Abouhaidar v The The Queen

[2022] NSWCCA 57

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:

Abouhaidar v R [2022] NSWCCA 57

Hearing dates:

7 February 2022

Decision date:

23 March 2022

Before:

Leeming JA at [1];
Rothman J at [86];
Harrison J at [87].

Decision:

Application for an extension of time within which to apply for leave to appeal against conviction refused.

Catchwords:

CRIMINAL LAW – appeal against conviction – attempting to import commercial quantity of border controlled drug – applicant involved in seeking to possess two packages carried by air from Netherlands to Australia – applicant claimed he believed packages contained polymer for making counterfeit banknotes – applicant had previous counterfeiting conviction – applicant when arrested possessed counterfeit banknotes – whether conviction unreasonable – only element in content was knowledge that packages contained illicit drugs – surveillance evidence, text messages and intercepted telephone calls supported Crown case – applicant cross-examined before jury – applicant accepted aspects of his case were untrue – open to jury to convict

Legislation Cited:

Crimes (Currency) Act 1981 (Cth), s 9

Criminal Appeal Act 1912 (NSW), s 5(1)(b)

Criminal Code (Cth), ss 11.1, 300.6, 307.5

Criminal Procedure Act 1986 (NSW), s 29

Judiciary Act 1903 (Cth), s 68

Cases Cited:

Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52

Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22

Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30

Lin v R [2019] NSWCCA 171

M v The Queen (1994) 181 CLR 487; [1994] HCA 63

Nader v R [2018] NSWCCA 256

Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12

SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13

The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category:

Principal judgment

Parties:

George Abouhaidar (Applicant)
Regina (Respondent)

Representation:

Counsel:
H Maarraoui (Applicant)
J Single; S Love (Crown)

Solicitors:
Hope Criminal Lawyers (Applicant)
Commonwealth Director of Public Prosecutions (Crown)

File Number(s):

2015/00362457

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

5 July 2017

Before:

Craigie SC DCJ

File Number(s):

2015/00362457

Judgment

1. LEEMING JA: The applicant, Mr George Abouhaidar, stood trial in the District Court constituted by his Honour Craigie SC DCJ and a jury on one count of attempting to possess a commercial quantity of an unlawfully imported border controlled drug, namely, 3,4-methylenedioxymethamphetamine or “MDMA”, contrary to ss 11.1 and 307.5(1) of the Criminal Code (Cth). The applicant was tried jointly with Mr Moses Nader, who was charged with the same importation offence on a joint indictment. The trial occupied parts or all of some 18 days in June 2017. Both men were found guilty.

2. The applicant also pleaded guilty to one charge of knowingly having in his possession counterfeit money, namely 204 counterfeit $50 notes, contrary to s 9(1) of the Crimes (Currency) Act 1981 (Cth).

3. Later in 2017, the District Court imposed a sentence of 11 years imprisonment, with a non-parole period of seven years for the importation offence. The applicant has long since served the entirety of the sentence for the currency offence.

Overview of Crown and defence cases at trial

4. The Crown case against the applicant was based upon a witness, Ms Tongalea, who pleaded guilty to aiding and abetting the attempt to possess the imported drug, and who had liaised with Mr Nader. She had no direct dealings or communications with the applicant, and the applicant’s counsel did not cross-examine her at trial. Otherwise the Crown case was circumstantial, based on intercepted communications and surveillance, concerning four packages sent by air from the Netherlands to Sydney in October 2015. In each case, the consignee was Hawker Pacific Pty Ltd (a company which sold and maintained aircraft based at Bankstown) and the carrier was a company in the DHL group. Nothing turns on the precise DHL companies involved. The third and fourth packages were flown as cargo on Malaysian Airways flights from London Heathrow to Kuala Lumpur to Sydney under DHL air waybills. The goods were to be taken from Mascot to a warehouse at Homebush operated by DHL, and from there they were to be couriered to Hawker Pacific at Bankstown.

5. Mr Nader was a director of a company which contracted with DHL to provide courier services, including from Mascot to Homebush and from Homebush to Bankstown. Ms Tongalea was employed by DHL at Mascot, on an early morning shift (3.30am until 11.30am), and had access to DHL’s “GEMA” system, which recorded where parcels were from time to time. She had previously been in an intimate relationship with Mr Nader, and the two spoke frequently.

6. The Crown case was that the applicant asked Mr Nader for assistance to bring in some packages addressed to Hawker Pacific. Mr Nader had access to the packages when they were delivered, and also, via Ms Tongalea, access to the DHL systems used to track packages.

7. The third and fourth packages were intercepted by Customs officers at Sydney Airport, and in excess of 14kg of MDMA was found in them. As will be seen, the fact that the packages had been seized took some days to become known to Ms Tongalea, Mr Nader and the applicant.

