Wilson v R

1. [1]

   HOEBEN CJ AT CL: I agree with the judgment of Walton J and the orders which he proposes.

2. [2]

   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:

3. [3]

   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.

4. [4]

   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:

5. [5]

   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.

6. [6]

   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.

7. [7]

   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. (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. (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. (3)

      thirdly, that “on any other ground whatsoever there was a miscarriage of justice” (see s 6(1) of the Criminal Appeal Act).

EXTENSION OF TIME

1. [8]

   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.

2. [9]

   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.

3. [10]

   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. (1)

      He gave notice of his intention to appeal within the required timeframe.

   2. (2)

      He waited 17 months for a “no merit” assessment to be completed by Legal Aid.

   3. (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. (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. (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. (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. (7)

      His most difficult obstacle was to carry out international investigations into his defence.

   8. (8)

      He had regularly applied for extensions of his Notice of Intention to Appeal throughout the period when he was preparing his appeal.

4. [11]

   The Crown submissions in opposing the extension of time were as follows:

   1. (1)

      The appellant’s reasons for delay relate to matters prior to 2016 and do not address events since that time.

   2. (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. (3)

      The prospects of success are poor.

   4. (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. (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. (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.

5. [12]

   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.

FRESH EVIDENCE

1. [13]

   Before turning to those grounds, it should be noted that the appellant sought to introduce fresh evidence on the appeal. The appellant was asked at the hearing of the appeal to identify the fresh evidence he wished to rely upon. He identified the evidence (in various forms) of the following persons:

   1. (1)

      Mr Yusuf Pujiono;

   2. (2)

      Federal Agent Stephan Cook;

   3. (3)

      The appellant’s wife, Mrs Elly Feriatissa Praesetyowati and his daughter;

   4. (4)

      Federal Agent David Thompson;

   5. (5)

      Mr Rick Lee.

2. [14]

   That application was refused after hearing argument at the outset of the hearing of the appeal on 27 August 2018 (although the Crown accepted that Mr Lee’s evidence was uncontroversial and, in that respect, the content of his evidence has been taken into account in this appeal).

3. [15]

   The reasons for rejecting the application for fresh evidence (save for Mr Lee) are partially reflected in the rulings of the presiding judge, Hoeben CJ at CL, at the hearing and more substantially so in the following discussion as to fresh evidence with respect to Ground 19 of the appeal.

THE GROUNDS OF APPEAL

1. [16]

   The 22 grounds of appeal were as follows:

   1. (1)

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

   2. (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):

   3. (3)

      Ground 3: The verdict is unreasonable or cannot be supported by the evidence by reason of:

   4. (4)

      Ground 4: The trial miscarried because the judge failed to discharge the jury after a prejudicial event thereby causing a miscarriage of justice.

   5. (5)

      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.

   6. (6)

      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.

   7. (7)

      Ground 7:

   8. (8)

      Ground 8:

   9. (9)

      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:

   10. (10)

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

   11. (11)

       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.

   12. (12)

       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.

   13. (13)

       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.

   14. (14)

       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.

   15. (15)

       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.

   16. (16)

       Ground 16: The trial judge erred in admitting evidence of the appellant’s alleged involvement in the two previous importations as “relationship evidence”.

   17. (17)

       Ground 17: The trial miscarried because evidence of the appellant’s bad character was admitted.

   18. (18)

       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.

   19. (19)

       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:

   20. (20)

       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.

   21. (21)

       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.

   22. (22)

       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.

The Trial

1. [17]

   Prior to the empanelling of the jury, there was a pre-trial hearing as to the admissibility of evidence intended to be adduced by the Crown. His Honour heard argument on 17 March 2011 and ruled on the admissibility of evidence on that day.

2. [18]

   The co-accused were arraigned on 22 March 2011 and the jury was empanelled on 6 April 2011. After a Crown opening and a brief opening by the appellant, who was represented by counsel, the Crown case ran from 7 April to 30 May 2011. The appellant’s case opened on 31 May 2011. His evidence-in-chief extended until 8 June 2011. He was then cross examined from that date until 1 July 2011 by Mr David Wilson, counsel for Mr Xavier and the Crown.

3. [19]

   After addresses by counsel, the trial judge summed up on 25 to 27 July 2011, whereupon the jury retired and, as has been noted, returned a guilty verdict with respect to the appellant (and Mr Xavier) on 9 August 2011.

Outline of the Crown Case at trial

1. [20]

   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.

2. [21]

   On 16 February 2008, Mr Xavier arrived in Sydney from Indonesia. The appellant arrived in Sydney from Thailand on that date.

3. [22]

   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. (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. (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. (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. (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. (5)

      Mr Xavier told Mr David Wilson that he was an integral part of the operation.

   6. (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.

4. [23]

   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.

5. [24]

   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.

6. [25]

   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.

7. [26]

   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.

8. [27]

   On 28 February 2008, the appellant returned to Indonesia.

9. [28]

   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.

10. [29]

    On 8 March 2008, the appellant returned to Australia from Indonesia and checked into the Novotel Hotel at Darling Harbour.

11. [30]

    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.

12. [31]

    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.

13. [32]

    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.

14. [33]

    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.

15. [34]

    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.

16. [35]

    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.

17. [36]

    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.

18. [37]

    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.

19. [38]

    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.”

20. [39]

    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.

21. [40]

    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”.

22. [41]

    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.

