Boutros v R

1. [1]

   SIMPSON JA: Section 11.1 of the Criminal Code (Cth) (“the Code”) relevantly provides:

2. [2]

   On 29 July 2013 the appellant was arraigned in the District Court on an indictment that charged, under s 11.1 and s 307.6 of the Code, that, on 9 December 2010, he attempted to possess a marketable quantity of a border controlled drug (cocaine). He entered a plea of not guilty to the charge. A jury was empanelled and a trial proceeded. On 31 July 2013 the jury returned a verdict of guilty. The appellant was sentenced to imprisonment for a term of 2 years. An order was made under s 7 of the Crimes (Sentencing Procedure) Act 1999 (NSW) that the sentence be served by way of intensive correction in the community.

3. [3]

   The appellant appeals against the conviction. He has not sought leave to appeal against the sentence. He pleads two grounds of appeal. In the first, he asserts that the trial judge left to the jury a factual basis for conviction that was different from the case advanced by the Crown. In the second, he claims that the verdict of guilty was unreasonable and not supported by the evidence.

The trial

1. [4]

   The trial was very short, and was conducted with an unusual degree of co-operation between the parties.

2. [5]

   The majority of the factual matters alleged by the Crown were agreed, and were put before the jury by way of an Agreed Statement of Facts pursuant to s 184 and s 191 of the Evidence Act 1995 (NSW). Only two witnesses, both Australian Federal Police (“AFP”) officers, gave oral evidence in the Crown case. The appellant did not give or call evidence.

3. [6]

   The Crown prosecutor opened very briefly to the jury. Relevantly, he said:

4. [7]

   The Crown then referred briefly to some of the evidence he anticipated would be called, and told the jury that the evidence consisted in part of circumstantial evidence.

5. [8]

   He then said:

6. [9]

   Counsel who appeared for the appellant at trial opened the defence case briefly. Relevantly, as recorded in the transcript, he said:

7. [10]

   The evidence in the Crown case was as follows.

8. [11]

   On 3 December 2010, a consignment, consisting of a package labelled as containing cosmetics, which had originated in Lebanon, arrived in Australia. It was addressed to “Goerges (sic) Sarkis” at an address in Beverley Hills. The consignment was investigated by Customs and Border Security, and was found to contain cocaine of a pure weight of 324.1 grams. Cocaine is a border controlled drug. A marketable quantity of cocaine is 2.0 grams.

9. [12]

   Measures were put in place to prevent delivery. The cocaine was removed from the container and replaced with an inert substance.

10. [13]

    A police operation commenced. Telecommunications services in the name of Andrea Abdallah were intercepted pursuant to warrants issued under the Telecommunications (Interception and Access) Act 1979 (Cth). Andrea Abdallah and George Sarkis were the same person. At 8.45pm on 3 December, Abdallah telephoned the appellant, expressing some consternation at the delay in the processing and release of the consignment and asking the appellant to “go and check”, saying “they reckon there’s a drama or something”. Abdallah then advised the appellant to “put a hat on and that, huh”. The appellant said that he understood. (The Crown case was that this was a coded warning to the appellant to take care.) At about 9.10pm, the appellant telephoned Abdallah, confirming that release of the consignment had been delayed, but giving no explanation.

11. [14]

    An AFP undercover operative (Daniel Laveta), posed as a FedEx driver called “Dan”. On 8 December Mr Laveta telephoned Abdallah advising that he was calling from FedEx, and that he was trying to arrange to deliver a parcel for “George Sarkis”.

12. [15]

    On 9 December, at about 8.30am, Mr Laveta contacted Abdallah (using the name George). Abdallah gave Mr Laveta an address on Liverpool Road, Strathfield for delivery of the package. He said that the building was being renovated, and a worker named Jason should be present to take delivery of the package. Mr Laveta told Abdallah that he would need a signature for delivery to take place.

13. [16]

    Mr Laveta drove to the Liverpool Road address, arriving at about 10.40am. The shop was closed and apparently unoccupied.

14. [17]

    At about 11.45am Abdallah telephoned the appellant. The appellant told Abdallah that he was “at the place”. Abdallah asked if there were “any coppers yet”. The appellant asked “Have you, have you done the thing yet?”. Abdallah replied “Yeah, yeah, I did it, but they sound like coppers”. He asked if there had been any sign of police at the premises. He recounted to the appellant the conversation with Mr Laveta about needing a signature.

15. [18]

    From about 1.00 or 2.00pm, the Liverpool Road premises were under AFP surveillance.

16. [19]

    At about 2.11pm Mr Laveta, still posing as a delivery driver, rang Abdallah. He said that he had been unable to make the delivery because there was nobody present at the address. Abdallah told him simply to drop the package at the premises. Mr Laveta declined to do so, saying he did not feel comfortable with that course. They arranged to meet about 15 minutes later.