8. The applicant gave evidence in his own case. He accepted that he had asked Mr Nader to assist him import some packages, but said that Mr Nader was only concerned that they not be drugs. He maintained that he believed he was attempting to import a quantity of polymer, which could be used to manufacture counterfeit banknotes. His case was based on evidence that (a) when arrested, his motor vehicle contained the 204 counterfeit $50 notes which were the subject of the count to which he pleaded guilty, (b) he maintained that he had received a consignment of polymer, which could be used to make counterfeit banknotes, two weeks earlier, sent by the same means as the packages which were seized, and (c) he had previously been convicted of a counterfeiting offence, in 2014. Mr Nader, in contrast, did not give evidence.

9. Despite the very different ways in which both men defended the charges, the joint trial of the applicant and Mr Nader reflected the general rule: Webb v The Queen (1994) 181 CLR 41 at 88-89 (Toohey J, with whom Mason CJ and McHugh J agreed at 56); [1994] HCA 30. It was authorised by s 29 of the Criminal Procedure Act 1986 (NSW), made applicable to the District Court (which was necessarily exercising federal jurisdiction) by s 68(1) of the Judiciary Act 1903 (Cth): see Cesan v The Queen (2008) 236 CLR 358; [2008] HCA 52 at [15]-[17] and [99]-[100]. The fact that Mr Nader was tried jointly with the applicant, part of whose case involved adducing his prior conviction and confessing to further criminality of forging banknotes, gave rise to the need for directions (including as to the need to separate some categories of the evidence which was only admissible against one co-accused). No application was made during the trial for there to be separate trials, and this was no part of the present appeal.

The application for leave to appeal

10. The applicant seeks leave to appeal from his conviction on the principal charge. The grounds are not confined to a question of law, and thus the appeal lies only with leave, pursuant to s 5(1)(b) of the Criminal Appeal Act 1912 (NSW). He seeks to rely on two grounds formulated thus:

“1. The conviction is unreasonable or cannot be supported having regard to the evidence: M v The Queen …

2. The alternat[ive] hypothesis cannot be excluded.”

11. At the commencement of his counsel’s oral submissions, the applicant abandoned a third proposed ground, and confirmed that those two grounds amounted in substance to a single ground. It was said that the jury reviewing the entirety of the evidence must have had a reasonable doubt of the applicant’s guilt, and this Court ought to intervene and quash the conviction.

12. Evidently the jury was satisfied beyond reasonable doubt that the applicant’s evidence that he was attempting to possess polymer in order to manufacture more counterfeit banknotes was untrue. In part, the jury’s rejection of the applicant’s evidence must be taken to have been informed by their assessment of him when cross-examined.

13. That does not relieve this Court from reviewing the whole of the evidence in order to determine whether it was open to the jury to be satisfied beyond reasonable doubt that the applicant was guilty. However, as the High Court said in M v The Queen (1994) 181 CLR 487 at 493; [1994] HCA 63:

“But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.” (footnotes omitted)

14. These principles have been reiterated in Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30 at [113], SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13 at [22] and Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12 at [45] (the latter confirming that Libke did not depart from M). The same point was made in The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35 at [65]:

“Given the central place of the jury trial in the administration of criminal justice over the centuries, and the abiding importance of the role of the jury as representative of the community in that respect, the setting aside of a jury's verdict on the ground that it is ‘unreasonable’ … is a serious step, not to be taken without particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.” (citations omitted)

The applicant’s delay and its consequences

15. Although convicted in mid-2017, an application for leave to file a notice of appeal out of time was not filed until 30 July 2021. In support of his application for a very substantial extension of time, the applicant waived privilege in advice he had received between August 2018 and December 2020 from four barristers, including one leading senior counsel, all of whom advised that there was no merit in his appeal. However a fifth counsel was of the view that there was merit in the appeal. Of course, counsel’s opinion that an appeal is reasonably arguable, or alternatively is devoid of merit, is irrelevant to this Court’s determination of the appeal.

16. In order to exercise the discretion to extend time, it is necessary to consider the merits of the appeal. If this Court were satisfied that the appeal had merit, an extension would ordinarily be granted. Accordingly, it remains necessary to review the entirety of the record. The Court was assisted by the Crown’s 26 page summary of evidence and 45 page outline of submissions.

17. The written submissions advanced by the counsel briefed on the application in this Court, in impugning the jury’s verdict from a lengthy trial with more than 700 pages of transcript and more than 800 pages of documentary evidence, may fairly be described as exiguous. They were five pages. The fifth has the appearance of having been erroneously taken from an advice on prospects. Most of the fourth was a large citation from M v The Queen. After providing some brief background, the balance of the submission made a single point, in paragraphs 8-13, which was that there was a reasonable possibility that the applicant, a convicted counterfeiter who when arrested was found with counterfeit banknotes in his possession, was waiting for a delivery of polymer, not illicit drugs. Brevity is often an advantage in written submissions, especially if there is a short point of law. But while the applicant’s written submissions correctly emphasised this Court’s obligation to review the whole of the evidence, the submissions filed on his behalf made no real attempt to do so. They fell short of the standard expected by this Court of submissions prepared by counsel in an appeal of this nature. That reflected the submission made by the applicant’s counsel that it was unnecessary to review the evidence at trial. I am inclined to doubt that that course is consistent with the grounds of appeal for which the applicant seeks a grant of leave and a substantial extension of time. I have accordingly reviewed the entirety of the evidence made available to this Court (that has meant reading transcripts of sound recordings, rather than listening to them).

