Regina v SUKKAR

WOOD CJ at CL : The Appellant stood trial, together with his brother Paul Tony Sukkar, on a charge of being knowingly concerned in the importation of narcotic goods, consisting of not less than a commercial quantity of 3,4 methylenedioxymethamphetamine (“Ecstasy”) tablets. To that charge he entered a plea of not guilty. After a trial lasting two months he was found to be guilty of that offence. He was sentenced on 19 December 2003 to imprisonment for 14 years with a non-parole period of 9 years, each to date from the time of his arrest, namely 5 December 2001.

The Appellant now appeals against the conviction, and seeks leave to appeal against the sentence. The Crown appeals against the leniency of the sentence. Facts

On 17 November 2001, the ecstasy tablets the subject of the charge arrived in Brisbane on board the P&O Nedlloyd vessel Tuaranga. They had been transported from Belgium, via Singapore, concealed in 48 columns, which purported to be parts of a portable coolroom. They were packed into a 40 foot shipping container consigned to CJ Trade Consultants Pty Limited, a company which had been registered in April 1999 as part of business venture between Huynh Joon (John) Choi and the Appellant and of which the Appellant, Choi and Louis Sukkar were originally listed as directors.

After the cargo was landed it was intercepted by Customs and Police who removed the 480,000 tablets concerned from the columns which were repacked with tablets of an inert substance together with a smaller amount of the original tablets (13,000) for the purpose of allowing a controlled delivery pursuant to a certificate granted to the National Crime Authority. The total consignment of drugs had a bulk weight of 123.75 kgs, or 34.401 kgs of pure ecstasy, with a wholesale value of between $7.2M and $12M.

Listening devices were placed in the container and in a warehouse in Brisbane, which had been leased by Maurice Shepherd and to which the container was transported. Telephonic interception began in relation to the services of a number of suspects and video cameras were installed in the warehouse.

The container was unpacked in the warehouse by Shepherd and Glen Bourke, and the 48 columns together with some other parts of the cool room were loaded onto a truck which had been leased by Louis Sukkar. It was then driven by Bourke to Kempsey. Louis Sukkar, Choi and another person followed it in a motor vehicle, which Choi had rented. At Kempsey Louis Sukkar took over the driving of the truck, which arrived at 84 Consett Street, Concord West on the morning of 24 November. Bourke was a general handyman who had been used by the Appellant and Choi when they had conducted a restaurant business. He had also been used by other members of the Sukkar family, and on this occasion he had been given advance knowledge of the components within the container that contained the narcotics.

The premises at Consett Street had recently been purchased by the Appellant. They were occupied by Louis Sukkar, Michelle Royal and an Asian student who was boarding there. Surveillance was maintained, and from 27 November listening devices were installed.

Shortly after midday, the Appellant arrived at the premises, where he remained until about 4 PM.

During part of the afternoon, the truck was unloaded, and the columns were initially placed in a garage and later moved to a garden shed. During the period that the Appellant was at the premises Joseph Sukkar and John Choi were also present. He was observed to be assisting in carrying columns from the truck.

During that afternoon it appeared that the columns were examined and the contents removed from at least some of them. In the course of that activity it is evident from the telephone calls which Louis Sukkar made that he became aware of the substitution of the tablets. These calls were made to Joseph Sukkar.

During one call to Joseph Sukkar, Louis Sukkar said, when reporting that there was “nothing to check” that the Appellant had eaten two of the tablets during the unpacking, and that he as well as his girlfriend had similarly eaten some tablets.

Objection was taken to the admission into evidence of this observation, and it gives rise to one of the grounds of appeal to which I will return.

After 4.00 PM the Appellant left the premises with Choi and together they went to a restaurant or cafe in Strathfield. He returned after 6.00 PM but remained there for only about six minutes.

Over the following week the Appellant attended the premises on Sunday 25th, Monday 26th, Tuesday 27th, Friday 30th, and Saturday 1st December 2001. During that week there were many telephone calls made, involving Louis Sukkar, Joseph Sukkar, and Choi that were intercepted, and which were admitted into evidence, along with the product of the conversations that were intercepted by the listening devices which had been installed in the premises. Video recordings of the activities that occurred were also tendered. In the main the conversations during this period were concerned with attempts to bring together the documentation that had been used in connection with the importation in case it shone a light on when and where the substitution had been effected.

Late in the afternoon of 1 December whilst Louis Sukkar, Joseph Sukkar and the Appellant were at 84 Consett Street, arrangements were made for a barbeque at Joseph Sukkar’s home, which all three then attended.

During that evening the Appellant was a party to a number of telephone calls, that were obviously directed towards discovering how, when and where the substitution had been made, and whether one of the various parties involved in the importation other than a member of the Sukkar family had obtained the drugs.

On 2 December 2001 the Appellant, Joseph Sukkar, Paul Sukkar and Louis Sukkar gathered at 84 Consett St. A number of columns were examined and opened and a sorting process was undertaken in which the genuine ecstasy tablets were separated from the substituted tablets. The empty columns were loaded on to a truck which had been leased, and were then taken by Paul Sukkar to a storeroom in Granville. The substitute and genuine tablets remained at Consett Street. After the empty columns had been removed and most, if not all, of the sorting had been finished, the Appellant left the premises.

The movements of those who were suspected of being involved in the importation were kept under surveillance during 3, 4, and 5 December. Recordings of telephone calls and of conversations intercepted by listening devices between 1 and 5 December were tendered, along with video recordings of the activities and Consett Street.

On 5 December 2003, the Appellant was arrested and charged. It is obvious from the conversations to which I will return, in a little more detail, that Joseph and Louis Sukkar, who were clearly involved as principals, initially suspected that the substitution had occurred at the European end. Later, largely as a result of the Appellant’s inquiries, the blame shifted to John Choi. Somewhat inadvisedly, although perhaps out of misplaced confidence, they did not give serious consideration to a lawful interception by the authorities.

Although it was the Crown case that the Appellant had been knowingly concerned in the importation before 24 November, it accepted that there was no direct evidence of that being the case. Rather, its case in that regard was circumstantial, being pursued upon the basis that his attendances on 24 November and 2 December had not been a mere coincidence, and upon the further basis that a fair understanding of the many telephone calls, which he made, showed his knowing involvement in the venture before 24 November.

The Crown also contended that his actions in seeking to locate and remove any more genuine ecstasy tablets, which were still in the columns, on 2 December 2001, and to find who had taken the balance of the tablets were themselves actions which constitute his knowing concern in the importation, it being contended that the importation process was still on foot while attempts were being made to find and to recover the genuine tablets.

It was the case of the Appellant, who was the youngest member of the Sukkar family, and a practising solicitor, that he had known nothing of the importation until the evening of 1 December.

In his evidence he said that he had attended the Consett Street premises for the first time in his life on 24 November. Its purchase had been arranged by Louis Sukkar out of the profits from the sale of another house which he had owned and which had been renovated by Louis Sukkar. The arrangements which were made were similar to those pertaining to the previous house, in that Louis Sukkar was to live there and to renovate it.

He accepted that he had helped unload the truck on 24 November, but did so innocently unaware of the assumed presence of drugs in the columns. He denied tasting any of the tablets. He accepted that he had gone to Strathfield with Choi, but denied that this had any relationship to the importation of narcotics. Choi’s presence at the house, he said, had been unexpected, and there was nothing unusual, that he could see, in Joseph or Louis calling in that day, which was a Saturday.

Choi, he said, had been a client of his legal practice, whom he had introduced to his brothers because he believed him to be a person with business expertise, who could assist them in their legitimate business activities.

He acknowledged having visited Consett Street on a number of occasions during the following week, but said that he did not at any time discuss with his brothers the importation or substitution. His first knowledge of it, he said, was on the night of 1 December when he was asked by his brothers to assist them to ascertain how, when, where and why the substitution had taken place, because of their concern that those at the European end were accusing Joseph Sukkar, and his accomplices, of being guilty of a “rip off”.

Thereafter, he said, he made the various telephone calls, to which I will return in more detail when I come to the principal ground of appeal, because of his concern for the safety of his brothers in the event of there being a reprisal from the Europeans. It eventually became his belief, which was communicated to the Europeans, that Choi had been responsible for the substitution, and that it had occurred in Brisbane.

It was as a result of this advice to the brothers that a proposal from the European end to send out various persons to investigate the problem, resulted in only one man, Antoun El Hani arriving in this country and being arrested.

It is evident, from the various intercepted conversations, that it was Joseph Sukkar who had direct connections with those involved at the European end, including El Hani whom he had known while living in Lebanon. It was the case that Joseph Sukkar had travelled to Europe in October 2001 immediately prior to the despatch of the container.

It was also the Appellant’s case that on learning of the importation, he wanted everything connected with it, to be removed from his house. It was to that end, he said, that he went to the premises on 2 December where he assisted in checking the columns and sorting tablets, because he thought that this would facilitate their removal. He explained that while the columns were removed, the tablets had remained because Louis Sukkar had failed to deliver on his promise to remove them.

A number of persons have been dealt with by the Courts in relation to this importation. They include Shepherd who pleaded guilty and gave assistance to the authorities. For his role in providing assistance in relation to the clearance of the container, and its reception into the warehouse, in return for a payment of $25,000, he was sentenced, on appeal ( R v Shepherd [2003] NSWCCA 287) to imprisonment for 11 years 6 months with a non-parole period of 7 years and 4 months.

Another offender who was also convicted of knowingly being concerned in the importation was Simon Sunil Prasad, who had an import/export business, and who was recruited by Choi to take on the role of ensuring the Customs clearance, and to act as a cut-out between Shepherd and Choi and such of the Sukkar brothers as were involved, for a net reward (after payment to Shepherd) of $25,000, plus forgiveness of a debt of about $100,000 owed to Choi. He was sentenced to imprisonment for 14 years with a non-parole period of 8 years and 8 months.

Although this Court held on appeal: ( Regina v Prasad [2004] NSWCCA 293) that a proper sentence would have been one of imprisonment for 17 years with a non-parole period of 11 years and 2 months, it dismissed the Crown appeal against leniency, on discretionary grounds.

El Hani, who also pleaded guilty and provided some assistance to the authorities, was sentenced to 15 years imprisonment, with a non-parole period of 10 years. He was found to be a senior person in the importation who had been sent to Australia to discover what had gone wrong with the importation and to put the matter to rights.

The jury were unable to agree on a verdict in relation to Paul Sukkar who had however offered a plea of guilty to being an accessory after the fact to the importation. By the time that the Appellant came to be sentenced, proceedings in respect of Joseph and Louis Sukkar, and Choi, were incomplete. Ground 1 – His Honour erred in admitting into evidence the words “Steven ate two” included in the intercepted telephone call between Louis and Joseph Sukkar at 19.38.05 hours on 24 November 2001.

This call took place after the Appellant had left the premises with Choi at about 4 PM and before his return at about 6 PM. It followed a number of calls that were made by Louis Sukkar to various people, including Choi, in which Louis made mention of being “set up”, and having “some stuff planted.”

In the conversation at 19.38.05, the following is recorded (M1: Louis Sukkar; M2: Joseph Sukkar): “M1: It’s nothing … I ate about three of them … M1: There’s nothing and ah MICHELLE ate one STEVEN ate two there’s nothing at all. … M1: You know when you when you um speak to them over there M2: Yeah M1: I … think I think you should make it very clear M2: Yeah M1: That there was an attempted set up M2: That’s what I said I just spoke with them just about ten minutes ago”.

It is evident from the conversations which followed this call that Joseph and Louis were working on the hypothesis that there had been two consignments of drugs on the vessel, that the “other side” had worked a substitution in respect of their consignment, and had given Customs a tip off, yet Customs had mistakenly intercepted the other consignment, an event of which mention had been made in the news on the preceding Wednesday.

In allowing the disputed comment into evidence as relevant to a fact in issue, namely the Appellant's “knowledge of the importation”, his Honour had regard to the decisions in Tripodi v The Queen (1961) 104 CLR 1 and R v Mai (1992) 26 NSWLR 371. Those decisions establish that where the prosecution case is one involving a number of persons acting in preconcert in the commission of a crime, then once reasonable evidence of the preconcert has been adduced, evidence of directions, instructions, arrangements or utterances accompanying acts given or made by any one of those persons, although in the absence of the others, in furtherance of their common purpose, which constitutes or forms an element of the crime, becomes admissible against the other or others.

It was here submitted by the Appellant that: (a) The importation was over by the time of this conversation, and the comment by Louis Sukkar to Joseph Sukkar was not made in furtherance of any common purpose to import the drugs, albeit it was one to which undeniably they had each attached themselves; (b) There was no evidence that fell into the category of reasonable evidence of preconcert involving the Appellant prior to the evening of 1 December 2001.

The reasonable evidence of preconcert does not involve proof beyond reasonable doubt, nor is it confined to direct evidence.

In my view, there was prima facie circumstantial evidence of a preconcert in relation to the Appellant arising from the following circumstances: (a) His earlier associations with Bourke and Choi; (b) The inherent improbability of his brothers delivering a potentially enormous quantity of drugs to his premises, without his knowing consent, combined with evidence pointing to his knowledge of their earlier and ongoing involvement in drug importations; (c) His involvement in the unpacking activities on the afternoon of 24 November; (d) His regular attendances at the premises during the following week and the evidence pointing to his knowledge before 1 December of the fact that the tablets had been badly packed; (e) His involvement in the checking and sorting activities on 2 December; (f) The tenor of the conversations in which he became involved from 1 December onwards, both with his brothers and with Choi, and in particular his use of the plural when discussing the problem in a way which suggested that he had been a participant in the enterprise.

Although not necessarily determinative beyond reasonable doubt of his involvement in the enterprise before 24 November, I am satisfied that these matters constitute sufficient evidence to satisfy the Tripodi test of preconcert from at least that morning. I am also satisfied, for the reasons later set out, that the importation could not be regarded as having been completed by the time of the relevant conversation, and that the words uttered were properly to be regarded as having been spoken by Louis in furtherance of the common purpose.

In that regard they clearly related to what was being done in the course of recovering the drugs from the columns or from the possession of whoever then held them. Louis Sukkar was confirming to his brother that there had been a substitution, and was encouraging him to make it clear to the consignor/exporter that there had been an attempted set up. As the immediately following conversation shows it was also known by Louis that there were some genuine ecstasy tablets “sprinkled” among the substituted tablets. The evidence had a potential relevance in so far as it threw light on the assistance provided on 24 November by the Appellant, in so far as it tended to explain his apparent familiarity with the venture when he spoke to Choi on 1 December, and in so far as it tended to show his knowledge of what had been imported in the columns.

I am not persuaded that his Honour was in error, either in finding it relevant to a fact in issue, or in declining to exclude it on discretionary grounds.

This ground is not made good. Ground 2 – his Honour erred in admitting into evidence the references to possible past and future importations of drugs which were included in a number of recordings of intercepted telephone calls and in conversations recorded by listening devices.

The conversations in question occurred on 1, 2, 3 and 4 December 2001, and in each case the Appellant was a speaker or was present when it took place. The first of those conversations (on 1 December) was between Louis Sukkar and the Appellant. In the course of it the Appellant reported his concerns that Max Messina of Intergroup Shipping, to whom he had spoken in relation to the movements of the container using a false name, was “sussing” him out, and had known what was arriving.

The conversation continued (M1: Appellant; M2: Louis Sukkar): “M1: He knew it was cool rooms M2: Yes but JOHN knew it was cool rooms too … M2: He knew from last time M1: Alright so he knew from last time.”

The second of these conversations occurred on 2 December, and it was one in which the Appellant said: “SS: …alright you know now we’ll fix it up mate get another one and we’ll do it ourselves next time it’s alright.”

