Nader v R

1. [1]

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

2. [2]

   DAVIES J: The applicant was found guilty after a trial before Judge Craigie SC and a jury of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, being 14.371 kilograms of MDMA. A co-offender, George Abouhaidar, was also found guilty of that offence. The co-offender had also pleaded guilty at the commencement of the trial and in the presence of the jury panel to having in his possession counterfeit money being 204 counterfeit $50 notes with a total face value of $10,200 knowing that the money was counterfeit.

3. [3]

   The maximum penalty for the drug offence is life imprisonment and/or a fine of $1,350,000.

4. [4]

   On 24 November 2017 the applicant was sentenced by Judge Craigie to a term of imprisonment of nine years and six months commencing 12 July 2017 and expiring 11 January 2027 with a non-parole period of five years nine months expiring 11 April 2023.

5. [5]

   The applicant now appeals on the following two grounds:

Factual background

1. [6]

   On 29 October 2015, the Australian Federal Police (AFP) seized two consignments which had been sent from the Netherlands addressed to Hawker Pacific Aviation Equipment Company, a business located at Bankstown Airport that specialises in the sale and maintenance of aircraft. The consignments were found to contain a combined total of 14.371 kilograms of pure 3,4-methylenedioxymethamphetamine (MDMA).

2. [7]

   The consignments were sent by Deutsche Post DHL Group (DHL). Hawker Pacific was an innocent party in the importation. It was a key customer account of DHL and, as a result, its deliveries were received by DHL Mascot and transferred to the DHL Warehouse at Homebush. From there they were delivered by courier to Bankstown.

3. [8]

   The applicant was the director of MSN Transport Pty Ltd, a courier subcontracted by for DHL operating out of the DHL Homebush depot. He had direct access to consignments within the Homebush depot and he had particular responsibility for runs between Mascot and Homebush. The Bankstown area was also part of his delivery run.

4. [9]

   The Crown case was reliant primarily on intercepted communications and surveillance of the applicant, Mr Abouhaidar and a Ms Tongalea who was an employee of DHL. The communications are set out in summary form in the Crown Case Statement and are set out in full in Exhibit 46 at trial.

5. [10]

   In his remarks on sentence, Craigie SC DCJ noted that the applicant became involved at Mr Abouhaidar's initiation, was under his close direction and was in contact with him concerning the shipment during the period of the enterprise. The applicant had an expectation of reward of around $5,000. It was found that Mr Abouhaidar was part of a wider enterprise, and it was intended that he obtain the consignments on behalf of others.

6. [11]

   The applicant and Ms Tongalea had a close personal relationship. Ms Tongalea was employed by DHL as a Network Control Agent at "The Gateway" located at Sydney Airport, Mascot. Her duties included responding to 'traces' or queries from customer service, reviewing systems to check the status of shipments, and ensuring shipments were continually moving.

7. [12]

   The applicant approached Ms Tongalea to assist him. Ms Tongalea tracked the shipments and provided information about their progress to the applicant. The applicant also gave her instructions to put the boxes aside for collection when they had cleared formalities, and to put black shrink wrap around them.

8. [13]

   The applicant in turn relayed the information he received from Ms Tongalea to Mr Abouhaidar. The applicant also arranged to complete delivery of the consignments on the DHL system so that he could obtain possession of the consignments with a view to conveying them to Mr Abouhaidar.

9. [14]

   Mr Abouhaidar and Ms Tongalea did not know one another or have direct communications.

10. [15]

    Ms Tongalea pleaded guilty to aiding and abetting an attempt to possess a commercial quantity of an unlawfully imported border controlled drug in the Local Court. Ms Tongalea was a Crown witness at the trial and gave evidence as to her interactions with the applicant.

11. [16]

    After the applicant was arrested and charged he was initially refused bail, and was held in custody between 10 December 2015 and 12 February 2016.

12. [17]

    On 11 February 2016 the applicant was granted conditional bail. He remained on bail until 12 July 2017 when the jury returned its verdict in respect of him.

Grounds of appeal

1. [18]

   When imposing the sentence on the applicant, Judge Craigie said that it commenced on 12 July 2017. His Honour made no reference to the period during which the applicant was held on remand before being granted bail.

2. [19]

   Section 16E(2) of the Crimes Act 1914 (Cth) provides that where the law of a State has the effect that a sentence imposed on a person for an offence against the law of the State, or a non-parole period fixed in respect of that sentence, may be reduced by the period that the person has been in custody for the offence, the law applies in the same way to a federal sentence imposed on a person in that State.

