Riddell v R

The Appellant was charged with conspiring to import into Australia a commercial quantity of MDMA in contravention of s 233B(1)(b) of the Customs Act 1901 (Cth) and s 11.5(1) of the Criminal Code Act 1995 (Cth). The indictment charged a conspiracy between 1 May 2002 and 26 April 2003. The pure weight of MDMA was 136.9 kilograms, over 250 times the commercial quantity.

The Appellant stood trial before his Honour Judge Hosking and a jury. The first trial that took place between 4 July 2005 and 29 September 2005 resulted in the jury being unable to agree on a verdict.

The retrial commenced on 14 September 2006, also before Hosking DCJ and a jury, and concluded on 31 January 2007. A jury, at that stage reduced to 11 because of the discharge of a juror, returned a verdict of guilty on 31 January 2007. Hosking DCJ sentenced the Appellant to life imprisonment with a non-parole period of 19 years to commence 26 April 2003 (the date of his arrest) and expiring 25 April 2022.

The Appellant filed a Notice of Intention to Appeal in respect of the conviction and the sentence on 20 August 2007. He subsequently filed four Notices of Application for Extension of Time to Appeal with the latest being on 22 February 2009 which extended the Notice of Intention to Appeal until 22 April 2009. On 7 November 2012 the Appellant filed a Notice of Appeal in respect of conviction and sentence and a “Notice of application for extension of period within which notice of intention to appeal to apply for leave has effect” and Grounds of Appeal. By the time the Appellant filed the Notice of Appeal it was a little over three years and six months out of time.

The Appellant, although represented at the trials, has acted for himself in respect of the appeal.

This appeal was listed for hearing on 23 October 2015. On that day and in the circumstances described in this judgment the Applicant sought an adjournment of his appeal. After substantial argument the Court refused the application. The presiding judge, Adams J, stated that reasons would be provided in due course. After the refusal of the adjournment on 23 October 2015 argument on the appeal proceeded. After the Applicant was granted leave to rely on very lengthy written submissions, the appeal was adjourned part heard until 1 April 2016 to enable the Crown to file submissions in response. On the resumed hearing of the appeal on 1 April 2016 the Applicant ultimately withdrew his appeal against conviction and notice of appeal against sentence. This judgment constitutes the Court’s reasons for the refusal of the adjournment on 23 October 2015.

The document headed “Grounds of Appeal” does not clearly articulate grounds of appeal. The document is discursive and repetitive. It contains 15 paragraphs which have been distilled by the Crown into 11 grounds as follows:

We agree that the Crown’s distillation correctly identifies the matters raised in the document headed “Grounds of Appeal”.

On 15 April 2003, a shipping container landed at the port of Fremantle in Western Australia (destined for Sydney) on board the ship P&O Nedlloyd Adelaide Voyager 63 South. The container had been shipped from Port Klang in Malaysia on 9 April 2003 but originated in the Netherlands.

Inside the container were 36 freezers, three of which were packed with approximately 171 kilograms of whitish powder containing a high percentage of MDMA (with a pure weight of 136.9 kilograms). The AFP estimated its street value at approximately $92 million. Federal Agent Brett Smith gave evidence that this sum was capable of being turned into approximately one and a half million ecstasy tablets at 25% purity.

The Crown case was that the Appellant was the Australian principal in the conspiracy. Significant persons involved in the conspiracy were Johannes Francois, Wai Kwong Chen and a man known as De Jong, all of whom lived in The Netherlands. Other co-conspirators included Dano Milicic, Nicholas Pollis, Craig Small, Matthew Walsh, James Whatley, Jessica Somogyi and Mrs Cheng.

Milicic, Pollis, Small, Walsh and Whatley were said to be subordinate to the Appellant. The Appellant’s role was at least equal to that of Francois, both of whom were near the top of the international conspiracy, with De Jong at the top of the hierarchy. Francois, a professional drug dealer in Europe, wanted to export drugs to Australia but did not want to come here himself. He met his co-conspirators on neutral territory such as in Malaysia, Hong Kong and Belgium.

Cheng's role was more senior than Pollis', and was described on sentence as 'highly significant’. Pollis played a mid-range role within the syndicate, and attended and arranged meetings between Cheng and more junior members of the syndicate. Milicic's role was below that of Pollis but above that of Walsh in the group's hierarchy. Walsh's role was above that of Small, but below that of the others. Small played a junior role, confined to customs clearance.

