decision, that final decision of either guilty or not guilty must be the decision of all you unanimously before it can become your verdict.
The trial judge provided written directions as to the elements of the offence which were specific to each accused (see, in the appellant's case, Supplementary Appeal Book p 264-274). His Honour then went through those elements collectively in some detail together with an examination of the case of each of the co-accused in accordance with the material provided to him by the parties. By his submissions as to ground 6, the appellant accepted that the trial judge had summarised the Crown case but had not done so in depth. The summation of the Crown case was certainly not as lengthy as the summary of the cases for the co-accused and was less detailed in that respect. However, I agree with the submission of the Crown that it was nonetheless adequate and, as I have found, not unbalanced against the appellant. Indeed, it is an unusual complaint for an appellant to make that a review of the Crown case in a summing-up was too short.
The jury was not directed that the Crown's addresses were evidence. At the outset of each of the addresses, the trial judge gave the jury the standard direction to the effect that it was not evidence. In the course of his Honour's summing-up, the trial judge reminded the jury that the Crown had taken them through the evidence in the course of his address.
The jury was required to consider the evidence as a whole in determining whether an element of the offence had been proved. As mentioned, his Honour gave directions to the jury on matters of law. What inferences may be drawn from the particular evidence and whether the evidence was sufficient to prove an element of the offence was a matter for the jury and not for the trial judge.
This ground should be dismissed.

[36]

Ground 10: The trial miscarried because the Crown presented a conspiracy charge when the substantive [offence] was available

It was submitted by the appellant that the Crown had a substantive charge available to it ("attempt to possess") but determined to bring a conspiracy charge. It was contended the opening address of the Crown gave the appearance that the appellant was involved as an "accessory after the fact". Further, the appellant argued it was only after the arrest of Mr Standen that the conspiracy charge was laid. The appellant submitted that, whilst the conspiracy charge gave the Crown more leeway to prosecute, this was unfair to him as he was unable to respond to the Crown case at such a late stage of the proceedings. (The Crown opening did not purport to define the precise conspiracy alleged by the Crown).
It was further contended that, by running the conspiracy charge, it resulted in inconsistent verdicts between the appellant and his brother.
Further, it was contended the manner in which the Crown presented its case to the jury required the jury to "in effect [to] determine, in respect of the appellant, whether he was a party to the substantive offence" and then go a further (seemingly unnecessary) step to draw from that finding an inference that his participation was pursuant to an agreement amounting to the conspiracy charge. This "placed an unnecessary burden on the jurors, which was both confusing and unnecessary". The appellant submitted the conspiracy charge was calculated to cause the greatest difficulty to the trial judge in controlling the trial and the appellant in defending himself.
I reject these contentions.
The decision about what charges should be laid is a matter of prosecutorial discretion: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57 at [30] (applying Maxwell v The Queen (1996) 184 CLR 501). It is not a matter which, of itself, is able to cause a trial to miscarry, except in most unusual circumstance, none of which apply here.
The nature of the charge did not prevent the appellant from mounting a defence to the charge. Nor is there any basis in law to allow an appeal on the basis that a jury may have been "burdened" by the nature of the charge. Courts have consistently found that juries approach their task conscientiously and are able to make difficult determinations with appropriate guidance from trial directions: Dupas v The Queen (2010) 241 CLR 237; [2010] HCA 20 at [26]-[28].
As previously stated, the length of the jury deliberations and the nature of its questions suggest the jury undertook its task conscientiously and without confusion.
The appellant's submissions in relation to inconsistent verdicts were dealt with earlier in this judgment.
This ground of appeal should be dismissed.

[37]

Ground 12: The trial miscarried by reason of the failure of the circumstantial evidence to prove beyond reasonable doubt that the appellant had the requisite knowledge of the conspiracy and his Honour's failure to sufficiently direct the jury as to the law relating to knowledge

In summary, the submissions of the appellant under this ground were as follows: 1. "The circumstances that the appellant may have had knowledge of the heroin secreted in the items of furniture or that the appellant had knowledge of the heroin being imported into Australia was not in itself capable of proving that the appellant was party to the conspiracy". 2. The engagement by persons in unlawful activities or even making an agreement to do certain things is "insufficient to impute to them an agreement with each other and a mutual intention to achieve a general unlawful object suggested by the totality of their individual practices". 3. The alternate hypothesis was "totally consistent with the evidence and that the Crown failed to dispel a rational hypothesis consistent with innocence" (consideration of which was undertaken with respect to ground 2). 4. As a further part of this ground, attention was directed to the fact that the jury, after indicating they had reached a unanimous verdict with respect to two of the three accused, one of which was the appellant, sent a note to the trial judge seeking a further direction as to the knowledge of the contents of the three pieces of furniture. That jury note was extracted in the submissions of the Crown (being MFI 123 in the proceedings) and was in the following terms: Your Honour, in regard to the different opinions of some members of the jury for or against one of the accused, I need further direction with the interpretation of "knowledge of the contents" of the three pieces of furniture because one member of the jury believes that the interpretation has been inconsistent to suit their own personal position on the issue of the knowledge of the contents. What has to happen specifically in the chain of the conspiracy to prove knowledge? Given that we have used the same evidence before us to reach a unanimous verdict on two of the accused but somewhat interpreted the information differently in regards to one of the accused. The same one of the accused also indicated that he has been requesting some documents from the AFP for three years. Question, is the jury allowed to ask what that might be? If yes or no, is it something that may be relevant to the jury in addressing this one issue about knowledge of the contents of the three pieces of furniture of lack of knowledge of it.
The first three of the above contentions at [219] must be resolved adversely to the appellant having regard to the conclusions reached by me with respect to ground 2.
As to the further consideration regarding the note received from the jury, two observations may be made. First, as noted by the trial judge, the content of the note was clearly directed to Mr David Wilson, including the content of one of his outbursts which the jury had been expressly directly to disregard. Secondly, the unanimous verdict with respect to the appellant and Mr Xavier occurred after the jury had sought further direction as to the knowledge that was required to establish the guilt of the offence charged.
It follows that the jury were properly instructed with respect to the question of knowledge vis-à-vis the appellant. The further inquiry by the jury as to the prosecution of Mr David Wilson did not undermine that verdict.
This ground should be dismissed.

[40]

Ground 16: The trial judge erred in admitting evidence of the appellant's alleged involvement in the two previous importations as "relationship evidence"