3. [20]

   Section 24 of the Crimes (Sentencing Procedure) Act 1999 (NSW) relevantly provides:

4. [21]

   Section 47 of the Sentencing Procedure Act relevantly provides:

5. [22]

   The Crown concedes that error has been established in relation to this ground. The effect of the 65 days the applicant spent in custody prior to the sentence ought to have resulted in the sentence being backdated to 8 May 2017. This is an arithmetical error which does not result in the need for the Court to re-sentence the offender: Kentwell v The Queen (2014) 252 CLR 601 at [42]; Refaieh v R [2018] NSWCCA 72 at [83].

6. [23]

   It is necessary to say something first about the trial and how it proceeded.

7. [24]

   At the outset, Mr Hughes of Counsel for the applicant, objected to the jury knowing about Ms Tongalea’s plea. Mr Hughes said that he would not be cross-examining her to impugn her credit because of the discount she received on her sentence. The trial judge ruled that the Crown could not open to the jury by telling them of her plea. His Honour said he would not regard it as admissible unless she was cross-examined about her state of mind at the time. Arrangements were made for her to be presented as an ordinary witness so that the jury would not know she was in custody. Mr Hughes did not cross-examine her about any matter that would have enabled the Crown to disclose her true position.

8. [25]

   The applicant and Mr Abouhaidar were arraigned before the jury panel. Mr Abouhaidar pleaded guilty to the possession of counterfeit money as had been foreshadowed. No objection was taken to that course by Mr Hughes.

9. [26]

   After the Crown opening, Mr Grant of counsel for Mr Abouhaidar opened to the jury. During that opening he said this:

10. [27]

    Counsel for the applicant did not open to the jury.

11. [28]

    The Crown led evidence about the finding of counterfeit money when Mr Abouhaidar’s car was searched at the time of his arrest. The Crown also led expert evidence, over objection from Mr Grant, about the counterfeit money. No objection was taken to any of this evidence by counsel for the applicant.

12. [29]

    At the end of the Crown case, Mr Grant indicated that he intended to call Mr Abouhaidar in relation to previous participation in counterfeiting of money and previous importation of paper for the purpose of counterfeiting. This was said to be additional to the counterfeiting charge to which he had pleaded guilty. Mr Hughes took no objection to that evidence being given, but indicated that he was entitled to call, and wished to call, his evidence first because the applicant was named first on the indictment.

13. [30]

    Mr Hughes then called a number of witnesses, being relatives of the applicant, to attest to the applicant’s good character. The evidence also tended to show that there was not a close relationship between the applicant and Mr Abouhaidar. The applicant did not give evidence.

14. [31]

    Mr Abouhaidar then gave evidence. He was asked about his past involvement with counterfeiting money, including that he was previously convicted and was given a suspended prison sentence. During that evidence he said that he had been introduced to a man named John who asked him if he wanted to get into printing money. The following evidence was given:

15. [32]

    He gave evidence that John asked him if he (Mr Abouhaidar) could bring treated polymer from overseas “under the radar”. Thereafter, he gave this evidence:

16. [33]

    He was asked about being arrested in relation to the charges being tried. He was stopped in his car about a block from his home. He said that his wife and daughter turned up to the place where he had been stopped. He then gave this evidence:

17. [34]

    There was no objection by Mr Hughes to any of the questions asked by Mr Grant. Mr Abouhaidar was then cross-examined by Mr Hughes. The first section of the cross-examination seems designed to show that there was not a close relationship or friendship between the applicant and Mr Abouhaidar. The cross-examination then continued:

18. [35]

    The Crown then cross-examined Mr Abouhaidar. This cross-examination was initially designed to show that it was unusual for Mr Abouhaidar to have volunteered to the applicant that drugs were not involved. The flavour of that can be discerned from the following question:

19. [36]

    At a later time when the Crown was cross-examining about the precise chronology of what happened at the roadside when Mr Abouhaidar was arrested in his car, the Crown, in the absence of the jury, said he wished to put a chronology to the witness, seemingly with a view to challenging the witness’s evidence in chief about why he lied to the police about the presence of the counterfeit currency. The transcript reads:

20. [37]

    The Crown then cross-examined Mr Abouhaidar about whether his wife and daughter were present when he made the statement to the police denying knowledge of the currency. He conceded that his evidence that he lied to the police because of the presence of his wife and daughter was not true. This cross-examination was conducted without objection by Mr Hughes.