18. One regrettable aspect of the delay is that this Court has heard and determined – more than three years ago – an appeal against conviction by the applicant’s co-accused Mr Nader: Nader v R [2018] NSWCCA 256. It would have been desirable if each man convicted of the same offence by the same jury following a joint trial had had his appeal heard and determined by this Court identically constituted and concurrently. That said, there may have been problems, at least of perception, if that course had been taken, because one aspect of Mr Nader’s appeal was that his trial was unfair because the case against the applicant was so strong and the case against him was relatively weak. But all that is by the by, and although the delay is regrettable, it would be wrong for that delay of itself to prejudice the applicant’s entitlement to seek leave to appeal.

The four consignments sent from the Netherlands to Sydney in October 2015

19. Documentary evidence established that four packages were dispatched from an address in the Netherlands to Hawker Pacific and conveyed on DHL air waybills as cargo on Malaysian Airlines flights.

1. The first was dated 6 October 2015 and was a package with a gross weight of 12.3kg on a DHL air waybill ending 9290 and was described in the invoice as six “skid tube protectors of stainless steel”.

2. The second was dated 20 October 2015 and was a package with a gross weight of 15.8kg under a DHL air waybill with a number ending 9334. The invoice identified the goods as 24 repair manuals valued at some €288.

3. The third and the fourth were both to be picked up on 27 October 2015. They weighed 13.4 and 12.9 kilograms, respectively. Their waybills ended 0773 and 0784. The invoices described the goods as 27 and 26 “Bell XXX series repair MANUALS” valued at €260 and €270 respectively.

20. It was accepted that the second package was received by the applicant, although there was no documentary evidence establishing this. Ms Tongalea gave evidence that when a package addressed to Hawker Pacific came into the premises at Mascot in mid October 2015, and was placed in a cage to be transport to Homebush, Mr Nader took the package and told her, that day or the following that he “got rid of that shipment” and that he gave it to his cousin. The applicant maintained that it contained polymer, that it was illegal for him to import it, and that he intended to use it to make counterfeit banknotes. It was no part of the Crown case that the first or second consignments contained illicit drugs. The Crown said that they were test runs (or at least one of them was).

21. There was in contrast a wealth of documentary evidence concerning the third and fourth consignments. Internal DHL documents established that the packages were picked up at Eindhoven on 27 October, and arrived at Heathrow at 4.52am on 28 October in the “Holding Unit arrived facility”. After an X-ray at 5.31am, they were in the “Holding Unit departed facility” at 9.01am and were flown to KUL (Kuala Lumpur) on MH0003. The packages arrived in Sydney at 2.51pm on 29 October 2015 and reached the “Holding Unit arrived facility” at 9.54pm that evening.

22. The packages were intercepted at Sydney airport by customs officers, one of whom explained that a distinctive orange colour, associated with organic material, was shown when the packages passed through X-ray examination. The packages were opened and found to contain MDMA. The officer’s testimonial evidence, and photographs of the X-ray of the package and the contents as they were opened, were admitted without objection and the officer was not cross-examined by counsel then appearing for the applicant. There was no issue at trial that each of the third and fourth consignments contained border controlled drugs.

23. The officer issued custody receipts, known as a “B390 form”, for each consignment. The forms were tendered. Each was dated 29 October 2015. (It seems likely that while other aspects of the process of transporting the packages from the Netherlands to Australia were automatically updated in the DHL tracking system, details of the B390 form were not entered for a few days, hindering attempts by Mr Nader and Ms Tongalea to locate the third and fourth packages.)

24. There was also no dispute that the applicant was actively involved in seeking to obtain possession of the third and fourth consignments. There was a wealth of contemporaneous evidence attesting to that. It fell into three main categories:

1. Text messages between the applicant and Mr Nader;

2. Recordings of telephone conversations between the applicant and Mr Nader (in this Court, the transcripts were made available, as they had been to the jury), and

3. Printouts of extracts from DHL’s GEMA system, which recorded internal requests to follow up the packages carried under the air waybills ending in 0773 and 0784.

25. The phone conversations were intercepted pursuant to warrants obtained on 28 and 30 October 2015. No issue arose as to the lawfulness of the interceptions. The timing of the warrants is consistent with the absence of records of conversations in relation to the first and second consignments.

26. There was also other documentary evidence, including CCTV footage of Ms Tongalea’s workspace at DHL in Mascot, and surveillance footage of the applicant and Mr Nader.

27. In many text messages and many telephone conversations, both the applicant and Mr Nader referred to “truck” or “truck parts”. As will be seen, the applicant accepted at trial that he was using a code (although sometimes the references to “truck” appear to have been references to an actual truck). On the applicant’s case, he was seeking to import polymer in order to produce more counterfeit banknotes, knowing it was unlawful to do so, and for that reason used a code. The messages also refer repeatedly to “Shoo”, which meant something like “What’s up?” and to “gigi” which was a nickname used by the applicant for Mr Nader.

