Awad v The Queen
[2021] VSCA 285
•15 October 2021
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0114
S EAPCR 2021 0102
| DANNY AWAD | Applicant |
| v | |
| THE QUEEN | Respondent |
S EAPCR 2020 0240
| JOHN MICHAEL TAMBAKAKIS | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, McLEISH and NIALL JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 24 August 2021 |
| DATE OF JUDGMENT: | 15 October 2021 |
| MEDIUM NEUTRAL CITATION: | [2021] VSCA 285 |
| JUDGMENT APPEALED FROM: | DPP v Tambakakis & Awad (Unreported, County Court of Victoria, Judge Dean, 12 September 2019) (Conviction); [2019] VCC 1835 (Sentence) |
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CRIMINAL LAW — Appeal — Conviction — Attempting to possess a commercial quantity of an unlawfully imported border-controlled drug – Whether judge erred in directing the jury about evidence of accused – Whether contravention of s 44J of the Jury Directions Act 2015 constituted a substantial miscarriage of justice – Whether error material – Whether necessary to consider whether verdict of guilt inevitable - Whether verdict unreasonable – Whether the verdict cannot be supported having regard to the evidence – Jury Directions Act 2015 ss 44H, 44J, 44K – Baini v The Queen (2012) 246 CLR 469, Kalbasi v Western Australia (2018) 264 CLR 62 and R v Buckley (2004) 10 VR 215 considered – Leave to appeal granted –Appeal dismissed.
CRIMINAL LAW – Appeal – Sentence – Application for leave to appeal against sentence – Whether trial judge erred in characterising the applicants as senior members of an organisation – Application for leave to appeal refused.
CRIMINAL LAW – Appeal – Sentence – Extension of time – Whether sentence offends principle of parity having regard to co-offender’s sentence and role played by co-offender – Application for extension of time not opposed – Application for leave to appeal refused.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant Awad: | Mr B Walker SC with Mr O P Holdenson QC and Dr M Gumbleton | Milides Lawyers |
| For the Applicant Tambakakis: | Mr D A Dann QC with Mr P Smallwood | Stephen Andrianakis & Associates |
| For the Respondent: | Mr P Doyle and Ms S Bruhn | Ms A Hogan, Solicitor for Public Prosecutions |
PRIEST JA:
Convictions, sentences and grounds of appeal
Following a 26 day trial, on 12 September 2019 a jury empanelled in the County Court found the applicants Danny Awad and John Michael Tambakakis (for convenience, ‘Awad’ and ‘Tambakakis’) guilty of one charge of attempting to possess a commercial quantity of an unlawfully imported border-controlled drug, cocaine.[1] The jury were unable to agree on a verdict with respect to a co-accused, Charbel Kanati (‘Kanati’). A fourth accused, Jacob Rohen (‘Rohen’) is yet to be tried.
[1]Criminal Code (Cth), ss 11.1(1) and 307.5(1). The maximum penalty is life imprisonment.
On 12 November 2019, after a plea in mitigation conducted on 8 November 2019, the trial judge sentenced each of Awad and Tambakakis to 15 years’ imprisonment, and fixed a non-parole period of 10 years.
Both Awad and Tambakakis seek leave to appeal against conviction and sentence.[2]
[2]Awad required an extension of time to seek leave to appeal against sentence. Since the application for extension of time was not opposed by the respondent, we granted it upon the hearing in this Court.
On conviction, Awad advanced three grounds:
1 The learned trial judge erred in directing the jury that, in assessing and evaluating the evidence given by John Tambakakis, the jury should have regard to the significant ‘factor’ and consider the ‘observation’ that ‘a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence’, with the consequence that there has been a substantial miscarriage of justice.
2 The learned trial judge, in directing the jury concerning their assessment or evaluation of the evidence given by John Tambakakis, directed the jury in a manner prohibited by s 44J of the Jury Directions Act 2015 (Vic) and, as a consequence, there has been a substantial miscarriage of justice.
3 The verdict of the jury is unreasonable and/or cannot he supported having regard to the evidence.
PARTICULARS
(i) It was not open to the jury to find beyond reasonable doubt that the Applicant had entered or got into the Kia van (XHK 234) whilst parked at 11 King Street, Airport West, and then travelled in that Kia van with John Tambakakis to the warehouse at the rear of 27 Halsey Road, Airport West.
(ii) It was not open to the jury to reject (or exclude) beyond reasonable doubt a reasonable hypothesis consistent with the innocence of the Applicant, namely, the Applicant had not entered or got into the Kia van whilst parked at 11 King Street, Airport West and then travelled in that Kia van with John Tambakakis to the warehouse at the rear of 27 Halsey Road, Airport West, but had merely remained in King Street, Airport West.
Tambakakis also relied on three grounds with respect to conviction, albeit his counsel abandoned a number of ‘particulars’ initially pleaded.[3] The grounds as ultimately formulated were as follows:
[3]Ground 1, which asserted that the ‘verdict was unreasonable or cannot be supported having regard to the evidence’, was abandoned altogether.
2 A substantial miscarriage of justice arose from the prosecution’s closing address, in which it:
2.1: Invited the jury to draw a conclusion that Jacob Rohen’s palm print was deposited on a printer box at Randor Street on 9 May 2017;
…
3 A substantial miscarriage of justice resulted from the trial judge:
3.1: Directing the jury in a manner that was expressly prohibited by s 44J of the Jury Directions Act 2015 (Vic);
…
3.3: Not directing the jury that, as a matter of law, it was not open to embrace certain of the conclusions that had been urged by the prosecution in its closing address;
…
3.5:Directing the jury that the prosecution’s case against the applicant was informed by the value of the consignment, without directing the jury that there was no evidence that the applicant in fact knew that value;
3.6: Not providing a more balanced direction in relation to whether the evidence established the element that was in dispute to the criminal standard;
...
4 A substantial miscarriage of justice resulted from an aggregation of circumstances, including the:
4.1: Matters particularised under Grounds 2 and 3;
…
Tambakakis also sought leave to appeal against sentence on the basis that the sentencing judge mischaracterised his role in the offending, and because the sentence imposed is manifestly excessive; and Awad sought to contend that he should have received a lesser sentence than Tambakakis.
For the reasons that follow, I consider that both Awad’s and Tambakakis’ convictions must be set aside and a new trial ordered. There is thus no occasion to consider the applications touching sentence.
The prosecution’s case at trial
So as to understand the issues raised concerning conviction, it is necessary to summarise the main aspects of the prosecution case.
The evidence revealed that on 1 May 2017 a consignment of five Xerox WorkCentre 3655 Multifunction Printers, addressed to Mark Hart, Overall Auto Care, 26 Charles Street, Coburg North, arrived in Melbourne from Mexico. Each printer was in a cardboard box. Three boxes had been placed on one pallet, and two boxes were placed on a second pallet.
Australian Border Force (‘ABF’) officers intercepted and examined the consignment. Contained within it was 22.4 kilograms of cocaine, 15.456 kilograms of which was pure cocaine (a purity of 69 per cent). A commercial quantity of cocaine is two kilograms.[4]
[4]Criminal Code Regulations 2002 (Cth), Schedule 4, item 41, which achieved their sunset on 1 October 2019. See now Criminal Code Regulations 2019 (Cth), Schedule 2, item 43.
The consignment was then deconstructed by Australian Federal Police (‘AFP’) officers. An inert substance was substituted for the cocaine. Additionally, both a listening device and a tracking device were placed within the consignment. A ‘controlled delivery’ of the consignment containing the inert substance was then conducted by police during the afternoon of 8 May 2017.
Rohen accepted delivery of the consignment at the Overall Auto Care premises at 28 Charles Street, Coburg North — ‘Overall Panels’ was located at 26 Charles Street — introducing himself as ‘Mark Hart’.
Later that day, Tambakakis, who operated a business, ‘GT Skips’, collected the consignment and transported it on the back of a ‘skip’ truck to his business premises at 16 Patrick Street, Campbellfield. Subsequently, the consignment was transported on the back of the skip truck to a yard at 29 Randor Street, Campbellfield, which was also used by Tambakakis in connection with his GT Skips business. Tambakakis kept the yard secured with a chain and combination lock. The consignment was then left in the open air at the Randor Street yard until the early evening on 9 May 2017.