The third conversation occurred during the tablet sorting, the speakers initially being Louis Sukkar and Paul Sukkar in the course of which there was discussion about Choi having “overstepped the mark this time ” and about temptation getting too much for people, although as the Appellant observed “how come it’s never been too much for us ”. This was followed by further conversations about there being “over two hundred thousand dollars in there he’s [Choi] not seeing any of that”. A little later that day (at 12:13) the Appellant and Joseph Sukkar discussed future “work”: “SS: (wds) wanna do a (wds) for the next one [Pause] aren’t you going to work with him JS: (wds) if there’s work why not (wds) Ough if we can do work with the Chinese (wds)”

At 12:47 on the same day the Appellant and Joseph continued their discussion: “SS: Do you think they will still work with you on this shit JS: They should still (wds) … JS: (Wds) better things We’re talking about tens (wds) what would I say we’re talking about a tonne cocaine from Brazil this on its own (wds) me and TONY he said about this cunt (wds)”

At 12:57, after some discussions about sending Tony some money so that he could come (to Australia), the intercepted conversation involving the Appellant, Joseph Sukkar, Louis Sukkar included the following passages: “SS keep him happy as much as you can they’ll appreciate what you are doing and then just get started on the next one … LS Well shall I give him [Choi] a ring right … PS Just tell him say look the guys are due here in the next couple of days get your arse back here we gotta clear this up … SS Just say look we need to cover that gap once we cover that gap that’s it we say it’s not our end then we just get onto the next one but tell him see he he’s insisting on that money to make sure that once we pay that fifty then he’s clear he goes oh they really don’t suspect us so we gotta say look JOHN we don’t have anything we can’t pay it please just come and help us organise the next one we’ll use the…”

In a further conversation on the same day (commencing at 13:33) Joseph and Louis discussed five hundred kilos in Brazil and doing “ another one”.

In a conversation (commencing at 14:20) in which each of the Appellant Joseph Sukkar, Louis Sukkar, Paul Sukkar and an unknown male participated, there was the following exchange: “JS JOHN wants one hundred fifty thousand dollars the son of a bitch … … PS (wd) the way we did the last one (wd) even bigger one”

The final conversation on 2 December 2001 of relevance in relation to this ground (at 17:05) involved the following exchange between the Appellant and Joseph Sukkar: “JS We should now do something nice we should (wds) the man’s goods JOHN whatever you can get off JOHN and we’ll do one more (wds) SS What’s it worthwhile (wds) JS Believe me you’ll do very nice money in the next two months SS Alright”

Then on 3 December there was a discussion between the Appellant (SS), Michelle Royal (MR) and Louis Sukkar (LS) (at 19:11:37) in relation to the Appellant’s apparent discovery that the pipes in the columns were Australian made. That conversation included the following exchange: “SS The pipes inside were fucking Australian made MR How do you know SS I saw it it just fucking jerried with me about an hour ago LS They’re exactly the same pipes as last time MR Really it says made in Australia SS No they’re Australian fucking made LS They came in the same pipes as last time SS No they’re not no they’re not Paul’s looking at them up there he’s got the ones last time LS Has he SS Yeah he’s still got the fridge from the last one LS And he compared exactly the pipes SS He did I told him to he did they’re different LS They wouldn’t have needed to change the pipes SS LOUI you can’t open those pipes without breaking them”

There was further discussion at 18:04:50 about the tubing in Paul Sukkar’s possession, in which Paul Sukkar confirmed that he had checked them and had found that they were solid foam, and in which the Appellant asked him to check if the other tubes were Australian made.

This evidence was not led as tendency or coincidence evidence. Rather the Crown relied upon it as establishing the nature of the Appellant’s relationship with those who were obviously principals in the importation and as being contradictory of the defence case that he had been a late and reluctant conscript after the importation had ceased. Objection was taken to its tender as being prejudicial and as not being probative in relation to the fact in issue, namely whether the Appellant was knowingly concerned in the importation.

The admissibility of this evidence was in my view properly established, in accordance with the line of authority that was settled in Harriman v The Queen (1989) 167 CLR 590, esp at 594 per Brennan J and applied in Regina v Quach [2002] NSWCCA 519 and R v Chan (2002) 131 A Crim R 66. Each provides an example of a case where conversations, or conduct, relating to other offences involving the importation or supply of drugs, were received into evidence in order to establish the true nature either of the charged transaction, or of the relationship between those involved.

The evidence was, in my view, admissible upon the same basis, not as tendency or coincidence evidence, but as being relevant, and probative, in relation to the defence case. That case was to the effect that the Appellant had no knowledge of the importation, or of his brother’s activities, prior to the evening of 1 December, and thereafter only behaved, in the way that he did, out of an urgent desire to have the incriminatory material removed from his property, and also to assist his brothers in establishing, to the satisfaction of the European end, that they had not “ripped off” the drugs.

The portions of those conversations to which objection was taken, were admitted by his Honour as being relevant to the Appellant’s knowledge of the nature of the importations and of his knowing involvement in the present one. His Honour also made it clear that he would give a direction that the evidence was received on this basis, and was not to be used by way of tendency reasoning. I am not persuaded that he was in error in finding that the evidence was relevant to a fact in issue, or in declining to reject the evidence on discretionary grounds.

The asserted concern that the Appellant had to remove the incriminatory material is somewhat hollow, having regard to the obvious belief of the brothers, and of the Appellant, that someone other than law enforcement authorities had intercepted the consignment, and that they had in fact targeted a quite separate consignment, and also having regard to the fact that the tablets remained on the premises up to 5 December.

Together the conversations show that the Appellant was well aware of the nature of the unlawful operations in which his brothers had engaged and which they had planned. The terms in which he spoke showed his acquiescence in and support for those activities and were clearly relevant to show the nature of his participation in the events which commenced, so far as he was concerned, from 24 November 2001. The obvious familiarity which he had with their activities, and the confidence which they had in speaking to him, clearly emerges from the references to past and future dealings, and in particular to the tubing or pipes which had been involved in this and in an earlier importation.

The use by the Appellant of the plural in relation to “our end” and to what they (“we” or “us”) had done or proposed for the “next one”, was relevant to the issue of his involvement in the transaction, and to the time that his participation began.

While it would not be enough for the Crown to show that the Appellant was concerned, in the sense of worried , that his brothers had imported narcotics, or that he simply knew that they had done so, the conversations, in which he became engaged, and the terms in which he spoke, particularly when read in the context of the somewhat violent response which he had in mind in relation to Choi, pointed in the direction of his knowing involvement in the transaction, and were admissible as relevant in relation to that issue.

It was evidence that was contradictory of the proposition that the Appellant had only been brought into the inner sanctum, innocently, and after the importation had been completed, to assist his brothers out of concern for their welfare at the hands of the aggrieved suppliers from the European end. As the Crown put it on appeal “the comfortable and knowledgeable manner in which the Appellant spoke of past and future importations” was clearly relevant to a consideration of his relationship with his brothers, and of the reason for, and nature of, his conduct from 24 November 2001.

This ground is not made good. Ground 3 – his Honour erred in not discharging the jury when the jury sent a note expressing concern about a person behaving inappropriately in the public gallery.

This ground arose by reason of a note, which was sent by the jury on the 30th day of the trial, expressing concern that a young man in the public gallery appeared to have had in his possession a mobile phone, possibly a video phone, that had been pointed in their direction. The Appellant, who had been giving evidence at the time, indicated that he had seen a young lady, whom he knew, although not favourably, come into the Court during the afternoon, and that he had also seen a young man, whom he did not know, come into the Court. The young man remained unidentified, despite the inquiries that were made when an application for discharge of the jury was made. Later it emerged that the lady was observed making signs in the direction of the Appellant, while he was giving evidence. No application was made in this regard, although the lady was removed from the Court.

The Appellant submitted that the jury may have been concerned about their own security, in relation to these events, and that there was a risk that they would have connected them with the Appellant, resulting in a risk of prejudice to his case.

His Honour dealt with each of these matters by way of an appropriate direction to the jury.

In relation to the note, he said: “I have your note which reads as follows “your Honour several members of the jury noted that yesterday after lunch a young man in the public gallery was behaving inappropriately. Although we have been reassured that video phones were not permitted in the building several of us thought he had a mobile phone possibly a video phone and was pointing it in our direction. As a result of that note, I have taken steps to try and determine what did transpire yesterday and as to whether there were any photographs or films taken. I have taken further steps to ensure that it hasn’t and cannot happen. Please be assured that everything is being done to that end. Such an events (sic) if it did happen can have no bearing on this trial and you can and should not speculate on its meaning and nothing could be attributed in any way to the accused in relation to this event. I propose to give you further directions at the end of the trial when I sum up in relation to that.”

In relation to the signs, he said: “Members of the jury, I understand before we adjourned there was someone sitting at the back of the Court supposedly making signs to the witness, and I must say I didn’t see this, but some of you may have seen this. I just wish to say to you that person has been removed. But it has nothing to do with the accused and there is nothing that has come about because of him, and if things were seen, that should simply be ignored.”

He returned to the matter in the summing up, in so far as he observed: “You may recall that I directed you at the time that this conduct had no connection with the accused. I repeat that direction, that this activity was not related in any way to either of the accused and that incident forms no part of the evidence and can from no part of the trial and cannot be used in any way adverse to the accused, and it should not be speculated upon.”

The directions given by the learned trial judge were appropriate to the circumstances which had arisen. There was no risk of a miscarriage of justice, or occasion for the jury to be discharged as a result of what occurred. Ground 4 – his Honour erred in his directions concerning “being knowingly concerned in the importation”.

During the course of the trial, counsel were provided by his Honour with a draft of the relevant direction, and were invited to indicate any amendment which they sought. In the course of the submissions which followed, reference was made to the decisions in R v Lam (1990) 46 A Crim R 402 and R v Doney (1988) 37 A Crim R 288.

In Lam the Court of Criminal Appeal quoted with approval portions of the directions which had been given by the trial judge, including the following passage: “The part played by the person accused of being knowingly concerned must be played before or during the importation, including before or during all that is involved in such importation. He must be implicated or involved in the sense of having something to do with the importation and the importation includes all that is incidental or proximate to the act of importation, but it does not include the use, transportation or disposal of the goods after everything proximate and incidental to the importation has been completed. ”

His Honour included this direction, save for the part in italics. However he provided examples of conduct that could involve being knowingly concerned in the importation both before and after the arrival of the goods. It was the inclusion of that portion of the summing up, particularly that relating to post arrival events which, it is now submitted, gave rise to error.

The direction which was given needs to be considered in full. It was as follows: “Knowingly concerned in, this is the element of the offence which is at the heart of the dispute in this trial. Firstly, what does it mean to be concerned in an importation? The concern to which the section speaks is not concern personal to the accused in the sense of being in his mind, but it is a concern which can be demonstrated objectively by reference to his association with the importation. It must be shown that he is concerned in, not just concerned about, the importation. A person would not be guilty of the offence of being knowingly concerned in an importation merely from his knowledge of the importation and his state of mind. Before he could be convicted, he would have to do something to connect himself with or involve himself in the importation. To be concerned in an offence means to do something which involves a practical connection with the offence and all that is involved in the offence. Merely to stand by with knowledge of an importation and to do nothing is not to be concerned with it. However, if a person waits with knowledge with a view to doing something to facilitate the importation, or do something concerned with the importation that would amount to being knowingly concerned in the importation. These things must be done before or during the importation, that is, before or during all the things that are involved in importation. The importation is the whole process of making available in Australia goods from overseas. It includes all that is incidental or proximate to the act of importation. That is, the importation does not finish the moment the goods are landed or even the moment they are cleared through customs, but extends to all matters and events which are directly related or proximate or incidental to the importation. That is, to the whole process of making the goods available in Australia. Importation is the continuing process or venture and extends to both sides of the actual act of importing to all matters which are directly related or proximate or incidental to the act of importation. The venture or process of the importation can begin before the narcotic goods are placed aboard the craft or vessel by which they are brought into Australia and can continue after the act of importation. For example, prior to the actual act of importing narcotic goods into Australia from overseas, the process or venture of the importation can include such things as the payment for the narcotic goods, their packaging and concealment and their delivery to a courier or a freight forwarding agent or craft or vessel and their transport into Australia. Similarly, after the actual act of importing narcotic goods into Australia, the process or venture of the importation can include such things as picking up the narcotic goods following their arrival in Australia, delivering items to another person or elsewhere and packing the narcotic goods, and whatever is necessary to enable the recovery of the narcotic goods after their actual importation into Australia in order to make them available in Australia, for example for distribution to the markets for which they are intended. Concern in an importation can commence at a time when it is apparently broken down and where efforts are being made to bring it to fruition. The part played by the accused of being knowingly concerned must be played before or during all that is involved in such importation. He must be implicated or involved in the sense of having something to do with the importation, and the importation includes all that is incidental or proximate to the act of importation. Once the importation has been completed, he cannot therefore be knowingly concerned in that importation. How far the process or venture of the importation extends will depend upon the particular circumstances. However, it will extend to all that is directly related or proximate or incidental to the act of importation. It will not extend to conduct or acts that are not directly related or proximate or incidental to the act of importation. To be concerned in the importation means to be involved in or take part in the importation in the sense of doing something to further or facilitate in some way the venture or process of the importation. Such involvement or participation must occur during the venture or or process of the importation and is not confined to doing something physically or acting to further the actual importation but also encompasses other conduct that contributes to the furtherance of the venture or process of the importation. A person who merely stands by with knowledge of an importation and does nothing is not concerned in the importation, but if the person has been standing by with such knowledge for the purposes of doing something to further or facilitate the importation process or venture, that person would be concerned in the importation.”

His Honour continued: “There is an issue in the case as to the scope and duration of the importation with knowing concern must be shown, that is, as to when the importation may have ceased or terminated. The time will be reached when involvement with the drugs and their passage through the Australian community cannot properly be categorised as knowing concern in the importation…The question of when an importation may or may not have ceased or terminated in all of the circumstances is a question of fact for your decision within the meaning of what is an importation in the light of these directions.”

In my view these directions were unexceptional. They sufficiently explained what was involved in the offence, and clearly identified the critical issue in so far as the Appellant was concerned.

This ground is not made good. Ground 5 – his Honour erred in playing to the jury a recording of the whole of his summing up during the deliberations of the jury.

The recording was supplied following a request by the jury for a copy of the transcript of the summing up and following a further request for them to listen again to the summary of the Crown and Defence cases. As the summing up had been sound recorded but not taken out, his Honour had the tape of the whole summing up played.

In R v Taousanis [1999] NSWSC 107, Sperling J held that a Judge had a discretionary power to make available to a jury a copy of the transcript of any part of the record of the proceedings conducted in their presence, including a transcript of the Crown and Defence opening addresses. In R v Bartle [2003] NSWCCA 329, this Court held that there had been a miscarriage of justice resulting from the refusal of the trial judge to comply with the jury’s request for a copy of the transcript of the closing address of two of the defence counsel.

Faced with these decisions Counsel for the Appellant accepted that, in an appropriate case, where requested, the trial judge could properly provide the jury with a copy of a transcript of the summing up or arrange for it to be replayed to them. The error which here occurred, it was submitted, was in doing so in a case where the summing up was, so it was argued, unbalanced and unduly favourable to the Prosecution.

For the reasons advanced in relation to the additional ground of appeal concerning the balance of the summing up for which leave was sought during the hearing of the appeal, and to which I will next turn, I am unpersuaded that the foundation for this submission has been made good.

The discretion which his Honour exercised was appropriate for a case which was lengthy, and involved two Appellants, and it served to reinforce for the jury the issues involved for each accused and the legal principles by which they were to be resolved. Moreover it followed several requests by the jury for assistance.

This ground is not made good. Additional ground of appeal – the summing up of the learned trial Judge was not balanced and leant too far towards the Crown

This ground depends upon the proposition that twice as much attention was paid by his Honour, in the summing up, to the Crown case as to the defence case. In support of that proposition the Appellant relied upon an argument that a lack of balance was demonstrated by the fact that his Honour devoted 21 pages of the summing up to an outline of the prosecution case and only 10 pages to the defence case. Reference was also made to the fact that his Honour, when dealing with the Crown case, made several references to the observations in the course of the conversation between Louis and Joseph Sukkar concerning the Appellant eating some of the tablets on 24 November, and then made only brief mention of it when outlining the defence case.

The replaying of the summing up, it was contended, doubled the imbalance, although it is to be noted, no objection was taken to the summing up when first given.