28. It is convenient to summarise parts of the text messages, telephone conversations, and extracts from DHL’s GEMA system in chronological order below, in order to explain the nature of the Crown’s circumstantial case to the effect that the applicant was attempting to obtain possession of the two packages which arrived in Sydney from the Netherlands on 27 October 2015 and which contained a commercial quantity of MDMA.

29-31 October 2015

29. At 3.29am on 29 October, Ms Tongalea sent Mr Nader a text message “im gna call u need yr cuzns number”. The Crown Case Statement asserted that this was a pre-arranged code. She called him 6 minutes later and into the call there was the following exchange:

“RT: … Alright I’m ready.

MN: Oh four two six, oh the phone number yeah?

RT Mm.

MN: Three zero, hang on. Three zero two six four two.

RT: Mm-hm.

MN: Zero double seven three and zero seven eight four.”

30. After reading out the first six digits which were common to both air waybill numbers, and the last four digits of each (the numbers in full were 30 2642 0773 and 30 2642 0784), Mr Nader then indicated he was parking his vehicle. At 3.48am, the CCTV in Ms Tongalea’s office captures a man in a high-vis shirt approaching her computer screens. Ms Tongalea was shown the image and identified herself, her office and Mr Nader as standing next to her.

31. Ms Tongalea confirmed that over the next few days she continued to relay information available to her from the DHL system about those two air waybills. The jury had copies of 8 communications between 3 and 13 November requesting information as to the status of the two packages shipped under those air waybills, some of which are summarised below.

30. The applicant sent text messages to Mr Nader at 8.59am on 29 October 2015 “Truck should be here by 2 3:00” and then another a few seconds later “3pm”.

31. On 30 October 2015 at around 11:30am Mr Nader was recorded saying to the applicant:

“MN: The parts haven’t come in, the truck hasn’t finished, bro.

GA: Oh okay.

MN: So then God willing it’s just like that you know what I mean? Nobody saw anything.

…

GA: Alright I’ll see ya.

MN: … because God willing he comes out and it’s, it may not even, it may have um he may have uh fuckin’ missed out on his parts so they don’t come today and then I can’t get it today. You know what I mean?

GA: Yeah, yeah.

MN: But like I don’t mind, I don’t care as long as …

GA: [OVERTALK] Yeah I know [indistinct] …

MN: [OVERTALK] Nobody touched it.

…

GA: See if you can get the part so we can get this truck going” (underlined words spoken in Arabic)

34. On 31 October at 7.54am there was the following conversation:

“GA: How’d you go with the truck?

MN: Hey listen – yeah, still, I’ll pick it up late actually. I might go get it later.”

35. Later that morning, at 10.20, a further conversation:

“MN: Paula’s gotta go to the shops and that and I’ll get some time out. [Indistinct] right now so. I’ve gotta get, get my truck after and then I’ve gotta go in early tomorrow as well.

GA: Oh Okay.

MN: Did you um …

GA: You can’t, you can’t grab em today eh?

MN: Probably not.”

1-9 November 2015 – attempts to locate the third and fourth consignments

36. On 2 November 2015 at 9.19am and 10.04am the men exchanged text messages (the applicant initiated the message and Mr Nader responded). “Shoo any news mate” and “Not yet @”. And then at 11.16 and 11.17 “Is your truck ready” and “Nuh bro waiting@”. And then between 17.14 and 17.21 the following series of text messages:

GA: “Anything new on the truck gigi”

MN: “No cuz”

GA: “Can you check on your end or leave it for tomorrow early”

GA: “Starfish is doing my head in”

MN: “Yeah”

37. In cross-examination, the applicant said that “starfish” was a mutual friend, who had nothing to do with the importation.

38. There followed two further text messages at 20:02:

GA: “Shoo gigi any news on your truck”

MN: “No bro”

39. On the following day, 3 November 2015, between 4.41 and 6.05am the following SMS messages were exchanged between the men:

GA: “Truck mate”.

GA: “My mate reckons truck is here”.

MN: “We will c now”.

GA: “K Yalla they said truck is ready”

40. On 3 November 10.15am, an internal DHL request identified the two air waybills and stated they had not arrived, and asked “pls check cctv footage to ensure this was placed in HU. Urgent assistance greatly appreciated”. “HU” referred to “Holding Unit” (that was the terminology used elsewhere in DHL internal documents, and in addition there was unchallenged testimonial evidence to that effect). Ms Tongalea gave evidence that she contacted, by making entries in the GEMA system, the particular DHL employee named in those emails who handled the Hawker Pacific account, who was located in Brisbane. At least one of the requests to that employee to follow up was expressed to have been made by Ms Tongalea.

41. On 4 November at 6.13am Mr Abouhaidar asked Mr Nader “can we do have truck today”. Later that morning, an internal DHL request in relation to each air waybill asked “… kindly adv if any developments in search thanks”.

42. At 2.47am on 5 November, an internal DHL response came from “UK Hub Trace” to the effect that they had carried out warehouse searches and had been unable to locate either of the shipments, and that they did not have access to CCTV but indicated the team which could do so, giving an email address commencing “emahubsid”.