During the evening of 8 May 2017 — that is, the day the consignment was placed in the yard — Tambakakis was observed driving a black Jeep (registration ZXA 366) slowly in Randor Street. That same evening, Awad’s car, a black BMW (registration VAN 254), was observed in the vicinity.
On the next evening, 9 May 2017, at 6.19 pm, the consignment was collected from the Randor Street yard. It was placed in a ‘Budget’ rental truck which had been hired by Rohen shortly beforehand. The consignment was then transported in the Budget rental truck to Kanati’s residence at 97 Shaftsbury Street, Coburg. Awad’s car was observed in Cooper Street, Campbellfield, a little before that occurred.
Earlier in the afternoon of 9 May 2017, surveillance officers had observed Awad driving a short distance from his work in Nicholson Street, Brunswick, to Fleming Park in Brunswick. He met a man driving a white BMW, registration AEG 828, which was registered to Rohen. The two men walked three or four laps of the oval while talking. (As I will discuss, the white BMW was next seen in Shaftsbury Street, Coburg, on the next afternoon.)
The next day, 10 May 2017, at 5.22 pm, Tambakakis drove a white Kia van (registration XHK 234) to Kanati’s residence in Shaftsbury Street and left it there. Tambakakis was then picked up by Awad, and driven away from Kanati’s residence in Awad’s car. They then went to Tambakakis’s apartment in Breese Street, Brunswick.
A few minutes later, at 5.26 pm, Kanati left his premises in the Kia van with the consignment on board. Earlier that afternoon, the white BMW, registration AEG 828, which had been observed in the vicinity of Fleming Park the day before, had been seen driving up and down Shaftsbury Street, while Kanati periodically came out of his house to speak with the driver. When the Kia van left Kanati’s residence with the consignment at 5.26 pm, the white BMW drove in convoy with the van to King Street, Airport West. The BMW then parked in King Street facing the van, with its headlights on.
At some point shortly afterwards, Tambakakis and Awad arrived at the ‘Autobarn’ carpark in Matthews Avenue, Airport West. CCTV footage played at trial showed Tambakakis and Awad leaving the Autobarn carpark on foot at 6.07 pm and walking together west on King Street. Awad’s car was seen parked in the Autobarn carpark minutes later, at 6.15 pm.
Kanati, who had left his premises in Coburg at 5.26 pm, had in the meantime parked the Kia van on the northern side of King Street, Airport West, adjacent to number 88, at 5.53 pm (that is, about a quarter of an hour prior to Tambakakis and Awad leaving the Autobarn carpark on foot).
At 6.13 pm, Kanati drove the Kia van east along King Street. It went past Tambakakis and Awad, who then headed west on King Street. The two were not, however, walking together. Tambakakis was walking on the southern side of the street and Awad walking on the northern side.
About five minutes later, at 6.18 pm, Kanati did a U-turn to face west, and parked the Kia van on the southern side of King Street, outside number 11. An unidentified male then walked to, and entered, the Kia van.
The Kia van was then driven west along King Street at 6.25 pm. Its journey ended at 6.29 pm, when it was driven into a warehouse at the rear of 27 Halsey Road, Airport West, where the consignment was then unloaded. Tambakakis had earlier leased the warehouse under a false name.
I pause to note that the prosecution case was that Awad and Tambakakis had entered the Kia van outside 11 King Street at 6.25 pm, and had travelled in it to the warehouse in Halsey Road, where they helped unload the consignment before exiting at 6.55 pm. Tambakakis gave evidence at trial, however, that although the plan was for both he and Awad to enter the van and go to the warehouse, ultimately Awad did not get into the van. Significantly, although a listening device installed in the consignment recorded the voices of two people in conversation inside the Kia van, no voice identification evidence was offered at trial. Also significantly, neither Awad nor Tambakakis were again captured by CCTV footage until after the van had left the warehouse around 6.55 pm.
I pause further to note that the prosecution case against Awad was that he was in possession of the substance inside the consignment from the time he got into the Kia van with Tambakakis outside 11 King Street at 6.25 pm and was driven to the warehouse at 27 Halsey Road, until he exited the warehouse at 6.55 pm. During that period he was alleged to be in joint possession of the substance with Tambakakis. On the other hand, the prosecution case against Tambakakis was that he was in possession of the consignment from the time he collected it at Overall Auto Care, had it loaded onto his skip truck and drove to the yard at Randor Street, until he unloaded the consignment from the Kia van in the warehouse at 27 Halsey Road.
The prosecution alleged that, between 6.32 pm and 6.55 pm, Awad and Tambakakis unloaded the consignment. It was alleged that they also scanned it for surveillance devices using a ‘Hawk Sweep’ scanner. The prosecution contended that the listening device installed in the consignment recorded the noise of the scanner, the sounds of plastic and paper tearing, and snippets of conversation between two males. It was alleged that such of the conversation as can be heard indicates that Awad and Tambakakis were aware that the consignment might be the subject of electronic monitoring by law enforcement.
Resuming the narrative, at 6.55 pm Tambakakis drove the Kia van — no longer containing the consignment — out of the warehouse and parked it in a carpark at 22 King Street.
At 7.02 pm, Tambakakis and Awad were seen to walk back to the Autobarn carpark in Mathews Avenue. They then got into Awad’s car and drove away.
An hour later, at 8.02 pm, Tambakakis and Awad were arrested in Awad’s car at Essendon Fields. The car was searched. In the glove box was a Hawk Sweep electronic scanner. On the back seat was a backpack containing a ‘Sunbeam Food Saver’ vacuum sealer and multiple plastic vacuum seal bags. Significantly, in the cup holder on the passenger side was a key to the Kia van. Two of Awad’s fingerprints were subsequently located on the vacuum sealer. His fingerprints were not, however, located on the other items.
Subsequently, at 10.55 pm, investigators found the consignment in the Halsey Road warehouse. Four of the five cardboard boxes had not been opened. One box had been unpacked and the printer removed. The paper trays had been taken out from the printer and the substituted package had been removed from the paper tray and taken to the kitchenette. That package had been cut open and surveillance equipment removed from it.
The outside of each of the five boxes was subjected to a process to detect latent fingerprints. Kanati’s fingerprints were located on two unopened boxes. The left palm print of Rohen was located on the top of one unopened box. Other prints were located on the boxes, but none were matched to Awad.
Various items, including the hard case for the Hawk Sweep scanner and digital scales, were seized from inside the Halsey Road warehouse and subjected to DNA and fingerprint analysis. Although fingerprints were found, none were matched to Awad. Nor was his DNA located on any item.
The Kia van was also examined for fingerprints and swabs were taken for DNA analysis. Although fingerprints were found, and some DNA located, there was no match to Awad.
Tambakakis’ evidence
As I have indicated, Tambakakis gave evidence. In evidence-in-chief, he denied that he intended to possess cocaine. The thrust of his evidence was that at all relevant times he was acting at the behest of Marcus (or Mark) Edwards (‘Edwards’), whom he believed to be in Thailand. Edwards directed him to do various things by way of text message on the ‘Wickr’ mobile telephone application. Tambakakis asserted throughout that he thought the ‘shipment’ contained ‘Steroid tablets’. Had he known there was cocaine, he ‘wouldn’t have been involved’.
Tambakakis told the jury that he had discussed steroids — which he used — with Edwards, who was his personal trainer. He said that he had wanted to start a recycled clothing business with Edwards at the Halsey Road premises. The idea was to get collection bins manufactured, collect donated clothes, clean them, and then export them. Tambakakis said he signed the lease of the premises in a false name because he had a ‘credit default’ on his record. When he and Edwards struggled to ‘get the money together’ to pay for the bins, Edwards suggested that they ‘needed to find other ways to make some money’, and they ‘started talking about distributing steroids’ which Edwards was going to source from overseas.