23. [42]

    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. (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. (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. (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. (4)

       Mr Jones and Mr Wren met with Mr Adam Horne, a suspected drug supplier, to sell the heroin.

The appellant’s case at trial

1. [43]

   In summary, the appellant’s case at trial was as follows:

   1. (1)

      He was not a member of a syndicate to import heroin.

   2. (2)

      At the time of his arrest, he had various businesses including a cigarette business and a business to grow bio-fuel in Indonesia.

   3. (3)

      He was unaware of the alleged conspiracy to import heroin and was unknowingly involved in its importation.

   4. (4)

      He travelled to Australia to collect money owing to him for cigarettes, which he had sold to various persons including Mr Jones.

   5. (5)

      The conversations, telephone calls and SMS messaging construed by the Crown as relating to the heroin import were, for the most part, reference to the appellant’s legally established cigarette business, which he ran in Indonesia.

   6. (6)

      The appellant’s trip to Adelaide was to attend the wedding anniversary celebration dinner for the appellant’s parents which was held at his sister’s house in Adelaide.

   7. (7)

      The conversations captured on the “computer hard drive” referring to “three packages” did not relate to the three items of furniture, alleged by the Crown, but were in relation to three packages of money, which were observed by police surveillance which the appellant carried from Sydney to Adelaide on behalf of Mr David Wilson. The recorded conversation “they’ve got brick inside” did not relate to the 69 blocks of heroin secreted in the three items of furniture but related to the money carried in his suitcase. The word “they’ve” cannot be heard in the recording, which makes the sentence “brick inside” as the only identifiable words that were heard.

   8. (8)

      The recorded conversations between Mr Jones and the appellant in the hotel room in March 2008 regarding the three pieces of furniture to be sent to Sydney did not identify the appellant had the requisite knowledge to identify the furniture.

Overview of the trial judge’s summing-up

1. [44]

   The Crown made submissions as to the trial judge’s summing-up which were uncontroversial and, in my view, correct.

2. [45]

   It is convenient to extract that summary before dealing with the particular grounds of the appeal:

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

1. [46]

   In summary, the appellant’s argument in support of ground 1 was as follows:

   1. (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. (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. (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. (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. (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.

2. [47]

   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”.

3. [48]

   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.

4. [49]

   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.

5. [50]

   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.

6. [51]

   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.

7. [52]

   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.

8. [53]

   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.

9. [54]

   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.

10. [55]

    In the circumstances, I consider ground 1 should be rejected.

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

1. [56]

   In written submissions, the appellant included above the bolded heading for ground 2, the words “the verdict is unsafe and unsatisfactory; unreasonable or cannot be supported by the evidence”. As earlier set out, ground 2 is that “the verdict resulted in a miscarriage of justice, or is unreasonable or cannot be supported by the evidence and by reason of the inability on the evidence to exclude rational hypotheses consistent with innocence”. There are then a series of subsidiary contentions such as ground 2(a), which focused upon exhibit 40 at the Star City apartments on 21 February 2008.

2. [57]

   The reason for mentioning those matters at the outset of considering ground 2 is that the Crown submitted that ground 2 (save for subsidiary ground 2(b)) together with grounds 3(a) and 8, 11 and 13, all prosecute the essential proposition that the verdict was unreasonable due to the evidence being insufficient to prove beyond reasonable doubt the existence of the conspiracy charge and/or that there was an alternative and reasonable hypothesis consistent with innocence. The appellant replied in a manner consistent with that approach. In line with that position, I will consider those grounds collectively, without repeating the narrative description of each ground (which is set out earlier in this judgment).

3. [58]

   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:

4. [59]

   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]):

5. [60]

   The Crown correctly submitted that the elements of the offence with which the appellant was charged were as follows:

   1. (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. (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. (3)

      the object of the conspiracy was to import a quantity of a substance, being a border controlled drug, namely heroin; and

   4. (4)

      The appellant, or at least one other party to the agreement, committed an overt act pursuant to the agreement.

6. [61]

   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.

7. [62]

   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”.

8. [63]

   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).

9. [64]

   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.

10. [65]

    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. (1)

       the appellant and Messrs Xavier, Jones, David Wilson and Wren were all known to each other;

    2. (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. (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. (4)

       Mr David Wilson understood that his role was to receive the shipment at his furniture business in Adelaide;

    5. (5)

       Mr David Wilson had received shipments of furniture from Indonesia to his furniture business in Adelaide in June/July and December 2007;

    6. (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. (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. (8)

       the appellant understood that “bricks” were contained in three pieces of furniture that had been shipped to Mr David Wilson;

    9. (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. (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. (11)

        the appellant exchanged large sums of money into various foreign currencies; and

    12. (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.

11. [66]

    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. (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. (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. (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.

12. [67]

    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.

13. [68]

    The requisite facts in that respect are as follows:

    1. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (17)

        On 13 March 2008, the appellant travelled to Adelaide.

    18. (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. (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. (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. (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. (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. (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. (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. (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. (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. (27)

        On the following day, 20 March 2008, Mr Wren and Mr Jones met at Stanmore Park with suspected heroin supplier Mr Horne.

    28. (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. (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.

14. [69]

    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).

15. [70]

    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:

16. [71]

    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.

17. [72]

    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”.

18. [73]

    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.

19. [74]

    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.

20. [75]

    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.