43. Later that morning, at 7.37am, there was the following conversation when Mr Nader called the applicant:

“GA: Where are ya? I think that truck’s in Brisbane. [LAUGHS]

MN: No, no I think that truck’s finished, bro.

GA; Oh, okay.

MN: Yeah, no good.

GA: Oh okay.

MN: Fuckin’ broke down again.

GA: Oh they reckon, they reckon it’s in Brisbane.

MN: Yeah?

GA: Yeah.

MN: Or they reckon, um they lost it.

…

MN: I reckon, um and on your other end, cuz, I reckon just quietly they took it.” (underlined words spoken in Arabic)

44. I note that a record of DHL’s internal systems dated 2 November 2015 at 10.42am, which was otherwise unexplained in the evidence, refers to a “trace initiated” at “BNE”. BNE must be Brisbane (other entries in the same column are SYD, LHR, and KUL) but what precisely that meant is unclear, although it may merely have reflected the fact that the person who managed the Hawker Pacific account was based in Brisbane.

45. A record from DHL’s records of internal communications concerning the air waybills ended in 0773 and 0784 dated 6 November 2015 at 11.06am was addressed to an email address, which was recorded in the print out in evidence as “EMAhubsid…”. The inference that this was the same address provided the previous day is obvious. The email stated:

“Hi Team Requesting your assistance with the below awb; Both pieces as it seems did not arrive in AU. Are you able to assist in checking cctv footage as last scans PL LHR. Your assistance would be greatly appreciated as these pieces contain URGENT AOG PARTS. Thanks in advance.”

10 November 2015 – learning that Customs had seized the consignments

46. On 10 November, another internal DHL communication recorded that “Sham has viewed CCTV, both pieces taken by ACS after x-ray”. Ms Tongalea gave evidence that Mr Shamsher Singh was a work colleague known to her who assisted her in reviewing the CCTV footage. Later that morning, at 10.49, Ms Tongalea called Mr Nader and said “you know those pieces you were after?”, “Customs intercepted them”, and that that occurred in Sydney, not in London. A recording of their telephone call was played to the jury. It was confirmed in Ms Tongalea’s evidence in chief:

“Q. Can you recall having conversations with [Shamsher Singh] to the effect of what his searches of the CCTV footage had revealed?

A. Yes.

Q. At that, are you able to recall the short effect of what Mr Singh had actually said to you about what his searches of the CCTV footage had revealed?

A. That he saw that they had been seized by customs.

Q. Do you recall relaying the effect of that information to anybody?

A. I told Moses.”

47. A MMS message was sent by Mr Nader to the applicant at 14.34 that day, with a picture of computer screen. Ms Tongalea identified the screen as her own, said that the picture was taken by Mr Nader, and that it showed the “GEMA” database which recorded the fact that Customs had seized the shipment. The image was in evidence; it appears to be a screenshot of a GEMA screen, and it is illegible.

48. A deal of photographic surveillance established that in the minutes after receiving that message, the applicant and Mr Nader met, and then at 3pm the applicant drove to a smash repairing business and shortly thereafter showed a white Blackberry mobile phone to another person at 15.21. The white handset was different from the one he had been using to communicate with Mr Nader. It was an encrypted phone, which according to the applicant he used only to speak to a person “John”.

49. The Crown case was that the applicant was showing the screenshots to a third party. The Crown adduced no evidence to demonstrate how the screenshots were transferred from the applicant’s ordinary phone to the encrypted white handset, although the Crown also submitted that that was unsurprising because the device was encrypted. The applicant said he was showing a picture of a woman.

50. Thereafter at 16.29 and 16.39 there were the following messages:

GA: “Diagrams are shit cannot see them properly.”

MN: “Keep them I’ll show you@.”

51. Later that evening at 21.49, the two men had a phone conversation, mostly directed to the poor quality of the image. Part complained that:

“GA: Alright, can’t you just go and get fuckin’ clearer picture?

MN: I’ll see what I can do but I doubt it, ‘cause I … I … I doubt it. I’ll be honest with ya, I doubt it. But what I’ll get ya to do, maybe sent it back to me.

GA: Yeah

MN: And it might come up differently on mine, ‘cause it was fine… fine on mine bro.”

52. The applicant agreed in cross-examination that this was a reference to the screenshots:

“Q. The next message from your phone is at 4.29pm on page 474. ‘Diagrams are shit cannot see them properly’. Do you see that?

A. Yes.

Q. And you are using the word ‘diagram’, but you are talking about the images of the work station at DHL, aren’t you?

A. Yes.

Q. And you are using the word ‘diagram’ as code, aren’t you?

A. Yes.”

53. At this stage, the documents suggest that the applicant was not so greatly concerned with the fact that the packages had been seized by customs, and by his being unable to demonstrate that fact to a third party. It requires little imagination to explain why the applicant might wish to prove to a third party that the missing packages had been seized by customs.

54. On 9 December the applicant was stopped and his vehicle searched. The counterfeit banknotes giving rise to the charge to which the applicant pleaded guilty were found. The applicant denied knowledge of the counterfeit notes. Video and sound recording of the search was played to the jury.