A month or two later, Tambakakis said, Edwards ‘received a shipment of … large terracotta pots or vases type things and they had steroids inside’. They took the pots to the Halsey Road warehouse in a rented van, took them out of the van, broke the tops of them open and ‘took out the little bags of steroids’. They laid the four different types of steroids out on a table — they were different colours — and then waited for packaging to arrive so that the steroids could be vacuum-sealed to ‘preserve the freshness and so they don’t roll around and deteriorate’. A couple of weeks later, Edwards called him and told him that the packaging had arrived. Tambakakis went to the warehouse with Edwards the following night. There was ‘a dozen or so big boxes of white bottles’ and they ‘packaged up maybe 1000, 1500 bottles’. They repackaged ‘at least’ five kilograms of steroids.
Tambakakis told the jury that he went to Overall Auto Care on 8 May 2017 as a favour to Edwards — whom he believed to be in Thailand — who asked him to pick up some boxes that were on pallets. Edwards told him that the boxes contained ‘gear’, which is street slang for steroid tablets. He loaded the boxes onto the back of a skip truck with an ‘old fella’ who ‘grabbed a forklift’. Tambakakis saw Rohen there but they did not speak. Edwards had told Tambakakis that he would let him know what to do with the boxes, and had said that he would give him ‘two and a half grand for an hour’s work’. The boxes were transported to Randor Street.
When Edwards later contacted him, Tambakakis said, Edwards was ‘pretty upset’ that he had left the boxes ‘out in the open’, because they were ‘worth a stack’ (although he did not tell him ‘exactly what amount’ was involved). Tambakakis told Edwards he did not ‘want to be driving around’ with steroids anymore and ‘wanted it off the property’. Tambakakis’ evidence included that he drove around the streets near his yard in the evening of 8 May 2017 checking parked cars, including by illuminating them with his headlights. He did so because Edwards said the consignment was ‘worth a stack’ and wanted to check if it was ‘off’ (that is, whether law enforcement was aware of it).
I pause to note that, in cross-examination by the lead prosecutor, Tambakakis agreed that he met Awad in the evening of 8 May 2017, ‘somewhere between 6.30 and 8.00 pm’, at a kebab shop at ‘Fordgate shops’. Tambakakis said that it was ‘just a social meeting’, to ‘catch up for a bite to eat’. During the meeting, he asked Awad whether his friend still wanted some ‘gear tabs’. Tambakakis said that the arrangement was that Awad would first receive sample bottles of steroids to give to his friend, and, if his friend was happy, he would buy ‘a few, like more than a dozen’.
Returning to his evidence-in-chief, on 9 May 2017, Tambakakis said, Edwards asked for a loan of the Kia van. At Edwards’ direction, Tambakakis said, he drove it to Kanati’s residence in Shaftsbury Avenue. Awad, who ‘was keen to get his hand on some samples of the steroids’, picked him up. He had earlier told Awad that they could pick up some steroids together, and he had asked Awad to ‘get a set of scales and a cryovac machine’. Awad had not brought scales, Tambakakis said, so they went to his residence, where he obtained scales and gloves to package steroids. They then drove to Autobarn in Airport West.
Tambakakis gave evidence that Edwards had told him that the van with the steroids would be waiting at the top of King Street. Since it was not where Edwards had said it would be, he and Awad starting walking to the other end of King Street. The van then drove straight past them, so they turned around and walked back to the original meeting spot at the top of King Street. When they got to the van it was parked on the opposite side of the street, so Tambakakis crossed the road first and Awad ‘hung back a bit’. Rohen then jumped out of the driver’s seat, walked around the front of the van, opened the sliding door and ‘started mucking around’ with the scanner. Tambakakis’ evidence was that Rohen told him to ‘stand back’. Awad was still on the other side of the street. There was then the following critical passage of evidence:[5]
[5]Emphasis added.
[COUNSEL]: What happened then?---Well, Rohen was scanning inside and then I walked around to the, to the driver’s side of the van and I grabbed Danny’s [Awad’s] backpack off him and put that in the van and then I jumped in the driver’s seat.
Did Danny [Awad] get in the van?---No, Danny didn’t, never got in the van.
Why didn’t he get in the van?---Danny was concerned that if Mark [Edwards] didn’t want his boys to, to know where the warehouse was then he wouldn’t want Danny to know where the warehouse was.
…
So you’re there and Danny doesn’t get in the van?---No. I told Danny to just wait, I’ll be back in 10 minutes.
Why did you take his backpack?---The first time I’d packaged up steroids with Mark we used the cryovac machine to, to store them, so I thought I’d need one.
So what happened then?---Then Rohen jumps in the passenger seat and we drove to the warehouse.
We know from the listening device that somebody says in relation to the front seat something like, ‘How little is this cunt?’ or something like that. Who said that?---I said that.
What were you referring to?---The van seat being pretty far forward.
Did you see Mr Kanati at this time?---I did not see Mr Kanati.
So you drove the van with Mr Rohen?---Yes.
You went to the factory?---Yep.
I pause once more to note that the passage of evidence extracted immediately above was of crucial significance to Awad’s case, given the very narrow way in which the prosecution chose to put its case against him. As will be appreciated, the prosecution did not charge a conspiracy against Awad and Tambakakis. And very significantly, the prosecution deliberately eschewed any reliance on either the principles of complicity or those of joint commission provided for in ss 11.2 and 11.2A of the Criminal Code (Cth). Instead, the prosecution posited that Awad was in joint possession of the cocaine with Tambakakis only from the moment he allegedly got into the Kia van with Tambakakis in King Street until he allegedly exited the warehouse at 6.55 pm. If Awad did not enter the van, he did not attempt to possess the illicit drugs. Thus if, in light of Tambakakis’ evidence, the jury entertained a reasonable doubt about whether Awad entered the van, the prosecution case against him had to fail.
It should also be noted at this juncture that the prosecution placed considerable reliance on parts of a conversation recorded by a listening device secreted within the consignment. Tambakakis’ evidence was, as I have said, that on approaching the van he saw Rohen get out of the driver’s seat and use an electronic scanner. The prosecution contended that, at about the time Tambakakis and Awad approached the van, the listening device captured two male voices and the sound of a scanner in operation. A few minutes later, after the van doors are heard to open and close, a male is heard saying, ‘How little is this cunt?’. Another male responds, ‘Huh? What?’, and the first male repeats, ‘How little is he?’. The prosecution alleged that Tambakakis was speaking to Awad, and was commenting on the short stature of the previous driver, who was Rohen. In cross-examination, Tambakakis admitted that he was commenting on the short stature of the previous driver, but maintained that he was talking to Rohen. The prosecutor cross-examined him as to why he would be referring to the driver in the third person when talking to Rohen, when Rohen on his version was that driver.
Returning to Tambakakis’ evidence, he said that when he and Rohen got to the factory he gave Rohen the key to open the padlock, and he got into the driver’s seat. Sam — a friend of Edwards’ Tambakakis knew only as ‘Sam’ — was already inside the factory, so he opened the roller door. Tambakakis was ‘a little bit surprised’ to see Sam there, but he knew that Edwards would have been in contact and that Sam would have been there to help. After Tambakakis drove the van into the factory, Sam closed the roller door. Rohen then put the padlock into the back of the van. Shortly afterwards, Tambakakis saw that ‘Sam and Rohen were scanning the boxes in the van’. The scanner was not his, and he did not see Awad with one.
Tambakakis said that Sam then asked him and Rohen ‘to help move the boxes out of the van’. After a few minutes Sam opened one of the boxes. A little later, Tambakakis saw Sam walking towards the kitchenette with what looked like a ‘pack of paper that was wrapped in tape’. Sam then came out of the kitchenette ‘pretty frantic and freaked out’, and said, ‘It’s off, let’s get the fuck out of here’. Tambakakis then opened the roller door, ‘jumped into the van’ and they ‘got out of there pretty quick’. Rohen was in the back and ‘Sam jumped in the passenger seat’. They jumped out ‘probably 30 seconds or so’ after Tambakakis turned down Massey Avenue. Tambakakis then gave the following evidence:
What did you do then?---And then I kept driving it back to King Street and turned right into King Street.