In order to determine whether a summing up is unfairly balanced, it is necessary for it to be considered in its entirety, and in the context of the issues and the evidence led in the trial. Any attempt to measure the balance by reference to a mere numerical comparison of the pages devoted to the Crown and to the defence respectively, is valueless and has been held to be such. In R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49 the Court (Gleeson CJ, Kirby P and Lusher J) said at 56: “It is not the length of the time devoted to the cases of the Crown or the accused which is in issue. It is the fairness, balance and impartiality of the summing up which the Appellate court must review or safeguard.”

As was observed in R v Williams (1990) 50 A Crim R 213 at 214, a summing up: “should involve no more and no less than a clear and manageable explanation of the issues which are left to the jurors in the particular case before them. There is no need to venture beyond a clear statement of the relevant legal principles as they affect the particular case and against which they are to apply their decisions on the factual issues which arise”. See also Chai v The Queen (2002) 76 ALJR 628 at 638 and R v Meher [2004] NSWCCA 355 at [76] to [77].

As Hunt J (as he then was) said in R v Tillott (1991) 53 A Crim R 46 at 51: “What is important is that the jury must understand which ingredients of the charge are in issue, what are the facts relevant to each ingredient which are themselves in dispute, what evidence has been given in relation to those facts and what arguments have been put in relation to that evidence. It is only in that way that the trial judge will explain how the relevant law may be applied to the facts of the particular case: Alford v Magee (1952) 85 CLR 437 at 466.”

This does not necessarily require an exhaustive reiteration or analysis of the entirety of the evidence which has been led, or even an analysis of all of the conflicts in the evidence ( R v Meher , Supra at [77]), so long as the critical evidence is identified, and the cases of the Crown and the defence in relation to the issues are identified and summarised in a fair and meaningful way. As Brennan J observed in B v The Queen (1992) 63 A Crim R 225 at 229, citing Stokes v The Queen (1960) 105 CLR 279 at 284, a summing up must exhibit a judicial balance so that the jury is not deprived “of an adequate opportunity of understanding and giving effect to the defence and the matters relied upon in support of the defence”. See also Green v The Queen (1971) 126 CLR 28 at 34; Pemble v The Queen (1971) 124 CLR 107 at 117-118 per Barwick CJ; R v Schmahl [1965] VR 745 at 748 cited with approval in Regina v Tomazos NSWCCA 6 August 1971 and Regina v Malone NSWCCA 20 April 1994, where Blanch J said: “What is of paramount significance in assessing a summing up is to determine whether the defence has been fairly put thus allowing a jury properly to consider the issues raised on the accused’s side. If a jury is not given the opportunity fairly to consider the defence case, then there has been a miscarriage of justice.”

If a judge does refer to the evidence in relation to a crucial issue, then there will be an imbalance in the summing up unless there is reference to the competing versions, and the competing considerations, including inferences arising therefrom: Domican v The Queen (1992) 173 CLR 555 at 560-561, R v Zorad (1990) 19 NSWLR 91 at 105 and R v Hannes (2000) 158 FLR 359 at 377.

As the decisions in R v Courtney-Smith (Supra at 55), R v Broadhurst [1964] AC 441 at 462 and R v Meher (Supra at [93]) show, where there has been a miscarriage of justice by reason of a lack of balance, that deprived the Defendant of a fair trial, then the Appellate Court must intervene and order a new trial.

Upon my reading of the summing up, I am unpersuaded that his Honour failed to comply with these requirements. Sensibly, having regard to the length of the trial, his Honour elected not to read slabs of evidence from the witnesses, or to read from the very many recordings that were in evidence. Rather he identified, in a summary way, the aspects of the evidence upon which the Crown and the Defence respectively relied, in the light of the way that their cases were presented.

The summing up was relatively short, but it was precisely focussed, and so far as I can see it did not omit or understate any aspect of the defence case. His Honour was careful throughout not to comment on the evidence in a way that might have been seen to advance or undercut the case of either party. He provided all of the customary directions, including conventional directions in relation to circumstantial proof, good character, avoidance of propensity reasoning and the potential unreliability of the evidence of the accomplice Shepherd, and lies. He correctly explained the law in relation to the offence charged, and he identified the one issue that was alive, namely whether the Appellant became knowingly concerned in the importation of ecstasy which was undeniably established, while it was still in progress.

The preponderance of the time taken during the hearing was occupied by the Crown case, and the Prosecution address involved an analysis of the events in which the Appellant had been actively engaged and of the conversations attributed to him. The defence depended significantly upon identifying conversations or events in which his participation was not established, and in providing explanations of why he had made the telephone calls from 1 December onwards and of what he had been doing on 2 December. The inevitable difference in detail attaching to those circumstances, and the fact that it was the Crown which had to make the running, if it was to satisfy the onus of proof, necessarily meant that more time needed to be given by his Honour to the Crown case than to the defence case.

In my view, the summing up was comprehensive, and correct, and reflected a proper balance, a circumstance which is only confirmed by the fact that experienced trial counsel did not make any complaint about it or seek any redirection.

This ground is not made good. Ground 6 – The verdict was unreasonable or cannot be supported by the evidence

It was the Crown case, based upon inference from circumstantial evidence that the Appellant had been knowingly involved in the importation prior to 24 November. Alternatively its case was that the importation was still in progress up to 5 December and that the Appellant was knowingly concerned in it from 24 November.

This ground requires the Court to make its own examination of the available evidence, in order to determine whether, making due allowance for the advantage which the jury had in hearing and seeing the relevant witnesses, it considers that, on the whole of the evidence, the jury ought to have entertained a reasonable doubt as to the guilt of the Appellant: M v The Queen (1994) 181 CLR 487 and Jones v The Queen (1997) 191 CLR 439. This is a question of fact: M v The Queen at 492. In the present case it very much turns upon an analysis of the listening device and telephone interception material, and of the surveillance evidence, along with a consideration of the Appellant’s evidence in respect of the assessment of which the jury had a distinct advantage over us.

Although the intercepted conversations occupy 519 pages of transcript, there is little alternative other than to extract some of the salient passages, and to consider them in the context of the events which occurred, in particular between 24 November and 4 December.