21. [76]

    The appellant’s explanation as to his ‘bricks inside’ statement was inconsistent with the evidence he gave at the trial.

22. [77]

    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:

23. [78]

    The appellant submitted that no one asked him what bricks meant. However, that explanation cannot be accepted for two reasons.

24. [79]

    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.

25. [80]

    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.

26. [81]

    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.

27. [82]

    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.

28. [83]

    The appellant also raised “inconsistent verdicts” in his submissions in respect of ground 2, stating that the “verdict” for his brother Mr David Wilson must affect his verdict by disproving that there was any agreement between them.

29. [84]

    The jury was discharged when they were unable to reach a unanimous verdict in respect of Mr David Wilson. There being no verdict reached in respect of Mr David Wilson, it was not possible for the verdict in respect of Mr David Wilson to be inconsistent with that in relation to the appellant in any formal sense.

30. [85]

    The inability of the jury to reach a verdict in respect of Mr David Wilson did not prevent them from reaching a verdict in relation to the appellant. The jury also found Mr Xavier guilty of the conspiracy charge. The jury was prepared to find beyond reasonable doubt that the appellant conspired with Mr Xavier, and possibly Mr Jones and Mr Wren, to import the commercial quantity of heroin which was, in fact, imported in February 2008. For the reasons set out above, that conclusion was available on the evidence. Section 11.5(4)(a) of the Code prohibits the conviction of an accused where all other parties to a conspiracy have been acquitted and a finding of guilt would be inconsistent with their acquittal. There were no acquittals in the proceedings below (and Mr Xavier was convicted).

31. [86]

    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.

32. [87]

    In a series of propositions, the appellant described his “role” as being the following:

    1. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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. (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”.

33. [88]

    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.

34. [89]

    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.

35. [90]

    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.

36. [91]

    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…”.

37. [92]

    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.

38. [93]

    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).

39. [94]

    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.

40. [95]

    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.

41. [96]

    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.

42. [97]

    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”.

43. [98]

    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).

44. [99]

    With respect to ground 2(e), the appellant submitted:

45. [100]

    The appellant further submitted:

46. [101]

    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).

47. [102]

    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:

48. [103]

    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:

49. [104]

    The appellant then submitted:

50. [105]

    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”.

51. [106]

    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.

52. [107]

    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]):

53. [108]

    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.

54. [109]

    The jury rejected the appellant’s narrative including the appellant’s explanation for recorded conversations that were in issue.

55. [110]

    As earlier pointed out, there was evidence to enable the jury to conclude:

    1. (1)

       first, that the appellant and at least one other party to the agreement intended that the offence be committed;

    2. (2)

       secondly, the object of the conspiracy was to import a quantity of a substance, the border controlled drug, namely heroin; and

    3. (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.

56. [111]

    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.

57. [112]

    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. (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. (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. (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. (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.

58. [113]

    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. (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. (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. (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.

59. [114]

    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.

60. [115]

    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]):

61. [116]

    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.

62. [117]

    Accordingly, grounds 2 (including sub-grounds 2(a), (c), (e)-(g)), 3(a), 8, 11 and 13 should be dismissed.

Ground 2(b): The trial miscarried because the transcripts exhibits 48A and 48B were “incomplete and misleading”.

1. [118]

   The appellant submitted that the aforementioned transcripts were not a true and accurate record of the relevant conversation and only selected parts of that recording were transcribed and put before the jury. It was also submitted that exhibits 48A and 48B were a piecemeal record of a piecemeal recording designed to express a view that “the police wished to portray”.

2. [119]

   Exhibit 215 was a folder of discs which included the ‘highlight’ disc with tracks 30-46 for Room 1159 at the Star City apartments. Exhibit 48A was a transcript of that audio recording. It was tendered without objection, and the audio was played in court. Exhibit 48B was a transcript of the entire highlight disc, not just tracks 30-46. It therefore included material that was missing from exhibit 48A.That audio, namely exhibit 254, was also played to the Court. Exhibit 48B was produced by the Crown and the entire audio of the highlight disc was played after a request from counsel for the appellant for that material to be tendered.

3. [120]

   This ground must be rejected. There was no objection raised by counsel for the appellant to either exhibit at the trial and exhibit 48B was tendered at the request of counsel for the appellant. The trial judge directed the jury when each exhibit was tendered that the evidence was the audio recording and the transcript was simply an aide memoire. That direction was repeated in the summing-up. (It might be noted that the appellant submitted in his reply submission on this ground that he was unaware of the extended version of exhibit 40 until he received the appeal books in this matter. This contention cannot be accepted because the disc of the transcript was played in full at the trial).

Ground 2(d): Relevance of recording of conversation on 10 March 2018 at the Novotel Hotel

1. [121]

   As previously mentioned, the appellant submitted that the trial miscarried because the conversation between himself and Messrs Jones and Xavier at the Novotel Hotel on 10 March 2008, captured on the phone of Mr Xavier, was an accounting of monies relating to previous containers rather than the subject import, as suggested by the Crown.

2. [122]

   The transcript of the relevant audio was exhibit 124. This exhibit was admitted without objection from counsel for the appellant. The appellant gave evidence as to his explanation for that call in the course of his evidence-in-chief. That evidence was that the call related to an earlier container and that there had been five earlier containers – two of which were sent to Sydney, one was seized by the Indonesian authorities and two of which the appellant understood had gone to England.