17. [20]

    At about 2.30pm on the same day the appellant was present at the Liverpool Road address in Strathfield, standing outside on the pavement; he then walked inside the premises. Mr Laveta arrived, in his role as a FedEx delivery driver. He was wearing a listening device, authorised by a warrant issued under the Surveillance Devices Act 2007 (NSW). He had a conversation with the appellant, who appeared to be working there. The conversation was recorded. Mr Laveta introduced himself and told the appellant that he had a package that he had been told to drop off for “George”. The appellant professed ignorance of George. There was further conversation concerning delivery of the package, which culminated in the appellant saying:

18. [21]

    In cross-examination, Mr Laveta agreed that the transcript of the tape recorded conversation indicated that the appellant was engaged in some activity perhaps hammering or drilling.

19. [22]

    At about 3.00pm, the appellant telephoned Abdallah. Evidence about the identification of the participants referred to in the transcript as “M1” and “M2”, to the conversation was confusing, but for present purposes it does not matter. This conversation took place after Mr Laveta had departed from the Liverpool Road premises. The transcript of this conversation records the following:

20. [23]

    At about 3.45pm, with other members of the Australian Federal Police, Mr Laveta returned to the Liverpool Road address. The appellant was in the back of the premises. He was then arrested.

21. [24]

    On the same day a search warrant was executed at the appellant’s home. Police located a black notepad that contained references to the consignment, including the consignment reference number. The appellant’s fingerprints were on part of the notepad.

22. [25]

    The Crown placed considerable reliance on certain portions of the intercepted telephone conversations to establish that the appellant was well aware of the contents of the consigned package, and of the need for concealment and caution. These included the references to “a drama”, to “putting on a hat”, and to “delay” (in the release and delivery of the consignment).

23. [26]

    As mentioned above, the appellant did not give or call evidence. His case was put through cross-examination of the two Crown witnesses, and the argument of his counsel in his final address. Essentially, it was the appellant’s case that his presence at the Liverpool Road address was explained by the fact that he was doing construction work at the premises, and that the evidence failed to establish to the requisite standard that he had, in terms of s 11.1(2) of the Code, engaged in any conduct that was more than merely preparatory to the commission of the offence (the offence being possession of a border controlled drug).

24. [27]

    At the conclusion of the Crown case, counsel representing the appellant applied for a verdict of acquittal by direction. That was refused. By that time, it was clear that the disputed issues in the trial were limited to two:

25. [28]

    The trial judge was satisfied that the Crown had sufficiently discharged its onus as to the first, that is, that there was sufficient evidence to go to the jury that the appellant knew that the package contained cocaine. He described the second issue as “the harder question”, and said:

26. [29]

    He referred to evidence that the appellant was present at the Liverpool Road premises because he was working there, but concluded that, although his presence was “capable of an innocent explanation”, his presence was also something that the Crown was entitled to rely on as evidence of an attempt to gain possession of the package. He also referred to the evidence of the conversation the appellant had with Mr Laveta as evidence capable of supporting an inference that he was attempting to have Mr Laveta leave the package with him.

27. [30]

    Accordingly, although “not without hesitation” he rejected the application for a verdict of acquittal by direction.

28. [31]

    Given the issues that have arisen on appeal, it is necessary to refer to what was said by the parties in final addresses. The following is recorded in the Crown prosecutor’s final address:

29. [32]

    The Crown prosecutor then addressed at some length on the evidence to establish that the appellant knew or believed that the package to be delivered contained a narcotic drug. This was largely the evidence that emerged from the recorded telephone conversations. He submitted that the only reasonable inference to be drawn from that evidence was that the appellant knew what was in the package.

30. [33]

    He then made reference to the evidence upon which the Crown relied to establish that the appellant had attempted (in the sense used in s 11.1 of the Code) to take possession of the cocaine. In this passage, he made specific reference to the conversation between the appellant and Mr Laveta in which the appellant did not accept delivery. That was the conversation in which the appellant said:

31. [34]

    He then addressed on the issue of intention, and, in that context, said:

32. [35]

    A little later, with specific reference to the issue of “attempt”, he put to the jury:

33. [36]

    The Crown prosecutor returned to the conversation between the appellant and Mr Laveta, and said of that:

34. [37]

    In his final address, defence counsel relevantly put the appellant’s case as follows:

35. [38]

    Later, he said:

36. [39]

    At the commencement of the summing up, the trial judge gave the jury one page of written directions, which were as follows:

37. [40]

    I extract below relevant passages from the transcript of the summing up. Those passages are:

38. [41]

    After the jury retired, they sought clarification by a question. The question was:

39. [42]

    There followed some discussion between the trial judge and counsel as to how to answer the question (which his Honour and defence counsel said they found difficult to understand). After that discussion, and by agreement, his Honour directed the jury as follows (as recorded in the transcript):

40. [43]

    Shortly after that, the jury sent a further note, asking what would be the procedure if they were unable to make a unanimous decision. His Honour gave a response in terms of Black v The Queen [1993] HCA 71; 179 CLR 44. Thereafter the jury sent a third note, which read:

41. [44]

    There followed another discussion between counsel and the trial judge. The Crown prosecutor said:

42. [45]

    Counsel for the appellant vigorously dissented from this proposition, saying that the conduct the Crown relied on as an attempt lay in the words spoken to Mr Laveta. The Crown prosecutor maintained that he had also relied on the appellant’s attendance at the Liverpool Road shop as conduct as more than merely preparatory in an attempt to commit the offence. His Honour accepted that the Crown had:

43. [46]

    The transcript records that he then read the question to the jury and said:

44. [47]

    Counsel for the appellant then sought discharge of the jury, first on the basis that the direction was a departure from the case he had sought to meet, and second on the basis that the further direction invited the jury to speculate about what the conduct relied upon might be.