The available evidence relates to the following matters: 24 November (a) The arrival of the container at Consett Street on the morning of 24 November; (b) The attendance of the Appellant at Consett Street commencing at 12:22, when he was joined by Joseph Sukkar and later by John Choi, and where he remained for four hours, a period that would hardly be consistent with his presence having been confined to seeing the house, which he had just purchased, for the first time; (c) The unloading of the columns from the container in which the Appellant participated during that afternoon, when they were moved into a garage, and later to a garden shed as captured by video surveillance. (d) The departure at 4:23 PM from the premises of the Appellant and Choi who then drove separately to Strathfield where they were observed meeting initially at a cafe, and later at a restaurant. (e) The return of the Appellant to Consett Street for a short time between 6:23 PM and 6:29 PM that day; (f) The telephone conversation, at 18:37:48 in which Choi advised Louis Sukkar, after referring to the possibility of Customs being tipped off, and of someone running off with the goods, that he should “get rid of that shit…in your house”, being consistent with Choi having been advised by someone that afternoon of the substitution; (g) The evidence of Louis Sukkar reporting to Joseph Sukkar, in a conversation beginning at 19:38:05, that the Appellant and he had each eaten some of the tablets and found that “they are nothing”, something which Louis would have been unlikely to have reported unless it had, in fact, occurred, and something which Louis or Joseph would not have expected the Appellant to do, unless he knew what was expected, and was himself involved in the enterprise; (h) The realisation on 24 November, as appears from the calls between Louis Sukkar and “Shane” at 19:14:22 and 21:00:58 that there had been a substitution of “coloured tablets”, or “sweets” and that there were also “some real ones in there…sprinkled among them”; 25 November (i) The understanding on 25 November, as evidenced by the telephone calls between Louis Sukkar and Joseph Sukkar at 11:26:21 that the overseas connections were intending to travel to Australia, and would wish to examine the columns; the arrival (at 1700) of both Louis Sukkar and the Appellant at Consett Street where they remained for 49 minutes; the conversation commencing at 18:37 between Joseph and Louis Sukkar in which the former arranged to come past to collect some of the tablets to show to someone who had indicated that maybe they could do something if they were the right price; his arrival at 18:56 at the premises; the observation at 19:35 of Joseph, Louis and the Appellant entering the rear garden shed where the columns were located; and the call commencing at 20:32:44 which Joseph Sukkar made to Jeff (in Europe) in which there was a discussion as to whose side was responsible for the missing tablets; 26 November (j) The attempt commencing this day, to bring together the paperwork in relation to the importation, involving telephone conversations between Louis Sukkar, Choi and Prasad, following a conversation between Louis and Fred Nassif concerning the loss of $7 million worth of stock, and the availability of a small amount of stuff that they could talk about later; (k) The presence on the same day of the Appellant at Consett Street between 14:49 and 15:54, his return at 17:13, and the arrangements made by phone at 17:19:06 for Joseph to come by the premises, where he was later observed, seated in the backyard, talking with Louis Sukkar and the Appellant; 27 November to 30 November (l) The somewhat guarded, although admittedly equivocal conversation with Louis Sukkar, in which the Appellant made a reference to “these things here” during the evening of 27 November 2001, by which time it is clear from the conversations between Louis Sukkar and Choi that some suspicion was falling on Choi,; (m) The discussions between 27 November and 30 November, variously involving Louis Sukkar, Joseph Sukkar, Choi and Prasad (in Australia), and El Hani and Erik and Jeff (in Europe), concerning the recovery of the documentation, in the course of which suspicions were raised as to who had taken the tablets, questions were asked as to why the importation had gone through Brisbane when the “last one” went through Sydney, the movements of the container were discussed, and reference was made to Choi’s departure for Korea and to El Hani’s intention of travelling to Sydney to “see the boxes”. (n) The conversations on the morning of Friday 30 November between Joseph Sukkar, El Hani and Jeff, commencing at 00:20:16 and 00:50:11 which show that not all of the columns had yet been opened, during which El Hani observed that “you’ve already opened thirty two columns”, asked “are they long or short?”, and added that Erik had said that there are “thirty two long ones and sixteen short ones”; and during which Joseph was heard to ask El Hani “shall I open the rest…you tell me what should I do?”. (o) The discussions during these conversations about contacting the company to which the container was delivered in Brisbane, about going to Brisbane to examine the remaining boxes, checking the screws in the boxes, and examining the paperwork, in an attempt to find who had the original tablets, in the course of which various possibilities were explored including the European end, Choi, and the government. (p) The inquiries made by Louis Sukkar of P&O Nedlloyd as to the vessel’s arrival, and the tasking of Choi in collecting and providing the relevant documents; 1 December (q) The presence on 1 December of the Appellant at Consett Street on several occasions, while Louis and Joseph were there, and his concurrence, in a conversation, commencing 17:01 PM, with Joseph’s complaints about what had happened to him, observing “It is a very stressful time for everyone”, an observation which is consistent with him being aware of the problems with the importation before any discussion at the barbeque. (r) The conversation commencing at 20:49:11 that night, initially between Choi and Louis Sukkar in which they discussed the absence of any document showing delivery of the containers to the warehouse, which was then taken over by the Appellant, and during which he said, immediately after indicating that he was the speaker: “Listen now the document that you’ve given us ‘cause we don’t want to cause hassle when they get here and this might blow up”, after which he said, “now the P&O port that means someone signed to pick it up from the port”. These passages are consistent with the Appellant already knowing that the drugs had been imported via a P&O vessel, that he had sighted at least one document that Choi had provided, and that people from the European end were expected to arrive in Sydney. (s) The conversations which followed which were of critical importance, in so far as the prosecution relied upon them to show the extent of the Appellant’s knowledge of the venture, particularly having regard to the familiarity with which he discussed the matter with Choi, which it contended would not have been expected had he not already been known by Choi to be involved, his use of the plural pronoun, and his references in calls commencing at 22:11:35 of the goods having been “very badly packed”, something which he could not have known had he not seen the tablets and the pipes in the columns while they were being unpacked prior to 1 December. They were also of relevance to the defence in so far as, conversely, they might have suggested that the Appellant had only that evening learned of the problem, having regard to some of the questions which he asked. The following passages of relevance are extracted (M1: Choi; M3: Appellant): “M3 Who are the Customs Brokers M1 It’s on the piece of paper … M3 These people SHEPHERD MAURICE CHARLES M1 No that’s the that’s the guy who received the goods it’s the Custom Brokers um the Custom Broker … M3 Intergroup Customs M1 Intergroup Intergroup or something Intergroup Shipping something … M1 Okay this is the situation right um okay you need to ring up the Customs um er agent right who delivered it okay I can’t keep asking my friends for all these documents ‘cause they know straight away that something’s wrong … M1 Why are you asking for this M3 JOHN there’s people there’s people travelling from EUROPE man they’re gonna want answers for everything otherwise M3 Well right now the finger’s pointing at at at us and in particular you and we don’t want that finger pointed at us because it causes a lot of dramas later M3 For us and you … M3 So these people didn’t know the nature of the goods or anything like that M1 No no I never told them the nature of the goods …they don’t know M3 …that’s the importer or your broker M1 Yeah my friend well my friend I I I got my I got my friend to import it for me right M3 Yeah M1 And I cleared all the paperwork M3 Alright so your friend would’ve organised the trucking company to take it from the port M1 …no the broker the Customs broker would have done it if you er if you go through the file there should be a Customs Broker M3 I’ve got it here M1 Yeah it should it will be the letterhead with all the um all the fees it should be like about er the GST fee the um what do you call it the um there should be a letterhead M3 I don’t know JOHN there’s all I’ve got is there’s a P and O M1 Yeah M3 The specifics of the goods the … carriage where they went M1 Yeah M3 And then I’ve got a final release form from quarantine and it’s got a A Q I S direction to broker Intergroup customs M1 Yeah Intergroup Customs that’s it M3 Intergroup Customs you’re telling me took it from the port and delivered it to the port to the warehouse M1 Yeah yeah M3 Okay now –Pause- where are they in BRISBANE M1 In BRISBANE M3 All right well we’ll just have to contact them and make sure where where they delivered it to … M3 But believe me these people are super suspicious and if everything isn’t covered because they’re they’re ..convinced that there is nothing wrong from their end M1 STEVEN I can a hundred percent tell you even if we have that piece of paper right M3 Hm M1 They are gonna suspect us M3 No I know I know but at least we know that there is no no no little no little loop left untied there’s no hole no hole that we can fall into and right now that little time period I know it’s impossible but it is a hole and they will suspect it because they don’t know what we’re capable of so they they’re even contemplating because the ship landed in SYDNEY someone took ‘em off in SYDNEY and put them back on that’s just how far their thinking goes M1 Hm M3 And you don’t want to get on the wrong side of these people because they are very connected very heavy and they do things drastically M1 Yeah M3 And believe me we’re all in the firing line here … M3 So if we can cover this little this little two two hour gap … M1 Now if I ask him again for another piece of information which it seems totally unnecessary since we already received the goods ... (wds) something funny going on you know M3 Well JOHN we we’ll just try and find out we’ll call this (wds) M3 And try and find out ourselves but if we can’t find out for ourselves you’re gonna have to ask him we’ll have to lose that connection just to save our own skins M1 Oh okay M3 But to be honest with you to keep ourselves in the clear is much more valuable than keeping this connection ‘cause you can always get another connection … M3 I’m thinking of our own skin here … M1 I think you’re thinking that they guy who bloody coming over to see JOE is the guy who organised the bloody thing (wds) … M3 Well any way leave it for now but don’t do anything for now we’ll just try to do our own inquiries … and see how we go M1 Yeah it’s best to do it that way because I mean you don’t blow your um bridges all over the place” (t)The absence of any call having been placed to Choi, who was still overseas before this last mentioned conversation to show that he had been advised that the Appellant had just now been informed of the importation, and brought in to assist, as might have been expected had Choi not already known of his involvement. Although it is true that the Appellant was asking questions about the mechanics of the clearance and delivery, Louis Sukkar, had similarly been inquiring as to who had delivered the goods from the port to the warehouses, a circumstance that was consistent with the details of the importations having been left to Choi to arrange; (u) The call made at 21:02:36 by the Appellant, while still at Joseph Sukkar’s home, to Directory assistance, in an unsuccessful attempt to obtain the telephone number for Intergroup Customs; after which, at 21:04:41, he phoned Choi in China advising that there was no listing for this firm. Choi replied that there should be a number shown on the letterhead which he had seen on the documents which he had given to Louis Sukkar. While the Appellant audibly leafed through some documents which were clearly in his possession there was the following exchange between Choi (M1) and the Appellant (M2): “M2 JOHN I just want to make sure that no-one points the finger at us mate that’s all M1 I I I STEVEN I’m hundred percent think it’s going to eventually going to happen anyway” (v) The continuation of this conversation: “M2 So I’m just saying did someone go there and say they were someone from Intergroup Customs … M2 When they really weren’t” … M2 But but but we’ve got to make sure that we distance ourselves from whoever delivered it to the brokers … M2 But we should know this we should be able to find out who the courier company was M1 Yes M2 Who delivered from the ship to us … M1 Yeah I can get that that’s not a problem M2 If you can just find out who that is without burning any bridges … M2 Well alright just give me a call tomorrow don’t don’t burn any bridges just if you can do it nice and easy … M2 … otherwise … I’ll call the Australian Quarantine Service tomorrow and I’ll ask them who fixed it up because I found these these goods missing from the from the container we just want to know who picked them up … M2 And I’ll ask is there an Intergroup Customs if that’s well who’s SHEPHERD MAURICE CHARLES M1 Well he’s he’s my friend that guy he’s he’s I don’t want to I can’t tell him because … M2 He’s the one that just imported it” (w) The advice given by the Appellant to Choi, after more paper shuffling that he had now found the name Intergroup Shipping from a tax invoice, and indicated that he would give them a call. The conversation continued: “M1 It’s it’s It’s not going to work M2 Well it will work ‘cause if ‘cause we’ve we’ve called up all these people well to confirm all this documentation and everything’s been confirmed so they can’t point the finger and this is the only little time delay time gap that we haven't covered and I just want to cover it that’s all and I’ll I can do it anyway don’t don’t call no-one I’ve got their number and I’ll take care of it I’ll see what I can find out M1 But what if we how do they know how do we know they picked it up at this (wd) M2 Well JOHNNY if if if we do everything we can and we’ve got everything in paper and they still don’t believe us well there’s nothing we can do they can get stuffed then M1 Yeah M2 But until that time I I we can’t tell ‘em to get stuffed we have to answer every question I mean there’s a lot M2 At stake here … M2 Um until we can get until we we have to answer their questions and we’d just like to be in a position to answer every question … M1 I thought they were um already arrived there on Friday M2 No they’re arriving next week Monday Monday evening they’re here” (x) The further inquiry made by the Appellant at 21:14:17, of Directory Assistance which produced a number for Intergroup Shipping in Brisbane, which number he then rang at 21:16:13 even though it was a Saturday night, and even though, as the Appellant’s opening words made clear, he had not expected anyone to answer at that time. (y) The incorrect identification of the Appellant as “Steve Royal” in this call, which was taken by Max Messina (M1) to whose mobile phone it had been diverted. The Appellant (M2) said, after indicating that he was calling on behalf of CJ Trade: “M2 Okay um I just want to ask a query you guys did a shipment for us from Brisbane port M1 Right M2 And apparently when we’ve opened up the crates some of the goods weren’t there and we were wondering if you could give us some documentation to tell us the time for the .. container … M2 Okay um MAX would you be able to explain with any documentation to say who picked up the goods from the er who received the goods from your driver … M2 Okay um well I know he delivered it to unit 1 flat 6 Pendrey Court Woodridge M1 Yeah M2 Now I just I know it was delivered at about shortly before 9am on the 23rd but I don’t know who accepted delivery of the goods M1 Um well we we gave him the we faxed through the handover sheet um I faxed it through on (wds) I faxed the handover to STEVE SHEPHERD” The conversation continued: “M2 There’s two (wd) missing … M2 Now the people that that sent them from overseas say no we have them and they want a receipt … M2 And we say no we haven’t got them” Thereafter Messina advised the Appellant that he would obtain a report from the transport company and would fax through a copy of the handover agreement showing Shepherd signing for the goods; (z) The call made immediately thereafter, at 21:25:11, by the Appellant (M2) to Choi (M1), reporting his call to Messina: “M2 Now I did I asked him for the form he sounded a bit funny like – Stutters – he couldn’t talk properly you don’t know this bloke do ya M1 No I know ah there’s another guy I know him there who did it but um M2 Okay do they know anything about the goods itself M1 No nothing he don’t know nothing he said I’d appreciate it if M2 Alright ‘cause I told them look there is a cool room there’s too doors missing and the people overseas that delivered the goods to me are saying they wanna be to paid and I don’t wanna pay them because there’s two doors missing and until I find out where the hell they are I’m not gonna pay anything and right now you guys picked it up from the port delivered it to WOODRIDGE somewhere along the line something’s happened he said he’ll fax me everything on Monday I gave him I gave him your fax number is that okay … M2 Who’s STEVE SHEPHERD M1 He’s the guy who owns the company MAURICE SHEPHARD M2 Owns that company where the where the warehouses are … M2 Alright see they told me yeah he would definitely get someone to sign it’s standard procedure so what you told me earlier was wrong JOHN M1 No M2 So I can’t be saying things like that to these people we need to be absolutely precise” (aa) The call at 21:51:20 which was placed by Louis Sukkar (M1) initially involving Joseph Sukkar (M2) but which the Appellant (M3) joined: “M3 Do you know who MAX MESSINA is M1 No M3 That’s the bloke apparently from intergroup shipping M1 Yeah M3 He sounded funny on the phone LOUIS … M1 I don’t know any of those people JOHN used STEVEN M3 And you confirmed with P and O the port that it left the port on the twenty third M1 Yeah definitely … M3 Well that guy said he got a STEVE um SHEPHERD M1 Yeah that’s the guy that’s the guy that works in the warehouse that’s the guy that owns the warehouse … M3 Well he signed for the goods … M1 I never met him but he was an Aussie guy and his name was STEVE M3 Yeah he signed for it M1 I presume that’s him yeah M3 And they’re going to fax me the stuff on Monday … M3 Is there any possibility that these people can get into P and O in and out before in between the sixteenth and the twenty third somehow M1 -Sighs- You know I I don’t know those sort of things STEVEN I really don’t I’ve had nothing to do with this sort of stuff before I wouldn’t think so you know ‘cause I no shit it had to go into quarantine it went to quarantine on the twenty first and it had M3 Did you confirm that with quarantine M1 It’s on it’s on the paperwork there M3 I know forget the paperwork but did you confirm it M1 No no no M3 Well we need to confirm with quarantine that they actually accepted the goods and fumigated them on that date” (ab) The call made at 22:04:45 by the Appellant (M1) to Louis Sukkar (M2): “M1 See this is what I was thinking LOUIS after fumigation right M2 Mm M1 After fumigation I don’t know this MAX bloke he seems suss M2 Right M1 He seemed like he was sussing me out … M1 Hang on it left me with the impression that he knew what was going on … M1 But what I’m concerned about is that between the twenty-first and the twenty-third … M1 There’s forty hours there so I don’t know what type of connections he’s got in the port so I’m considering possibly he knew what was going on he come in there unloaded changed them and put it back alright … M1 What type of information have you told JOHN M2 Nothing information (wd) M1 Do you know what he knew obviously what was coming M2 He knew what was coming yeah M1 He knew in what it was coming M2 Yeah he wouldn’t know which box or anything like that … M1 He knew it was cool rooms … M1 So I’m thinking did he fucking tell these people in BRISBANE they then told this MAX bloke he’s then got them in that day the forty hour period and fixed it because they’re bodgy … M1 It’s here mate it’s here I think the problem is here … M1 Right now LOUI it seems that the problem is here there’s forty hours unaccounted for mate … M2 (Wds) do us a favour do us a favour ring JOHN M1 Yeah M2 Ask JOHN if he knows this guy say ask JOHN if he knows the guy straight away right … M2 And then then take it from there ask him what the JOHN should know the procedures here he does this all the time M1 No JOHN knows shit mate because he’s telling me they never signed for it and I just called this MAX and he got STEVE SHEPHERD to sign for it (wds) that’s normal M2 JOHN is a fucking bullshit artist STEVE you got to put him on – stutters – I told you a hundred times you actually got to get him on the spot put him on the spot and catch him on the spot to get the truth out of him he’s always like that … M1 (Wd) –stutters- I don’t know if he’s done this but I’m thinking maybe some information has leaked along the line and it’s given someone the opportunity to do it M2 Well the best thing to do is question JOHN about it M1 (Wds) I’ll call him now” (ac) The call made at 22:11:35 by the Appellant (M2) to Choi (M1) which contains the following exchanges: “M2 Who’s MAX MESSINA … M1 I don’t know no M2 Okay well MAX MESSINA is the bloke from Intergroup Shipping … M2 Right now according to these documents the good were discharged on the twenty-first from quarantine … M2 So there’s forty hours from quarantine until we got em … M2 No no it says here on the document it was released by two thirty-seven pm on the twenty-first … M2 That’s on the twenty-first now your mate in BRISSIE knows this MAX … M2 Okay now there’s forty hours while these goods are just sitting in the ports before we got em … M2 MAX is the person I spoke to from Intergroup Shipping and he had intimate knowledge about it M1 Yeah M2 Okay now there’s forty hours where I believe MAX has got access to these things while they’re on the ports he can go in and out because they’ve come out M1 MAX doesn’t MAX doesn’t know anything Intergroup Shipping doesn’t know nothing M2 Well you don’t know that because you don’t know ‘cause your friend knows and you don’t know what your friend has told MAX … M2 And I’m telling you this bloke goes into the yard every day picks up goods and delivers them M1 Yeah M2 These goods have come out of fumigation therefore they are ready to be dispatched to whoever owns them M1 Yeah (wd) M2 And they haven’t been dispatched until the twenty-third … M2 P and O P and O confirms that it left their docks on the twenty-third … M2 But what happens but what happens to them on the twenty-first they don’t something smells here JOHN I’ll tell you straight … M2 Something smells at our end … M2 Well I’m just saying something just smells funny because M2 Of the tone MAX adopted okay I spoke to him … M2 He was sussing me out M1 Yeah M2 He was sussing me out M1 Okay M2 He knew what was in them and he wanted to find out whether I knew … M2 I know I know someone’s tone when I speak to em he was sussing me out JOHN it was very clear please get a hold of your friend over there and fix the situation what I’m telling you M1 (Wds) M2 I’m telling you something smells up there M1 So I mean okay what do you want me to say to him … M2 I’m thinking the dirty has been done on you as well as much as us … M1 What do you want me to say to him M2 Well what happened in that forty hour period M1 Yeah lets’ find out for ourselves on Monday night M2 Yes M1 Instead of asking him right … M1 Yeah so if we okay if so you’re saying that they took it out they changed the goods and they brought it back in is that right M2 Something like that because they’re very badly packed M1 Okay so you M2 You can see it’s been done it’s been very rushed you can see it … M1 I think first ring up and confirm everything on Monday right M2 Alright JOHN I’ll do everything on Monday but listen if if things don’t quite add up you should come back a little earlier M1 Okay I’ll have to come back earlier but … M2 No no no I don’t even want you to call them right now I’m just telling you if things don’t quite add up I don’t want you to talk to ‘em nothing just come back early don’t talk to ‘em just come back and I’ll tell you what’s gonna happen M1 Alright then M2 Don’t don’t talk to them don’t raise any suspicions right now keep everything nice and dandy” The Crown placed considerable weight on the incorporation by the Appellant of himself into the plural pronoun, in this exchange, and to his assumption of authority over Choi to whom he could be heard giving directions. Also of importance is the Appellant’s knowledge of the tablets having been badly packed, an observation that is consistent with him having