3. [123]

   There was cross-examination of the appellant as to his explanation for the conversation, namely, that it concerned the division of monies from secret deals.

4. [124]

   The conversation set out in exhibit 124 was relevant and admissible as it went to the Crown’s case as to importation of the container. The appellant’s evidence as to the substances of the conversation was also before the jury.

5. [125]

   The ground should be dismissed.

Ground 2(h): Exhibit 251 - Audio of 13-14 March 2008 at the premises

1. [126]

   There were two appeal grounds advanced in this respect which I shall deal with seriatim.

2. [127]

   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.

3. [128]

   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.

4. [129]

   Counsel for the appellant objected to the admission of that material at trial on the following bases:

   1. (1)

      prejudice caused by late disclosure and the consequent lack of opportunity of the defence to study the material and take instructions;

   2. (2)

      a large amount of the conversation that was unable to be heard by the transcriber and recorded in the transcript as “indistinct”;

   3. (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. (4)

      the irrelevance of some of the material; and

   5. (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.

5. [130]

   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.

6. [131]

   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. (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. (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. (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. (4)

      The material was not unfairly prejudicial to the appellant merely because it tended to support the Crown case.

   5. (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. (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. (7)

      Mr David Wilson sought to have the material admitted as potentially relevant to his defence.

7. [132]

   None of those reasons demonstrate any error as to the admission of the conversation transcribed in exhibit 251.

8. [133]

   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.

9. [134]

   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)).

10. [135]

    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.

11. [136]

    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.

12. [137]

    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.

13. [138]

    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.

14. [139]

    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.

15. [140]

    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.

16. [141]

    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.

17. [142]

    In my view, this ground of appeal should be dismissed.

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

1. [143]

   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.

2. [144]

   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.

3. [145]

   Additionally, the appellant contended there was a miscarriage of justice resulting from the Crown failing to call the following evidence at trial:

   1. (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. (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. (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. (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. (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. (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.

4. [146]

   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).

5. [147]

   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.

6. [148]

   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.

7. [149]

   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.

8. [150]

   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.

9. [151]

   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.

10. [152]

    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.

11. [153]

    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.

12. [154]

    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.

13. [155]

    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.

14. [156]

    In any event, the appellant abandoned this question in the trial.

15. [157]

    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.

16. [158]

    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.

17. [159]

    Ground 3(c) of the appeal should be dismissed.

Ground 4: The trial miscarried because the judge failed to discharge the jury after a prejudicial event thereby causing a miscarriage of justice

1. [160]

   There were two occasions during the trial when Mr David Wilson engaged in outbursts. The appellant’s submissions referred to one incident on 16 June 2011. However, the incident described in the appellant’s submission as being the most prejudicial in nature occurred on 19 July 2011. The trial judge described the 19 July 2011 outburst as “wilful, deliberate and designed” to prejudice the jury against the appellant. Applications were made during the trial on behalf of the appellant to discharge the jury.

2. [161]

   The appellant contended that a failure to discharge the jury was in error. It was also submitted that it was apparent that Mr David Wilson was intent from the beginning of the trial to be disruptive and was intent “on conducting a cut-throat trial against the appellant”. Reference was also made to the “fitness hearing” in which Mr David Wilson made outrageous claims against the trial judge himself and against prison officers. Mr David Wilson was suffering, according to the appellant, mental health issues and the jury must have been left wondering why Mr David Wilson would be making allegations about his brother “if they were not true”.

3. [162]

   I shall commence by more fully describing the two incidents.

4. [163]

   The relevant “outburst” from Mr David Wilson giving rise to the application to discharge the jury was as follows:

5. [164]

   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.”

6. [165]

   A similar application was made on behalf of Mr Xavier by his counsel. The Crown accepted that the outburst was “deliberate and calculated”.

7. [166]

   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.

8. [167]

   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).

9. [168]

   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:

10. [169]

    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.

11. [170]

    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:

12. [171]

    In Crofts v The Queen (1996) 186 CLR 427; [1996] HCA 22, Toohey, Gaudron, Gummow and Kirby JJ stated (at 440-441):

13. [172]

    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]):

14. [173]

    In Bartle, Mason P and Barr J held the following at [82]:

15. [174]

    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):

16. [175]

    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].

17. [176]

    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.

18. [177]

    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.

19. [178]

    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. (1)

       the trial judge was well placed to assess the significance of the outburst in the context of the trial;

    2. (2)

       an appropriately strong direction was given to the jury; and

    3. (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.

20. [179]

    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).

21. [180]

    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.

22. [181]

    Ground 4 of the appeal should be dismissed.

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

1. [182]

   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.

2. [183]

   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”.

3. [184]

   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)).

4. [185]

   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).

5. [186]

   This ground should be dismissed.

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

1. [187]

   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.

2. [188]

   The appellant’s submissions in support of this ground fell into two broad categories as follows:

   1. (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. (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”.

3. [189]

   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).

4. [190]

   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:

5. [191]

   Rule 4 of the Criminal Appeal Rules is in the following terms:

6. [192]

   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):

7. [193]

   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:

8. [194]

   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:

9. [195]

   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.

10. [196]

    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.

11. [197]

    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:

12. [198]

    Ground 6 should be dismissed.

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

1. [199]

   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.

2. [200]

   The primary errors contended for by the appellant with respect to this ground were as follows:

   1. (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. (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. (3)

      directing the jury that they could rely upon the Crown’s address as evidence;

   4. (4)

      providing no directions on matters of law;

   5. (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. (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”.