The Appellant recruited Pollis, who worked for him at his media event business in Surry Hills, Loop Domain Pty Ltd ('Loop Domain'). Pollis in turn recruited Milicic, Walsh, Whatley, Somogyi and Small, with the Appellant’s knowledge.

The Crown alleged that the Appellant initially met with Francois and Cheng in Amsterdam in late 2001 and again in Malaysia in January 2002, where they had business discussions that did not relate to the importation of drugs. The Appellant had business experience in the fields of marketing, dotcom businesses, laser games arcades and the running of bars and in travel businesses, and had a legitimate interest in Cheng's computer business, IT Castle, and assisted Cheng with marketing advice.

Subsequently, the Appellant met with Cheng and Francois in Hong Kong and with Cheng in Sydney on a number of occasions for the purposes of the conspiracy and spoke to both of them on the phone. The Appellant directly dealt with Francois and Cheng about the timing of the importation and matters related to its organisation including in what goods to conceal the drugs. For example, in late November 2002, the Appellant met with Cheng and Francois in Hong Kong to discuss importing the drugs in computer monitors and offering to sell them to an Australian company established by Walsh, Whatley (and possibly Milicic) called Muma International, to try to make it look like a legitimate business transaction

The Appellant introduced Pollis to Cheng in mid-August 2002 for the purposes of the conspiracy, knowing that Pollis would introduce Cheng to Whatley. The Appellant was further aware that Whatley was subsequently replaced by Small in 2003 and that Small was introduced to Cheng by Pollis for the purposes of the conspiracy.

The key steps in the conspiracy undertaken by the Appellant, on the Crown case, can be summarised as:

The Appellant was arrested on 26 April 2003.

The Crown alleged that the Appellant’s involvement in the conspiracy may have been motivated by financial gain. He was the managing director and principal shareholder of Loop Domain, into which he had invested substantial capital. The evidence demonstrated that the company was encountering serious financial difficulties in the months leading up to the importation.

The evidence against the Appellant, on the Crown case, included both direct and circumstantial evidence. The direct evidence was that of the co-conspirators Pollis and Cheng, which was supported by the telephone intercept and surveillance evidence. The circumstantial evidence, which on the Crown case was sufficient in itself to prove the case against the Appellant, was primarily the contents of intercepted telephone calls.

Cheng, Pollis, Walsh, Milicic and Small all pleaded guilty to their involvement in the conspiracy. Small was the first to enter a plea of guilty on 31 October 2003, followed by Pollis on 23 February 2004, Cheng on 14 February 2005, Walsh on 23 June 2005 and Milicic on 21 February 2006. Cheng, Pollis and Small all signed undertakings to provide evidence at their co-conspirators' trials, including the Appellant’s. Pollis, Small and Cheng were sentenced to terms of imprisonment for their parts in the conspiracy.

Whatley had formerly worked for Ansett Airlines in freight forwarding and was relied on by the conspirators for his knowledge of Australian importation and Customs procedures and documentation. He was arrested on 31 October 2002 and agreed to assist police straight away. From that time until mid-February 2003 he was working as an informant for the AFP. He was not charged and was indemnified for his role by the Commonwealth Director of Public Prosecutions. He was also indemnified by the New South Wales Attorney-General in relation to his local drug dealing.

Walsh told Pollis on 1 February 2003 that he no longer worked with Whatley because of some kind of falling out between them but he had a replacement in Small. Small worked for a firm which contracted to a company called Maersk Logistics, an international company dealing in import logistics and freight forwarding.

Somogyi was charged but the charges against her were discontinued.

As the Crown understands it, Francois resides in the Netherlands and has not been apprehended or charged in relation to the matter.

Whatley, Cheng, Pollis and Small each gave evidence at the Appellant’s trials. Cheng and Pollis's evidence directly implicated the Appellant, but Small's did not. Small had never met or spoken to the Appellant. Walsh and Whatley had never met the Appellant either but Whatley stated he had heard of the involvement of a person called 'Andy’ high up in the conspiracy, who the Crown alleged was the Appellant.

When the appeal was called on for hearing the Appellant appeared for himself. However, Mr Waterstreet of counsel, who with Mr Michael King of counsel had represented the Appellant at the trials, sought leave to appear as amicus curiae to assist the court any way he could, particularly because of his knowledge of what transpired at the trials. Leave was given to Mr Waterstreet but on a limited basis. The Court was of the view that care was necessary because acknowledgments or statements by Mr Waterstreet concerning events at the trial could not now bind the Appellant who had not instructed Mr Waterstreet at the hearing of the appeal.