already seen the interior of the columns and pipes. (ad) The conversation between Louis Sukkar (M2) and the Appellant at 22:23:38, during which the Appellant (M1) reported the results of his inquiries and his suspicions concerning the interception and removal of the tablets at the hands of Choi and his friends working in conjunction with Messina: “M1 This bloke MAX MESSINA M2 Mm M1 goes in and out the ports every fucking day and who knows what contacts he’s got in the ports he’s got forty hours to fucking play with it and you saw how fucking bodgy the packing was … M1 LOUIS I think we found our answer mate … M2 Do you think do you know if that’s the case then STEVEN I I reckon JOHN is involved M1 I think he is … M2 Because JOHN kept giving me different dates STEVEN remember … M1 Mm alright well well listen let’s just fucking look at it this way let’s wait for these people to get here I think something’s gone on I’m not sure we can’t confirm it we gotta work out quarantine and all that type of stuff when it all happens and how it happens and then we gotta fucking see JOHN mate and I mean we gotta see JOHN we just gotta fucking ground the cunt M2 I told I told JOHN the other day that he has to come back early M1 Yeah I told him that just now I go JOHN if things don’t add up you gotta come back alright anyway we’ll see how we go M2 Maybe he is yeah M1 I think it is him mate the way it was packed I think it’s him they said they said when they fill it up with foam it takes it expands over twenty four hours and then he sands it back and then puts that little cover thing you know that cover thing over the foam M2 Mm M1 Well some of the packaging here was bulging out M2 Yeah I know it was M1 That that means if his theory is correct that he sands it back because it keeps expanding it’s spent at least twenty hours expanding after they’ve repackaged it M2 Mm M1 They’ve done it M2 If that’s the case yeah I’m gonna if I’ve found out that it’s JOHN I’m gonna fucking kill him I’m gonna M1 No no shut up don’t fucking say like that on the phone” (ae) the advice given by the Appellant (M1) to Louis Sukkar (M2), when Louis rang him at 22:32:25, not to call from Michelle Royal’s phone and the Appellant’s acceptance of the observations of Louis: “M2 And you know the other day when I when I rang him back right M1 Mm M2 And you know and … I said I need that other bit of paperwork right” as being indicative of the Appellant’s knowledge of the importation and substitution by 27 November at the latest, since it was on 26 and 27 November that Louis had made such request of Choi. (af) The voice message left at 23:00, on Joseph Sukkar’s phone asking him to call back that night, referring to an “emergency”, which the Crown submitted was a reference to the conclusion, which had been reached, that Choi and his Brisbane associates had effected the substitution; (ag) The coded call made at 23:09:09 by the Appellant (M2) to Paul Sukkar (M1): “M2 Alright um you know our little dilemma … M2 I think we’ve found we think we found a solution for it M1 Oh well that’s alright M2 Yeah it’s alright but the thing is I need to get oh they need to be transported … M2 Yeah cause I think its KOREAN KOREAN style mate M1 Well anyway doesn’t matter I’ll see you tomorrow anyway but look if you have to get in there M2 Mate I’m concerned about KOREAN style calling the coppers because he might be concerned we’re onto it and he’s overseas” 2 December (ah) The conversation, commencing at 00:03:51 on 2 December, following the various telephone conversations during the preceding 6 hours, in which Joseph Sukkar (M2) spoke to El Hani (M1) in Holland and had a conversation with him, and with Jeff (M3) which included the following exchange: “M2 ANTOUN it seems there is something here … M1 Your side … M1 Here talk to JEFF talk to JEFF M3 Yes … M2 Yeah I think something appeared here … M2 So don’t know no need to come … M2 Yes yes yes I think ninety percent ninety nine percent M3 Yeah you can solve it you think … M1 What is it you son of a bitch M2 Damn it ANTOUN M1 What M2 the Chinese man the Chinese man … M2 Oh if you only knew how it was done how it was done but hold on now I have to get to the Chinese man hold on he is outside the country he’s left M1 I told you not to tell him we were coming M2 But he knew you were coming we’ve become clear of everything tonight we’ve been on the phone with him all night to KOREA all night just now … M2 I can’t tell you now tomorrow tomorrow I will see what is missing what is required yeah that’s it good M1 Alright I am coming I am with you … M2 What for what for ANTOUN what for M1 What do you mean what for JEFF is saying you have to go M2 If he wants the thing is known now finished whoever wants to come can come if he wants to he can send all of them but I know who finished I know what happened M1 Finished you know what happened so RON doesn’t have to come M2 Really there is no need for anyone to come I know what happened whoever wants to come can come … M1 So there is no money M2 TONY it is not a matter of money you are still talking about money we have to find out what to do with the Chinese man … M1 For sure he hasn’t sold them yet M2 He’s got Italians with him he’s got Italians He has some Italian people ,,, M2 Mm him He has Italian people at the port yeah … M1 How did you find out how did you find out … M2 My solicitor brother M1 Yeah M2 He was the one who uncovered it the son of a bitch he got the papers and started to dig out and check and ask here and there and phone the companies he did not miss any company he did not miss any company … M2 Yeah he found that there was there was a period of forty hours he found there was a period of forty hours thus the existing company of that man became able to access them to take them out and bring them in … M1 So we can expect some result M2 We can expect some result of course M1 Alright then M2 We can expect some result but what result is that I mean here that his own life is at stake I’m telling you his life is at stake I mean there is something of this nature involved M1 Oh for sure there is something that he’s done M2 Him him by himself Him by himself and don’t worry me about me I can have people I have people here that is not a problem not a problem I’ll do my best but tell them if I find it too big here for me do they have anyone … M2 Okay that’s it good just a question It is not that I wanted that but was just asking okay ANTOUN are you coming are you M1 Yes I am coming at five o’clock tomorrow … M2 Put JEFF on put JEFF on … M2 JEFF my friend what can I say this is I’ll do my best and I think something can be done okay something can be done I am just waiting for him to arrive back M3 Yeah alright M2 We’re keeping everything cool M3 What M2 We keep everything you know we talk to him too much and we shown him that we need this and this that we need too many things M3 But you have to do something there M2 We’re only hoping him to come from overseas that’s all he left the country M3 He left the country M2 He left the country his family is still here” The reference to Antoun “not needing to come” related, on the Crown submission, to the man who had placed the tablets in Europe into the columns. Otherwise the passage was relied upon as support for the proposition that the tablets had not been sold and could still be recovered once Choi returned, so as to perfect the importation. (ai) The renting, on Sunday 2 December by Louis Sukkar, of a truck, which was initially driven to Joseph Sukkar’s home in Croydon, at about 10:25, followed by a call at 10:28:15 from Joseph Sukkar to the Appellant asking him to “come to help [them] at Louis’” after which, at 10:38, the Appellant was seen to drive to Consett Street. (aj) The conversation commencing at 10:42:40, between Joseph Sukkar (JS) and the Appellant (SS) in relation to what was in store for Choi, of whose complicity in a rip-off they were by then obviously convinced, in which Louis Sukkar (LS) also participated: “JS Are we going to do something with him STEVEN SS Oh yeah. JS You’re really sure SS I’m a hundred JS LOUI STEVEN (wd) SS (wds) his legs. JS ELIAS [Louis] got mad got crazy nearly died of it he can’t believe what happened. ELIAS can’t believe what happened. He wants to bash him and that but this will be useless he will have to (wds). SS Let ELIAS bash him a bit at the beginning see if he can get him to um see if he can get JS Take ELIAS serious like that ELIAS will remain easy. SS Let him (wds) ELIAS that’s why we have a swapover we’ll just catch the bloke it’ll makes it easier for them makes it easier for us seriously let him do that ‘cause I wanna fucking smash him a few times myself. JS (wds) SS We’ll get it back . JS (wds) STEVEN if we’re lucky if we get his share off him if we get his share back we’re laughing SS We’ll get it back … SS JOE JOSEPH trust me (overtalk) trust em when I get him I’m gonna get him you watch I’m not going to leave him if he doesn’t come (wds) he won’t be able to get out of it. JS It’s not fair it’s not fair my goodness what he did [whistles]. SS (wds) something alright you know now we’ll fix it up mate get another one and we’ll do it ourselves next time it’s alright … SS LOUIS when are you gonna call him LS I’ll ring him in a few hours (wds) JS We need to work SS When you call him just say look there’s this little we haven’t found we’re gonna call on Monday see if we can find out there’s a little discrepancy if we can’t find out Monday you’re just gonna have to come back and explain that gap ‘cause they here tell him tell him they’re coming from overseas.” After which, Louis Sukkar is heard to say: “LS …let’s um open the rest of these things. JS Open ‘em here” (ak) The Crown surveillance evidence which appears to show the Appellant, together with Joseph, and Louis Sukkar proceeding to open the other ends of some of the columns, looking for more drugs and sorting the tablets that had been removed, that is, after the Appellant had, at 10:49, given Paul Sukkar directions of the location of the Consett Street premises; (al) The conversations from 10:50 onwards, picked up by the listening device, in the back yard of Consett Street, involving Louis (LS), Joseph (JS), Paul Sukkar (PS) and the Appellant (SS) and the video surveillance which showed that columns were being opened and that tablets were being sorted: “JS Move a bit then. Let us uncover them He’ll bring them one pillar at a time we’ll put them here open them We’ll open them here and we’ll empty them into the bags close it close that up the roller door close up … SS Thought we could just drive it all up to PAUL'S place and just open it all get all the pills out … SS There’s some in doubles we got to check ‘em again which ones did we miss LS Shit won’t take long – stutters – how quick five seconds to open them all STEVEN won’t take long … SS I know but we’ll get them out of here … LS There’s some here” and later: “SS How are we going to remove them … JS Ough may God give you health Are you going to open those ones or do you want to leave them .. SS That one’s been done JS Ough ought oh John it can’t be shaken they didn’t have, they couldn’t get enough pills to fill them … LS Have you done the other side SS Yeah every one of them done all of them … SS Maybe they pushed the pipe back in too much … LS There’s fucking more in there you know SS Nothing in them … SS Taste it SS They’re lollies … LS Take them off at your place I got to get them out of here just in case the coppers hit here you know ... PS So when is he coming down SS Ah well he said he’s coming back on the ninth Pouring Sounds SS (wds) we need to sort it out with the people (wds) you got to come back and talk to them (wd) these people are coming from Europe look at that look at this one … PS Yeah so they’ve re-done these here LS They’ve re-done them here that’s why they’re so bodgy I knew there was something wrong as soon as the other bloke told em to pick ‘em up at (wds) I knew straight away there was something wrong we’ve been suspicious the whole time but we we had the you know SS Look at this SS See the thing is (wds) no way to go than sand it back (wds) so this isn’t done really quickly and they had a forty hour gap from the time they got it to the time we got it” and later (from 11:49): “SS LOUIS you wanna grab a box and we’ll (wd) … LS We are going to take these with us SS No no you take the things out of them and we throw away those ones (wds) … SS (Wd) in one hour we remove them LS (wd) inside and do it in the lounge room” and later: “SS That’s (wds) their colour is white and yellow UM White and yellow SS But those ones have blue in them SS Do you think we can do anything with these other ones PS What are we gonna do with them (wds) SS We don’t know what they are though LS Tip em in here (wds) bags just tip em on there (wds) … SS (wds) at least there’s some there to start … JS Five hundred and twenty thousand easy five hundred and twenty thousand of them (wds) … JS Five hundred twenty thousand pills these twenty thousand pills are just like that for expenses (wds) thousand expenses (wds) thousand … SS You know these are lifesaver centers … SS No people started talking about them that they look like E’s no lines in ‘em or anything no no they just plain … PS That’s it I can’t see anymore (wds)” and (at 12:02): “LS There’s over two hundred thousand dollars in there he’s not seeing any of that … SS Doesn’t matter it’s a start PS (wds) it’s a long way to fucking even up on this one mate LS Oh fuck that’s right that’s the problem you can’t you can’t even up on this one … SS It’s fifty thousand E’s that’s pretty good PS One in a hundred LS One percent five thousand JS (Wd) fifty thousand SS No five thousand (wds) … SS You know what he was telling me he was telling me no matter what we give them they’re always going to think it’s us” and (at 12:08): “PS Put them in another bag Put the different coloured ones in different bags” (am) The observation by Louis (at 12:13) before Paul Sukkar and Louis Sukkar removed the truck to the Appellant, “…there’s heaps more bags out the back here too Stephen” followed by the conversation between the Appellant and Joseph Sukkar concerning future work with Choi to which reference has previously been made; (an) The conversation commencing at 12:52 initially between Joseph Sukkar (JS) and the Appellant (SS) which Louis Sukkar (LS) later joined: “JS Where are we at now … JS Another hour and we’ll finish SS (wds) I mean in comparison to what we should be getting I mean rubbish instead we just look at what we getting without looking what we should have got it looks alright … SS What are they averaging there’s about three hundred a bag LS About three hundred to a bag SS Averaging about three hundred a bag LS That’s not too bad SS (wds) about two LS We’re gonna end up over five grand anyway” (ao) the observations later in this conversation, in which an unidentified male (UM) also participated, concerning Choi, the Appellant’s obvious annoyance with him, the plans he had for his return, and the loss which had apparently been suffered: “SS (wds) if I fucking see him mate I’m gonna smash him do you know how much he betrayed me and my fucking trust I’m the one who that put them on to him … PS Tell him JOHN don’t you know what we have been doing through the last five to six years you fucking animal SS That’s what I mean that’s what I fucking mean (wds) … SS See Josef could have made a fucking million and you guys would have made three or four hundred thousand just selling them JS Two million dollars (wds) SS (wds) see some fucking E’s (wds) … UM No I know I know if we (wds) we’ll keep holding him until the money is paid UM But we want the goods (wds) SS We don’t want the goods and you give us the money go sell ‘em you give us the money PS That’s right (wds) that’s how you do it LS You know what he’ll do you know what he’ll do he’ll he’ll arrange to sell ‘em like real cheap like in bulk like six seven dollars each … LS He would he’d do that yeah he would SS Yeah he would … LS You won’t get it out of him JS It’s five hundred and twenty thousand SS Look he’s got other assets mate I’ll fucking PS We’ll get everything we can out of him LS We’re gonna get it out of him [Overtalk] JS (wds) eight million dollars (wds) SS Why don’t we hold him for twelve months and we I don’t care just keep beating him then put him in a little fucking room somewhere.” (ap) The call commencing at 13:16, made by Louis Sukkar (M2) to Choi (M1) in the presence of the Appellant and Joseph, in which, after Choi referred to the need for the Appellant to ring up the P&O wharf to find the details of the movement of the container, Louis informed him of the expected arrival of the European connection, and asked that he come back to speak to them to “coordinate it… because… you know all this shit we don’t know it”: “M2 You’re going to have to fly back anyway and speak to these guys mate ‘cause they wanna speak to you ‘cause you did it there’s no point me speaking to them when I didn’t when I can’t answer questions I look like an idiot … M1 We could meet in HONG KONG or something M2 Nah come on mate it’s arranged they’re gonna be here (wd) you gotta be here man you gotta play your end of the bargain too … M1 Yeah man (wds) I was thinking about it you know I’ve done all what I can do you know what else do you want me to do M2 JOHN what’s happened man is that we have to justify ourselves mate we can’t ignore it it’s not going to go away M1 I’ve been on the phone all morning M2 Please also the problem is also if you don’t make yourself available they’re going to be suspicious of you you know what I mean and I don’t want to have any suspicion on our side” (aq) The conversation commencing at 13.52 involving the Appellant (SS), Joseph (LS), Paul (PS) and an unidentified male (UM), in relation to the tablets and Choi, as follows: “PS JOHN is relying on the (wds) fact that he can stay abroad … JS He’ll say they are not going to do anything to me I’ll keep on lying and that PS He’s used to lying he’s so used to it heaps JS We’ve (wds) with him we’ve worked a lot (wds) with him he said he’ll get it through and that thing happened … JS Here it comes up to each one two hundred approximately SS So there’s two hundred there’s forty-eight columns JS Oh there’s about yen ten ninety (wds) thousand pills PS That’s something anyway to start with LS Gonna get six seven thousand out of it at least PS (wds) thousand thought we’d get (wds) talking about half a million (wds) LS Hundred grand (wds) JS Ten thousand he said hundred and fifty LS Ten thou (wds) UM About half a million pills (wds) JS Half a million pills five hundred twenty thousand they may have sent us twenty thousand like that expenses twenty thousand expenses three hundred thousand (wds) … JS Could have been worse could have been worse [Overtalk] LS (wds) would have been worse if we got caught that’s it JS Had it gone through it would’ve been better SS This is a lot better result … SS It’s him UM Always you can’t PS (wds) until you catch him and fucking put him under a bit of pressure he won’t come clean SS It’s him PS I know its him (wds) he’s gonna keep to himself (wds) as he can to try (wds) to try and fucking argue it’s not SS Well we’re not even gonna argue with him anymore” (ar) the continuation of this conversation commencing at 14:20, in which the Appellant returned to his concerns about Choi: “JS STEVEN last night talked to him he hit the roof … SS I wasn’t I wasn’t (wd) at him I was just I was I was just threatening him as a friend yeah I’m going you told your people and your people told this bloke Is it possible JOHN that’s where we’ve got problems we need to cover it … SS (wd) him on the floor, wooden floor boards (wd) nail him to the fucking floor (wd) we’ll take him out UM (wd) SS No I’ll just nail his feet to the floor mate, that’s it when he thinks of something I’ll take the nails out he can leave” (as) the comments by the Appellant in the conversations commencing at 14:25 and 15:32, concerning Choi’s insistence for the goods to go to Brisbane, where “there’s less checking”, and concerning his suspicions attaching to the shipping company. (at) the conversation commencing at 16:16 to which the Appellant was a party, in which there was discussion while tablets, presumably the substitute tablets, were being dissolved in a bucket of water. (au) the conversation commencing at 17:37:30 being the last relevant conversation for 2 December, between the Appellant (SS), Joseph Sukkar (JS) and Louis Sukkar (LS): “JS I don’t want to know, let somebody do this let somebody okay one may get upset (wds) How much does he want there is one thousand two hundred tell him five hundred don’t tell him five hundred (wds) SS And how much are they five hundred and twenty thousand ten dollars each UM Take ‘em SS Let’s just say ten dollars one bought you bought it from one customer you’d give it to ‘em ten bucks like if I took the whole lot like (wds) LOUI if someone bought the whole lot in one shot you’d give to ‘em ten bucks … SS Wanna put those in the shed, so the other one at the back” 3 December (av) the conversation at 15:58:59 between the Appellant (M1) and “Michael” (M2) which included the following exchanges: “M1 You know how it was swapped yeah recently M2 Yeah some were alright some were no good yeah M1 Yeah he’s the one that done the swap M2 What a shifty bastard has he got them can we get them off him M1 Oh well as soon as he gets back I’ll get them M2 Oh good good fuck M1 Don’t worry I’ll work this cunt out man don’t worry … M1 I know exactly where they went and when they were released and when they had access to them they had access to them for two days before they gave it to us … M1 We’re just playing stupid at the moment saying yeah yeah how this and that and he’s just going and he’s just thinking he’s so fucking cool –laughter- … M1 Yeah no we’re going to let him –inaudible- I’m gonna his life is going to be over soon mate not not not in the sense M2 Yeah I understand M1 That we’re going to kill him but like M2 No no no M1 He’s going to get no protection anywhere … M2 He’s going to do nothing I’m going to get my whole seven half when he comes back he said he’s going to give me the whole seven and a half M1 Alright well you get seven and a half and get ten off him for the other people M2 Yeah yeah M1 And give me a bit give me … M2 Fucking half or something” (aw) the conversation later that day, commencing at 18:37:07, in which the Appellant (M1) and Choi (M2) spoke by phone, and had the following exchange: “M2 No nothing um I just confirmed what you were telling me on on the weekend M1 Mmm M2 Right but nobody can access that yard besides P and O people” (ax) the fact that, after several phone and direct conversations between Louis and Joseph Sukkar, Choi and the Appellant, and the Appellant and Louis Sukkar, concerning the need to get Choi back, there was a further conversation between the Appellant and Louis Sukkar, as well as a phone call between the Appellant and Joseph Sukkar during the evening, in which the Appellant spoke of having discussed the Choi problem with someone else, who had offered to get “five mill” from him, for 10%, if the Sukkars can’t work it out with him. The source for these exchanges is contained both in listening device and telephone intercepts. For example the intercept for the telephone call at 19:09:05 between the Appellant (M3) and Joseph Sukkar (M1) and Louis Sukkar (M2), records the following: “M3 No no doesn’t matter I’ll work it out I just want to know alright now second (thing) I also spoke to him about JOHN’s problem M1 Yeah M3 He goes you guys he goes you guys try do what you can it doesn’t work out please give him to me and I hope he doesn’t work out and I’ll get he goes I’ll get fi’ I’ll get five M five mill from the five mill I said take five hundred thousand M1 (Okay) What is it He wants ten percent M3 Ten percent yeah M1 Yeah alright alright M3 Okay I said no worries you do it and he goes oh in a way I hope youse guys sort it out but I hope youse don’t as well in a way M1 Hm mm M3 Now this bloke’s real real fucking good I mean he’s aged about fifty M1 But he’s good enough for this kind of thing M3 JOSEPH you’ll be impressed by him” 4 December (ay) the various conversations this day, between Choi and Louis Sukkar, in which there were discussions about payment of the European end, about the need to get the paperwork for the people in Belgium who now had their trip on hold, about attempts which were to be made to sell some of “that stuff” (the recovered tablets),and about Choi’s request for money which he needed to pay. (az) Finally, the conversation commencing at 18:36:26 involving Louis Sukkar (LS) and the Appellant (SS), in which there were the following exchanges: “LS He’s making he’s making up all these he’s creating all these episodes to make him look innocent SS What’s he creating LS (Wds) you know the people want their twenty-five grand you know he’s rung up and said they want their twenty-five grand this and that and everything else and I said well you’re not getting it until we’ve sorted sorted everything out and everything else and then he rings back (wds) well can you ring them and tell them that you know you know that you can’t pay at the moment theres a delay and they can be a shitty and that yeah like all these little manoeuvres you know what I mean SS Mm LS And its so fucking obvious SS So you’ve picked up now after you’ve worked it out it just gets more obvious every day hey LS Yeah the way the way he’s carrying on now trying to make all these little little scenarios to make it look like he’s innocent SS Oh God theses guys are going to fucking tear him apart mate” This was followed by a further conversation commencing at 18:55:48: “SS So when’s Johnny coming back LS Sunday I think SS Still Sunday so so you told him no you’re you’re we’re not paying you just have to organize it when he gets back LS Pretty much SS I’d like to grab him mate”