On 17 March 2011, prior to empanelling, counsel for the appellant objected to the admission of evidence intended to be adduced by the Crown as to the following matters: 1. the possession of any money by the appellant at the time of his arrest; 2. the counting of money by the appellant or by others in the presence of the appellant at any time; 3. the carriage of money by the appellant or by others allegedly in furtherance of a conspiracy to import heroin into Australia; and 4. the previous importation of any containers into Australia by any of the alleged co-conspirators.
At the voir dire hearing on 17 March 2011, the argument concerning item (4) above centred on the following evidence: 1. the conversation in Room 1159 of the Star City apartments between Mr David Wilson and Mr Xavier on 21 February 2008; and 2. the conversation in Room 1159 between Mr David Wilson and the appellant, in the presence of Mr Xavier on 24 February 2008.
The evidence on the voir dire (exhibit 1) was not able to be located by the Crown.
The Crown submitted that the evidence of prior importations was relevant as relationship evidence, as well as being evidence of a system. The Crown also submitted that the evidence would be admissible as context evidence. The Crown Prosecutor at trial relied on the evidence as relationship evidence (referring in that respect to R v Chan (2002) 131 A Crim R 66; [2002] NSWCCA 217) and evidence of a system, namely, the use of furniture to conceal consignments. The Crown Prosecutor did not press the evidence as tendency evidence.
On 14 July 2011, the trial judge delivered a judgment in relation to the evidence of previous importation of containers, together with his ruling on the other three pre-trial arguments concerning the possession, counting and carriage of money. The relevant aspects of his Honour's judgment in relation to the previous importation of containers falls in two parts. First his Honour identified the evidence objected to: [14] On 21 February 2008, in Room 1159, Jose Xavier and David Wilson in the absence of John Wilson discuss the importation of previous containers as well as the container yet to be delivered. [15] From the content of the conversation, the jury may infer: (a) That the conversation relates to two previous containers in respect of which David Wilson is complaining about the benefit he received, at least in respect of the second container, in circumstances where he states that he had informed his brother, John Wilson, that he would not perform his role in the importation of the second container unless he was to receive $250,000, but in fact only received $55,000. (b) That even if he was to receive $100,000 to perform his role in respect of the yet to be delivered container, it would not justify the risk of fifteen years imprisonment, if he was arrested. (c) That he would not perform his expected role in the importation of the yet to be delivered container unless he received the balance of the $250,000 for the second container and was to receive a further $250,00 in respect of the container yet to be delivered. (d) That the past and present arrangements were not "professional" in that: i. the quality of the furniture previously supplied and anticipated in the yet to be delivered container was so poor that it was appropriate to burn it rather than sell it, which would be suspicious, and ii. there was no financial trail that might evidence a legitimate importation of furniture from Indonesia or any subsequent sale in Australia. (e) That he was negotiating the terms of a future criminal enterprise to be established on a more "professional" basis, either with or without participation by John Wilson. (f) That Jose Xavier was endeavouring to persuade David Wilson to participate in the current importation, as he would receive for his role $60,000 in Euros (approximately AUD $100,000 at the time) said to be 10%. [16] Some of the relevant passages to the above inferences are: Page 29 and following - David Wilson: "What I said to John man … please listen. What I said to John before this container came. I don't give a fuck the very first container … I don't give a fuck how much you pay … this is my price. The way I look at it, I am not going away for a 100 fucken grand, I've got my boy (son). I don't give a fuck if I am poor for the next 20 to 30 years. You understand me. That's how I think okay. If I go away for 15 years and you pay me a 100 grand that's not fucken … that's not nearly 5 grand a year". Jose Xavier: "If you fucken want to work for me … interest … have every fucken avenue fucken covered, everybody is fucken covered … tomorrow … every … fucken miracle" David Wilson: "I think up to now we have been very lucky … The first one … gone. I got 55 thousand, you know that … The second one … the last one before yours. I said I was 250 … You understand why I am so fucken agro … I want my fucken 250 mate …." Page 43 and following - David Wilson: "…you can't keep sending me shit, I can't sell, I can't sell ... Can't sell at auctions mate. I can fucken burn it when I burn it people will look. You understand the position … I need something to sell. Saleable." Jose Xavier: "My gang is serious … Listen, fucking nothing like hit and miss. Fucken do it, do it properly. I made 3 fuck sorry 4,5 million dollars in the past. Now the thing is … my mate … getting fucking containers in the fucking … 2 or 3 … Have you fucken done it before." David Wilson: "Yes. You got to show it on paper."
His Honour's conclusions in relation to the previous importation of containers was as follows: [32] The evidence of conversations relating to the two earlier containers and the evidence of the possession, counting and carriage of monies are inextricably related to each other and to the alleged conspiracy. … [34] The evidence of conversations relating to the two earlier containers and the conversations and evidence of the possession, counting and carriage of monies is admissible as relevant to a number of issues or possible issues in the trial: i. The existence and nature of the conspiracy; ii. Knowledge of the conspiracy; iii. Participation in the conspiracy; iv. Being in furtherance of the common unlawful purpose of the conspiracy; v. The relationship between the alleged participants as to their roles in an established system of importing containers and dealing in large sums of cash money; and vi. To rebut any suggestion of a genuine importation of furniture in respect of the intercepted container. [35] On the application, [counsel for the appellant] has referred to the fact that the Crown has not in respect of this evidence provided a Tendency Evidence Notice and/or Coincidence Evidence Notice as required by s 97(1)(a) and/or s 98(1)(a) of the Evidence Act 1995, if the evidence sought to be adduced is to be used for a tendency and/or coincidence purpose. The Crown is not using the evidence as tendency or coincidence evidence, and a notice is not required. That is, the Crown does not adduce the evidence of the earlier container imports as relevant to a "tendency" to import heroin, or as a coincidence of an earlier importation of heroin relevant by "coincidence" to the importation the subject of the conspiracy. [36] The evidence relating to both the earlier importation of containers and the dealing in monies as previously outlined is of very high probative value for the reasons referred to in paragraph 34 herein. [37] In particular, in respect of the conversations relating to the two earlier containers [counsel for the appellant] has submitted that it will lead to the jury speculating about the contents of those containers to the prejudice of John Wilson. By logical extension, this submission applies similarly to David Wilson. [38] The Court accepts that the jury may speculate about the contents of the two earlier containers as including or being likely to include heroin. Indeed, the Crown "Summary of Facts", Exhibit VD 3, refers directly to that possibility; "at least one of those earlier consignments was likely to have contained heroin." [Original emphasis.] [39] The Court further accepts that any such speculation may have a prejudicial affect on John Wilson and/or David Wilson but not that it would be "unfairly prejudicial" within the meaning of s 135 (a) of the Evidence Act 1995. To the extent that there may be any "unfair prejudice", that is any real risk that the jury would misuse the evidence in some unfair way, such as by adopting an illegitimate form of reasoning, or giving the evidence undue weight, the Court is confident that this can be dealt with by appropriate direction. The Court finds that any danger of "unfair prejudice " is substantially outweighed by the very high probative value of the evidence, which also substantially outweighs any danger that the evidence might be misleading or confusing [s 135 (b)], or cause or result in undue waste of time [s 135 (c)]. … [41] Indeed, both the evidence of the two earlier containers and the monies are essential to understanding the relationship and roles of the alleged conspirators and the existence and nature of the alleged conspiracy. The probative value of the evidence the prosecution intends to adduce is not outweighed by any danger of unfair prejudice to either John Wilson or David Wilson, [s 135 (a) of the Evidence Act 1995.] Any real risk of "unfair prejudice" can be addressed by appropriate direction. [42] If the Court is wrong in finding that the evidence was neither tendency or coincidence evidence as referred to in s 97 and s 98 of the Evidence Act 1995, the Court on application would have dispensed with the requirement [s 100(1) and s 100(2)] of reasonable notice in writing [s 97 (1)(a) and s 98(1)(a)], holding that it had significant probative value [s 97(1)(b) and s 98(1)(b)] and would have found that the probative value of the evidence substantially outweighed any prejudicial effect it may have on John Wilson or David Wilson [s 101 (2)] for the reasons already referred to herein.
Later on 8 April 2011, counsel for the appellant objected to the evidence of Mr Peter Kasmeris, a director of Complete Freight Pty Ltd, concerning two files in relation to Costless Group which were created earlier than the file with respect to the importation containing the heroin.
The directions given by his Honour in that respect, as well as the two previous container shipments, were as follows: It is important that I explain to you the relevance of this evidence of earlier container imports. It was admitted for the purpose of placing the importation of the third container relied upon by the Crown to prove the charge on the indictment into what the Crown says is a realistic context. That is, a context of an existing relationship and system. … It is not the Crown case that these two earlier containers were part of an ongoing conspiracy, and you must not speculate as to what may have been contained in them. The fact that there were two earlier containers is relevant to understanding the conversations, particularly between Jose Xavier and David Wilson, where they refer to the two earlier containers and payments and of the later conversations between David Wilson and John Wilson, where Jose Xavier was also participating - where John Wilson, you may think, appears to be abusing David Wilson for going behind his back to Jose Xavier. Therefore, it is open for the Crown to lead evidence of the two earlier containers, to place the third into context of an ongoing relationship and system so that the conversation between the accused can be better understood. However, I must give you some important warnings with regard to this evidence. You must not use this evidence of earlier containers as establishing a tendency on the part of the accused to commit offences of the type charged. You must not substitute the evidence of the earlier containers for the evidence of the specific offence on the indictment, and you must not reason that because the accused may have done something wrong on another occasion, they must have - he or they must have done so on the occasion the subject of the indictment.
During the course of the trial the jury sought clarification as to how to treat the evidence concerning the two earlier containers. The jury note was in the following form: The jury seeks clarification of the evidence in respect of the June July and December January containers, particularly the ways in which it may properly be employed and inferences drawn from it. The phrase "evidence of system" was raised a number of times through the proceedings and in your directions. It was also directed that we must not speculate as to the contents of those other containers. Does content relate to system at least insofar as the object of the system? Is the content of the container a defining element of system? Also is evidence of system to be seen as distinct from evidence of the object or goal of that system?
Extensive debate as to the appropriate redirection followed, in particular as to whether proposed directions invited a tendency argument. In the course of that debate, the trial judge admitted to having difficulty in determining appropriate directions. Ultimately, the trial judge repeated the direction that he had given earlier with some minor amplification. That amplification included the fact that the relevant part of the evidence was that the first two containers and the third container were declared as being furniture. The trial judge noted that, without that evidence, the jury would have had significant difficulty in understanding the conversations that took place, particularly the conversation contained in exhibit 40. His Honour then directed the jury as follows: Part of your question was "Does content relate to system at least insofar as the object of the system?". Content relates to system only insofar as in relation to the three containers, the declared content was furniture. You went on to ask "Is the content of the container a defining element of system?". Remember that I have asked you not to speculate about the content of the containers. The declared content in each case was furniture. To that extent the declared content is relevant to your understanding of system, but it is not a defining element of system. It is simply a relevant consideration into whether you appreciate or not, or infer that there was a system. You have also asked "Is the evidence of system to be seen as distinct from evidence of the object or goal of that system?" and the answer to that final question is it is to be seen as entirely distinct from evidence of the object or goal.
The arguments advanced by the appellant on this ground were similar to those advanced in the pre-trial hearing. He submitted that the decision to allow the evidence of the previous importations of containers into Australia was prejudicial to the extent that the Crown then led evidence about more than one conspiracy when only one conspiracy was charged. It was further contended that the late introduction of additional evidence caused confusion in the appellant's case. Whilst the jury was directed that they should not use the evidence of previous containers as tendency evidence, at no stage were the jury directed as to whether the appellant had been charged in relation to those previous imports and whether the evidence of those previous imports needed to be proved beyond reasonable doubt.
The appellant also relied upon the outcome of argument over the jury note to contend that the evidence should not have been admitted and there was, therefore, a miscarriage of justice. The jury note demonstrated that the notion that the evidence could demonstrate a system was flawed because the jury had evidence as to payments made for those containers which were in very large sums. As the Crown had invited the jury to speculate what was in the June-July container that was worth $250,000, it was particularly prejudicial when the Crown had not proved the participation of the appellant in any of the two earlier containers to the requisite standard.
In my view, his Honour was correct to conclude that the evidence was highly probative of the Crown case. His Honour did not err in the admission of the evidence without which it would have been difficult to understand some of the various conversations relating to the importation giving rise to the conspiracy charge.
I do not accept the evidence was left to the jury as tendency evidence (the Crown expressly disavowed reliance for that purpose): Masri v R [2015] NSWCCA 243 at [50] (per Simpson J (as her Honour was then) with whom R A Hulme and Bellew JJ agreed). The jury were directed not to speculate to the content of previous containers.
Any unfair prejudice arising to the appellant from the potential misuse of the evidence was amply dealt with by the directions given to the jury; both in their initial form and as amended after the jury note (noting that the system was confined to the fact furniture was transported). Further, once the evidence was admitted, the appellant's counsel did not seek to call evidence of heroin importation by persons other than the appellant. Nor was there an application for a separate trial.
This ground should be dismissed.