3. [201]

   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:

4. [202]

   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.

5. [203]

   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.

6. [204]

   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.

7. [205]

   This ground should be dismissed.

(b) the named co-conspirators and the appellant were each party to a single conspiracy spanning all 3 imports

1. [206]

   Ground 9 is misconceived. The trial judge was not required to direct, nor the Crown prove, that the conspiracy was a single agreement in respect of all three importations to which the appellant refers in this ground.

2. [207]

   Further, the trial judge directed the jury, both orally and in writing, as to the elements of the offence. This included detailed directions on the nature of a conspiracy. The trial judge gave particular attention to the timing of the conspiracy.

3. [208]

   Earlier importations have been discussed earlier in this judgment and will be the subject of further discussion in ground 16.

4. [209]

   This ground of appeal should be dismissed.

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

1. [210]

   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).

2. [211]

   It was further contended that, by running the conspiracy charge, it resulted in inconsistent verdicts between the appellant and his brother.

3. [212]

   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.

4. [213]

   I reject these contentions.

5. [214]

   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.

6. [215]

   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].

7. [216]

   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.

8. [217]

   The appellant’s submissions in relation to inconsistent verdicts were dealt with earlier in this judgment.

9. [218]

   This ground of appeal should be dismissed.

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

1. [219]

   In summary, the submissions of the appellant under this ground were as follows:

   1. (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. (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. (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. (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:

2. [220]

   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.

3. [221]

   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.

4. [222]

   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.

5. [223]

   This ground should be dismissed.

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

1. [224]

   The focus of this ground of appeal is the failure of the trial judge to direct the jury as to the appellant’s case that he was discussing money when he referred to “bricks inside… brick inside” in exhibit 251.

2. [225]

   The trial judge summarised the appellant’s case using the summary provided by counsel for the appellant. That summary did not include a reference to exhibit 251. His Honour did not address the inferences that either the Crown or the appellant invited the jury to draw in respect of that evidence. The only reference which his Honour made in relation to that specific evidence was in the context of directing the jury that what they heard, and not the transcripts of the audio recordings, was the evidence.

3. [226]

   The appellant submitted that, with so much attention focused upon exhibit 251, it was important for the trial judge to give effect to his counsel’s request to provide balance by reading an extraction of the appellant’s evidence at page 2757 of the transcript (that was part of the cross-examination of the appellant by the Crown) as to an exchange between the trial judge and counsel for the appellant during the summing–up. Counsel for the Crown was correct to submit that the trial judge’s reference to the “bricks inside” aspect of the conversation was merely to the effect that the jury may be assisted by head phones in listening to the evidence and that he had given no interpretation of the conversation. Counsel for the appellant seemed content with that response.

4. [227]

   Further, as earlier mentioned, the appellant did not give evidence at trial that the word “brick” or “bricks” was a reference to money.

5. [228]

   This ground should be dismissed.

Ground 15: Failure of the trial judge to direct evidence of mistake needed to be rebutted by Crown

1. [229]

   The essence of this ground is the alleged failure of the trial judge to direct the jury that they needed to be satisfied beyond reasonable doubt of various factual matters in the Crown case which the appellant said were “mistakes”.

2. [230]

   As stated by the trial judge, the Crown was not required to prove beyond reasonable doubt every fact arising from the evidence that was in dispute. In order to find the appellant guilty of the offence charged, the jury needed to be satisfied beyond reasonable doubt of each of the elements of the offence. As noted above, the trial judge directed the jury, both orally and in writing, as to what those elements were. The jury was entitled to come to a unanimous view as to whether or not an element of the offence had been proven by differing reasoning processes, including differing views of the facts.

3. [231]

   This ground should be dismissed.

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

1. [232]

   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. (1)

      the possession of any money by the appellant at the time of his arrest;

   2. (2)

      the counting of money by the appellant or by others in the presence of the appellant at any time;

   3. (3)

      the carriage of money by the appellant or by others allegedly in furtherance of a conspiracy to import heroin into Australia; and

   4. (4)

      the previous importation of any containers into Australia by any of the alleged co-conspirators.

2. [233]

   At the voir dire hearing on 17 March 2011, the argument concerning item (4) above centred on the following evidence:

   1. (1)

      the conversation in Room 1159 of the Star City apartments between Mr David Wilson and Mr Xavier on 21 February 2008; and

   2. (2)

      the conversation in Room 1159 between Mr David Wilson and the appellant, in the presence of Mr Xavier on 24 February 2008.

3. [234]

   The evidence on the voir dire (exhibit 1) was not able to be located by the Crown.

4. [235]

   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.

5. [236]

   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:

6. [237]

   His Honour’s conclusions in relation to the previous importation of containers was as follows:

7. [238]

   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.

8. [239]

   The directions given by his Honour in that respect, as well as the two previous container shipments, were as follows:

9. [240]

   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:

10. [241]

    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:

11. [242]

    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.

12. [243]

    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.

13. [244]

    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.

14. [245]

    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.

15. [246]

    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.

16. [247]

    This ground should be dismissed.