It may be accepted that evidence, arising from these various events and exchanges, of mere knowledge by the Appellant of the importation and of his brothers’ involvement in it, or of any concern or anxiety that he had in relation to their financial loss, or in relation to any risk of them being harmed by anyone else involved in it, or even in relation to their arrest, in connection with it, would not suffice to make good the offence charged.

In that respect, proof of his assistance after the importation had been completed , whether in order to assist in recovering any money that had been lost, or to ensure the removal of the drugs that had been recovered or the remains of the freezer from his home, or to conceal any evidence that might be inculpatory of his brothers would also not make good the Prosecution case. Any such assistance after the importation was complete, as a matter of law, would constitute an offence committed by him as an accessory after the fact, but that was not the offence upon which the Appellant was placed on trial.

Similarly, evidence of him being complicit in the possession of goods that had been imported, or in the subsequent supply of any portion of the consignment which had been recovered, whether by way of an actual supply or deemed supply, would constitute separate offences, and would not make good the offence charged.

A critical question that needs to be determined in relation to this ground, accordingly, concerns the time when, as a matter of law, the process of importation came to an end and, perhaps more importantly, what is involved in the expression “knowingly concerned” in an importation.

As I have previously observed, an importation and concern in it do not begin or end at the moment the narcotic goods arrive at the port of disembarkation, or cross the customs barrier. The offence charged embraces activities both preceding and following the arrival of the goods, which are directly related, or proximate or incidental to, bringing the goods into the country.

In R v Lam (1990) 46 A Crim R 402, this Court confirmed that acts constituting the offence included those occurring after the time of the arrival of the two couriers, who had brought the drugs into the country in capsules which they had swallowed, and which were still located in their intestines. The act of the Appellant who brought enemas to their hotel, in order to assist in the retrieval of the capsules and drugs, was held to be an act of being knowingly concerned in the importation.

Gleeson CJ there said (at 404-405): “The fact that the term "importation" is one that must involve at least some measure of flexibility is demonstrated by the judgments of Barwick CJ and Windeyer J in Forbes v Traders Finance Ltd 126 CLR 429. At p 432 Barwick CJ said: “I would merely add for myself that `importation' extends on both sides of the actual act of importing into the country. The importation does not cease at the moment of an import. But the relevant use of a vehicle must be proximate to the act of importing. Whether it is so or not is a question of degree for decision in the particular case.” It may also be noted that Menzies J, who was in the minority in that case accepted at least some degree of flexibility when at p 435 his Honour said: “It may be that there are circumstances in which it would be difficult to say whether or not a carriage had been used in the importation of goods, eg, where goods are taken by trolley from an aeroplane to the terminal.” More to the point, however, in the present case is the observation made by Windeyer J in relation to a similar statutory provision there under consideration. In my view the important question is not so much the precise meaning and application of the word "importation" as the meaning and application of the expression "knowingly concerned in the importation". The expression "concerned in" is one of general import and it is impossible to state with precision what is comprehends. It is necessary to consider the facts and circumstances of the particular case (see Corr v -William and Son Limited v Harrison (1906) AC 274 per Lord Halsbury, Lord Chancellor, 275-276; Batts Coombe Quarry Pty Limited v Ford (1943) Chancery 51 per Lord Greene MR53). The Shorter Oxford Dictionary and the Macquarie Dictionary both give as a synonym for "concerned" the word "involved". In Regina v Kelly (1975) 12 SASR 389 at 400 the Full Court of the Supreme Court of South Australia said, in relation to the word "concerned": "The word is no doubt deliberately chosen to cover a wide range of activities since it would be well-nigh impossible to define more closely the various acts which could go towards the fulfilment of a plan for the importation of prohibited articles." The latter case is also authority for the proposition that if pursuant to a pre-conceived plan the Appellant had made himself available to be the instrument by which the chosen method of importation could achieve the ultimate purpose of making the heroin independently present in Australia as goods liberated from the bodies of [the couriers], then he was concerned in the act of importation which they performed.”

In R v Courtney-Smith (No. 2) (1990) 48 A Crim R 49 the Court was concerned with drugs which arrived in a container that was landed at Port Botany, and which five days later was taken to a freight forwarding company. Following customs clearance and fumigation, that container was transported to a factory in Manly Vale. It was there placed under surveillance until it was opened by co-accused of the Appellant twelve days after its arrival in Sydney. Preceding the arrival of the vessel carrying the container, and subsequent to its arrival, the Appellant had dealings with the forwarding company to arrange for its clearance and delivery, and he made payments to that agent.

It was there submitted that there should have been a directed acquittal on the basis that the Appellant’s involvement with the container had only started after it was landed in Port Botany. The Court (Kirby P, and Sharpe and Lusher JJ) rejected this proposition, observing (at 63-64): “The legal answer [to this submission] is that it simply is not sustained either by the language and purpose of the Act or by authority which has collected around its meaning. The relevant provisions of the Customs Act were enacted to give effect to the Single Convention on Narcotic Drugs, 1961. Its clear purpose is to strike at the illicit traffic in narcotic drugs and their penetration of the Australian society. Because Australia is an island, that penetration will normally occur through importation of such drugs. Therefore, a section addressed simply to the act of landing would not only fail to exhaust in a proper and understandable way the relevant Federal head of power. It would also fail to achieve the plain objective of preventing importation by attacking those within Australia who become concerned in the arranging the act of importation and in moving the goods, once imported, into the community where they do their mischief. Legal authority, both of the High Court of Australia and of this Court supports that construction of the word “importation”. In Forbes v Traders Finance Limited (1970) 126 CLR 429 at 432, Barwick CJ said: “'[I]mportation’ extends on both sides of the actual act of importing into the country. The importation does not cease at the moment of an import. But the relevant use of a vehicle must be proximate to the act of importing. Whether it is so or not is a question of degree for decision in the particular case.” That question of degree has been clarified by a succession of cases in which meaning has been given to the term… … Neither Commonwealth power nor the language of the Customs Act will follow the goods once they are imported, without limitation as to time and place. A time will be reached when involvement with them in their passage through the Australian community cannot properly be categorized as knowing concern in their “importation”. Likewise, innocent transport of goods after their arrival, although amounting to concern in their importation in one sense, will not have the character of criminality to which the section is addressed. None of this is relevant to the facts of the present case. Nor is the narrow and technical construction of “importation” urged by the Appellant compatible with a series of holdings of this and other courts about the scope and duration of the “importation” with which knowing concern must be shown. For example in R v Shin Nan Yong (1975) 7 ALR 271, this Court made it plain that it was not necessary, to secure a conviction under s233B(1)(d) that the “concern” should be made manifest in a physical sense whilst the importation was actually in progress. It was sufficient if the “concern” is manifested in the venture which centred upon the importation. To similar effect was the decision of the Court of Criminal Appeal of South Australia in R v Kelly (1975) 12 SASR 389. See also Ashbury v Reid [1961] WAR 49.”

The Court also regarded the decision in R v Lam to be particularly instructive on this question, in so far as Gleeson CJ had there stated that “the term ‘importation’ was one which must involve at least some measure of flexibility’”. The Court held that: “at least to the point where the imported product was still in a container held in a hired factory…before distribution to the markets for which it was intended, the process of ‘importation’…(had) not relevantly ceased for this offence. Concern in that importation whilst the goods remained as they were qualifies for the application of the section”.

The decisions in Lam and Courtney-Smith were also followed in R v Leff (1996) 86 A Crim R 212. That was a case in which the Appellant had a number of telephone conversations with the courier, at a time which followed his arrest and the seizure of the drugs which he had been carrying, that being a time while he was co-operating with the authorities. In so far as the Crown case was based solely upon an alternative that was confined to the post arrival/arrest conversations (there being another alternative dependant upon disputed evidence as to some earlier involvement on the Appellant’s part in the planning for the importation) it was held that the venture was, as a matter of law, still in progress at the time of these conversations, and that there was sufficient evidence to show that the Appellant was knowingly concerned in it. Gleeson CJ there said (at 214): “The concepts of importation, and of being concerned in an importation, are both sufficiently flexible to cover a case such as the present. As the authorities referred to by James J show, importation is a process, or a venture, not a physical act which occurs or ceases at the moment of import. Furthermore, concern in an importation can commence at a time when it has apparently broken down, and where efforts are being made to bring it to fruition.”

James J, with whom Gleeson CJ and Allen J agreed, said (at 223): “It is true that in the present case Raz was arrested at the airport and the cocaine being carried by him was seized by the Federal Police. However, I do not consider that the intervention by the authorities prevented the process or venture of importation from continuing so that a person might subsequently become concerned in the importation.”

These decisions were also followed in R v Kwong Yue Cheung SCWA CCA 28 October 1997, and it is by reference to the principles which they establish that this ground falls to be decided.

Of some importance in relation to the asserted absence of any evidence of the Appellant’s knowing involvement in the importation, was the defence submission that the columns had been unloaded, and all of the tablets removed before the Appellant arrived at the premises on the morning of 2 December. That was associated with his submission that the time of removal of the tablets, either on 24 November or on 2 December, marked the end of the process of importation.

Absent any evidence showing positively that the Appellant had a financial interest in the importation, and absent any direct evidence of activity connected with the venture on his part before 24 November, I would accept the Appellant’s submission that the jury ought to have had a reasonable doubt of his knowing concern in the importation prior to that date. While the evidence would give rise to a strong suspicion of his earlier involvement, that would not suffice to support a conviction on that basis.

The prosecution case however does not depend upon the Appellant having been knowingly concerned in the importation before 24 November, or of having a financial interest in it. Its case was that the process of importation continued thereafter and that the conduct, on that day and subsequently, of the Appellant amounted to a knowing concern on his part.

On my assessment that submission is correct having regard to the extended concept involved in the process of importation which includes recovery of the goods after landing and anything which is done having a direct proximity to the bringing of the goods into the country, and making them available including their clearance and transfer into storage, unpacking, and arranging for payment of those involved in the process, that is the suppliers, shippers, customs agents, freight forwarders, and so on.

In support of its submission that the Appellant was not involved in the importation between 24 November and 1 December the defence pointed to the absence of any evidence, during that period, of him discussing the importation, or the problem, with his brothers, or with Choi, as might have been expected had he been knowingly concerned in it. To the contrary, the defence argued, he seems to have gone about his regular business and engaged in inconsequential social chatter with them.

That clearly was a factor requiring careful evaluation by the jury as was the evidence of his prior good character. Each must now be given appropriate weight in relation to a consideration of this ground of appeal. Similarly the jury were entitled to take into account the somewhat banal and brief nature of the Appellant’s conversation on his return to the premises on the evening of 24 November, and the fact that Louis Sukkar seems not to have spoken to anyone by phone in relation to the substitution, until after the Appellant had left the premises with Choi.

Equally the jury needed to take into account that while there were intercepted conversations between Joseph and Louis between 24 November and 1 December, relating to the importation, none seems to have occurred at a time when the Appellant was present, as might have been expected had there been the “Councils of war” which the Crown contended had taken place that week, involving the Appellant, at the time of his visits to the premises. Nor was anything said by Louis or Joseph or Choi in their discussions over this week suggestive of the Appellant having been involved in the venture, any discussion involving or concerning him having been related to entirely different topics.

The Crown submission, that it was not credible that the accused was informed of the importation only on the night of 1 December, however, has considerable force, having regard to the terms of his telephone conversation with Choi that night, the absence of any indication to Choi that he had just been brought in to assist, the absence of any apparent indication of shock or surprise on his own part, and his obvious awareness of the prior importations.

There is also the fact that the arrival and storage from 24 November of portion only of a cool room, at a private dwelling would, as a matter of common sense, inevitably have attracted strong suspicion and concern on the part of the owner of those premises unless he had some knowledge of what was involved. It would also be somewhat surprising for a valuable consignment of drugs to be taken to those premises unless it was certain that this could be safely done, or for there to be no discussion as to why the freezer had been brought to Consett Street, and as to what was intended for it, if it was involved in some legitimate commercial activity.

The Appellant’s adoption of an alias when speaking to Max Messina on 1 December, his presence on 24 November when the columns were unloaded, in the course of which steps to remove the tablets were commenced, being the occasion when he was reported as having tasted some of the tablets, and his presence at the premises over the succeeding days, together provide strong support, in my view, for the Crown case, as do the facts that Choi and the Appellant had discussions away from the premises on the afternoon of 24 November, and that when Choi phoned Louis Sukkar at 18:37:48 he had obviously been informed of the fact of the substitution, a circumstance which, while not conclusive, was at least consistent with him having had an opportunity of discussing it with the Appellant. It must, however, be recognised that there was a competing inference open, namely that Louis had earlier driven from Consett Street to meet Choi, to warn him of the discovery, and that this had deliberately occurred in the absence of the Appellant, so as to keep him in the dark.

The Crown submitted however, that it was noticeable from the surveillance video of 24 November, that the body language of the Appellant, along with that of his brothers was consistent with each being disappointed at the discovery of the loss. While a viewing of the video, does tend to support that submission, there being obvious indications of despair on the part of all present, I accept that some caution needs to be exercised in drawing a conclusion too quickly from body language. At best it can be taken into account as a factor in a circumstantial case, not being an essential intermediate fact requiring proof beyond reasonable doubt. Much the same observation can be made in relation to the 2 December surveillance video, where a somewhat sombre mood is obvious, on the part of those present, particularly during the segment where they took a mid morning break sitting around a table, before the columns and other bits of the freezer, were loaded onto a truck.

While it was the defence case that the only purpose or involvement of the Appellant from 1 December onwards was to have the tablets, columns, and the remains of the freezer cabinet removed from his premises as quickly as possible, that contention cannot stand, on my assessment, with the evidence of his conversations, or of his actions from the night of 1 December onwards.

I would accept that if the evidence as to his involvement, after being informed of the importation, revealed nothing more than a commitment to secure the removal from his premises of any evidence concerning it, then the offence charged, as distinct from one of being an accessory after the fact, would not have been made good.

However, on my assessment, the extracts from the intercepts earlier noted convincingly show that the objective and involvement of the Appellant went well beyond that.