And what happened then?---I had arranged for Danny [Awad] to wait there for me anyway so I turned the street and I saw him on the right hand side of the road and I drove past him and then pulled over and then he came up to the van and we then parked it and then we left.
Did Danny get in the van?--I don’t think so. I think he opened the door but I just drove forward a little bit and then we jumped out.
Where did you end up parking?---At 22 King Street.
What happened then?---Then I told Danny what was going on and we grabbed out whatever was in the van and then started walking back to his car.
We know from video that when he’s going back towards the Auto Barn he has his backpack on and you had no bag?---Yes, when he came up to the van I just pretty much threw the bag at him and said, ‘Grab this. Let’s get out of here’.
What happened then?---Then we walked back to the Autobarn car park and jumped in Danny’s BMW.
… Tell the jury how it came about that the scanner found its way into the BMW?---I took the scanner from the van to the BMW.
Who put the scanner in the van?---Rohen must have had the scanner in the van.
Do you know why you took the scanner and put it in the BMW?---I just grabbed it. I was pretty frantic so I just grabbed whatever was there and got out of the van.
I take it by the stage when you left the factory must have realised that there were listening bugs or tracking bugs in the shipment?---Yeah, and I was pretty panicked, freaked out by it.
Tambakakis’ evidence-in-chief concluded with him saying that Awad’s purpose in meeting him was ‘the steroid tablets’. He said he absolutely ‘would [not] have become involved in any of this’ if he had had ‘any idea that there may have been cocaine in this shipment’.
Apart from those aspects previously referred to, it is unnecessary to set out much of Tambakakis’ cross-examination by the prosecutor. The final passage is sufficient to provide its general theme:[6]
[6]Emphasis added.
[PROSECUTOR]: I put to you before, Mr Tambakakis, that you and Mr Awad were the only people at the warehouse on that night?---That’s not correct.
You knew about this shipment of printers well before he arrived?---That’s also incorrect.
You knew where it was going to go, that is, Overall Auto Care?---No, I didn’t. If I had known, why would I have gone there in a work truck and taken it back to my work?
By that stage, Mr Tambakakis, someone else using a false name had already collected the consignment and signed for it without apparent incident?---I didn’t have any understanding of that at the time at all.
I suggest you did?---I’m telling you that I didn’t.
You knew that someone would pose at Mark Hart making phone calls to DHL?---I wasn’t aware of any of that.
I suggest the information deriving from those phone calls was passed onto you?---That’s not correct. I wasn’t aware of any of that goings on prior to me getting to 26 Charles Street. I had no idea of any of that, those conversations.
You didn’t want to be yourself in possession of this consignment for the entire time?---Not the entire time. I picked it up in a work truck with my phone number printed across the back of the truck from - - -
And having taken it back to your yard you wanted to monitor law enforcement interest in it?---I was asked to, yes.
You also knew that someone would store the printers overnight on 9 May?---I was told that they would be picked up from the yard as soon as possible.
You knew there were others involved in this whole enterprise, didn’t you?---Yes, there were others involved.
You knew there were other vehicles in a position to monitor what was going on?---I wasn’t aware of any other vehicles.
A white BMW that we’ve heard about during this trial?---I had no contact with that white BMW or its driver.
So you had no idea before you saw the evidence of that vehicle’s behaviour?---I had no idea until I saw the evidence.
When you collected this consignment at Overall Auto Care you knew it wasn’t just printers, didn’t you?---I knew that I contained steroid tablets. I believed it contained steroid tablets because I was told it contained steroid tablets.
I suggest you knew it contained cocaine?---That’s incorrect. I believed it contained steroid tablets.
And at the time you first took delivery of it at Overall Auto Care you intended to possess that cocaine?---In my work truck I went to 26 Charles Street to pick up steroid tablets.
And that your plan was to watch and wait for a couple of days?---No, not at all.
Before you brought it to a warehouse that had been leased to you in a false name?---I didn’t know that there was cocaine secreted in those boxes until I was arrested by police and informed that cocaine had been previously in those printers.
I’m suggesting to you that you deliberately unloaded it there because it was a safer place and couldn’t be easily traced to you?---That’s not the case, no, sorry.
I also put to you that this was done as part of a plan you had with Danny Awad?---That’s also incorrect.
That you had discussed with him this plan before the consignment arrived?---We had discussed steroid tablets after the consignment arrived.
I suggest to you that your meeting with him on 8 May was about a shipment of cocaine, not a shipment of steroids?---That’s incorrect. It was about steroids and steroids alone.
And that his presence in Campbellfield on 9 May was not because you asked to meet him but you were aware that he was there and it was to do with this consignment which was in your yard at the time?---I didn’t see my phone and I missed meeting him on the 9th.
And on the 10th you’d agreed with him to pick you up and that you would both go to King Street together, get in the van, drive to the warehouse and unload and repack the cocaine?---We believed that it was steroids at that point.
And your plan was to sell it?---The steroids?
The cocaine?---We believed it was steroids.
Although parts of the cross-examination extracted above were directed to the proposition that Tambakakis and Awad acted pursuant to a ‘plan’, that suggestion must be viewed in the narrow light of how the prosecution put its case. The prosecution had not charged a conspiracy involving the two under s 11.5 of the Criminal Code (Cth). Moreover — and risking repetition — the prosecution deliberately eschewed reliance on principles of complicity or joint commission.
The judge’s directions about Tambakakis’ evidence and the exceptions to it
Both Tambakakis and Awad impugned the trial judge’s directions in his charge to the jury with respect to Tambakakis’ evidence. In particular, it was contended that the judge erred in directing the jury that they ‘should consider’ the observation that ‘a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence’.
In order to evaluate the criticisms levelled at the directions, it is necessary to set them out in context:[7]
[7]The impugned direction is emphasised.
Now, I have already pointed out to you that Mr Tambakakis gave evidence in the case and the accused of course is entitled to do so. Mr Tambakakis chose to give evidence in his own defence, he did not have to do that. An accused person has the right to remain silent in court, they are not a compellable witness, he cannot be compelled to give evidence. So, he chose to. In choosing to give evidence, Mr Tambakakis undertook to tell the truth, and he also submitted himself to cross-examination which is the way lawyers test a witness’ credibility and truthfulness, and he was cross-examined over an extensive period of time by [the prosecutor].
Now, there are two factors that are significant that you should have regard to when you are assessing Mr Tambakakis’ evidence. Firstly, in a criminal trial, there is nothing more than an innocent [person] can do than give evidence in his own defence and subject himself to cross-examination, and that is what occurred here. On the other hand, secondly, a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence. You should consider both of these observations when evaluating Mr Tambakakis’ evidence.
In the end, it is for you to determine whether or not you accept it and what weight you give to it. In making this determination, you should treat the accused’s evidence in exactly the same way as you would treat the evidence of any other witness. However, you must bear in mind, ladies and gentlemen, that an accused giving evidence in his own defence is probably under more stress than any other witness giving evidence in a trial. And if you were assessing Mr Tambakakis’ demeanour, which of course you would have been when he gave his evidence, have regard to that fact.
And he did say himself that he was under some pressure, and I think I might have said to him, you know, it is not for him to make speeches, and of course that is true. You did not need him to tell you that he would be under stress, of course an accused person giving evidence in a criminal trial, a complex criminal trial, would be under stress. So, have regard to that when you are considering his evidence in the case. It is also essential, and this is very important in this case, ladies and gentlemen, that it is for the prosecution to prove its case beyond reasonable doubt.
It is not for Mr Tambakakis to prove his innocence. Now, this has not changed simply because he has decided to give evidence. This means that you must not find him guilty if you reject his evidence, if you decide to reject his evidence. If you say to yourselves, ‘We do not believe a word of what he said’, you would simply put that to one side, or, ‘We do not believe Mr Tambakakis on important factual issues and therefore we are not prepared to act on his evidence’, all of it, simply because you think on particular topics you do not accept it and you think that his evidence is unreliable, or untruthful, one or the other, or both.