55. There were hundreds of pages of transcribed text messages and recorded conversations, and a deal of the trial was occupied by playing DVDs of sound recordings to the jury. It is not necessary to summarise more of the intercepted communications than is set out above. Most were between Mr Nader and Ms Tongalea. They demonstrate beyond any doubt that the applicant and Mr Nader were concerned to obtain possession of the goods shipped to Sydney under air waybills 0773 and 0784.

The elements of the offence to which the applicant pleaded not guilty

56. The applicant was charged with the offence created by s 11.1 of attempting to commit the offence of possessing a commercial quantity of an unlawfully imported border controlled drug contrary to s 307.5. The latter provided:

“307.5 Possessing commercial quantities of unlawfully imported border controlled drugs or border controlled plants

(1) A person commits an offence if:

(a) the person possesses a substance; and

(b) the substance was unlawfully imported; and

(c) the substance is a border controlled drug ...; and

(d) the quantity possessed is a commercial quantity.

...

(2) Absolute liability applies to paragraphs (1)(b) and (d).

(3) The fault element for paragraph (1)(c) is recklessness.

(4) Subsection (1) does not apply if the person proves that he or she did not know that the border controlled drug ... was unlawfully imported.

Note: A defendant bears a legal burden in relation to the matter in subsection (4) (see section 13.4).”

57. Section 11.1 relevantly provided:

“11.1 Attempt

(1) A person who attempts to commit an offence is guilty of the offence of attempting to commit that offence and is punishable as if the offence attempted had been committed.

(2) For the person to be guilty, the person’s conduct must be more than merely preparatory to the commission of the offence. The question whether conduct is more than merely preparatory to the commission of the offence is one of fact.

(3) For the offence of attempting to commit an offence, intention and knowledge are fault elements in relation to each physical element of the offence attempted.

Note: Under section 3.2, only one of the fault elements of intention or knowledge would need to be established I respect of each physical element of the offence attempted.

…

(4) A person may be found guilty even if:

(a) committing the offence attempted is impossible; or

(b) the person actually committed the offence attempted.”

58. Those sections have not materially changed. However, in an instance of what Francis Bennion called “indirect express amendment” (noted in Kartinyeri v Commonwealth (1998) 195 CLR 337; [1998] HCA 22 at [8]-[9]) the effect of s 11.1(3) was altered, with effect from 26 November 2015, by the enactment of s 300.6, which relevantly provides:

“Despite subsection 11.1(3), for the offence of attempting to commit an offence against this part, recklessness is the fault element in relation to any of the following physical elements of the offence attempted”.

59. One of the physical elements specified is that a substance is a border controlled drug for the purposes of s 307.5(1). It would assist transparency if a note were included in s 11.1(3) containing a reference to the provision which in some cases materially alters its operation, lest the reader wrongly think that the existing note to the section were the only way in which the language does not bear its ordinary meaning. No attention was paid to this change in the law during the hearing. Section 300.6 only applies to offences engaged in on or after 27 November 2015, as explained in Lin v R [2019] NSWCCA 171 at [39]-[40]. The effect is that for attempts to possess an unlawfully imported border controlled drug, prior to 26 November 2015 the Crown had to prove that the accused knew or intended that the substance he or she was attempting to possess was an illicit drug, while thereafter the Crown had only to prove that the accused was reckless as to whether the substance was a border controlled drug.

60. Probably nothing turns on this change in the law in the present appeal, for the overwhelming majority of the conduct relied on in the Crown case as establishing the offence predated 27 November 2015, and given the nature of the applicant’s case, recklessness as to the consignments’ contents was scarcely a realistic finding. I shall proceed on the basis which is most favourable to the applicant, namely, the position prior to the enactment of s 300.6, such that the Crown had to prove knowledge or intention, rather than merely recklessness, that the imported goods were illicit drugs. That was the way the issue was left to the jury.

The challenge to the jury’s verdict

61. In the present trial and appeal, most of the elements of the offence fell away. It was accepted that the Crown had established that the third and fourth consignments contained a commercial quantity of a border controlled drug which was imported from overseas. There was no suggestion that the applicant’s conduct was “merely preparatory” so as to fall outside the scope of the attempt offence in s 11.1, and if there had been any such suggestion, it was well open to reject it given the sustained endeavours to obtain possession of the two packages comprising the third and fourth consignments.

62. The live issue at trial, which is central to this application for leave to appeal, was as to the applicant’s intention. The offence created by s 11.1 requires the Crown to establish beyond reasonable doubt two distinct matters of intention: that the applicant intended to import a substance, and that the applicant knew the substance was a border controlled drug. The first was not in issue nor could it have been. The second required the Crown not only to negative the applicant’s claim that he believed the packages contained polymer, but also to establish to the criminal standard that he knew they contained border controlled drugs.

63. Not merely was there only a single issue in contest. It was in substance a binary issue. For when the applicant gave evidence saying that he believed the third and fourth consignments, about which he and Mr Nader had sought information day after day in late October and early November 2015, were polymer, there was no room for inadvertent error. Either he was telling the truth to the best of his ability, or he was telling a lie in order to avoid a conviction for the serious federal offence for which he was standing trial.