The continued presence of the recovered tablets on the Consett Street property up to and including 5 December, the Appellant’s instruction on 2 December that the tablets be put in the shed, and the tenor of his conversations concerning his plans for Choi, clearly belie the suggestion that all he wanted to do was to have everything removed from his property, and the suggestion that he lent his physical assistance for that purpose alone.

His coded conversation with Paul Sukkar on the night of 1 December, in which he refers to “ our little dilemma” and to his concern about “Korean style calling the coppers” similarly suggests far greater involvement than that for which the defence contended, even taking into account his observation “I’m not prepared to leave it overnight”. Had he truly been unassociated with or not concerned in the venture, it would seem more probable that he would have had nothing whatsoever to do with the matter other than to forcefully insist on his brothers getting rid of every trace of the importation from his property.

Of substantial significance in relation to the Appellant’s evidence that his concern on 2 December was only to get the drugs off the Consett Street property, as quickly as possible, is the surveillance and listening device evidence of what actually happened that day. Far from an early morning urgent move of everything from the property, the evidence shows that there was hammering and emptying of columns, a careful sorting of tablets, which the Appellant acknowledged knowing to be ecstasy, so as to make them available for sale, and discussions about the recovery rate and likely proceeds, which went on for a lengthy period. Moreover while the rental truck took the remnants of the freezer cabinet away for storage elsewhere, the tablets remained at Consett Street.

The observations made during the earlier intercepted conversations concerning the number of the columns that had been emptied and of those that had yet to be checked, the discussions about examining the remainder, the surveillance evidence of 24 November and 2 December, and the conversations in relation to what was occurring on 2 December clearly show that the unloading and attempted recovery of genuine tablets, including the opening of some of the columns at the other end to search for more tablets, and the sorting and bagging of the “genuine” tablets, all of which formed part of their recovery, was continuing up to and including 2 December.

The evidence of the Appellant’s conduct from 1 December in attempting to find where the drugs were, and the supply of information to his brothers concerning his inquiries, which was then used by them in their dealings with Choi and with the European end, also provided in my opinion, cogent evidence in support of the jury verdict.

In particular the terms of the Appellant’s conversation with Choi on the night of 1 December, including his familiarity with some of the details, and the open way in which Choi spoke to him, display far greater knowledge of what was involved, than that which might have been expected of someone who had previously known nothing of the importation, and whose premises had been unwittingly used for the delivery and recovery of a large consignment of drugs.

While that by itself may not have sufficed to show a knowing concern before 24 November, it is what occurred thereafter that in my view was persuasive. The fact of this conversation and the absence of any obvious remonstration with Choi, or with his brothers, in having been used by them in a venture which risked destroying his career and jeopardising his liberty, was properly available to the jury in their interpretation of his subsequent conduct.

The additional explanation which the Appellant put forward for his actions, based upon his concerns in relation to his brothers being at risk of harm from the Europeans, also does not ring true, in the light of the terms of the conversations extracted.

The threats which the Appellant mentioned to his brothers concerning Choi, when read in conjunction with his attempts to encourage him to return to Australia by misrepresentations, point strongly in favour of him being actively involved in having pressure placed upon Choi to deliver up the drugs which were believed to have been removed by him, or by his associates. That conduct was properly capable of being understood as showing a knowing concern on his part in the importation. In this context it is of some significance that the appellant said in one conversation to Michael that he was “playing stupid at the moment” with Choi, and that “I’ll get them back”.

It is also not unimportant that the Appellant clearly took the lead from the night of 1 December onwards in the inquiries as to the whereabouts of the missing drugs, and spoke in a way that was consistent with him giving Choi directions. It is similarly revealing that, on occasions, he used what was apparently regarded as a “safe phone”, being a mobile phone registered in a false name.

His obvious knowledge of prior importations, and his interest in the source of manufacture of the pipes found on this occasion, compared with a prior importation, were also revealing.

Similarly, the Appellant’s comments in relation to “what we should be getting” and to looking at “what we’re getting without looking at what we should have got” were particularly telling in relation to his involvement, when considered in the light of the remaining evidence and his repeated use of the plural pronoun in most of the conversations in which he was involved.

In summary, having regard to the continuing efforts between 24 November and 4 December, on the part of all concerned, including the Appellant, to recover, sort and bag such of the genuine ecstasy tablets as had made their way to Consett Street, and to locate and to recover the balance of the intercepted drugs, in whosever possession they were, I am satisfied that it was proper for the jury to determine the Appellant’s guilt by reference to his conduct, and that of Joseph and Louis Sukkar, and of Choi, during the period up to and including 4 December. What the appellant did during the period between 24 November and 4 December in my assessment clearly established his knowing involvement in the importation in so far as he made strenuous efforts to rectify the problem and to recover the drugs.

In the light of the detailed summary of the evidence, and the extracted conversations earlier set out, and in the light of these further observations, I am accordingly satisfied that not only was there a proper evidentiary basis for the jury verdict, but that the case was one where the jury ought not to have had a reasonable doubt as to his guilt.

This ground is not made good. APPEAL AGAINST SENTENCE

The Crown submitted in support of its appeal against leniency, accepting the views of this Court in Regina v Prasad [2004] NSWCCA 293 concerning the consequences of the repeal of s 16G of the Crimes Act 1914, that the starting point of the sentencing judge was too low, having regard to the role of the Respondent, the absence of a plea of guilty and of any evidence of contrition, the sheer size of the importation (68 times the applicable commercial quantity) and the close connection between the Appellant and the principals.

The Appellant submitted that the sentence was manifestly excessive, upon the basis that his Honour overstated his objective criminality. Assuming that the conviction should stand, the submission involved, in substance, the proposition that he had played no part in the original importation, that he had no financial interest in it and that his assistance from 1 December onwards only occurred because of his brothers’ discovery of the substitution. As a consequence, it was contended, his culpability was significantly less than that of the remainder of those who were involved in the venture.

The Appellant submitted in support of his application for leave to appeal against sentence, that there was no proper evidentiary basis for his Honour’s findings that: (a) the Appellant sorted through “hundreds of thousands of pills”; (b) he must have known on 24 November that the columns contained MDMA in substantial excess of the commercial quantity; (c) he assisted Louis and Joseph Sukkar before 24 November and 5 December in “their efforts to ascertain how the narcotics had been lost in their efforts to recover the drugs and/or obtain monetary compensation for their loss”; and (d) between 24 November and 5 December he advised Louis and Joseph “on how the narcotics might best be recovered from Choi”.

These findings were broadly open upon the evidence, save for the number of tablets through which the Appellant personally sorted, and the likely quantity of MDMA of which the Appellant became aware on 24 November. I am not persuaded that any overstatement in the respects mentioned was such as to occasion the Court’s intervention.

Upon my assessment, absent any evidence of the Appellant having been knowingly concerned in the venture before 24 November, or of him standing to gain any financial benefit from it, his objective criminality needed to be assessed upon the basis of the active assistance which he provided to his brothers, in permitting the cool room and tablets to remain on his premises, in assisting physically in the attempts to recover drugs from them, and in pursuing various inquiries aimed at discovering where the missing drugs were so as to retrieve them for his brothers.

His role was that of a knowing assistant to his brothers, rather than as a principal, or accomplice who expected a monetary reward. This is not to say that it was an insignificant role. By the time that he became deeply involved from 1 December, he clearly knew that the venture was one of considerable substance, which potentially involved very large sums of money. Despite his prior good character, he became enthusiastically involved, and his objective criminality was high, although not as high as that of those who stood to gain financially from it.

Taking that conclusion into account along with the subjective circumstances that were appropriately identified by his Honour, I am not persuaded that appellable error has been shown or that any sentence other than that which was imposed, was warranted in law.

I would accordingly propose the following orders: 1. Appeal dismissed; 2. Crown appeal against sentence dismissed; 3. Leave granted to the Appellant to appeal against sentence; 4. Appellant’s appeal against sentence dismissed.

HIDDEN J: I agree with Wood CJ at CL.

SMART AJ: The facts and circumstances have been stated in the comprehensive judgment of Wood CJ at CL.

I agree with the Chief Judge that the evidence was not sufficient to establish beyond reasonable doubt that prior to 24 November 2001 the appellant was knowingly concerned in the importation of narcotic goods consisting of not less than a commercial quantity of ecstasy tablets. The critical question is whether it was reasonably open to the jury to be satisfied beyond reasonable doubt that the appellant was knowingly concerned in an importation from 24 November 2001 to 5 December 2001 or part of that period. These principles emerge from the authorities. (a) "Importation" extends on both sides of the actual act of importing into the country The term "importation" involves some measure of flexibility. See per Barwick CJ in Forbes v Traders Finance Ltd, 126 CLR 429 at 432 and Gleeson CJ in R v Lam (1990) 46 A Crim R 402. (b) The important question is not so much the precise meaning and application of the word "importation" as the meaning and application of the phrase "knowingly concerned in the importation". See per Gleeson CJ in R v Lam . (c) The word "concerned" is one of general import and it is impossible to state with precision what it comprehends. Regard must be had to the facts and circumstances of the particular case. The concept of being concerned in the importation is one of some flexibility. The word "involved" is often given as a synonym for "concerned". See per Gleeson CJ in Lam. (d) Importation means more than "landing". The prohibition against being knowingly concerned (or involved) in the importation of narcotic goods covers those within Australia who become concerned in arranging the importation and in moving the goods, once imported, into the community. See R v Courtney-Smith (No 2) (1990) 48 A Crim R 49. (e) A time will be reached when involvement with narcotic goods in their passage through the Australian community cannot properly be categorised as knowing concern in their "importation". See R v Courtney-Smith (No 2). (f) Innocent collection, transport or handling of goods after their arrival or providing a place for their permanent or temporary storage, although amounting to concern in their importation in one sense, will not be criminal. See R v Courtney-Smith (g) The concern does not have to be made manifest in a physical sense while the importation is taking place. It is sufficient if the "concern" is manifested in the venture which centred upon the importation. (h) If imported narcotic goods are still in a container and held in a hired factory or storage facility before distribution to the intended markets they are still in the state of importation. See R v Lam. (i) Importation is a venture or process not a physical act which occurs or ceases at the moment of import. Intervention by the authorities, for example, seizing the goods, does not prevent that process or venture from continuing and a person might subsequently become concerned in the importation. See R v Leff (1996) 86 A Crim R 212 per James J and per Gleeson CJ. (j) Concern in an importation can commence at a time when it has apparently broken down and where efforts are being made to bring it to fruition. See per Gleeson CJ in Leff . (k) Where narcotic goods are imported into Australia in the voids of pieces of machinery or equipment the act of importation embraces the removal of those narcotic goods from such pieces of machinery and equipment and attempts to do so. (l) As importation is a process or venture, even where the authorities have intervened and removed most of the narcotic goods from the pieces of machinery and equipment, but left some of the narcotic goods and added inert substances or tablets, removal of such goods by a person and attempts to remove them amounts to being concerned in the importation. Usually, the machinery or equipment has been delivered to the consignee or his, her or its nominee after the narcotic goods, or most of them, have been removed. Part of the importation is the machinery and equipment in which the narcotic goods have been secreted.

The facts in the present case extend the concept of being concerned in an importation close to its limits, putting aside temporarily the concept of "knowingly".

The importation was intercepted by the Australian Government Authorities in Brisbane and most of the narcotic goods (ecstasy tablets) were removed from the 48 columns of the portable coolroom, and inert tablets (described as lollies) were substituted. The equipment was transferred to a Brisbane warehouse. Part of the coolroom, including the columns, were transported by road to the appellant's newly acquired house at 84 Consett Street, Concord under the supervision of Louis Sukkar and John Choi, arriving there during the morning of Saturday, 24 November 2001.

The appellant arrived at the house shortly after noon on 24 November. This was his first inspection of the house he had bought and in which his brother, Louis, his brother's girl friend, Michelle Royal, and a young Asian student, a boarder, lived. During the afternoon the hired truck was unloaded by Louis Sukkar, assisted by the appellant and the student. The coolroom columns which contained the tablets were placed in the garage.

During the afternoon Louis Sukkar became aware that the tablets in the columns were not ecstasy tablets and telephoned his brother, Joseph Sukkar with that news. Later in the afternoon Joseph Sukkar arrived and after he arrived the columns were shifted from the garage to a garden shed and the coolroom doors were unloaded from the truck and put in the garage.

At 3.12pm Louis Sukkar left 84 Consett Street, drove around the corner and met John Choi. The appellant contended that that was so Louis Sukkar could tell Choi that the appellant was there and alert Choi not to say anything about the importation. Meanwhile, in response to a message left by John Choi on the appellant's mobile telephone, he telephoned Choi and they had a brief discussion about something having nothing to do with the importation. No reference was made to the importation or to the cargo having arrived or being unloaded. The appellant asked Choi if he was coming their way and Choi told the appellant that he was in Croydon. Choi visited 84 Consett Street, but did not inspect the cargo in the garden shed. Shortly after 4.00pm the appellant and Choi went to Strathfield, in separate vehicles. They conferred there. They also spoke to people in and about coffee shops and restaurants who appeared to have nothing to do with the importation. Choi was a long time client of the appellant. After 6.00pm the appellant arrived back at 84 Consett Street, stayed for six minutes and left. It cannot be safely inferred that the appellant and Choi went to Strathfield to talk about the importation. If they had wished to do that 84 Consett Street was a preferable venue.

As soon as the appellant left 84 Consett Street, Louis Sukkar telephoned Choi. Later, about 1938 hours, Louis telephoned Joseph and remarked: "It's nothing … I ate about three of them. There's nothing and ah Michelle ate one. Stephen also ate two there's nothing at all."

With some doubt but taking the evidence the Crown relied upon at its highest I agree that this conversation was admissible, but when regard is had to the whole of the evidence it provides a tenuous and insubstantial base from which to conclude that the appellant was knowingly concerned in the importation. It is appreciated that this was one of a series of matters relied upon by the Crown.

During the period from 25 November 2001 until the evening of 1 December 2001 there were many conversations between Louis Sukkar, Joseph Sukkar and the appellant. In every conversation between Louis Sukkar and Joseph Sukkar they spoke about the importation but when speaking to and with the appellant the importation was never mentioned. There were many conversations between Louis Sukkar and others and Joseph Sukkar and others when the subject of the conversation was the importation.

During the period mentioned, Louis Sukkar endeavoured to obtain all the "paperwork" as to the importation. Joseph Sukkar also tried to work out what had happened. He kept in touch with the European suppliers and contacts and tried to mollify them. Initially, he suspected that the substitution had occurred in Europe.

On 27 November 2001 Choi was at 84 Consett Street from 3.53pm to 4.11pm and gave documents to Louis Sukkar. After Choi left there were conversations between others about documents. At 4.35pm there was a somewhat heated conversation between Louis Sukkar and Choi about the money that had been lost. At 5.11pm Choi telephoned the appellant and spoke to him about a wholly different matter. Nothing was said in this conversation about the importation, the documents or the loss of any money. In a further telephone conversation at 6.46pm between the appellant and Choi nothing was said about those matters. The appellant was at 84 Consett Street on Tuesday 27 November 2001 between 8.11pm and 9.57pm and talked with Michelle Royal, a young lady called Lisa, and his brother Louis about a number of matters but not the importation. He telephoned Peter and arranged to go riding on the following Sunday. Despite the variety of subjects covered nothing was said about the importation, the documents or the lost moneys.

At 10.24pm and 10.25pm, well after the appellant had left, there were two telephone calls between Louis Sukkar and Choi concerning documents.

The appellant had visited 84 Consett Street on Sunday, 25 November and Monday 26 November but did not visit on 28 and 29 November. He visited on Friday 30 November. Early that day Joseph Sukkar had spoken with the European suppliers. Later in the morning Joseph and Louis discussed the European telephone call. Joseph spoke to the appellant at 2.23pm and 5.11pm. There was no mention of the importation or anything connected with it.

Given the closeness of the Sukkar brothers it is very surprising neither Louis nor Joseph said anything to the appellant about the importation or anything connected with it.

On Saturday, 1 December 2001 the appellant arrived at 84 Consett Street with Louis and Joseph at 1.11pm. Later on Malek Jarjo arrived and there was a conversation about diamonds.. After that conversation Joseph and Jarjo left. Later on the appellant washed his car. He spoke to Louis but did not speak about the importation. At 5.01pm a conversation took place between Louis, Joseph and the appellant. There was considerable talk of family problems; a family barbecue was arranged that night at Joseph's place.