If you arrive at those conclusions, and I am not suggesting you should one way or the other, it is entirely a matter for you by reference to all of the evidence in the case, but if you do arrive at that conclusion, then you simply put his evidence to one side and you then consider whether or not the prosecution has proved its case beyond reasonable doubt against him. Now, as I say, it is essential that you understand that. It would be perfectly open to you to say, ‘Well, we don’t believe a word of what Mr Tambakakis has said, and his evidence is unreliable. But we’re not satisfied that the prosecution has proved its case beyond reasonable doubt’.
The burden of proof remains on the prosecution irrespective of what you make of Mr Tambakakis’ evidence. Of course, however, if you do accept Mr Tambakakis’ evidence, you do not have to be satisfied of its truth beyond reasonable doubt. If you are satisfied that the evidence of Mr Tambakakis, that is, his evidence as to what took place, is reasonably possible, then you would have a reasonable doubt as to his guilt and you would find him not guilty.
The challenged directions were given in the afternoon of 9 September 2019. At the end of that day — the judge’s charge had not been completed and was to resume the next day — counsel for Tambakakis raised with the judge the fact the directions were ‘prohibited’ by s 44J of the Jury Directions Act 2015 (‘JDA’). There was then the following exchange:[8]
[COUNSEL]: But it concerns me if it is an error, how Your Honour could correct it, without highlighting the issue.
HIS HONOUR: Well I’ll just simply tell them that those observations were — well I can correct it. I’m sure I can correct it. That the direction I gave them was straight out of the charge book.[[9]] Obviously, it’s been changed.
[COUNSEL]: Your Honour, honestly, I had no idea, but - - -
HIS HONOUR: Well it must have been.
[COUNSEL]: It must have been. I can only read from the section from the Act.
[8]Emphasis added to this and following passages.
[9]This appears to be a reference to the Victorian Criminal Charge Book, published by the Judicial College of Victoria. Unfortunately, the judge must have been referring to an outdated version of the ‘Charge Book’, since the relevant part — ‘4.1 – The Accused as a Witness’ — had last been updated almost two years previously, on 2 October 2017, and alerted the reader to the prohibition now contained in s 44J. See [56] below.
There was then further discussion, until counsel for Tambakakis returned to the subject:
[COUNSEL]: Your Honour, could I just finish? I really – if Your Honour has made an error, Your Honour’s made an error. It is my submission that if it is an error and Your Honour tries to correct it, it is only going to highlight the direction to a jury. So if there’s damage done, there’s damage done.
HIS HONOUR: So say nothing?
[COUNSEL]: So it’s better to say nothing.
HIS HONOUR: I’m not sure about that.
[COUNSEL]: Because - - -
HIS HONOUR: Well that’s what you would prefer?
[COUNSEL]: That’s what I would prefer. Well I’m only thinking about it now with, you know, sort of ten minutes notice.
HIS HONOUR: All right.
[COUNSEL]: But it concerns me.
HIS HONOUR: Yes of course.
[COUNSEL]: And I would like to form a considered view with my junior overnight.
HIS HONOUR: All right. As I say, I was reading from the charge book of – but I’ve – obviously the charge book must have been updated …
When asked for his submissions on the matter, the prosecutor said he agreed with counsel for Tambakakis that it would be ‘better’ if it was ‘simply left alone’.
Before the charge resumed the following day, 10 September 2019, junior counsel for Tambakakis told the judge that they ‘don’t want that issue revisited’, but asked the judge to give some further directions about Tambakakis’ evidence when dealing with the elements of the offence.
Section 44J(b) of the Jury Directions Act 2015 and the impugned direction
Awad’s conviction grounds 1 and 2, and Tambakakis’ conviction ground 3.1, are concerned with s 44J of the JDA, which contains a legislative prohibition against the impugned direction.
Sections 44H to 44K of the JDA are located in Division 9 of Part 4 — headed ‘Accused giving evidence, interest in outcome of trial’ — which was inserted into the Act by the Jury Directions and Other Acts Amendment Act 2017 (‘the amending Act’), with operation from 1 October 2017. Importantly, ss 44J and 44K are in the following terms:[10]
44J Prohibited directions in relation to evidence of an accused
The trial judge must not direct the jury about any of the following matters in relation to the evidence of an accused—
(a) whether the accused is under more stress than any other witness;
(b) that the accused gave evidence because—
(i) a guilty person who gives evidence will more likely be believed; or
(ii) an innocent person can do nothing more than give evidence.
[10]Notes omitted; emphasis added.
…
44K Abolition of common law rules
(1) Any rule of common law under which a trial judge is prohibited from directing the jury on the interest a witness or an accused may have in the outcome of a trial is abolished.
(2) Any rule of common law under which a trial judge is required or permitted to direct the jury about the matters referred to in section 44J in relation to the evidence of an accused is abolished.
…
By its terms, s 44J(b)(i) makes it clear that, in relation to evidence given by the accused, a trial judge must not direct the jury that the accused gave evidence because a guilty person who gives evidence will more likely be believed. And s 44K(2) emphasises that any rule of the common law that might have permitted such a direction is abolished.
The common law prior to the enactment of s 44J
In Brown,[11] a case of importing a commercial quantity of a border controlled drug, the trial judge had given directions mirroring the directions impugned in the present case. The directions were:[12]
Bear in mind that when assessing his evidence, that a guilty person might make a decision to try and tough out cross-examination in the hope that it would be more likely to be believed [if] he takes the risk of giving evidence [than] if he dodges cross-examination. On the other hand in a criminal trial, there is nothing more that an innocent person can do, other than give evidence and subject himself to cross-examination. And you should consider both of those comments when you evaluate his evidence. ...
[11]Brown v The Queen [2020] VSCA 20 (Whelan and Priest JJA).
[12]Ibid [41] (emphasis in original).
This Court observed that, at the time that they were given, directions of the kind impugned in this case were regarded as ‘orthodox’:[13]
Directions such as those in the emphasised portions of the charge extracted immediately above are now prohibited by s 44J(b) of the Jury Directions Act 2015.[14] The applicant’s trial was, however, conducted prior to the amendments to the Act effected by the Jury Directions and Other Acts Amendment Act 2017 (with operation from 1 October 2017) — which inserted ss 44H to 44K — and at a time when it was a ‘standard direction’ to tell a jury that ‘while an accused can do no more than get into the witness box and give evidence, it is always possible that a guilty person may decide to brazen it out in the witness box in the hope that he or she will be more likely to be believed by taking the risk of cross-examination than by dodging it’.[15]
At the time that they were given, the impugned directions were orthodox. That they were not seen to be prejudicial to the applicant may be gleaned from the fact that senior counsel took no exception and sought no redirection. …
[13]Ibid [42]–[43] (citations as in original).
[14][The text of s 44J was reproduced.]
[15]See R v Buckley (2004) 10 VR 215, 231 [56] (Nettle JA); R v Haggag (1998) 101 A Crim R 593, 598 (Callaway JA). See also Hargraves v The Queen (2011) 245 CLR 257, 277 [45]–[46].
The applicant in Brown sought special leave to the High Court from this Court’s decision, contending that the relevant direction — which Bell J observed in argument ‘was a bespoke direction given in Victoria and not in any other jurisdiction’ — was ‘deeply wrong in a readily demonstrable way’, and ‘deeply and fundamentally wrong and … indefensible’. Ultimately, special leave was refused.[16] Of course, that refusal of special leave creates no precedent and is binding on no one.[17] It certainly cannot be interpreted as a judicial endorsement by the High Court of the direction.
[16]Brown v The Queen [2021] HCATrans 29.
[17]North Ganalanja Aboriginal Corp v Queensland (1996) 185 CLR 595, 643. See also Sir Anthony Mason, The Use and Abuse of Precedent, (1988) 4 Aust Bar Review 93, 96–8.
That the challenged direction was regularly given in trials in this State is reflected in a number of decisions.