64. Was it open to the jury, which saw the whole of the evidence unfolding at trial, including the applicant giving evidence in chief and being cross-examined on that evidence, to conclude beyond a reasonable doubt that he knew the third and fourth packages contained illicit drugs?

65. In answering that question, it is important to bear in mind that the applicant’s testimony was, in part, demonstrably false, and in other parts implausible. This may be seen in a number of respects.

66. First, there is the reason the applicant gave for using the code “truck” in his communications with Mr Nader. The applicant accepted that he used code in his text messages and conversation with Mr Nader, and agreed that “truck” was part of that code.

“Q. Well sir, what does the word ‘truck’ mean in those telephone calls?

A. Truck was the package I was looking for.”

67. The applicant’s counsel embraced this in addressing the jury:

“Yes, code was used when discussing the two boxes. Never in dispute. Never in dispute ‘truck’ and ‘truck parts’ were used as code when discussing those two boxes. Isn’t that entirely consistent with a man involved in illegal conduct? That is the piggybacking off of another company and the importation of polymer plastic, which is an offence, it’s a crime. See, it’s not about drugs it is about currency.”

68. However, the applicant also gave evidence that he did not think his phone was being intercepted.

“Q. So you didn’t know that your phone was being listened to?

A. No I didn’t know my phone was being listened to.

Q. You didn’t think your phone was being listened to?

A. Never thought of it one bit.

Q. Never thought that your phone was being listened to?

A. No.

Q. In all of the calls that we’ve listened to, in no single call did you think your phone was being listened to?

A. No.”

69. The applicant also agreed:

“Q. Sir, if you didn’t think people were listening to your telephone calls there’s no need to use code, is there?

A. No.

…

Q. So you agree with me that there’s no need to use code but you also say that because you were doing something illegal you had to use code, is that right?

A. Yes.

Q. Have I accurately depicted your evidence?

A. Yes.

Q. I suggest to you sir that you are not being truthful in answering my questions?

A. I am being truthful.”

70. Secondly, there are the applicant’s inconsistent accounts of what he did with the consignment of polymer which, according to him, he in fact received earlier in October. At first the applicant said he had not started printing on the polymer paper which arrived in the second consignment, and then said that he did start that process:

“Q. And was that the first time that your counterfeit business managed to obtain polymer?

A. That type, yes.

Q. And did you put it to use?

A. No.

Q. Did you take it to the factory in Ingleburn?

A. Yes, I did.

Q. And did you start printing on it?

A. No I didn’t.”

71. It will be seen that the applicant unequivocally, and repeatedly, said that he did not use or start printing on the imported polymer.

72. But the cross-examination then continued:

“Q. Well, what happened to the polymer plastic?

A. I used a little bit of it, but we had a problem with the guillotine.

Q. When you say you used a little bit of it, what do you mean?

A. Well, I printed a couple of sheets and we had a problem with the guillotine. It wasn’t cutting properly.

Q. I asked you a couple of questions ago, ‘Did you starting printing on it?’ and you said ‘No’; do you remember giving that evidence?

A. Yes.

Q. And is your evidence now that you did actually start printing on it?

A. A couple of sheets.

Q. Well, when I asked you did you start printing on it did you understand that question?

A. Um, yes, more or less.

Q. Did you not understand that question?

A Yes, I understood the question.

Q. Well, when you answered no was that a truthful answer sir?

A. No, it wasn’t.”

73. The applicant later maintained that he could not explain why he did not give a truthful answer, but that he “just didn’t understand the question fully and I did print a little bit on that paper that came.”

74. Thirdly, there is the applicant’s evidence at the time concerning his counterfeiting. When the applicant’s vehicle was searched on 9 December, and the counterfeit banknotes found, he at first told police that he did not know anything about the money. He accepted in his evidence to the jury that was a lie. He said, in his evidence in chief at trial, that he gave that lie because his wife and daughter were there:

“Q. Why didn’t you tell the police that you didn’t know anything about the money, the counterfeit money that was in the car?

A. I denied it because I didn’t want my wife or my daughter to think that I was doing it again because of the bad experience we had in 2010 when I got arrested.”

75. Early in cross-examination, the applicant was asked again whether his wife and daughter were present at the time he denied knowledge of the currency, and he said “They were there, yes”. But later in cross-examination, he accepted that his own explanation for lying was itself a lie. The search of the applicant’s vehicle was recorded with sound and video and tendered at trial (and made available to this Court; I have reviewed it). The recording includes a statement by the police officer that he had told the applicant’s wife that she was going back to the home at about 15.13. The first discovery of the counterfeit banknotes was at 15.27. That led to these questions:

“Q. When you were asked about this counterfeit cash your wife and daughter had already left, hadn’t they?

A. Yes.

Q. Returning to the question I asked you before morning tea:

‘Q. When arrested in 2015 you lied to the police about the false currency in the car?