21. [38]

    During the evidence of Federal Agent Andrews, the officer-in-charge of the investigation, the Crown played a DVD (which became Exhibit 39) of the search of Mr Abouhaidar’s car at the time of his arrest. The Crown had made clear during a voir dire about the adducing of this evidence what its purpose was:

22. [39]

    During the argument on the voir dire on the leading of this evidence, Mr Hughes said that his client had no interest in the matter. However, when the DVD was payed to the jury, Mr Hughes sought, and the trail judge gave, a direction that the evidence was only tendered against Mr Abouhaidar. His Honour gave this direction:

23. [40]

    During his final address, Mr Hughes discussed the distinction between the cases against the applicant and against Mr Abouhaidar as follows:

24. [41]

    Later in his address, Mr Hughes drew attention to the evidence of Mr Abouhaidar, which he said was not challenged, where Mr Abouhaidar had told the applicant that drugs were not involved in the importation. He read out to the jury the passage which is largely set out at [34] above, and then said:

25. [42]

    Mr Hughes returned to this matter on three subsequent occasions in his address.

Directions of the trial judge

1. [43]

   The trial judge gave a number of directions to the jury in his summing up seeking to distinguish the two accused. His Honour said:

2. [44]

   When dealing with the fourth matter that the Crown had to prove, the state of mind required in a person for proof of an attempt to import an unlawfully imported substance, the trial judge said:

3. [45]

   When dealing with counsel for the applicant’s address to the jury, his Honour said:

4. [46]

   At the end of his summing-up, the trial judge said this:

5. [47]

   In addition, the jury had been reminded during the trial that not all of the evidence was admissible against both accused. In that regard, I have made reference at [39] above to what the trial judge said when dealing with Exhibit 39.

6. [48]

   When Mr Abouhaidar was being cross-examined by the Crown prosecutor he was asked whether he remembered that his wife used the word “drugs” when she arrived at the place where he had been stopped by the police in his car. An objection was taken by Mr Grant. His Honour determined in the absence of the jury that the question should be disallowed, but that it was necessary for some explanation to be given to the jury. In the course of the debate about what should be said to the jury, Mr Hughes submitted that his Honour should say something to the effect of whatever was said or not said could not in any way be admissible against the applicant. His Honour gave a direction to that effect as well as a direction that it could not be used against Mr Abouhaidar.

Submissions

1. [49]

   The applicant submitted that the conduct of the co-accused’s trial caused the applicant’s trial to be unfair. Although this could not be anticipated by the trial judge or the applicant’s counsel, the applicant submitted that an examination of the full extent and accumulation of matters disclosed that the trial was not fair.

2. [50]

   The applicant accepted that the co-accused’s trial and the applicant’s trial were somewhat entwined from the start. However, the issue of knowledge of the presence of a border-controlled drug in the parcels was central to the case of each co-accused. The applicant’s case involved an absence of such knowledge supported by a strong character case that was not contested by the Crown. The applicant submitted that the way in which the co-accused’s case was conducted terminally undermined the applicant’s character case and resulted in the applicant being found guilty by association.

3. [51]

   The applicant submitted that the entry by the co-accused of a plea of guilty to the offence of possession of counterfeit money before the jury panel had the effect of showing to the jury that the applicant was a close associate of a criminal being the co-accused. The applicant submitted that the effect of the decision of the co-accused to give evidence in which he stated that he had a criminal past including convictions for counterfeiting, that he did so for the Rebels Motorcycle Gang and had previously been sentenced to nine months’ imprisonment, had the effect of showing to the jury that the applicant was a close associate of a habitual criminal being the co-accused. The applicant submitted that by entering the plea to the counterfeiting and, in choosing to give evidence, the co-accused exposed himself to cross-examination in relation to lies he told to the police when arrested.

4. [52]

   The applicant submitted that the Judge’s directions did not cure the injustice to the applicant’s trial. The applicant submitted that only with the benefit of hindsight can it be seen that it would have been preferable in all the circumstances now known to have conducted the trial separately. The applicant submitted that that was not readily apparent at the time.

5. [53]

   The applicant submitted that ultimately the way in which the co-accused’s case was run disclosed material that was highly prejudicial to the applicant, though not admissible against him. That question of prejudice, it was submitted, must be examined from the viewpoint of the accused by asking the question: is the reception of evidence at the trial against A but inadmissible against B such as to endanger the prospect of a fair trial for B?