By way of example, Haggag[18] involved the unsuccessful attack on the trial judge’s apparent endorsement of the trial prosecutor’s submission to the jury that the accused’s evidence should be evaluated on the basis that he had the ‘motive of self-survival’. Callaway JA (with whom Phillips CJ and Kenny JA agreed) discussed Robinson,[19] Stafford[20] and Ramey[21]— which make it plain that it is a misdirection to instruct a jury to evaluate the accused’s evidence in light of his or her interest in the outcome of the trial — and referred to an article by Jeremy Gans discussing the relevant authorities,[22] and observed:[23]
It is unnecessary to decide whether the rationale of the prohibition against a direction, including a judicial invitation, to evaluate the evidence of an accused person in the light of his or her interest in the outcome of the trial is that it discriminates against the accused or that it undermines the presumption of innocence. They may be complementary rationales, each deriving from the unique position of the accused at a criminal trial. It is sufficient in the present case to concentrate on the presumption of innocence, to which express reference was made in the joint judgment in Robinson and which Mr Gans understands as the foundation of the rule. That is consistent with its formulation in both Stafford and Ramey and it is the way in which [the applicant’s counsel] argued the case.
Approaching the matter in that way, there is a distinction between two quite different suggestions that might be made to a jury. The first suggestion is that, if the accused is guilty, he or she has a motive to lie. That does not assume that the accused is guilty. It simply makes one of the points that is made in the conventional comment that, whilst there is really no more that an innocent person can do than give sworn evidence and submit to cross-examination, a guilty person may choose to brazen it out in the witness box. The second, quite different, suggestion is that the accused has a motive to lie in order to secure an acquittal. Compare M (1997) 99 A Crim R 464 at 480-482. That undermines the presumption of innocence, because it assumes that the accused person is guilty: apart from exceptional cases, if he or she is not guilty, there is no motive to lie. It also invites the jury to engage in circular reasoning: (a) assume sub silentio that the accused is guilty; (b) use that assumption to discount his or her evidence; and (c) having discounted that evidence, find that the accused is guilty.
[18]R v Haggag (1998) 101 A Crim R 593 (‘Haggag’).
[19]Robinson v The Queen [No 2] (1991) 180 CLR 531.
[20]Stafford v The Queen (1993) 67 ALJR 510.
[21]Ramey v The Queen (1994) 68 ALJR 917.
[22]Jeremy Gans, Directions on the Accused’s Interest in the Outcome of the Trial, (1997) 21 Crim LJ 273.
[23]Haggag, 598.
In Buckley,[24] Nettle JA observed that the ‘standard direction’ was
that while an accused can do no more than get into the witness box and give evidence, it is always possible that a guilty person may decide to brazen it out in the witness box in the hope that he or she will be more likely to be believed by taking the risk of cross-examination than by dodging it.
[24]R v Buckley (2004) 10 VR 215, 231 [56]. See also R v McMahon (2004) 8 VR 101, 114–7 [26]-[30] (Winneke P).
Quite apart from the authorities, however, it is the experience of the Court that, prior to the promulgation of s 44J(b) of the JDA, not every trial judge in this State gave the direction in issue,[25] since not every judge was satisfied that the direction was not offensive to principle. As is indicated above, it is not a direction that gained currency or approval in any jurisdiction outside Victoria.[26]
[25]See, eg, R v Phillips [1997] 1 VR 558, 560, a case where the trial judge declined to give the relevant direction.
[26]See also [66] below.
The reasons given for the enactment of s 44J
In the lead-up to the amending Act, the Department of Justice and Regulation (Criminal Law Review) produced a report — Jury Directions: A Jury-Centric Approach Part 2 (‘the Report’), the ‘purpose’ of which was described as follows:
This report is designed to guide the interpretation and application of the proposed Jury Directions and Other Acts Amendment Bill 2017 (if enacted) by providing detailed information on how the reforms were developed, and their intent. It is intended as both an explanation of the reasons for the reforms, which may assist in the interpretation of the provisions, and as an informational resource following the commencement of the Bill, which is designed to assist courts and practitioners to be ready for the changes when they commence.
The Report characterised the directions abolished by s 44J(b) of the JDA as ‘unhelpful’ and ‘problematic’, and asserted the following:
The direction on assessing evidence (i.e. a guilty person may tough out cross-examination, but there’s nothing more an innocent person may do) contains two competing propositions that arguably neutralise each other. The competing nature of the directions may confuse the jury and have the unintended consequence of focusing attention on the motivation of an accused to give particular evidence given their interest in the outcome of a trial. This direction appears to be unique to Victoria. For example, it does not appear in the model directions in Queensland, New South Wales, the United Kingdom or Canada.
Thereafter, in the Second Reading speech to the Jury Directions and Other Acts Amendment Bill 2017, the Attorney-General explained the reason for the insertion of these provisions:[27]
Directions on the accused giving evidence and interest in the outcome of the trial
The accused is not required to give evidence in a criminal trial. However, if an accused decides to give evidence, the common law may require the trial judge to give certain directions about that evidence that are confusing, unnecessary or inaccurate. These include a direction which provides that the jury should treat the accused’s evidence in the same way as other witnesses, but that the accused is probably under more stress than any other witness.
On a related issue, the common law prohibits trial judges from directing the jury that an interest in the outcome of the trial is a factor to consider when assessing witnesses, including the accused. The rationale is that such a direction would undermine the presumption of innocence, because the accused always has an interest in the outcome of the trial. The prosecution is also prohibited from raising this issue. However, uncertainty as to the scope of this prohibition has led to appeals and retrials, while juries do not receive assistance on how to assess interest in the outcome of the trial.
The bill will clarify what can and cannot be said about both the evidence of an accused and interest in the outcome of a trial. For example, trial judges and parties will be prohibited from suggesting that an accused’s evidence is less credible or requires more scrutiny than the evidence of other witnesses. However, consistent with other credibility directions in the Jury Directions Act, trial judges and the parties will continue to be able to comment on how a witness’s or accused’s particular interest in the outcome of the trial does or may affect their credibility. The bill will allow a trial judge to remind the jury that the accused is not required to give evidence and that the onus of proof has not changed because the accused gave evidence. The judge may also direct the jury to assess the evidence of the accused in the same way as any other witness. This will guide the jury on how to assess the accused’s evidence fairly. The bill will also prohibit trial judges from giving certain problematic common law directions.
[27]Parliamentary Debates (Hansard), Legislative Assembly, 22 February 2017, 297 (emphasis added).
It would appear from the Second Reading speech that the directions abolished by s 44J(b) were seen by the legislature to be ‘problematic’.
Awad’s grounds 1 and 2: Direction breaching prohibition in s 44J
In my opinion, a direction that ‘a guilty person might decide to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted if he takes the risk of giving evidence’ — to use the statutory language, ‘the accused gave evidence because … a guilty person who gives evidence will more likely be believed’ — is indeed ‘problematic’, and very seriously so.
I consider that a direction of the kind under consideration has the potential both to undermine the presumption of innocence and the onus of proof. It fallaciously presents the jury with two stark alternatives — either the accused person is ‘an innocent man’ who can do no more ‘than give evidence in his own defence and subject himself to cross-examination’, or he is ‘a guilty person’ who has decided ‘to tough out cross-examination in the hope or belief that he will be more likely to be believed and his defence accepted’.
In my view, it is offensive to principle to confront the jury with those two categorical and mutually exclusive possibilities; that is, either the accused is ‘innocent’, or he or she is ‘guilty’ and brazening it out in the witness box. So much is, however, the practical effect of the impugned direction. Quite plainly, when considering the evidence of an accused person the jury is not required to determine whether he or she is ‘innocent’. For a trial judge to offer an express or implied invitation to do so is fundamentally wrong. The issue for the jury must always be whether, based on all of the evidence — including the evidence of the accused — they have a reasonable doubt about his or her guilt. A direction of the kind under consideration deflects the jury from recognising and applying the requisite onus and standard of proof. The direction — whether regarded as direction of law or a comment on the facts — deflects the jury from recognising and applying the requisite onus and standard, and thereby from its fundamental task of deciding whether the prosecution has proved the guilt of the accused beyond reasonable doubt.[28]
[28]See Hargraves v The Queen (2011) 245 CLR 257, 277 [45] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).