[50]

Ground 3(b): Failure of the Crown to call material witnesses

As earlier mentioned, the appellant submitted that there had been a miscarriage of justice due to the failure of the Crown to call certain evidence, and, in particular, Mr Yusuf Pujiono and Mr Rick Lee.
The evidence that the appellant submitted was available from those persons at trial was as follows: 1. Mr Pujiono made two statements to Federal Agent Thomson. He stated that Mr Xavier had given him 69 blocks of heroin to secrete in the three items of furniture prior to the container being shipped to Mr David Wilson. The appellant contended that Mr Pujiono was also able to confirm the appellant's defence that the cigarette container had been confiscated and that Mr Jones' container with the heroin had been sent in its place. 2. I have earlier referred to the fresh evidence sought to be called from Mr Lee. Mr Lee swore an affidavit stating that he helped to unload the container with Mr David Wilson and there were four items of furniture put aside near to the door, which Mr David Wilson told Mr Lee were to be transported to Sydney. This occurred prior to the appellant's arrival in Adelaide late on 13 March 2008. 3. As earlier mentioned, the appellant sought to call evidence from Mr Lee in the form of a statutory declaration and evidence of Mr Pujiono by means of a recorded conversation or interview between the appellant's wife and the solicitor and Mr Pujiono.
I will deal initially with the issues arising with respect to the calling of evidence of Mr Pujiono and Mr Lee at trial together with the appellant's application to call fresh evidence from those persons before dealing with other considerations arising with respect to fresh evidence. In each case, with respect to the question of fresh evidence, I have had regard to the principles enunciated in that respect by Kirby J in R v Abou-Chabake (2004) 149 A Crim R 417; [2004] NSWCCA 356 at [63] and Aouad v The Queen (2011) 207 A Crim R 411; [2011] NSWCCA 61 at [303].

[51]

Mr Yusuf Pujiono

The appellant provided an unsigned statement of Mr Pujiono, prepared on an AFP letterhead and dated variously 28 November 2008 and 13 January 2009. In it, Mr Pujiono states that Mr Xavier asked him to arrange a shipment of furniture to Australia. He further states that Mr Xavier gave him a bag of about 30 packages which he placed inside three teak TV cabinets which were in the consignment for shipment to Australia and that he did not ask any questions because Mr Xavier was a big buyer in and around Jepara and he did not want to lose Mr Xavier as a customer. The statement says nothing about cigarettes.
In an affidavit of Mrs Elly Feriatissa Praesetyowati, the appellant's wife, dated 12 October 2015, Mrs Praesetyowati set out details of her visits to PT Rock International Tobacco ("PT Rock") on 4 November 2009 and 3 March 2015 to obtain a copy of the invoice for the appellant's cigarette purchase, and stated that following promises that a copy of the document would be provided, it was ultimately refused. Mrs Praesetyowati stated that she met with Mr Pujiono on 15 and 16 November 2014 and that he confirmed that the appellant had purchased cigarettes and that a container had been seized by customs. However, no invoice was provided. An undated and uncertified translation of a conversation between Mrs Praesetyowati and Mr Pujiono was provided regarding the cigarettes which the appellant allegedly purchased from Mr Pujiono.
In an affidavit of the appellant's daughter dated 12 October 2015, she set out details of her meetings with Mr Pujiono on 15 and 16 November 2014 and her visit to PT Rock on 3 March 2015, in similar terms to that provided by her mother.
The evidence of the appellant's wife and daughter is hearsay, and therefore not admissible as to the truth of what they state they were told by Mr Pujiono.
The appellant contended that the failure by the Crown to call Mr Pujiono to give evidence at trial gave rise to a miscarriage of justice. However, Federal Agent Thomson gave evidence that he had taken two or three statements from Mr Pujiono, who was, at one point, going to travel to Sydney to give evidence at the trial, but ultimately did not do so. Federal Agent Thomson was advised "some time ago" that Mr Pujiono would not be available to give evidence. As the Crown submitted, no explanation was sought or given regarding the change in position as to the attendance of Mr Pujiono. In that light, the appellant's submission in this appeal that Mr Pujiono did not refuse to give evidence, but his lack of attendance was a function of a failure by the Crown, may not be accepted.
It is difficult to envisage on the material before the Court how the evidence of Mr Pujiono might have caused the jury to entertain a reasonable doubt as to the guilt of the appellant. The arrangement by Mr Xavier of a shipment of furniture from Indonesia to Australia concealing a substance wrapped as blocks in three cabinets is consistent with the Crown case. That Mr Xavier arranged the shipment from Indonesia does not establish that the appellant had no involvement in the conspiracy.
The Crown submitted that, with some substance, even if he were to confirm that the appellant had been involved with a container of cigarettes that was detained by Indonesian customs (and there is no indication that he would do so), it does not follow that the appellant was not involved with the furniture import containing the heroin.
Finally, in this respect, it might be noted that the appellant did not have Mr Pujiono available to give evidence in these proceedings, but rather sought to tender his recorded conversation.
These reasons constitute the reasons for upholding the Crown's objection to the calling of evidence from the appellant's wife and daughter (who were also not available to give evidence), and Federal Agent Cook, who interviewed them (according to the appellant). They also represent reasons why the appeal grounds based upon a "failure" to call Mr Pujiono at trial should fail.