6. [54]

   It is clear, therefore, that the applicant relies on three aspects of the evidence adduced by the co-accused which are said to give rise to unfairness:

Consideration

1. [55]

   It should be noted that no ground of appeal is raised by the applicant that counsel appearing for the applicant at the trial was incompetent or did not adequately and properly represent the applicant. Nor is there any ground of appeal concerning the directions or the summing-up of the trial judge. The ground is put only on the basis that, when the whole of the trial is viewed in retrospect, it was not a fair trial and, presumably, a re-trial ought to be ordered because there has been a substantial miscarriage of justice.

2. [56]

   The applicant accepts that the Crown case was that the applicant and the co-accused jointly attempted to obtain possession of certain drugs, with the result that it was initially appropriate that the trials be held jointly. The applicant further accepts that there was ample admissible evidence of phone calls and meetings between the applicant and the co-accused to show that they were closely associated and were operating together to retrieve the parcels. The issue of knowledge of the presence of the drug in the parcels was central to the case of each co-accused.

3. [57]

   The general rule is that where persons are charged with committing an offence jointly, they are to be tried together: Webb v R (1994) 181 CLR 41 at 88-89.

4. [58]

   An application for separate trials may be made at any stage during the trial, and a decision made prior to a trial to refuse an application for separate trials may always be reviewed during the course of the trial if some additional circumstance becomes apparent which might not have been foreseen: R v Middis & Ors (27 March 1991, NSW Supreme Court, Hunt J – Unrep).

5. [59]

   The principles to be applied in relation to the ordering of a separate trial were set out by Hunt J in Middis. They have been accepted with some qualification by Adams J (Spigelman CJ agreeing) in R v Pham [2004] NSWCCA 190 at [38]-[40]:

6. [60]

   The qualifications introduced by Adams J were accepted by a differently constituted Court of Criminal Appeal in Madubuko, Henry Ugo v R [2011] NSWCCA 135 at [29], [39] and [40].

7. [61]

   Even if an application was made and refused at the trial, and there was no error in the exercise of discretion by the trial judge, an appellate court has power to quash the conviction and order a new trial where it can be seen that the way in which the trial unfolded brought about a situation where there is a real concern regarding the fairness of the procedures of a joint trial: R v Guldur (1986) 8 NSWLR 12 at 15.

8. [62]

   In determining in the first instance if a miscarriage of justice occurred, it is necessary to consider whether the course adopted by counsel for the applicant at the trial arose as a result of forensic decisions taken that enabled the applicant to present his case in the most favourable way to him. When speaking of a failure of counsel to object on the basis that multiple offences should not have been joined in the one indictment, Gibbs CJ in De Jesus v The Queen (1986) 22 A Crim R 375 said at 379:

9. [63]

   Similarly, Mason and Deane JJ said at 384-385:

10. [64]

    In TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46 Gaudron J said:

11. [65]

    It is apparent from a consideration of the way the trial unfolded that counsel for the applicant was not apparently taken unawares at any stage of the trial about the course that was being pursued by Mr Abouhaidar. No objection was taken to any of the matters that are now relied upon as the three principal aspects of the evidence concerning Mr Abouhaidar. The acquiescence in the developments during the course of the trial, and the strong reliance by the applicant’s counsel on the evidence of Mr Abouhaidar concerning his assurance that drugs were not involved, lead to the view that the approach adopted by counsel was a clear forensic decision in the face of what was otherwise a strong case against the applicant.

12. [66]

    An analysis of the evidence presented is likely to have led those acting for Mr Abouhaidar to perceive that the case against him, and the applicant for that matter, was a strong one. One possible way to answer that strong case was to have the jury accept as a reasonable possibility that, whilst Mr Abouhaidar was engaging in criminality, that criminality did not involve drugs. In a sense, Mr Abouhaidar was in a good position to do that both by reason of the fact that he already had a conviction for counterfeiting money and also because when arrested counterfeit notes were found in his car. Certainly, counterfeiting was not the best alternative form of criminality to put forward because, being a crime of dishonesty, there were ramifications for the credibility of Mr Abouhaidar. However, it appears that that was all Mr Abouhaidar had to avoid the probability otherwise of a guilty verdict on the drug offence charged.

13. [67]

    It was obviously in the applicant’s interest for Mr Abouhaidar’s defence to be accepted because that made it much more likely that the applicant would also not be found guilty. In addition, he had the added benefit of the good character evidence adduced on his behalf together with the evidence of how his brother’s drug abuse had been so damaging to the applicant’s family.

14. [68]

    Mr Hughes was careful in both his cross-examination and his final address not to discredit Mr Abouhaidar in any way. All he sought to do was to distinguish him carefully from the applicant where it was necessary to do so by reminding the jury, and having them reminded by the trial judge, that there were two separate trials, and that certain evidence, most particularly Mr Abouhaidar’s lies at the time of his arrest, was not admissible against the applicant. As Gaudron J said in TKWJ the tactical decision might be designed to obtain a forensic advantage or to avoid a forensic disadvantage.