Furthermore, by confronting the jury with two possibilities — and by necessary implication inviting the jury to choose one or the other — the impugned direction may operate as an invitation to disbelieve the accused. If the jury rejects the alternative that the accused is innocent, the jury will likely seize on the alternative: he or she is guilty and has cynically decided to tough it out in the hope that his or her bogus evidence will be believed. In effect, the direction strikes at the way in which an accused person’s evidence is to be assessed, almost to the point of being a warning.
Whichever way one looks at the criticised direction, however, it is plain that it has the potential to invert the onus of proof and to undermine the presumption of innocence. It is thus somewhat curious — given that it is so fundamentally wrong — that it survived judicial scrutiny in this State for so long, until consigned to the ash heap of history by s 44J(b) of the JDA. There is now an unequivocal legislative command that a trial judge ‘must not’ give it. If it were not considered to be a misdirection beforehand — in my opinion, it quite plainly was — there can be no doubt that it must be considered to be so in light of s 44J(b) of the JDA. The question which must now be determined is: has the judge’s unintentional flouting of the dictates of s 44J(b), by giving the abolished direction in relation to Tambakakis’ evidence, produced a substantial miscarriage of justice in Awad’s case?
Before turning to that question, I note that counsel for Awad submitted that the misdirection given by the trial judge meant that there had been a serious departure from the prescribed processes for the applicant’s trial, sufficient in itself to constitute a ‘substantial miscarriage of justice’, requiring, without more, the conviction of the applicant to be set aside.
I do not accept that submission.
The ‘proviso’ which is found in the common form criminal appeal statutes applicable in other Australian jurisdictions was — as a response to Weiss[29] — deliberately omitted from s 276(1) when the Criminal Procedure Act 2009 was enacted. Putting aside the situation where the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, ss 276(1)(b) and (c) direct the Court of Appeal to allow an appeal against conviction if the appellant satisfies the court that, ‘as the result of an error or an irregularity in, or in relation to, the trial’, or ‘for any other reason’, there has been ‘a substantial miscarriage of justice’.
[29]Weiss v The Queen (2005) 224 CLR 300 (‘Weiss’).
In Baini,[30] the High Court made it clear that there is no single universally applicable definition of a ‘substantial miscarriage of justice’, since the possible kinds of miscarriage of justice dealt with by s 276(1) are too numerous and too different to permit prescription of a singular test. The Court observed:[31]
No single universally applicable description can be given for what is a ‘substantial miscarriage of justice’ for the purposes of s 276(1)(b) and (c).[32] The possible kinds of miscarriage of justice with which s 276(1) deals are too numerous and too different to permit prescription of a singular test. The kinds of miscarriage include, but are not limited to, three kinds of case. First, there is the case to which s 276(1)(a) is directed: where the jury have arrived at a result that cannot be supported. Secondly, there is the case where there has been an error or an irregularity in, or in relation to, the trial and the Court of Appeal cannot be satisfied that the error or irregularity did not make a difference to the outcome of the trial. Thirdly, there is the case where there has been a serious departure from the prescribed processes for trial.[33] This is not an exhaustive list. Whether there has been a ‘substantial miscarriage of justice’ ultimately requires a judgment to be made.
[30]Baini v The Queen (2012) 246 CLR 469 (‘Baini’).
[31]Ibid 479 [26] (French CJ, Hayne, Crennan, Kiefel and Bell JJ) (citations as in original).
[32]Compare Weiss v The Queen (2005) 224 CLR 300 at 317 [44] in relation to the proviso to the common form criminal appeal provision.
[33]See, eg, AK v Western Australia (2008) 232 CLR 438 at 456 [55]-[56]; Handlen v The Queen (2011) 245 CLR 282.
As I have said, I consider that the direction impugned in this case deflected the jury from recognising and applying the requisite onus of proof (and, in Tambakakis’ case, undermined the presumption of innocence). Although the trial miscarried to that extent, however, in my view it cannot be concluded that ‘the proceedings before the primary court have so far miscarried as hardly to be a trial at all’, or that Awad was convicted ‘after a proceeding which is fundamentally flawed’, or that ‘an irregularity has occurred which is such a departure from the essential requirements of the law that it goes to the root of the proceedings’.[34]
[34]Wilde v The Queen (1988) 164 CLR 365, 372–373 (‘Wilde). See also Weiss, 317–318 [45]–[46] (Gleeson CJ, Gummow, Kirby, Hayne, Callinan and Heydon JJ); Wilde, 373 (Brennan, Dawson and Toohey JJ); Darkan v The Queen (2006) 227 CLR 373, 401–2 [94] (Gleeson CJ, Gummow, Heydon and Crennan JJ).
Some guidance may be derived from Glennon,[35] albeit that the High Court was there concerned with the application of the proviso. In that case, the jury were misdirected on the ‘applicants right to silence’. Mason CJ, Brennan and Toohey JJ held, however, that the misdirection was not ‘so fundamental’ that the trial was ‘hardly a trial at all’.[36] It was observed that where the misdirection is not fundamental, the appellate court must be satisfied that, in the absence of the misdirection, ‘the jury would inevitably have reached the same verdict’.[37] Although the misdirection impugned the applicant’s credibility, so that, in the circumstances of the case, the proviso could not be applied, the majority did not accept ‘the applicant's submissions that the proviso will never be applied where the misdirection goes to the accused’s credibility’.[38]
[35]Glennon v The Queen (1994) 179 CLR 1.
[36]Ibid 8.
[37]Ibid 13 (Deane and Gaudron JJ).
[38]Ibid 9–10 (Mason CJ, Brennan and Toohey JJ).
A conclusion that the judge’s misdirection did not amount to a serious departure from the prescribed processes of a trial does not, however, conclusively answer the question whether Awad suffered a substantial miscarriage of justice.
In theory, Tambakakis’ affirmed evidence could be used both for and against Awad. As I have indicated, however, the importance of Tambakakis’ evidence lay in the fact that it provided Awad with his essential ‘defence’. The prosecution case against Awad was founded on the postulation that he entered the van containing the consignment in King Street, Airport West. From that moment on, so the prosecution alleged, Awad possessed the consignment with Tambakakis, and remained in possession of it until he subsequently left the warehouse in the van. Self-evidently, given the manner in which the prosecution put its case, in order to convict Awad the jury would have to be satisfied beyond reasonable doubt that Tambakakis’ evidence was untrue. If the jury regarded Tambakakis’ evidence that Awad did not enter the van to be truthful and accurate; or if the jury considered that Tambakakis’ evidence could reasonably be truthful and accurate; or if the jury, based on Tambakakis’ evidence, entertained a reasonable doubt as to that matter, Awad was entitled to an acquittal.
The facts of the present case are unusual, in that the misdirection did not undermine the credibility of any evidence given by Awad himself, but of another witness in the trial (albeit a co-accused). Given, however, the importance of Tambakakis’ evidence to Awad’s defence — it had the potential to exculpate him completely — a misdirection that was apt unfairly to taint the jury’s consideration of that evidence cannot simply be ignored. Tambakakis’ evidence was part of the overall pool of evidence which the jury had to consider and evaluate in order to determine whether the prosecution had established Awad’s guilt beyond reasonable doubt.
I reject the submission of counsel leading for the respondent in this Court that the two ‘comments’[39] in the directions ‘balanced each other out and ultimately went nowhere’, in the same way that I would reject the suggestion that the ‘two competing propositions … arguably neutralise each other’.[40] In my view, the misdirection denied Awad the benefit of the jury’s proper consideration of the evidence which founded his essential ‘defence’.[41] In circumstances where the judge gave the jury a direction prohibited by statute, that prohibited direction having the potential to undermine the jury’s consideration and evaluation of crucial evidence, I am persuaded that there has been a substantial miscarriage of justice. I find myself unable to conclude that, absent the giving of the prohibited direction, Awad’s conviction was inevitable.[42]
[39]See the second paragraph from the judge’s charge at [50] above.