A. No I just said I didn’t know anything about it. My wife and daughter were there’

A. Okay well I said that.

Q. Well that just wasn’t true, is it sir?

A. No.

Q. Lying to the police about the false currency had nothing to do with your wife and daughter being there, did it?”

A. Well, no not then.”

76. Fourthly, it is to be borne in mind that the applicant was on his own case a currency fraudster, who had been convicted of an offence of deceit. In addition to the outright lies mentioned above, other aspects of his evidence were implausible:

“Q. You are producing a product that is intended to deceive, aren’t you?

A. Yes.

Q. Have you ever used that fake currency yourself?

A. No.

Q. Not once?

A. Not once.

Q. So you always sell it to other people; is that right?

A. Correct.

Q. And in selling it to other people it would be your belief that they would, or others would be using it to deceive people?

A. I can’t, I can’t tell you what other people do with it when they take it.

Q. The whole purpose of being a currency fraudster is that you deceive people with your product?

A. Um, okay. If you’re going to put it that way, yes.”

77. In addition to the difficulties with the applicant’s testimonial evidence, there was the implausibility that the same person in the Netherlands who had sent the third and fourth consignments, which were known to contain drugs, had one week earlier in the second consignment sent polymer by the same means to the same address. The invoices and airway bills in respect of the consignments were remarkably similar. The invoices for the second, third and fourth consignments each described the items as “Bell XXX series repair MANUALS” of similar quantities and gross weights. The “shipper” and “receiver” details were identical save for a typographical error in the spelling of “Sydney” in the invoice for the second consignment.

78. These similarities were raised with the applicant’s counsel, who contended that:

“… the similarities point to the fact that Mr Abouhaidar was duped because his expectation was essentially he received the second shipment, he received - and he’s - and the third shipment that he receives, or was attempting to possess, he was certainly didn’t have and never acceded to the fact the fact that he believed it contained drugs. So the similarities, our contention is, point to - I accept what your Honour - so in a sense, not long after the third shipment comes along and it contains drugs.”

79. The essence of the submission was that it was a surprise to the applicant that the third and fourth consignments contained drugs.

Conclusion and orders

80. By the applicant’s own positive case, he acknowledged all other elements of the offence – that he was attempting to possess the substance imported in the third and fourth consignments. And even if those elements were in dispute, there was an overwhelming Crown case based on the documents establishing them.

81. The only issue sought to be raised on the applicant’s application for leave to appeal out of time was whether it was open to the jury to find beyond reasonable doubt that he knew that the substance in the third and fourth consignment was illicit drugs.

82. The applicant was a convicted counterfeiter, who had counterfeit banknotes in his possession when arrested, and who told a series of lies not only to police when arrested, but in the witness box, about basal aspects of his account. It was plainly open to the jury to disbelieve his account that he believed he was attempting to possess imported polymer. Of course, the mere fact that the evidence of the accused was rejected did not mean that the jury ought to have put out of its mind the question whether there was an alternative hypothesis consistent with innocence reasonably open on the evidence. But in order for such an inference to be reasonable, it must rest upon something more than “mere conjecture”. As the High Court said in The Queen v Baden-Clay at [47], the “bare possibility of innocence” is not sufficient if the inference of guilt is the only inference reasonably open on the evidence.

83. Plainly the applicant was attempting to possess the goods imported as the third and fourth consignments, and a great deal of evidence is to the effect that he knew that it was illegal to import whatever they contained – hence the use of code, the consignments being addressed to Hawker Pacific, his causing Mr Nader and Ms Tongalea to obtain the location of the packages within the DHL tracking system, and the real concern to obtain documentary evidence that the packages had been seized by customs.

84. In truth the Crown’s circumstantial case was a very powerful one. It was amply open to the jury to conclude beyond reasonable doubt that the applicant knew that the third and fourth consignments contained illicit drugs.

85. In circumstances where the appeal must fail, there is no occasion to grant leave, nor to extend time. I propose that the application for an extension of time within which to apply for leave to appeal against the applicant’s conviction be refused.

86. ROTHMAN J: I agree with Leeming JA that, on an analysis of the evidence at trial, there is no basis for disturbing the verdict of the jury.  The jury observed the evidence and had open to it the verdict reached, not only as a question of law but as a result that it could reach beyond reasonable doubt.  Further, on an analysis of the evidence, I would have reached the same verdict.  The verdict is neither unreasonable nor is there a reasonable hypothesis inconsistent with guilt available on the evidence, although each of the foregoing is a different way of expressing the same proposition.  The delay while partly explained is extraordinary and given my view of the merits, I agree with the orders proposed by Leeming JA.

87. HARRISON J: I have reviewed the transcript of the proceedings and the evidence at the trial.  It was in my view entirely open to the jury to be satisfied beyond reasonable doubt of the applicant’s guilt.  The jury’s conclusion, inherent in the verdicts, that the applicant knew that the substance in the third and fourth consignments was illicit drugs, in entirely uncontroversial. The verdict was in my view not only not unreasonable but is, as the analysis of Leeming JA seeks to make clear, entirely supported by the evidence.  I agree with Leeming JA and with the orders he has proposed.

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Decision last updated: 23 March 2022