At the outset of the hearing of the appeal the Appellant sought an adjournment. The Crown opposed the adjournment. Two bases were put forward by the Appellant.

The first basis was more particularly articulated in the 36 page document attached to a summons filed by the Appellant on 28 April 2015 (the filing of the summons is referred to below). The matter is identified in paragraph 5 and Part II paragraphs 53 to 58.

The Appellant said that he need an adjournment to complete what he said was the necessary cross-referencing by him of the transcript in respect of the various grounds of appeal which he sought to put forward. He said that completion of this had not been possible for a variety of reasons. A great deal of the work that he had done some time ago was lost as a result of various moves he had experienced between prisons. That resulted in the loss of both hard copy documents that he had prepared and the loss of material on a laptop. The Appellant said that he had subsequently been rebuilding the material so that he was in an adequate position to argue his appeal.

The Appellant said that he lodged his grounds of appeal in 2012 after Corrective Services removed trial and legal materials from his cell. His full analyses and transcript references were unavailable at the time of lodging the Grounds of Appeal because they had been destroyed when the security box housing his personal computer had been bolt cropped in 2008 and peripherals including a hard drive had gone missing. He said further that vital judgments, transcripts and exhibits remained unproduced and he noted that trial recordings had not been made available so that redacted transcripts could be reinstated to reflect the true record. He said that he had rebuilt the grounds (scil. submissions?) at a rate of nine hours per week from 2009 to 2012.

The Appellant submitted that he required six months unfettered PC access so that he could rebuild matters of fact and apply the law. He complained about the limited number of hours per week that he was able to access the material that he had and his computer to do what he called the rebuilding of the material. He submitted that all the necessary material had not been made available despite the multiple attempts by him to obtain it. He blamed Corrective Services for destroying his material and not giving him sufficient time with a computer to rebuild it.

The second basis put forward was raised, apparently for the first time, at the hearing of the appeal. That was that the Appellant wished to obtain affidavits from Mr Waterstreet and Mr King about particular incidents at the trial that were not apparent from reading the transcript that was available.

This matter was first raised by Mr Waterstreet and not the Appellant, but once the matter was raised the Appellant sought to rely upon it. It was raised only as a side wind when the question of whether Mr Waterstreet could appear for the Appellant as amicus was being discussed.

The following exchange occurred:

Mr Waterstreet then outlined the three matters in respect of which evidence could be given by him and/or Mr King.

The first matter was said to be prejudicial statements made by the Judge to the Appellant. It was described in this way by Mr Waterstreet:

Mr Waterstreet said that he thought this occurred in the first week of the trial and that he applied for a discharge of the jury but that was refused.

The second matter concerned an interchange between the Trial Judge and Mr Waterstreet, not reported in the transcript, where the Trial Judge is supposed to have said to Mr Waterstreet about some proposition he was putting:

The third matter concerned a communication between the Trial Judge and the Crown concerning a sick juror and the failure to communicate that to Mr Waterstreet.

The Appellant raised a fourth matter requiring an affidavit from Mr Waterstreet as follows:

It is necessary to say something about the history of the appeal.

The four Notices of Application for Extension of Time to Appeal and the filing of the Notice of Appeal some three years and six months out of time have already been noted. The following is a summary of directions hearings and call-overs before judges of the Court as well as the Registrar.

Contrary to the orders of R A Hulme J made on 13 March 2015 the Appellant did not file a document not exceeding 20 typed pages in which submissions in support of the grounds of appeal were set out in a succinct summary fashion. Instead, on 28 April 2015 he filed a summons seeking leave to appeal from the judgment and orders of R A Hulme J. Apparently in support of that summons he filed a 36 page document entitled “Submissions in Support”. At one level this document appeared to be submissions in support of his summons to overturn the judgment of R A Hulme J. At another level the material in this document appeared to be submissions in support of his appeal.

In addition, the Appellant filed three lever arch folders of documents which he told the Registrar at the Directions Hearing on 10 September 2015 were his notes.

At that Directions Hearing the Appellant clarified that his submissions in support of the appeal were principally to be found in a ten page outline which appears to have been the document headed “Grounds of Appeal” filed on 7 November 2012 and which the Appellant entitled “Annex D1”. The Appellant also clarified that a document which he described as a 25 page summary, but which appears to have been the 36 pages attached to the summons that sought to appeal from the judgment of R A Hulme J, also summarised the grounds of appeal and constituted a submission.

The Appellant informed the Registrar that his appeal was not ready and could not be heard on the date fixed. The Registrar told the Appellant that his appeal would be going ahead and that he would need to have his material in a state where he could assist the bench to understand what his arguments were. The Registrar confirmed the hearing date of the appeal.