45. [48]

    His Honour declined to discharge the jury. Shortly after, the jury returned with a verdict of guilty.

The grounds of appeal

1. [49]

   The grounds of appeal were pleaded as follows:

2. [50]

   Put simply, the ground is that, as a consequence of the questions asked by the jury, the trial judge departed from the case that the Crown had sought to make. The argument was that the Crown had identified the conduct said to amount to an attempt to take possession of the cocaine as the appellant’s invitation to Mr Laveta to leave the package with him.

3. [51]

   In my opinion, that was not the Crown case.

4. [52]

   A fair reading of the Crown’s opening reveals clearly that its primary position was that the appellant’s attendance at the Liverpool Road address (which, the Crown asserted, was for the purpose of taking delivery of the package) was sufficient to establish “conduct more than merely preparatory to the commission of the offence”. That remained the Crown’s position throughout. It was echoed in the Crown’s final address, although the Crown prosecutor also referred to the appellant’s conversation with Mr Laveta, in which he said “It’s up to you … If you want to leave it here it’s up to you … then it gets delivered you see.”. The Crown put to the jury that this was an attempt to have Mr Laveta leave the package in the appellant’s possession.

5. [53]

   It was this that the trial judge referred to in answering the jury’s first question. It was when the third note arrived that it became plain that the trial judge had (as he said) unduly confined the Crown’s case of conduct constituting an attempt to gain possession to that conversation. This answer to that question was that the Crown was not confined to that time in establishing the relevant conduct. All that the jury could have understood from that was that, at some earlier time, the appellant could have engaged in relevant conduct. So long as that coincided with the necessary belief and intention, that was sufficient. In the circumstances of this case, the only other time could have been the time when the appellant attended (and remained at) the Liverpool Road premises.

6. [54]

   The judge could have gone further, and specified the conduct as attendance at that address. That specifically could hardly have assisted the appellant’s case.

7. [55]

   Defence counsel’s protest that the conduct relied upon by the Crown was only the words spoken by the appellant to Mr Laveta was misconceived. It is contradicted by the plain words used by the Crown in the opening.

8. [56]

   The written submissions filed on behalf of the appellant repeat the misconception of trial counsel. It was there submitted:

9. [57]

   First, the written submission misquotes the jury’s question, and the answer. The question did not specify “at an earlier time”, but “at another time” (although, in the context, it could only have referred to an earlier time). More importantly, the submission assumes that the physical element on which the Crown relied, and opened and closed to the jury, was the appellant’s conversation with Mr Laveta. That is wrong. The physical element on which the Crown opened - and closed - to the jury was the appellant’s attendance at the Liverpool Road premises. In closing, the Crown added a reference to the conversation.

10. [58]

    There was no change of direction in the Crown case.

11. [59]

    In my opinion, Ground 1 is based on a false premise and must fail.

12. [60]

    It is worth restating that this ground is framed in terms of the asserted unreasonableness of the verdict. No question of the adequacy or correctness of the directions to the jury arises.

13. [61]

    It was accepted that the jury must have been satisfied beyond reasonable doubt that the appellant knew that the content of the package was cocaine, and intended to possess it. There was ample evidence in the intercepted telephone conversations to support those conclusions and they are not challenged on appeal.

14. [62]

    The written submissions filed in support of this ground were confused and confusing. For example, it was put:

15. [63]

    No complaint was made at trial about the directions, and no ground of appeal challenges the directions. It was never suggested that the jury ought to have been directed as suggested in par 49 of the appellant’s written submissions.

16. [64]

    There was some slight evidence that the appellant, while at the premises, was or may have been engaged in some form of building work. However, it was open to the jury to accept that his purpose in attending the premises was to take possession of the package. This was also amply supported by the telephone conversations. It was further supported by his conversation with Mr Laveta. That the appellant busied himself with some sort of building work while he was there (if he did) does not impinge upon the question of his presence there for the purpose of taking possession of the package.

17. [65]

    It was suggested that his Honour took the view that the second question asked by the jury gave rise to an:

18. [66]

    I have considered carefully all of the evidence. I am satisfied that it was open to the jury to convict the appellant. I am satisfied beyond reasonable doubt that the evidence amply supported the conviction. I would therefore reject Ground 2.

19. [67]

    The order I propose is:

    1. (1)

       Appeal against conviction dismissed.

20. [68]

    ROTHMAN J: I have had the advantage of reading in draft the reasons for judgment of Simpson JA with which reasons I agree. My analysis of the evidence does not leave me with any reasonable doubt as to the guilt of the appellant.

21. [69]

    BELLEW J: I agree with Simpson JA.