[52]

Mr Rick Lee

As mentioned earlier, the contents of the affidavit of Mr Lee were taken as an agreed fact for the purposes of this appeal.
It is arguable that this evidence was constructively (if not actually) available at the trial. However, it is unnecessary to resolve that question as the evidence so received, when taken at its highest, would not result in a conclusion that the jury verdict could not stand.
The evidence of Mr Lee is consistent with the evidence of Federal Agent Goss that the truck was unloaded by Mr David Wilson, Mr Roubi Abdelsattar Zaied and a third unidentified person. It corroborates the Crown case of Mr David Wilson extracting three items of furniture that were concealing the heroin from a container of furniture delivered from Indonesia.
The Crown accepted the appellant's contention that, if Mr David Wilson knew which pieces of furniture to set aside (which contained the drugs), then the appellant could not have conveyed that information to Mr David Wilson when he arrived in Adelaide late on 13 March 2008. However, that was not the Crown's case at trial. As noted above at [68(13)] (which relates to exhibit 139), it was the Crown's case that Mr Xavier had told Mr David Wilson which pieces of furniture needed to be removed, not the appellant. I accept the further submission of the Crown that this circumstance, taken with the evidence at trial, would not have created doubt about the appellant's guilt having regard to the earlier determination of appeal grounds 2, 3(a), 8, 11 and 13 and, in particular, aspects of the appellant's evidence at trial which was either implausible or unable to provide an explanation with respect to evidence which implicated the appellant in the subject offending.
The failure to call Mr Lee to give evidence at the trial did not, in my view, give rise to a miscarriage of justice. The fresh evidence (the substance of which was received in the hearing of the appeal) was not capable to raising a reasonable doubt about the conviction of the appellant.

[54]

Other issues regarding evidence

The appellant raised a number of other issues regarding evidence. That material concerned the following: 1. I have earlier dealt with the appellant's submission that he was prevented from introducing evidence about prior heroin imports by Mr Xavier because Mr Xavier's counsel negotiated with the Crown to have all evidence excluded. 2. The appellant submitted that, as Mr David Wilson was not convicted at trial, the evidence led at trial of Mr David Wilson's involvement in the conspiracy "is no longer valid and can no longer [be] said to implicate him in the conspiracy, as it can no longer be said that there was a consensus ad idem between the appellant and his brother to import the heroin into Australia." As mentioned earlier, the jury was unable to reach a unanimous verdict in respect of Mr David Wilson. However, the jury was still entitled to consider the evidence concerning Mr David Wilson as part of the Crown case against his co-accused and to draw inferences from that evidence to the extent that it related to their involvement in the conspiracy. 3. In the appellant's written submission (at pages 147-148), the appellant also provided information which the appellant claimed to have received regarding the cigarette container which was confiscated by Indonesian authorities, including details of the vendor of the cigarettes (being PT Rock International Tobacco), names of employees of that company with whom he dealt and details of the freight forwarding company that processed the container (being Mutiara Samudra Biru). The appellant submitted that the Crown had resources with which it could have investigated the substance of the appellant's defence but, "for strategic reasons," chose not to do so. The appellant provided details of investigations undertaken by him or others on his behalf to confirm his defence without success. Material relevant to those investigations was included in the additional material provided to this Court by the appellant.
There are a number of reasons why this material should not be admitted on this appeal: 1. The material was obtained after the trial but is inadmissible in the form sought to be admitted. 2. The material is neither corroborative of the appellant's contention he was in the cigarette business nor his defence that the conversation in evidence at trial concerned cigarette imports and not heroin.
For completeness, it should be mentioned that the appellant mentioned the evidence of Mr Roubi Abdelsattar Zaied. This is consistent with the Crown case that 3 people unloaded the container on 13 March 2008 and adds little to the appellant's case. The appellant did not mention this evidence in his oral summary of fresh evidence but in any event, the appellant should not be given leave to adduce this evidence.
Grounds 19, 19(c) and 3(b) of the appeal should be dismissed.

[57]