Ground 17: The trial miscarried because evidence of the appellant’s bad character was admitted

1. [248]

   The appellant’s submissions address five sub-grounds which cumulatively were said to have the effect of causing prejudice towards him. Those five sub-grounds, as the appellant expressed them, were as follows:

2. [249]

   The question of the admissibility of this evidence was substantially dealt with under the previous ground. The appellant further contended that as a result of his evidence regarding the cigarette business cross-examination was permitted as to the legality of his involvement in that enterprise, which illegitimately allowed issues of character to be raised by the Crown before the jury.

3. [250]

   I do not accept this submission.

4. [251]

   The Crown cross-examined the appellant at trial about his involvement in the cigarette trade. As earlier mentioned, the appellant himself had put these matters in issue by contending that he was a businessman who imported cigarettes into Australia from Indonesia and that this was the explanation for the conversations before the Court. In the course of that cross-examination, it became apparent that some of the appellant’s asserted activity in the cigarette trade was not legal. The trial judge correctly ruled that the Crown was entitled to explore those matters in cross-examination in circumstances where the appellant’s trade in cigarettes (on 8 June 2011) involved the company manufacturing cigarettes using trademarks that did not belong to them or were not otherwise branded.

5. [252]

   The appellant submitted that the Crown revealed evidence of an alleged “previous smuggling operation” relating to cigarettes being imported to Australia in 2006 by the appellant which amounted to bad character evidence. The appellant further contended that the Crown did so despite a direction from the trial judge (at T61).

6. [253]

   The matter to which the appellant referred was an exchange whereby the trial judge stated that the Crown could not introduce evidence about an operation off the coast of England and the Crown confirmed this to be the case. The particular audio recording to which that exchange appears to relate was a conversation between the appellant, Mr Jones and Mr Ron Pilley in a hotel room in the early hours of 11 March 2008. That material would not appear to have been in evidence at trial. However, in cross-examination, the Crown did put a proposition to the appellant that he and Mr Pilley spoke about “people apparently smuggling things into England using Zodiac boats.” As the appellant denied it, it did not amount to evidence that the appellant was involved in such smuggling.

7. [254]

   The difficulty with this contention is that the Crown put the proposition to the appellant that he and Mr Pilley spoke about “people apparently smuggling things into England using Zodiac boats” but the proposition was denied by the appellant. There was no other evidence of fact and, in the result, the proposition put by the Crown did not amount to evidence at the trial that the appellant was involved in smuggling.

8. [255]

   Exhibit 149 is a transcript of a surveillance record of the appellant and Mr Jones conversing on 12 March 2008 in the Novotel Hotel room 840 from 5:51 pm. The last page of that transcript includes the following:

9. [256]

   The appellant submitted that his above remark was referring to his personal cocaine usage and that the removal of evidence of the appellant’s cocaine use from the jury enabled the Crown to invite the jury to infer from this evidence that he was involved in drug smuggling, which raised bad character and was unfair to him.

10. [257]

    There are number of deficiencies in the appellant’s case in this respect.

11. [258]

    Counsel for the appellant neither objected to his cocaine usage being removed from evidence at the trial nor the admission of the material in question.

12. [259]

    The appellant also invited, by this submission, the Court to infer that the above passage referring to him being sick from using cocaine or being unable to source it as an addiction. I do not consider that conclusion may be readily derived from the passage which appears to relate to the appellant being sick from the loss of the cocaine. The inference the Crown sought to draw from the evidence was available.

13. [260]

    It follows that the inclusion of that comment in the transcript did not raise bad character and the Crown was entitled to draw an inference from it as to the appellant’s involvement in the subject conspiracy only.

14. [261]

    I reject the appellant’s contention on this point.

15. [262]

    I accept the Crown submission in this respect, which was as follows:

16. [263]

    The evidence of the appellant’s multiple wives was a consequence of the appellant being cross-examined about persons concerned in his business undertakings. As previously mentioned, the appellant introduced those business undertakings into evidence as part of his defence. There was no objection to the evidence.

17. [264]

    The Crown stated in closing submissions that the appellant being married to more than one person was a matter which should not be used against him by the jury in their deliberations. The trial judge gave a direction to the same effect.

18. [265]

    There was cross-examination by the Crown that he had booked a wedding in Adelaide in 15 May 2008 but that cross-examination followed evidence-in-chief about the appellant having a fiancé at the time of his arrest and there was no objection taken to the questioning.

19. [266]

    Again, I do not accept the appellant’s contention in this respect. In the result, ground 17 of the appeal should be dismissed.

Ground 18: Failure of the trial judge to direct jury as to favourable evidence given by Mr Xavier which supported the appellant’s defence

1. [267]

   In his reply submissions, the appellant appeared to either accept the Crown submission that this ground should be dismissed or not to press the appeal. For more abundant caution, I shall briefly attend to the issue raised.

2. [268]

   Mr Xavier gave evidence at the trial that he was aware that there was some sort of contraband in the container, although he did not know what it was. He gave evidence that, to his knowledge, the appellant was not involved in the container which was sent by Mr Jones.

3. [269]

   The trial judge made no reference to that evidence in the course of his Honour’s summing-up. Nor did counsel for the appellant make reference to the evidence in his closing address, although he did submit that the appellant had found out about the container from Mr Xavier.

4. [270]

   In my view, there was no miscarriage arising in this respect. As earlier mentioned, the trial judge summed up the case of each of the accused after seeking a document from each of the parties providing the content sought in that regard. The jury had a copy of the evidence of Mr Xavier’s evidence in the transcript.

5. [271]

   In my view, this ground of appeal should be dismissed.