15. [69]

    Where there is a strong likelihood that the trial was conducted for the applicant in the way it was for tactical forensic reasons it is difficult to see how a miscarriage of justice has occurred: TKWJ at [33]. In the circumstances of the present case the decisions taken cannot be thought to have deprived the applicant of a chance of acquittal that was fairly open. As has been noted, his position could only have been improved by those decisions on the basis that Mr Abouhaidar may have been believed.

16. [70]

    Those tactical decisions apparently included not seeking a separate trial at any stage, particularly at the time of the emergence of the evidence concerning the three matters put forward on the applicant’s behalf. Those matters (except the mention of the Rebels) were clearly foreshadowed, and no opposition was raised nor application made. The mention of the Rebels was referred to in passing. As set out at [34] above, Mr Hughes returned to it in his cross-examination of Mr Abouhaidar to distance the position of his own client from that of Mr Abouhaidar. However, the more significant matter was the need to reinforce Mr Abouhaidar’s complete assurance that drugs were not involved in the conceded illegality.

17. [71]

    One way to determine if there was a miscarriage of justice by reason of a joint trial is to examine the likely way a separate trial would have proceeded if an application for a separate trial had been made and ordered at any stage. From an examination of the evidence led at the joint trial, it can be seen that the applicant would have had two choices how to conduct his defence. He could have chosen not to call Mr Abouhaidar. In those circumstances, and in the absence of giving evidence to the effect that he had no idea that drugs were involved, it is difficult to see how the Crown would not have proved its case on the strength of the evidence it presented. It can be reasonably assumed that the applicant would not have given evidence because he did not do so at the joint trial. If he had given evidence and said that Mr Abouhaidar had told him that drugs were not involved, he would have to have called Mr Abouhaidar to give evidence to that effect.

18. [72]

    Alternatively, and if he called Mr Abouhaidar to give the sort of evidence he gave at the joint trial, to get the benefit of Mr Abouhaidar’s evidence that he told the applicant drugs were not involved, Mr Abouhaidar would have similarly had to adopt the confession and avoidance approach taken at the joint trial. That is, he would need to have given evidence that he was importing polymer for counterfeiting purposes. To provide any solid basis for that, he would have needed to disclose his past conviction and, presumably, his new plea to counterfeiting. Nor can there be any doubt that the Crown would have sought to discredit him in the way it did at the joint trial by pointing to the lies he told when arrested with the counterfeit money and, if he had not given evidence of his plea and past conviction, there can be little doubt that the Crown would have cross-examined him about those matters.

19. [73]

    In all of those circumstances, the only possible difference from the joint trial might have been that there would be no mention of the Rebels. However, that evidence had been volunteered by Mr Abouhaidar at the joint trial, and the Crown had cross-examined him about it. The strong likelihood is, therefore, that Mr Abouhaidar’s connection with the Rebels would have emerged during his evidence in a separate trial of the applicant.

20. [74]

    It is difficult to see how the applicant would have been better off in a separate trial, how he would have had any forensic advantage over his position at the joint trial, and what in the joint trial brought about a miscarriage of justice that would not have occurred at a separate trial. The onus is on the applicant to show that that is so, and he fails to discharge that onus.

21. [75]

    Another matter of some significance is the fact that the jury, having retired to consider its verdict at 11:34am on 3 July 2017 returned a verdict against Mr Abouhaidar at 10:58am on 5 July 2017, but took until 12:45pm on 12 July 2017 to find the applicant guilty. It is clear from that timeline that the jury gave a detailed consideration to the separate aspects of the case against the applicant from those against Mr Abouhaidar.

22. [76]

    In Phillips v R [2016] NSWCCA 159 R A Hulme J (Hoeben CJ at CL and N Adams J agreeing) said at [22]:

23. [77]

    No doubt the reason that the applicant did not complain about his counsel at trial nor about the directions and summing up of the trial judge, was that he realised that favourable forensic decisions were made on his behalf. The fact that those forensic decisions did not bring about a finding of not guilty does not mean that the trial was unfair. Even with the benefit of ‘armchair’ hindsight, it is not easy to see what better course could have been employed than that which was employed by the applicant’s counsel at the trial.

24. [78]

    I would reject this ground of appeal.

Conclusion

1. [79]

   I would propose the following orders:

2. [80]

   BUTTON J: I agree with Davies J.