Ground 21: The trial miscarried because of the conduct of Crown and trial judge

The appellant submitted that the Crown and the trial judge were "continually making inflammatory statements to the jury and misrepresented the evidence of the appellant, thereby depriving him of a fair trial".
In relation to the Crown, the appellant made complaints about the following matters: 1. references being made to the appellant being a bigamist; 2. references being made to a previous smuggling operation off the coast of England, raising issues of character which the judge had told the Crown not to introduce; 3. references being made to the appellant making derogatory remarks against women; 4. the Crown's belittling attitude towards the appellant's barrister when presenting the appellant's defence case; 5. references to comments made by the appellant regarding a cocaine bust on TV; 6. references to there being only three containers throughout the trial; and 7. failure to question Mr Xavier about where the container with the heroin was supposed to be sent, if it was sent by mistake.
As to the trial judge, the appellant referred to the following factors in support of this ground: 1. "continual reference" to the appellant being a bigamist; 2. the mention of cocaine use by the appellant; 3. the refusal to direct the jury as to Mr David Wilson's mental health issues, despite the jury's request for such information; 4. failure to discharge the jury despite numerous applications that he do so (see ground 4 above); 5. failure to discharge Mr David Wilson from the trial; 6. failure to direct the jury as to "the cut-throat allegations" of Mr David Wilson (see grounds 6 and 17(d) above); 7. failure to direct the jury that a defence request had not been met in that agent Federal Agent Thomson failed to investigate the appellant's defence (see grounds 6 and 19 above); 8. interfering in the trial by allowing Mr David Wilson more time to prepare his case and promoting Mr David Wilson to cross-examine the appellant when he had notified the Court that he had no wish to do so; 9. interference in the cross-examination of the appellant by his brother, thereby strengthening the Crown's position that the evidence related to 3 containers when the appellant's defence was that there were 5 containers; 10. failure to direct the jury as to the favourable evidence given by Mr Xavier and Mr David Wilson which strengthened the appellant's defence (see grounds 6 and 18 above); 11. the conduct of the trial such that the appellant remained in the witness box for a period of over 30 days, in particular to provide Mr David Wilson with additional preparation time; and 12. failure to discharge a jury member who had a close family member die during the course of the trial (see ground 4 above).
As to the issue of inflammatory statements, the Crown accepted that the following statements were made regarding the defence case during the course of the closing address of the Crown prosecutor: 1. "a fabricated load of nonsense" ; 2. "palpable nonsense"; 3. "simply a nonsense"; 4. "absolute and utter nonsense"; 5. "palpably laughable" and "just rubbish"; 6. evidence which "did not stand even in passing up to any logical or rational interpretation of reality"; 7. "abject rubbish"; and 8. "preposterousness".
The Crown submitted that the above descriptions of "part" of the defence case were apt having regard to the fact that, as contended with respect to ground 2, the appellant's evidence was patently implausible and was contradictory at the time of the hearing of the appeal. The Crown also relied upon the fact that no complaint was made to the trial judge about the Crown's closing address and no specific direction was sought in that respect. Nonetheless, it was accepted that the language was unusually strong.
Immediately after the references in [304(5)] above, the Crown Prosecutor submitted: Not the sort of submission that often falls easily from somebody who has the privilege of appearing for the Crown about an accused's evidence but there are portions of what fell from him which simply did not stand even in passing up to any logical or rational interpretation of reality.
Counsel for the appellant took issue with the Crown's approach with some vigour in his closing address. That submission is set out at some length to fully capture its effect: When you go to the jury room to deliberate your verdict every time you are about to say to the others "but the Crown said", if what you're about to remind the other jurors of was an opinion of the Crown it was probably irrelevant and you can properly, if it disagrees with your understanding of the case and the evidence, you can properly and fairly disregard it. On the day before he said what I think is not relevant, on the day he before he said that, 53 pages earlier in the transcript at page 4017, the Crown told you what he thought: Mr Wilson's evidence was rubbish. It was laughable. The defence case about the money from the cigarettes was a red herring. The Crown's opinion is not relevant but that didn't stop the Crown telling you what his opinion was. Laughable? I'd say not. A number of times I saw the Crown turn to you members of the jury and smile knowingly at you. Do you remember the time I mispronounced the word "chiffonieres"? I've always had a problem with French. When I was 12 they laughed in school when I mispronounced, when I spoke about a rendezvous. I knew what it meant but I never actually connected the sound with the writing before. And I've never bought a chiffonier in my life. I have a bathroom not a sideboard to wash on. I've got a few chests of drawers. I know I can say that. Remember that laughter has a profound effect on people and don't worry about me because I do this for a living. You've got to think what effect it had on John Wilson when he saw people laughing at his barrister. He must have struggled to cope with that. But you need to think about that. Shortly after that relatively low point in the trial I showed John Wilson a transcript and he wasn't in it. Blast. And John Wilson pointed that out. I heard the laughter of the Crown. This is a Court of law. We're here on a criminal trial and it has to be fair. There were three times when the Crown was cross-examining the two accused who gave evidence in this trial and he mis-described a document that was given to the witness and I did not laugh. And three times the Crown, as we all do when you make a mistake because I've made a few, and Mr Crown said: "Oh I apologise, I'm sorry about that, I'm sorry Madam Associate for the inconvenience, can we just get that back", and it will give me a chance to say those words to her. Please. Give me a chance to get on with my job. As Australians we're known for fair play. Do you remember the Olympics when the Italian water polo team was going for the winning tackle of the Australians under water and we were angry about that. But that's not fair play. We don't play games like that. We work hard. We strive. We try to be fair. We don't cheat. Cadel Evans is a shining example to all of us. This trial has been filled to the brim with irrelevant sidelines and throwaway 10 lines. The Crown warned you about red herrings. He warned you and he warned you about red herrings. He said you'll be distracted by red herrings in the defence case. In fact he said in the whole of the defence case that they were actually talking about importing cigarettes without paying duty, collecting the proceeds of sale and dividing the proceeds of sale between them was a red herring. But it's only a red herring if you must convict him. It is not the fact that you must convict him that the defence case takes you off the scent of convicting him. It must not go in that direction. You must be judges of the facts and you must weigh and consider all of the evidence. And if someone has the opinion that's a red herring you've got to think why he says it. If it disagrees with your opinion about what role you have in this Court room well then pay no attention to that opinion. I actually suggest to you that it's inappropriate for the Crown to describe the defence as a red herring. I just say that it's inappropriate because that's not assisting you to do your job. That doesn't help you get over the enormous burden of work that you've got now in this trial. And he told you, the Crown told you his understanding of the origin of the expression a red herring. And then you know from that description that it's not an appropriate expression because you are not dogs on the scent to kill. You are light years away were such a description. You are 12 citizens [chosen] at random from the people of our community to represent our community and to be judges of the facts.
Counsel for the appellant did not raise the issue with the trial judge or seek his assistance.
In written submissions on the appeal, the Crown submitted as follows (at para 229): 229. Counsel for the appellant complained to the Court, in the absence of the jury and in the course of his closing address about the conduct of the Crown towards him. While any such conduct by the Crown, if it occurred, would be unfortunate, it is not a matter that caused the trial to miscarry.
In Gonzales v R (2007) 178 A Crim R 232; [2007] NSWCCA 321 ("Gonzales"), this Court considered, inter alia, the question of whether a trial miscarried by reason of inflammatory and intemperate language used by the Crown Prosecutor in both cross-examination and his closing address to the jury. Giles JA (with whom Howie and Fullerton JJ agreed) applied the High Court decision of Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 ("Libke") and held the following (at [99] and [105]-[107]): [99] In Libke v The Queen at [71], Hayne J, with whose reasons Gleeson CJ and Heydon J agreed, referred to the central role of prosecuting counsel to ensure that the Crown case is presented with fairness to the accused, but observed at [72] that the prosecution case is to be presented in the context of an adversarial process in which each side is free to decide the ground on which it or he will contest the issue, the evidence which it or he will call, and what questions whether in chief or in cross-examination shall be asked; his Honour said that there were "boundaries to that process", with choices to be made subject to the rules of evidence, fairness and admissibility. His Honour said at [74]-[77] that, in the complaint in that case of unfairness in undermining the accused's credibility, it was an essential part of the prosecutor's function to test the credibility of the account he gave and that the question was whether that was done unfairly, and that where no objection had been taken at trial it was important to examine carefully what happened at the trial to see in what respect there was said to be an unfairness. The additional remarks Gleeson CJ at [2] included that the argument that the conduct of the prosecutor during his cross-examination of the accused resulted in an unfair trial, and a miscarriage of justice, involved a question of degree. … [105] In Libke v The Queen the Crown Prosecutor's cross-examination of the accused, set out at some length in the reasons of Kirby and Callinan JJ, was again far beyond the conduct of which the appellant complains in the present case. All members of the Court regarded it as unacceptable, but the majority (Gleeson CJ and Hayne and Heydon JJ) did not think that, considered as a whole, there was unfairness. Hayne J said at [82]-[83] that neither the Crown Prosecutor's repeated expressions of alignment with the prosecution case nor other aspects of the cross-examination would have distracted the jury from their task of assessing whether the evidence which was led at trial established the accused's guilt beyond reasonable doubt, and that the Crown Prosecutor's comments "were not comments that suggested (whether directly or indirectly, by appealing to prejudice or passion) that the jury should follow some impermissible path of reasoning". [106] It was part of the Crown case that the appellant had been ill-prepared to make the triple-0 telephone call and for that reason had incorrectly said that his family had been shot. A word other than "pathetic" could have been used, but characterising the telephone call was pursuant to the Crown case and was not gratuitous denigration of the appellant or the defence case. Similarly, it was part of the Crown case that the appellant had by a false e-mail and a false report of attempted entry to his apartment attempted to divert attention from himself; there was no objection to the Crown's evidence or cross-examination going to those matters. It would have been better if the Crown Prosecutor had not described them as pathetic attempts, but the Crown's submission was that they indicated consciousness of guilt and I do not think there was unfairness in the trial because the Crown Prosecutor chose to make his point in the way he did. Each case depends on its own circumstances, as Gleeson CJ said in Libke v The Queen with a question of degree. [107] R v Liristis was not on all fours with the present case. In my opinion, the uses of "pathetic" and "absolutely pathetic" of which the appellant complains when seen in their context did not impermissibly press upon the jury the Crown Prosecutor's personal views, or appeal to emotions or prejudice in place of rational assessment of the evidence, and did not make the trial unfair. This ground fails.