The Appellant thereafter filed a Notice of Motion on 17 September 2015 which sought to review the Registrar’s interlocutory orders made on 10 September 2015, sought to quash the orders made by R A Hulme J on 13 March 2015, sought an order adjourning the hearing of the appeal and sought leave to “add the following documents” to the submissions that he had already made in respect of the appeal – these documents were entitled by him as being Ex1, Ex2, Ex4 and Ex16. In the first instance they appear to be documents that the Appellant was relying on in an application being made to the High Court (quite what that application concerned was never made clear). Attached to that Notice of Motion was a document entitled “Submission in support of motion as filed with this court” consisting of 26 pages. Some but not all of the material was repetitive of material already filed.

On 12 October 2015 the Crown filed its submissions. It was in these submissions that the grounds of appeal were said to constitute the 11 matters identified in those submissions to which reference has already been made.

On the day before the appeal was to be heard the Appellant forwarded to the Court a number of documents as follows:

The first of these documents said that the Crown submissions were only delivered to the Appellant on 21 October 2015 which gave him five hours to respond. He said also that his hands had been affected by arthritis which meant that he had been reduced to typing the reply to the Crown’s submissions with two fingers. Nevertheless, the Appellant was able to produce the four extensive documents described.

Nowhere in the documents filed by the Appellant was reference made to the need to obtain affidavits from Mr Waterstreet and/or Mr King about events at the trial. In fact, in the submissions filed with the Notice of Motion on 17 September 2015 the Appellant referred in paragraphs 43 and 44 to what were described as histrionic outbursts during the trial and in footnote 46 (referred to in paragraph 44) the following appeared:

That statement was untrue. As Mr Waterstreet informed the Court, he had been requested by the Appellant to provide an affidavit as to events at the last trial, and said that he would do it but did not do so.

Nor did the Appellant raise the need for such affidavits at any of the Directions Hearings including the more recent ones before R A Hulme J and the Registrar.

No explanation has been offered by the Appellant why he only made a request of Mr Waterstreet in the last few months to obtain this evidence. The appeal ground covering this matter (the bias ground) was contained in the Grounds of Appeal filed 7 November 2012.

Of the three matters Mr Waterstreet identified as needing to be dealt with by an affidavit, the second ([39] above) is inconsequential. If it was said it was, at highest, part of a robust exchange between counsel and the Judge. It could not conceivably give rise to concern about bias.

In relation to the first matter ([37] above) the Crown identified the full extent of the exchange which took place on 23 October 2006 being the 26th day of the trial (Appeal Book 6408):

The examination of the witness continued. When that concluded for the day the following exchanges appear:

On the following morning the following occurred in the absence of the jury:

When the jury was brought in Mr Waterstreet said this:

On 25 October in the absence of the jury the following exchange took place:

When the jury came in his Honour said this amongst other things:

The transcript demonstrates that Mr Waterstreet’s memory of the event was not entirely accurate as to what occurred and when in the trial it occurred, but we do not intend any criticism of him for that because the events happened a long time ago and there were in fact two trials involving the Appellant where Mr Waterstreet appeared.

The significant point is that the transcript speaks for itself and no affidavit about the matter from Mr Waterstreet could take the matter any further. No discharge of the jury was sought and none of the missing judgments could relate to the matter.

The third matter raised by Mr Waterstreet concerned a communication between the Trial Judge and Mr Saunders at the CDPP. The background was this. On Monday, 20 November 2006 being the 44th day of the trial the Court received a note that a juror was sick. The Trial Judge observed that it was the same juror who had been away on the previous Friday, and there had apparently been three other days when the same juror had been away. Prior to being called into Court the jury sent a note to the Judge which read:

A Sheriff’s Officer was sent out to locate the juror. A report must have been made by the Sheriff’s Officer to the Judge late on the afternoon of 20 November. The information was that the juror had some sort of gastric illness and had been vomiting. The juror would not be in Tuesday, 21 November but would be in by Wednesday, 22 November.

At the time this information was received the Judge’s Associate had left for the day. In those circumstances the Judge rang Mr Saunders at the CDPP to inform him of that fact and that the Court would convene at 10am on Tuesday, 21 November but the jurors would not be coming in.