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

1. [272]

   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.

2. [273]

   The evidence that the appellant submitted was available from those persons at trial was as follows:

   1. (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. (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. (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.

3. [274]

   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].

4. [275]

   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.

5. [276]

   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.

6. [277]

   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.

7. [278]

   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.

8. [279]

   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.

9. [280]

   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.

10. [281]

    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.

11. [282]

    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.

12. [283]

    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.

13. [284]

    As mentioned earlier, the contents of the affidavit of Mr Lee were taken as an agreed fact for the purposes of this appeal.

14. [285]

    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.

15. [286]

    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.

16. [287]

    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.

17. [288]

    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.

18. [289]

    As earlier mentioned, the application by the appellant to call Federal Agent Thomson to give evidence on appeal was refused. Federal Agent Thomson gave extensive evidence at trial, including under cross-examination, and there was no indication from what was advanced by the appellant that the further calling of the Federal Agent could establish that the appellant’s guilt was not established beyond reasonable doubt.

19. [290]

    The appellant also submitted the police failed to investigate his defence and that police had an obligation to notify the appellant of the difficulties they were experiencing investigating his defence. Federal Agent Thomson gave evidence of inquiring, on behalf of the appellant, about a container containing cigarettes that had allegedly been seized by Indonesian police in 2008. Those matters did not progress because of a lack of response from the AFP liaison officer in Jakarta. They do not call the convictions into question.

20. [291]

    The appellant raised a number of other issues regarding evidence. That material concerned the following:

    1. (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. (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. (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.

21. [292]

    There are a number of reasons why this material should not be admitted on this appeal:

    1. (1)

       The material was obtained after the trial but is inadmissible in the form sought to be admitted.

    2. (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.

22. [293]

    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.

23. [294]

    Grounds 19, 19(c) and 3(b) of the appeal should be dismissed.

Grounds 19(a) and (b): Supplementary fresh evidence referring to ‘bricks’

1. [295]

   This evidence essentially concerned the meaning of the expression “brick” as it appeared in the recorded conversation earlier referred to between the appellant and his brother on 13 March 2008. The further evidence included a reference made in a television program to a “brick” or “bricks” in terms of money and to a website to the same effect.

2. [296]

   This evidence was not identified by the appellant as the fresh evidence he sought to lead in oral submissions at the outset of the hearing of this appeal. Nonetheless, he returned to the concept of a brick or bricks being money on many occasions in the course of his oral submissions.

3. [297]

   To the extent that it is pressed, the fresh evidence should not be allowed. As earlier found, the reliance on bricks being money was not his evidence at the trial.

4. [298]

   Grounds 19(a) and (b) should be dismissed.

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

1. [299]

   The contentions of the appellant in this respect were rejected earlier in this judgment (see to ground 3(c)). The appellant’s contention was that Mr Standen’s involvement in the investigation cast doubts on the veracity of evidence upon which he was convicted and renders his conviction unsafe and satisfactory was rejected. As earlier mentioned, the appellant cannot now seek to ventilate a matter which was abandoned at trial.

2. [300]

   This ground of appeal should be dismissed.

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

1. [301]

   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”.

2. [302]

   In relation to the Crown, the appellant made complaints about the following matters:

   1. (1)

      references being made to the appellant being a bigamist;

   2. (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. (3)

      references being made to the appellant making derogatory remarks against women;

   4. (4)

      the Crown’s belittling attitude towards the appellant’s barrister when presenting the appellant’s defence case;

   5. (5)

      references to comments made by the appellant regarding a cocaine bust on TV;

   6. (6)

      references to there being only three containers throughout the trial; and

   7. (7)

      failure to question Mr Xavier about where the container with the heroin was supposed to be sent, if it was sent by mistake.

3. [303]

   As to the trial judge, the appellant referred to the following factors in support of this ground:

   1. (1)

      “continual reference” to the appellant being a bigamist;

   2. (2)

      the mention of cocaine use by the appellant;

   3. (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. (4)

      failure to discharge the jury despite numerous applications that he do so (see ground 4 above);

   5. (5)

      failure to discharge Mr David Wilson from the trial;

   6. (6)

      failure to direct the jury as to “the cut-throat allegations” of Mr David Wilson (see grounds 6 and 17(d) above);

   7. (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. (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. (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. (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. (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. (12)

       failure to discharge a jury member who had a close family member die during the course of the trial (see ground 4 above).

4. [304]

   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. (1)

      "a fabricated load of nonsense" ;

   2. (2)

      "palpable nonsense";

   3. (3)

      "simply a nonsense";

   4. (4)

      "absolute and utter nonsense";

   5. (5)

      "palpably laughable" and "just rubbish";

   6. (6)

      evidence which "did not stand even in passing up to any logical or rational interpretation of reality";

   7. (7)

      "abject rubbish"; and

   8. (8)

      "preposterousness".

5. [305]

   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.

6. [306]

   Immediately after the references in [304(5)] above, the Crown Prosecutor submitted:

7. [307]

   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:

8. [308]

   Counsel for the appellant did not raise the issue with the trial judge or seek his assistance.

9. [309]

   In written submissions on the appeal, the Crown submitted as follows (at para 229):

10. [310]

    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]):

11. [311]

    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.

12. [312]

    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”.

13. [313]

    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.

14. [314]

    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.

15. [315]

    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.

16. [316]

    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.