It is clear from the authorities concerning whether the intemperate submissions by a Crown Prosecutor may result in a miscarriage of justice that each case will depend upon its own circumstances with questions of degree: Gonzales at [106], Libke per Gleeson CJ at [2]. In my view, the Crown's submissions which referred to the defendant's case as "palpable nonsense", "absolute and utter nonsense", "palpably laughable" and "just rubbish"(whilst regrettable and in my view, the submissions should not have been made), "were not comments that suggested (whether directly or indirectly, by appealing to prejudice or passion) that the jury should follow some impermissible path of reasoning": Libke per Hayne J at [83]. Further, counsel for the appellant dealt with those comments extensively and vigorously in his closing address and did not seek further directions from the trial judge as to the use of that language. There were, in fact, aspects of the appellant's case that were quite implausible, although the remonstrations by the Crown Prosecutor in confronting the issues were inappropriate. I consider that, in the circumstances of this case, the Crown's comments did not result in the trial being unfair and further that no miscarriage has been established.
I have earlier rejected the submission of the appellant that evidence as to the appellant's "multiple wives" did not cause the trial to miscarry (see at [263]-[265]). In terms of the submission as to inflammatory statements, neither the Crown nor the trial judge used, as contended by the appellant, the words "bigamist" or "bigamy".
As discussed at [252]-[254], evidence as to a previous smuggling operation off the coast of England should not have been put to the appellant in cross-examination but as the Crown submitted, the audio recording of the relevant conversation was not in evidence and the appellant denied the conversation. Thus, there was no evidence before the jury of that matter.
It is not entirely clear what the appellant meant by "references being made to the appellant making derogatory comments against women" in the context of the trial. The Crown referred to a reference to "working girls". It was accepted by the Crown that expression was used by the Crown Prosecutor but only in the absence of the jury.
In the course of submissions, counsel for the appellant complained about the Crown Prosecutor reminding the jury of a telephone conversation between the appellant and his brother of 10 March 2008 regarding "men's entertainment". However, the Crown did cross-examine the appellant about a conversation between himself, Mr Jones and Mr Ron Pilly commencing late on 10 March 2008 regarding women and sex. The trial judge gave a direction that any inferences arising from the conversation between the accused as to their activities with, or attitudes towards, women, were entirely irrelevant to the matters requiring their deliberation. In my view, this sufficiently disposes of contentions that this aspect of the trial resulted in a miscarriage.
The evidence regarding a news report relating to a "cocaine bust" has already been dealt with respect to ground 17(c). It was necessary for the Crown Prosecutor to address that issue and, in doing so, to propose to the jury how they may draw inferences from the conversation of 12 March 2008 in the Novotel Hotel which included asking the jury to have regard to the tone and context of what was being said.
The issue regarding the Crown case as to three containers has been dealt with earlier in this judgment in the context of grounds 2 and 17.
There would not appear to have been any evidence before the jury of cocaine use by the appellant. The only reference during the trial to cocaine use by any of the conspirators did not occur in front of the jury. The trial judge made no reference to cocaine use by any of the accused persons in front of the jury.
Neither the decision of the trial judge as to the fitness (or otherwise) of Mr David Wilson to be tried, nor the "failure" of the trial judge to discharge Mr David Wilson from the trial (except for the consequence of Mr David Wilson's involvement for the duration of the trial), constituted a proper basis for finding the trial had miscarried.
Similarly, any request by the jury for evidence as to David Wilson's mental health issues was not a matter that impacted upon the appellant's trial.
The contention that the trial judge prompted Mr David Wilson to cross-examine the appellant is wrong. The trial judge expressly eschewed in discussion with Mr David Wilson that he had made any suggestion that he should or should not cross-examine the appellant. Advice was properly given to Mr David Wilson of the importance of cross-examining other witnesses as to things he intended to say in relation to his own evidence (if he chose to give evidence).
Further, I do not accept the contention that the trial judge encouraged Mr David Wilson to cross-examine in the face of an indication that he had no wish to do so. King SC DCJ did not improperly exercise his role as a trial judge by making suggestions as to how Mr David Wilson may put a question that had been objected to or which his Honour did not allow for technical reasons. Nor was it inappropriate for the trial judge to enquire of Mr David Wilson if he had exhausted his cross-examination and to make clear to him that this was the last occasion to ask questions. In all, the trial judge's interventions, such as there were, going to Mr David Wilson's cross-examination of the appellant were restricted to those matters about which a trial judge may give some guidance to a self-represented litigant.
The issue regarding Federal Agent Thomson and an alleged failure to investigate the appellant's defence has been dealt with earlier in this judgment (see, in particular, ground 19). So too are the contentions of the appellant as to a failure to direct the jury as to the favourable evidence given by Mr Xavier and Mr David Wilson (see ground 18). Additionally, I have rejected the appellant's challenge to the trial judge's refusal to discharge a jury member who had a close family member who took ill and died during the course of the trial (see ground 4).
The remaining issue is the period in which the appellant spent in the witness box and the time afforded to Mr David Wilson for the preparation of and the carrying out of cross-examination.
The examination in chief of the appellant occurred over a six day period concluding on 8 June 2011 with that day and the previous day being for short periods of examination. The appellant's cross-examination commenced on 8 June 2011 and concluded on 1 July 2011. The appellant was cross-examined over twelve days with the appellant being cross-examined on two occasions by Mr David Wilson, the second arising by way of imposition into the Crown Prosecutor's cross-examination of the appellant.
Mr David Wilson initially cross-examined the appellant for a short period on 8 June. At the conclusion of the hearing on 8 June 2006 and after Mr David Wilson had been given the opportunity to prepare further questions over and above the short cross-examination, he indicated he had no further cross-examination. After the trial judge indicated that Mr David Wilson was effectively facing the last opportunity to cross-examine his brother, his Honour suggested that Mr Radojev, who appeared for Mr Xavier, might undertake his cross-examination with Mr David Wilson to resume thereafter with any further questions he had. Mr Radojev agreed with that proposal and there was no objection taken by counsel for the appellant. Mr Radojev's cross-examination effectively concluded on 9 June 2011 (although there was some supplementary cross-examination on 14 June 2011.
At the conclusion of the hearing on 9 June 2011, the trial judge invited Mr David Wilson to consider his position vis-à-vis cross-examination with the matter resuming on 14 June 2011. Upon resuming on 14 June 2011, Mr David Wilson again indicated he had no questions.
After a further discussion on 14 June 2011 between the trial judge and Mr David Wilson, the trial judge expressed the view to the Crown Prosecutor that he had formed the conclusion that "no matter how long you wait Mr Wilson will continue to indicate he's not ready". After further submissions by counsel, his Honour expressed the view that "it is in fact in my view not fair on the current witness to have the cross-examination deferred for any more substantial period" to which counsel for the appellant submitted "I think any further delay is intolerable". The trial judge determined, having regard to submissions by the Crown, to defer the cross-examination by Mr David Wilson until 2pm on that day. Upon resuming, Mr David Wilson indicated that he had no questions. There was short cross-examination by Mr Radojev and then the Crown Prosecutor commenced cross-examination.
The Crown's cross-examination then proceeded over three days (15-17 June 2011) before further cross-examination was resumed. That cross-examination continued for the balance of 21 June 2011. On 22 June 2011, Mr David Wilson indicated that he was no longer able to question the appellant because of his "mental state". There then followed some further cross-examination by Mr Radojev and then the Crown resumed cross-examination on 22 June 2011. There was no cross-examination on 24 June 2011.
On 27 June 2011, Mr David Wilson was given a further opportunity to listen to material provided (in DVD form) by the Crown and, thereafter, there occurred further cross-examination by Mr David Wilson on 28 June 2011 before the Crown resumed cross-examination on that day concluding on 1 July 2011.
The appellant submitted that he had been "kept in the witness box over a period of 30 days" and the judge allowed "continuous cross-examination by [Mr David] Wilson whenever he required". The appellant argued that this led to a miscarriage of justice as he was kept in the witness box unnecessarily in order to "give [Mr David] Wilson more time to get his head together to cross-examine him". He pointed to the arrangement whereby other cross-examination was interposed in order to allow Mr David Wilson more time for cross-examination.
The Crown contended that the trial judge had a difficult task balancing the interests of an unrepresented accused with those of the appellant and Mr Xavier, who were both represented. It was also contended the appellant did not oppose the giving of leave to Mr David Wilson to further cross-examine the appellant or the interposing of his evidence in the Crown's cross-examination on 28 June 2011. It was also pointed out that the opportunity of Mr David Wilson to cross-examine his brother on 28 June 2011 arose in circumstances where the Crown had served additional material on the accused parties and the Court did not sit for various reasons in the period between 22 and 28 June 2011.
The appellant was not in the witness box for 30 days as he contended in his written submission. The whole of his evidence, including chief and cross-examination, involved 24 calendar days in which 16 days involved the taking of evidence, with some of those being interrupted in various ways. Nonetheless, he was in cross-examination for a period of 12 days, partly attributable to the indulgences given to Mr David Wilson.
The period of time that the appellant was retained in cross-examination is unfortunate and was a product of both the arrangements made for Mr David Wilson and lengthy cross-examination of the appellant per se. However, having examined the record of the proceedings below closely, I do not consider that the circumstances warrant a conclusion that there was a miscarriage of justice. In substance, his Honour constructed a procedure which gave an opportunity to a self-represented accused who was encountering difficulties to cross-examine although, in part, those difficulties appear to have arisen from the failure of Mr David Wilson to fully take advantage of the opportunities afforded to him by the trial judge. No party complained of the procedure adopted by his Honour during the trial. The final part of Mr Wilson's cross-examination was inevitable because of the provision of additional materials to the co-accused before that time.
I have given consideration as to whether the overall period of time the appellant was subjected to cross-examination might warrant a conclusion that there was a mistrial. However, counsel for the appellant did not object to the delay but stated that, if the delay continued significantly beyond the point, an objection might arise. The issue was not raised by counsel again and no objection to the delay per se was raised at any stage by counsel for the appellant during the course of the trial.
Overall, I consider that this ground should be dismissed.