The importation was the constant subject of discussion between all those who were knowingly concerned and there were many such conversations. There was never any reference to the importation in any conversation with the appellant. It was submitted by the appellant that up to this point he knew nothing of the importation.

In his reasons the Chief Judge has summarised the available evidence in support of the Crown case against the appellant. Some of the material relied upon by the Crown is based on the activities and remarks of other members of the common enterprise. While Joseph, Louis and Choi were aware of the importation of narcotic goods the evidence from the many intercepts and the listening devices shows that the importation and matters connected with it were not mentioned in conversations with the appellant. Joseph, Louis and Choi must have abstained deliberately.

The appellant's attendances at 84 Consett Street from 24 November to early evening on 1 December 2001 are not surprising considering that he had recently purchased that property, that the brother who was closest to him lived there, that he had recently broken up with his girl friend and was at a loose end and the agreement that Louis would live there rent free and renovate the property. I have not overlooked that the truck containing the columns was driven to 84 Consett Street, that the appellant assisted in unloading and placing the columns in the garage and later assisted in shifting them to the garden shed.

I do not think that any inference adverse to the appellant can be drawn from his visit to a coffee shop (or shops) and restaurant at Strathfield with Choi and speaking to Choi and other people there. What was said is not known and in subsequent conversations between them prior to the evening of 1 December 2001 neither the importation nor anything connected with it was discussed.

The Crown also relied on what the appellant is recorded as saying during the evening of 1 December 2001 and subsequently and what he did as showing the extent of his knowledge and previous engagement in the enterprise.

The Crown placed reliance upon a series of conversations which it claimed indicated that the appellant was well aware of the drug operations of the Sukkar family, for example, the appellant's remark to Louis about coolrooms "All right so he (Choi) knew from last time" it was coolrooms. There were the further comments by the appellant, "… we'll do it ourselves next time its all right" and about Choi having "overstepped the mark this time". These remarks, along with others, provided some basis from which the Crown could argue that the appellant had been involved, as had Choi, in past importations of tablets using coolrooms and intended to involve himself in further importations. This was coupled with the use of words such as "we" and "us". All these statements were said to make it difficult to accept lack of knowledge on the appellant's part while the importation was in progress. Again, the admission of this evidence does not effectively prove the Crown case beyond reasonable doubt. The Crown is trying to read too much into some relatively small segments of the evidence and not taking the evidence as a whole.

By the evening of 1 December 2001 despite extensive inquiries Joseph and Louis had not succeeded in ascertaining what had happened, that is how, when, and by whom the bulk of the ecstasy tablets had been removed. It was the defence case that at the barbecue the appellant was told of the importation, the removal of the tablets and what had happened so far as Joseph and Louis were aware. The appellant was told of the steps taken to date and asked to assist. The Crown relied upon the terms of the conversations held by the appellant that evening with Choi, who was in China, from about 2049 hours onwards as showing the extent of the appellant's knowledge of the venture, particularly having regard to the familiarity with which he discussed the matter with Choi. The appellant held conversations with others during the evening.

The Crown relied on the use by the appellant in his conversations of the words "we", "ourselves" and "us", but this should not be regarded as significant. Solicitors and others often use the plural to cover the interests or people they represent.

Choi was a client and business associate who also knew the appellant's brothers. In such a context a loose general word would naturally be used and it would be odd for the appellant to differentiate between his brothers and himself. Precision of expression is not to be expected in such circumstances. From the conversation at 2049 hours it appears that the appellant was worried about the attitude and actions the Europeans might take and questioned Choi extensively about the movement of the goods in Brisbane and the documents and whether there was any gap when the goods could have been substituted.

After a further conversation with Choi, contacting the Customs broker (during which the appellant misled the broker as to his name), another conversation with Choi and speaking with his brothers in a telephone call at 2159 hours, the appellant made a further call to Louis at 2204 hours. By this time the appellant had deduced that there was a forty hour period in which the goods could have been substituted. After his discussion with Louis the appellant telephoned Choi at 2211 hours and explained, amongst other things, that there was a period of forty hours after quarantine when the goods were sitting in the ports before "we" got them. The appellant expressed the view, "something smells". Choi commented that the appellant was saying that "they" (possibly people associated with the Customs broker or Intergroup Shipping), had changed the goods. The appellant replied, "Something like that because they're very badly packed" and "You can see it's been done it's been very rushed …". The Crown relied on the appellant giving Choi instructions.

In a conversation with Louis at 2223 hours the appellant expressed his suspicion that Choi and his friends working in conjunction with the Customs broker intercepted and removed the tablets. The appellant explained that when a person fills up a column with foam it expands over 24 hours. It is sanded back and a little cover is put over the foam. The appellant added, "some of the packaging here was bulging out." If the packaging was bulging out that could have been readily seen as the columns were being transported. That does not involve looking inside the columns.

A detailed examination of the evidence persuades me that it was not open to the jury to be satisfied beyond reasonable doubt that between 24 November and the evening of 1 December 2001 the appellant was knowingly concerned in the importation of narcotic goods, I regard much of the material on which the Crown relied as equivocal and readily explicable.

However, the evidence of what occurred from the evening of 1 December 2001 to 5 December 2001 is in a different category. In approaching that evidence I bear in mind that importation is a process or venture and that a person can become involved in it even where it has apparently broken down and he makes efforts to pursue and try to enliven it.

During the evening of 1 December 2001 the appellant made determined efforts to trace the course of events after the landing of the goods and to ascertain who was responsible for the substitution and to recover the goods or otherwise make good the loss which had been incurred. As a result of his activities his suspicions fell on Choi and his Brisbane associates.

It was the appellant's case that on learning of the importation he wanted everything connected with it removed from his house and pressed that desire on his brothers.

On Sunday, 2 December Louis rented a truck which was initially driven to Joseph Sukkar's home in Croydon, arriving about 10.25am. About 10.28 Joseph called the appellant and asked him to come and help them at Louis".

About 10.38am the appellant drove to 84 Consett Street. About 10.42am the three brothers participated in a conversation. They contemplated what might be in store for Choi. During that conversation the appellant said "We'll get it back." and "we'll do it ourselves next time."

The reference to "We'll get it back" meant getting Choi's share back.

At the end of the conversation this was said: Louis: …let's um open the rest of these things. Joseph: Open em here."

The appellant, Joseph and Louis proceeded to open the other end of some of the columns looking for more drugs and sorting the tablets into ecstasy tablets and inert tablets. About 1049 hours the appellant gave Paul Sukkar directions for getting to 84 Consett Street.

From about 10.50am onwards the four brothers opened columns and sorted tablets. Joseph proposed that they open one column at a time and empty the contents into bags. The appellant replied, "Thought we could drive it all up to Paul's place and just open it all get all the pills out. There's some in doubles we got to check 'em again which ones did we miss."

There was further discussion between the four brothers as they worked away at checking the columns and ensuring that they were empty. An unknown male joined them.

About 12.02 hours Louis remarked "There's over two hundred thousand dollars in there he's not seeing any of that." The appellant said "It's fifty thousand E's that's pretty good." He later referred to five thousand.

In a conversation about 12.52 hours that day as to Choi the appellant remarked, "I'm the one who that put them on to him", and confirmed the remark of Paul Sukkar, "don't you know what we have been doing through the last five to six years you f--- animal." The appellant remarked that Joseph could have made "a million and you guys would have made three or four hundred thousand selling them." The appellant said, "We don't want the goods and you give us the the money go sell 'em."

The Crown also relied on comments made by the appellant at 1425 and 1532 hours as to Choi's insistence that the goods go to Brisbane where it's easier because there is less checking and as to his suspicions about the shipping company.

About 1632 hours there was conversation between the four brothers and the unknown male about the experiment of dissolving some tablets in water. About 1737 hours there was a discussion involving Joseph, Louis, the appellant and an unidentified male in which there was some unintelligible conversation seemingly as to the value of the tablets.

The empty columns were taken by truck by Paul Sukkar to a storeroom in Granville. The substitute and genuine tablets had been separated. Louis Sukkar was to remove these from 84 Consett Street but failed to do so.

About 1558 hours on 3 December 2001 in a telephone conversation between the appellant and a man called Michael there was reference to the big swap which had recently taken place. The appellant said, "… as soon as he gets back I'll get them." The appellant commented that "they" had access to them [the goods] for two days before they gave it [the goods] to us. The "they" appears to be a reference to Choi and his Brisbane associates.

About 1837 hours on 3 December 2001 Choi telephoned the appellant and discussed the importation and the documents. Choi stated, "nobody can access that yard besides P and O people." The appellant said that he did not want Choi to call anyone or anything and continued, "just try get back ASAP 'cause those people are here get those documents for us I don't want to call anyone I want to back away from it mate too hot for me and too dirty for me go away I don't want to do it anymore."

None of the Sukkar brothers and Choi realised that their telephone calls were being intercepted and recorded. There was no attempt to speak in code. There are relatively small snatches of conversations which are capable of being regarded as suggesting the involvement of the appellant in the importation prior to 2050 hours on 1 December 2001 and there are two videos of 24 November 2001 and 2 December 2001 on which the Crown relied. The video of 24 November 2001 shows the unloading of the van and the stacking of columns and doors in the garage. It also shows Choi arriving and Choi and the appellant leaving to go to Strathfield and at Strathfield, and the appellant returning to 84 Consett Street. The video of 2 December 2001 shows the Sukkar brothers attending to the columns and loading them and the doors onto a van. The video did not throw any further light on when the appellant first became knowingly involved in the importation.

By way of a strong counterbalance the Court has the unusual benefit of the terms of the conversations between Louis, Joseph, Choi and the appellant. In this, the Court is not dependent on the credibility of those speakers. The recordings reveal that prior to 2050 hours on 1 December 2001 while the importation was freely and frequently discussed between Joseph and Louis and Choi and Louis it was never mentioned in this period when they were speaking with the appellant. This reveals an incredible state of affairs if the appellant was knowingly involved prior to 2050 hours on 1 December 2001. Further, Louis went to speak to Choi away from 84 Consett Street prior to him arriving at the site. The inference is that Louis did not want Choi to reveal the correct position as to what was happening to the appellant. It is possible theoretically that the appellant was knowingly involved from 24 November 2001 or prior to that date. However, if that were so, some mention of this in some form would have been made in the many telephone conversations with him. Taking all the Crown evidence together it was not along with the remainder of the evidence open to the jury to be satisfied beyond reasonable doubt of the appellant's knowing involvement prior to 2050 hours on 1 December 2001.

It seems that when Louis and Joseph were unable to resolve what had happened that the appellant was called upon to assist. That was in the evening of 1 December 2001 and when he first became knowingly involved in the importation. Initially it was not a physical involvement but it became physical as well as managerial on 2 December 2001.

Whatever may have been the true position prior to the evening of Saturday, 1 December 2001 the evidence establishes that as from at least 2050 hours on 1 December 2001 the appellant became knowingly concerned in the importation of the narcotic goods. Indeed, he became intimately involved as he sought to establish what had happened to the goods and to either recover them or procure compensation for their loss. Late in the evening of 1 December 2001 the appellant procured the assistance of Paul Sukkar, his brother, to remove the columns from 84 Consett Street. On the Sunday the appellant became involved in opening the columns and the pipes encased in the columns to check whether all tablets had been removed, removing any remaining tablets, sorting the tablets, overseeing the removal of the columns and arranging for Louis to remove the tablets from 84 Consett Street. The appellant appreciated the danger of any of these items or goods remaining at the house he owned. The conversations on 3 December were revealing both as to the appellant's involvement, his attitude to Choi and his efforts to extricate himself and his family from the positions in which they found themselves.

On the basis of the evidence as to what occurred from 2050 hours on 1 December 2001 onwards there was sufficient evidence entitling the jury to be satisfied beyond reasonable doubt of the guilt of the appellant of the charge of being knowingly concerned in the importation of narcotic goods.

I have earlier expressed my agreement with the conclusion reached by the Chief Judge on Ground 1. I also agree with the conclusion reached by the Chief Judge on Ground 2. The Crown is entitled to rely on the conversations in questions which occurred on 1, 2, 3 and 4 December 2001 and to put its case at the highest. The conversations are capable of providing some support for the Crown case and in rebuttal of the defence case, This does not mean that the conversations are determinative.

I agree with what the Chief Judge has written on Grounds 3, 4 and 5 and the additional ground of appeal and his rejection of those Grounds. As to Ground 6, while I agree with the Chief Judge's conclusion I have done so on a narrower basis. The appeal against conviction should be dismissed.

The judge sentenced the appellant on the basis that the depth of his knowing concern was greater than that which I think the evidence reasonably supports. My view as to the proven extent of the appellant's knowing involvement (or concern) in the importation disposes of the Crown appeal against sentence.

If the wider basis upon which the Chief Judge would uphold the conviction is correct, and there are substantial grounds in support of that approach, the appellant's appeal against his sentence should be rejected.

On the narrower view of the appellant's offence is the sentence imposed within the permissible range? On my approach the appellant's involvement did not commence until well after the narcotic goods had been landed. The appellant's knowing involvement (as distinct from his involvement) commenced on the evening of 1 December 2001 when he undertook the task of ascertaining what had happened to the goods after they arrived in Australia and whether there were any "gaps " when the substitution could have taken place. This led to him studying the documents and speaking with his brothers, Choi and the Customs broker. Having formed the conviction that Choi and his associates were responsible for the substitution he gave consideration to the recovery of the tablets and the obtaining of compensation for the losses suffered and generally managing Choi and the situation which he believed had developed as to him. The opinion which the appellant had formed as to Choi's role in the substitution was erroneous.

While the role of the appellant proven beyond reasonable doubt was limited, his offence was serious. Part of his role involved eliciting sufficient facts so his brother Joseph could satisfy the European principals that he and Louis had not participated in any substitution or been guilty of any careless or underhand conduct. The appellant, once he became aware of the position, desired to have the columns and tablets removed from his property at 84 Consett Street as soon as possible, and took steps to that end. He became involved in opening and checking the columns and sorting the tablets into substituted ones ("lollies") and ecstasy tablets. He was generally active in endeavouring to recover the situation for his brothers. It was apparent that the remaining ecstasy tablets would be sold. The fact that the appellant was mistaken in his analysis of the situation and unsuccessful does not lessen his criminality.

Louis had been in Brisbane collecting the portable coolroom. It was Louis who lived at 84 Consett Street, drove the truck from Kempsey to that address and initiated and supervised the unloading of the columns. Louis and Joseph were the organisers and moving spirits behind the Australian end of the importation but, as previously mentioned, the evidence points to neither of them speaking to the appellant about it between 24 November and the evening of 1 December. On the evidence the appellant was not involved in the importation until well after the goods were landed. While it was ultimately left to him to find out what had happened and who had effected the substitution, the evidence does not establish that he was involved in bringing the narcotic goods into Australia or in the proposed arrangements to distribute such goods in Australia. On the other hand, when made aware of importation and substitution on the evening of 1 December, he joined his brothers in trying to salvage the operation and in handling the fall-out.

In my opinion, a sentence of 14 years with a non-parole period of 9 years is manifestly excessive for the limited role played by the appellant.

In determining the correct sentence I have had regard to the appellant's favourable subjective features as outlined by the judge. These were highly favourable. He was the youngest member of the family and the one who had made good. His career as a solicitor has been destroyed. This is a severe punishment. I have applied the terms of the Commonwealth Crimes Act . The element of deterrence is important. The appellant has allowed family loyalties to override his duties as a solicitor in upholding and obeying the law.

After taking a starting point of 16 years and allowing a discount of about one-third, I would impose a sentence of 11 years imprisonment with a non-parole period of 7 years.

I would make the following orders: 1. Appeal against conviction dismissed. 2. Leave to appeal against sentence granted 3. Appeal against sentence allowed; sentence quashed. 4. In lieu of the sentence imposed, the appellant is sentenced to imprisonment for 11 years commencing on 5 December 2001 with a non-parole period of 7 years commencing that day and expiring on 4 December 2008 when the appellant becomes eligible for release on parole.