At 4:52pm Mr Saunders sent a facsimile to Mr Waterstreet and Mr King in these terms:

The following day the Judge handed to counsel the statement from the Sheriff’s Officer regarding what he had ascertained about the juror. The Crown then made an application for the discharge of the juror. The following exchange then took place (AB 7367.8):

Although the Appellant in his various written submissions makes allegations that the Judge inappropriately discussed other matters with Mr Saunders there is no evidence to justify those allegations. Again, the significant point in relation to the affidavit material is that there is nothing that Mr Waterstreet or Mr King could say in an affidavit that could add to the knowledge of what transpired as is disclosed in the transcript and MFI 87 being the note of the exchange between the Trial Judge and Mr Saunders.

As to the final matter of jury notes when the verdict was returned, the transcript discloses clearly in what the Trial Judge said to the jury what had been contained in their jury notes. The Trial Judge said (AB 10398):

The Trial Judge then dealt with that and then said (AB 10399):

That transcript shows that the Trial Judge read the jury’s notes onto the record. It is difficult to see what an affidavit from Mr Waterstreet or Mr King could add to what is contained in the transcript in that regard. It is impossible to believe that their memory after more than eight years could be more accurate than the contemporaneous transcript.

Accordingly, to the extent that the adjournment was sought to obtain affidavit evidence from the Appellant’s counsel at the trial, the application was refused.

Apart from the Appellant’s desire to obtain the affidavits, the adjournment was sought on the basis that there was missing material that the Appellant needed and that, with the material which he now had, he needed extra time, perhaps another six months, to get the material into the order that he wanted it. It was to present his written material at manageable length and to focus his submissions and to support them by transcript references. This, he said, involved his starting to read all of the material again.

As far as missing material was concerned, it included parts of the transcript of the earlier trials which is not available as well as material in relation to the sentencing of the co-offenders. The missing material included the opening by the Crown and the first hour of the Crown’s closing address. There were also said to be three interlocutory judgments missing.

The information from the Crown was that the missing parts of the opening and closing addresses were not transcribed at the time. Subsequent enquiries ascertained that the tapes no longer exist. As unfortunate as that may be, it is clear that there is no purpose served by delaying the hearing of the appeal because that material is not available. It never will be available.

As far as the missing judgments were concerned, the Appellant was unable to provide information about the issues with which those three judgments are concerned. That being so, there is nothing to suggest that their unavailability has anything but a speculative effect on the outcome of the appeal.

As far as the sentencing material is concerned, the Appellant submitted that he needed all of the material considered by the Sentencing Judges for the co-offenders. The Appellant said that he needed that for what amounted to a parity argument that he wished to put forward in relation to the sentencing.

This involves a misunderstanding of what is involved in considering the issue of parity. Neither the Sentencing Judge nor this Court is concerned to examine any justification for the findings made by the judge who sentenced a co-offender. Those findings are accepted as providing the basis upon which the sentence was imposed. The Remarks on Sentence in respect of all the co-offenders are available. It will be neither necessary nor permissible to go behind that material.

Finally, as to the unavailability and late provision of material to the Appellant, the position appears to be this. In the Appellant’s submissions in support of his Summons filed 28 April 2015 he says in footnote 78, relevant to paragraph 53:

As to the Appellant’s submission that he needs further time to get his material into order and to cross-reference the transcript in the way he wishes, no appellant, whether unrepresented or not, can be given unlimited time to make the necessary preparation. Even accepting the difficulties that he has experienced whilst in custody in terms of access to the material and a computer, the Appellant has had ample time to prepare his appeal. If 95% of the material had been provided to him by 2014 he has had ten months, and maybe more, to prepare his submissions including any cross-referencing of the material he desired. The Appellant has displayed a remarkable ability to prepare and file detailed documents prepared by him, which include large numbers of references to case law, within confined periods of time.

It is also apparent from the history recited earlier that the Appellant has devoted a considerable amount of time to preparing documents detailing complaints as to why he cannot prepare his appeal, chiefly that he needs more time, or documents concerned with interlocutory and other challenges to orders made, rather than utilising the time he is permitted by Corrective Services with his computer and material to prepare the appeal so that it would be ready on the day fixed for hearing. What is set out at [50] above is a good example of that.

In paragraph 56 of the submissions filed in support of the Summons the Appellant said:

Nothing in the extensive material filed by the Appellant to date suggests that giving him further time to assemble his material in the way that he says will be more manageable, provides any support for such an outcome. In our opinion, the Appellant has had ample time with the material that he has had, and for the period of time he has had it, to prepare for the hearing of the appeal. As R A Hulme J pointed out to him on 13 March 2015, when a Notice of Application for Leave to Appeal is filed the applicant is in effect saying:

For all of these reasons the adjournment was refused.