[58]

Ground 21(a): Error in summing-up

The appellant took issue with the following extract from the trial judge's summing-up of the appellant's case: John Wilson had spoken of his disapproval of David Wilson's involvement in the subject container to David Wilson, as is supported by a number of matters… Exhibit 48B page 7, John Wilson saying "That's yours and his business" but John Wilson was then referring to the container with the furniture, not the heroin, and he directed you to the transcript which you have of John Wilson's evidence, at page 1762 at lines 10 to 26.
The evidence to which his Honour referred (at page 1762 lines 20-26 of the transcript) was as follows: Q-(on 48B). Further down the same page, page 7 of this exhibit, you see that you said the words "That's what I said but that's yours and his business" You see those words? A. Yes Q. What did you mean when you were referring to "that's" where you say "that's yours and his business" what were you referring to? A. That it was the business of David and Jose. It was not my business. Q. And what was the business of David and Jose that you're referring to by the word "that" in this place? A. I take it to be the second container. Q. When you say the second container which container are you referring to, the one with the cigarettes or the one with the furniture and the border-controlled drug heroin? A. The one with the drugs in.
The Crown conceded that the trial judge did misstate the evidence. However, it was submitted that no miscarriage of justice had occurred on that account for three reasons: 1. the summary of the appellant's case was provided by counsel for the appellant; 2. even if the error was that of the trial judge rather than the appellant's counsel, he sought no redirection on that issue; and 3. the trial judge directed the jury to the relevant portion of the transcript which makes clear that the appellant was referring to the container with the heroin.
I consider that the second and third of those submissions have substance and that, in the result, no miscarriage of justice had occurred on that account of the trial.
In the result, I would not grant leave under r 4 regarding this ground.
In any event, even if leave were granted, the appeal should nonetheless be dismissed under the proviso under s 6(1) of the Criminal Appeal Act. Whilst a misdirection in a summing-up may sound in a successful appeal, there is no ridged rule that a misdirection will preclude the application on the proviso, even in cases of significant error.
There is, rather, a need to focus on whether in the particular circumstances there was a substantial miscarriage of justice: Giourtalis v R [2013] NSWCCA 216 at [90]. That is, the Court must consider the nature and effect of the error in every case: Lane v The Queen (2018) 92 ALJR 689; [2018] HCA 28 per Kiefel CJ, Bell, Keane and Edelman JJ at [39].
I accept the submission of the Crown that its case was sufficiently strong that no substantial miscarriage occurred. That conclusion derives from a consideration of the whole of the evidence and the conclusions reached earlier in this judgment, particularly with respect to ground 2 in which conclusions were made, in part, based on recorded conversations and the finding of large amounts of cash on the appellant at the time of his arrest.
In my view, ground 21(a) should be dismissed.

[61]

Role of the appellant

King SC DCJ found that the appellant was "a principal and primary organiser of the importation and involved throughout the conduct of the enterprise". His Honour found that the appellant did the following things in performing that role: 1. used his knowledge of the furniture manufacture/import/export trade between Australia and Indonesia to provide a medium for the import; 2. exchanged large quantities of Australian currency, the proceeds of the conspiracy, into foreign currencies for the purpose of removing the money from Australia without declaration or detection; 3. travelled twice to Australia from abroad to facilitate the object of the conspiracy; 4. recruited his brother, Mr David Wilson, to be the importer/recipient of the furniture and discussed his brother's remuneration for that participation; 5. met with Mr David Wilson and facilitated a meeting between Mr David Wilson and Mr Xavier to discuss payment for accepting the consignment; 6. telephoned his brother, Mr David Wilson to inform him that Mr Xavier required a private conversation with him to ensure that Mr David Wilson continued to participate in the enterprise; 7. transported currency out of Australia to Indonesia, to pay for the drug imported and to remove his profits; 8. financed (along with Mr Xavier) the importation, including payments to other syndicate members; 9. expected and received profits in excess of $750,000; 10. ensured, through liaison with Mr David Wilson, Mr Jones and Mr Xavier, that Mr David Wilson knew which pieces of furniture contained the drugs; 11. travelled to Adelaide to meet with Mr David Wilson to ensure correct identification of the furniture containing the drugs; and 12. reported back to Mr Xavier that the drugs has been safely handed over to Mr Wren.
The sentencing judge further found that Mr Xavier and Mr Jones were also principal and primary organisers of equal seniority to the appellant and that there was no-one higher in the hierarchy than those three offenders. In so doing, the sentencing judge rejected "without hesitation" a submission on behalf of the appellant that he: had a lesser role than all of the other conspirators, including David Wilson, because all was in place for the importation of the container prior to the appellant being appraised of the fact of the shipment and that he was not involved in either the export of the same from Indonesia or its importation into Australia, both of which were arranged before he became aware of the matter. There is no clear role for the appellant to have played in the importation, after he became aware of it, and it is not clear that there was any intention to share the profits of the importation with him. The sentencing should reflect his late entry into the conspiracy (as found by the verdict) and his minor role in this importation.
The total sentence of imprisonment for 23 years is "unfair and did not reflect the role in the conspiracy he was convicted of".
The appellant contended that the sentencing judge erred in sentencing him on the basis that he was a principal in the conspiracy. The appellant contended that he was sentenced primarily on the basis of the amount of money found on the appellant at the time of his arrest and this was an erroneous basis to reach that conclusion. There was "insufficient evidence" for the finding that that money was the result of the importation the subject of the conspiracy; rather, it could have been from previous imports. Recorded conversations support the proposition that the appellant was to receive small sums from others.
He contended that because the evidence pointed to the money as being the proceeds of previous imports and the conversations between Mr Xavier and Mr Jones and the appellant revealed the agreement was to give the appellant only $20,000 in relation to the container.
The appellant contended that he had the lowest role in the enterprise, "if any role at all".
I do not accept those contentions for the following reasons.
I have earlier discussed the evidence as to the source of money deriving from the proceeds of imports. (The appellant had contended that he believed the import related cigarettes and that he was offered $20,000 in compensation because of the appellant's animosity towards Mr David Wilson and Mr Xavier for importing the container "behind his back"). The evidence referred to by the appellant as to receiving $20,000 in the course of a conversation with Mr Jones puts out of account that which immediately follows in the conversation, namely, the appellant expected and received profits in excess of $750,000.
In similar vein, the substantive offence the subject of the conspiracy was disrupted by the police. It was well open to the sentencing judge to find that the enormous sums of money otherwise generated (and which led to a separate offence from the conspiracy), were the result of the importation of prohibited drugs.
Further, the finding that the appellant was a principal was by no means based merely on the enormous sum of money that he was found to have on arrest. It was based on the entirety of the evidence that I have recounted above, as summarised in the remarks on sentence, and, as mentioned, was well open to the sentencing judge.
It is simply unsustainable to suggest that, taken as a whole, the evidence recounted by the sentencing judge in the remarks on sentence, and consistent with what I have recounted in this judgement, showed that the appellant was within the criminal enterprise at the lowest level; quite the contrary.
I consider there was no error by the sentencing judge in making the finding that he did as to the appellant's role.