17. [317]

    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.

18. [318]

    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.

19. [319]

    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.

20. [320]

    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.

21. [321]

    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).

22. [322]

    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.

23. [323]

    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).

24. [324]

    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.

25. [325]

    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.

26. [326]

    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.

27. [327]

    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.

28. [328]

    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.

29. [329]

    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.

30. [330]

    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.

31. [331]

    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.

32. [332]

    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.

33. [333]

    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.

34. [334]

    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.

35. [335]

    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.

36. [336]

    Overall, I consider that this ground should be dismissed.

Ground 21(a): Error in summing-up

1. [337]

   The appellant took issue with the following extract from the trial judge's summing-up of the appellant's case:

2. [338]

   The evidence to which his Honour referred (at page 1762 lines 20-26 of the transcript) was as follows:

3. [339]

   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. (1)

      the summary of the appellant's case was provided by counsel for the appellant;

   2. (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. (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.

4. [340]

   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.

5. [341]

   In the result, I would not grant leave under r 4 regarding this ground.

6. [342]

   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.

7. [343]

   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].

8. [344]

   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.

9. [345]

   In my view, ground 21(a) should be dismissed.

Conclusion regarding conviction appeal

1. [346]

   As will be recalled, the Crown submitted the appellant should not be granted an extension of time to file an appeal and that if such extension is granted, the appeal should be otherwise dismissed.

2. [347]

   I consider that an extension of time should be granted. The appeal is substantially out of time, so much so that the Crown’s submissions as to the difficulty of remittal must be accepted. I also agree that the appellant’s reasons for delay do not adequately explain the whole period of delay in the filing of the appeal, but they do explain a substantial period of the delay. The appellant has not ultimately established any ground of appeal, as such, but the issue raised under ground 21(a) was arguable (and the appellant demonstrated the trial judge mistook the evidence).

3. [348]

   Nonetheless, the appellant has not established any ground of his conviction appeal. The appeal as to the conviction of the appellant should be dismissed. If ground 21(a) had been made out, I would have dismissed the appeal under the proviso.

SENTENCE APPEAL

1. [349]

   There was no specific ground of appeal articulated in relation to the sentence appeal brought by the appellant. Nor did the appellant make oral submission on that issue. However, I agree with the submission of the Crown that the submissions in support of the appeal appeared to broadly raise three issues as follows:

   1. (1)

      the role of the appellant;

   2. (2)

      totality; and

   3. (3)

      parity having regard to the sentence imposed upon Mr Xavier.

2. [350]

   I will deal with each of those issues in turn.

Role of the appellant

1. [351]

   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. (1)

      used his knowledge of the furniture manufacture/import/export trade between Australia and Indonesia to provide a medium for the import;

   2. (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. (3)

      travelled twice to Australia from abroad to facilitate the object of the conspiracy;

   4. (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. (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. (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. (7)

      transported currency out of Australia to Indonesia, to pay for the drug imported and to remove his profits;

   8. (8)

      financed (along with Mr Xavier) the importation, including payments to other syndicate members;

   9. (9)

      expected and received profits in excess of $750,000;

   10. (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. (11)

       travelled to Adelaide to meet with Mr David Wilson to ensure correct identification of the furniture containing the drugs; and

   12. (12)

       reported back to Mr Xavier that the drugs has been safely handed over to Mr Wren.

2. [352]

   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:

3. [353]

   The total sentence of imprisonment for 23 years is “unfair and did not reflect the role in the conspiracy he was convicted of”.

4. [354]

   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.

5. [355]

   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.

6. [356]

   The appellant contended that he had the lowest role in the enterprise, “if any role at all”.

7. [357]

   I do not accept those contentions for the following reasons.

8. [358]

   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.

9. [359]

   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.

10. [360]

    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.

11. [361]

    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.

12. [362]

    I consider there was no error by the sentencing judge in making the finding that he did as to the appellant’s role.

Totality

1. [363]

   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.

2. [364]

   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.

3. [365]

   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.

4. [366]

   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:

5. [367]

   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].

6. [368]

   The degree of accumulation was open to his Honour.

7. [369]

   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.

8. [370]

   In my view, this aspect of his Honour’s judgment does not disclose an error.

Parity

1. [371]

   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.

2. [372]

   The principles in relation to parity are well established. As observed in Why v R [2017] NSWCCA 101 (at [43]):

3. [373]

   The sentencing judge expressly considered the issue of parity between the appellant and Mr Xavier, finding as follows:

4. [374]

   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.

5. [375]

   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.

6. [376]

   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.

7. [377]

   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.

8. [378]

   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.

9. [379]

   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).

Conclusion regarding sentencing appeal

1. [380]

   Having regard to the issues raised as to parity, leave to appeal should be granted but the sentencing appeal be dismissed.

ORDERS

1. [381]

   I would make the following orders:

   1. (1)

      The application by the appellant to call fresh evidence is refused.

   2. (2)

      Leave is granted to the appellant to file the appeal out of time.

   3. (3)

      Leave to appeal is granted.

   4. (4)

      The appeal is dismissed.

2. [382]

   BUTTON J: I agree with Walton J.

3. [383]

   While the comments of the Crown prosecutor were inappropriate, in all the circumstances they did not occasion a miscarriage of justice.

4. [384]

   Separately, far from the verdict of guilty being unsafe, in my opinion the Crown case against the appellant was strong.