[62]

Totality

The appellant contended that he had "received two sentences relating to the same crime" as the proceeds of crime were found by the sentencing judge to be the proceeds of heroin imported pursuant to the conspiracy offence.
It will be recalled that his Honour determined, as earlier mentioned, the appropriate sentence for each offence. However, this did not represent an error as his Honour was required to adopt that course. The sentencing judge did, however, make a finding that the moneys that were the subject of the proceeds of crime charge were part of the proceeds of the importation which was the subject of the conspiracy charge. As the sentencing judge noted, that conclusion was, for the purposes of sentencing, in the appellant's favour.
In substance, the appellant's contentions must be seen to be directed to the degree of accumulation between the sentences and, whilst not put expressly in these terms, that the sentences exceeded the criminality of the offending given the substantial overlap between the two offences.
The principles concerning the application of the totality principle are well established. In Cayhadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1, Howie J enunciated those principles (at [27]) as follows: [27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.
In considering that question, it is necessary to have regard to the fact that the sentencing judge found that the proceeds of crime offence with which the appellant had been charged must be regarded as a serious example of such an offence with a high degree of moral culpability. There was no demur from that conclusion. In that light, the degree of accumulation fell within his Honour's judicial discretion: R v Clements (1993) 68 A Crim R 167 at 172-173; R v Wilson [2005] NSWCCA 219 at [37], R v XX (2009) 195 A Crim R 38; [2009] NSWCCA 115 at [52].
The degree of accumulation was open to his Honour.
Although certainly related to the conspiracy, the proceeds of crime offence was legally and factually separate from it and the sentencing structure whereby there was a degree of overlap between the two head sentences was perfectly open to the sentencing judge in the circumstances of this case.
In my view, this aspect of his Honour's judgment does not disclose an error.

[63]

Parity

The appellant contended that he received the highest sentence of all the accused in relation to the conspiracy. In particular, he noted that Mr Xavier, who was also described as a principal, was sentenced to only 12 years for the conspiracy, and 3 years in relation to the previous imports. The appellant further contended that it was unfair that he was sentenced separately for the proceeds of crime offence related to the subject import, whereas that offence was put on a Form 1 for Mr Xavier.
The principles in relation to parity are well established. As observed in Why v R [2017] NSWCCA 101 (at [43]): [43] The principles for the application of the parity principle were summarised by Garling J (with whom Macfarlan JA and R S Hulme J agreed) in Rees v R [2012] NSWCCA 47 at [50]: (1) The parity principle is an aspect of equal justice, which requires that there be consistency in punishment. Unequal treatment under the law is likely to lead to an erosion of public confidence in the integrity of the administration of justice: […]; (2) Because the function of imposing a sentence on an individual has a discretionary character, an appellate court will ordinarily be reluctant to intervene. There is no such thing as perfect consistency in sentencing. A search for perfect consistency is to look for the unattainable and will frequently be an exercise of academic abstraction: […]; (3) Hence, the discrepancy required to be identified between sentences is one which is not merely an arguable one, but one which is 'marked', or 'clearly unjustifiable', or 'manifest ... such as to engender a justifiable sense of grievance' or else it '[appears] that justice has not been done': […]; (4) The elimination of an 'unjustified' discrepancy is a matter of importance not just to the individual concerned, but to the administration of justice in the community more generally. This Court is therefore concerned not with whether an appellant actually feels a sense of grievance, that is, a subjective test, but rather whether, examined objectively, the sense of grievance is a justifiable one, namely that a reasonable mind looking over all of what happened would see that a grievance was justified. In other words, the matter is considered objectively: […]. (5) In determining whether there has been a discrepancy of a kind sufficient to give rise to a justifiable sense of grievance, a court: (i) must consider not just the head sentence, but all components of the sentence including the non-parole period and the total effective period that both offenders will serve: […]; (ii) must also consider all of the facts and circumstances applicable to both individuals involved, including the objective seriousness of the offence, in order to identify whether a differential sentence was justified; […]; (iii) ought not intervene to reduce a sentence below a level, which would mean that the sentence would be wholly inadequate having regard to the offence involved and the criminality of the offender, and consequently the result would be an affront to the proper administration of justice: […]. [References omitted.]
The sentencing judge expressly considered the issue of parity between the appellant and Mr Xavier, finding as follows: While there are differences in the objective and subjective matters relating to each offender, the Court, after considerable reflection, has determined that there are no substantial differences that in the weighing up of them in the instinctive synthesis of determining appropriate sentences warrant the imposition of different sentences.
In fact, a similar sentence was imposed upon Mr Xavier, with the only distinction being the dates of effect, which reflected that he was not arrested until 3 May 2008.
Being a Commonwealth offence, the proceeds of crime offence with which the appellant was charged, was dealt with pursuant to s 16BA of the Crimes Act 1914 (Cth), rather than being dealt with on a Form 1 per se, but the effect was similar.
However, the proceeds of crime offence for which the appellant was sentenced related to the subject conspiracy to import, whereas the proceeds of crime offence for which Mr Xavier was sentenced was a principal sentence relating to an earlier import. For Mr Xavier, the proceeds offence related to the subject conspiracy to import and was incorporated into the sentence for the earlier proceeds of crime offence.
The sentencing judge did not expressly address the fact that the proceeds of crime offence for which Mr Xavier had been sentenced was an offence that pre-dated the conspiracy offence and that the proceeds of crime offence (similar to that for which the appellant was sentenced), was an additional offence to be taken into account with the principal proceeds of crime offence. Further, the sentencing judge made no reference to the offence being taken into account with the principal proceeds of crime offence when announcing the sentence to be imposed on Mr Xavier.
Nonetheless, his Honour was clearly cognisant of the distinction between the substantive proceeds of crime offences for which the appellant and Mr Xavier prospectively stood to be sentenced. His Honour was also aware that Mr Xavier had asked the Court to take into account a second proceeds of crime offence when dealing with the primary proceeds of crime offence. This is apparent from the findings made by the sentencing judge as to the objective seriousness of the three proceeds of crime offences.
In my view, there is no merit in the argument based upon erroneous disparity. It is true that Mr Xavier had a further offence to be taken into account when he was sentenced for his own offence to do with the proceeds of crime. However, by the time of the imposition of sentence, he had admitted his guilt of the conspiracy, confirmed that his proposed benefit was to be many hundreds of thousands of dollars, and offered assistance to police. In all the circumstances, and bearing in mind the evaluative judgement about the equivalence of their roles, it was perfectly open to the sentencing judge to impose identical sentences on the two men (noting appropriate differences in the date for the commencement of the sentence).

Wilson v R

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