[40]See [66] above.
[41]See, eg, Baiada Poultry Pty Ltd v The Queen (2012) 246 CLR 92, 105 [31] (French CJ, Gummow, Hayne and Crennan JJ) (a case concerned with the operation of the proviso).
[42]Baini, 479 [26], 481 [31]–[32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
For these reasons, Awad’s grounds 1 and 2 must succeed.
It is convenient to consider ground 3 after dealing with Tambakakis’ case, since success on that ground would ordinarily result in Awad’s acquittal.
Tambakakis’ ground 3.1: Direction breaching prohibition in s 44J
Quite obviously, the direction given by the trial judge in breach of s 44J(b) of the JDA also had significant ramifications for Tambakakis’ case at trial.
Tambakakis maintained throughout his evidence that he thought he was dealing with steroids, not cocaine. If the jury had a reasonable doubt as to the issue, acquittal had to follow. For the reasons discussed above, the misdirection by the judge had the potential to taint the jury’s consideration and evaluation of his evidence, thereby undermining his defence. Not only did the misdirection deflect the jury from applying the requisite onus of proof, but it had the very real potential to undermine the presumption of innocence. In those circumstances, it is impossible to conclude that the delivery of the prohibited direction was not productive of a substantial miscarriage of justice.
For these reasons, Tambakakis’ ground 3.1 must be upheld.
Tambakakis’ grounds 2.1 and 3.3: Arguments concerning Rohen’s palm print
Tambakakis’ grounds 2.1 and 3.3 concern an argument put to the jury by counsel leading for the prosecution in his final address, which, so Tambakakis’ counsel contended in this Court, was not corrected by the judge, thereby occasioning a miscarriage of justice.
The evidence revealed that Rohen’s palm print was on one of the boxes in the consignment found by police in the Halsey Road warehouse at 10.55 pm on 10 May 2017.[43] That fact, Tambakakis’ counsel contended, was devastating to the prosecution case. Given its location, the print was strong evidence of Rohen having had to have touched that box after the wrapping was removed, which strongly supported the contention — and Tambakakis’ evidence — that Rohen was at the warehouse on 10 May 2017.
[43]See [30]–[33] above.
In his closing address, counsel for the prosecution invited the jury to infer that that print could have been placed on that box by Rohen unwrapping boxes at Randor Street on 9 May 2017, prior to putting them on the Budget truck.
Counsel for Tambakakis at trial, in his final address, argued that the prosecution case ‘from beginning to end’ had been that only Awad and Tambakakis had been at the warehouse. If Rohen was in the van with Tambakakis, that meant that his evidence must be true ‘and that spells the end of the case for the prosecution against him’.
In this Court, Tambakakis’ counsel submitted that it had not been part of the prosecution case that Rohen’s palm print could have been deposited at Randor Street. The defence, it was submitted, were never put on notice, and were denied the opportunity to deal with the prosecuting counsel’s speculation during the course of the evidence. Had the defence been put on notice, counsel could have pointed to the fact that the listening device in the consignment would have picked up the sound of unwrapping had any occurred at Randor Street on 9 May 2017.
It is noteworthy that, in the following passage of evidence, counsel for Kanati cross-examined the informant, Detective Senior Constable Melanie Castles-McKeown, on the topic of the consignment’s unwrapping at Randor Street:
So, can I suggest to you in relation to the size and shape of the boxes, originally they were packaged in three and two?---Yes.
And that wrapping was, as I understand it, some of the wider wrapping was taken off at Randor and then pulled off?---That’s my understanding. Yes.
Yes, but not all the wrapping was taken off there, the plastic we’re talking about?---I don’t believe so.
No, and was it a situation where the under wrapping that was still on, so there’s the big hard plastic wrapping which was over the entirety of the two bundles, if you like, of two and three?---Yeah.
Some of that’s taken off at Randor?---Yes.
And some more of it was found at my client’s parents’ house, where he lives with his mum and dad, in the bin behind the gates?---Yeah, so some of the wrappings, whether it came off at Randor or later, I don’t know. Some of the wrappings were discovered at that address.
Self-evidently, for Rohen to have left a palm print, he must have touched the relevant box after the wrapping was removed. There was no direct evidence of when that occurred. Rohen did, however, drive the Budget Rental van on 9 May 2017, and used the van to collect the consignment from Randor Street, Campbellfield, before transporting it to Kanati’s residence at Shaftsbury Street, Coburg, where it was unloaded.
Notably, Kanati’s fingerprints were also found on two unopened boxes in the consignment when it was located by police in the Halsey Road warehouse late in the evening of 10 May 2017.[44] It was both Kanati’s and the prosecution case, however, that Kanati at no point went to the warehouse. Accepting that to be so, the jury may well have reasoned that Kanati’s fingerprints must have been deposited on the boxes when unloading or loading the consignment at Shaftsbury Street. In my view, it was open to the jury to infer that Rohen’s palm print was deposited at the same time.
[44]See [31] above.
I consider that the argument advanced by counsel for the prosecution in the course of his final address as to when Rohen’s palm print may have been deposited on the box was one that was open on the evidence.
In my view, the competing contentions were properly laid out by the judge for the jury’s attention. So much is plain from the following passage of the charge:[45]
[45]Emphasis added.
In support of the evidence of Mr Tambakakis in relation to Mr Rohen being the driver of the vehicle, considerable significance or weight is placed on the Rohen palm print which was located on the outside of one of the printer boxes. It’s the prosecution case that Mr Rohen had two opportunities for that print to be deposited before the boxes left Mr Kanati’s house. That’s the prosecution case that that palm print of Mr Rohen’s got on the boxes before they left Mr Kanati’s house. Not in the warehouse. Those two opportunities relied upon by the prosecution are firstly, when the boxes were loaded into the van at Randor Street, that is, into the Budget van, you could infer from the evidence that you’ve heard that Mr Rohen was engaged in that. Because he rented the Budget truck for the obvious purpose of collecting the consignment. He met Mr Kanati and they unloaded them at Mr Kanati’s house. So there are two opportunities on the prosecution case for that palm print to find its way onto the outside of the boxes.
Firstly, as I’ve said, when they were unloaded or loaded into the Budget truck at Randor Street, it being Mr Rohen who did that on the prosecution case. And then when they were unloaded at Shaftsbury Street.
It’s the defence case that you could not safely infer that – put it another way, that it’s not a reasonable inference that that’s where the palm print on those two occasions, one or the other of them, is when the palm print was deposited on the outside of the boxes. What this involves is an examination, this issue, this factual issue – it involves an examination of when and to what extent at particular locations the boxes were unwrapped because it’s accepted that the palm print of Mr Rohen could not be deposited on the outside of one of those boxes whilst they’ve got plastic on them. So obviously for that to happen the boxes must have been unwrapped.
It’s the prosecution case that some unwrapping must have taken place at Randor Street. In answer to that the defence case is there’s no evidence of that. There’s no evidence of the location of any plastic at Randor Street and there’s no obvious on the listening device that’s in the boxes of unwrapping taking place at that time.
All right? So there’s that body of evidence relied upon by the … defence.
The defence also submit in support of that that when you look at the plastic in the rubbish bins at Mr Kanati’s house, it couldn’t have been all of the plastic. The boxes must have been unwrapped somewhere else because when you look at the content, how much plastic there is then it couldn’t be all the plastic. And so, therefore, you can’t exclude that the print was placed on the box at some other time.
And it’s the defence case, of course, that what happened was Mr Rohen’s palm print was deposited on the box in a warehouse when he was engaged in the unwrapping of the boxes. What you will need to do is also, therefore, consider the photos of the boxes in the warehouse. Some of them are unwrapped entirely. And some of them are partially unwrapped. There is some plastic there at the warehouse. So you need to examine the evidence that’s relevant to that issue. All right? But that’s an important piece of evidence relied upon in the case of Mr Awad to support [sic] Mr Tambakakis. That is, that Mr Rohen was the driver of the vehicle and he was the one that went to the warehouse, not Mr Awad. And that’s the significance of that fingerprint.
In light of the foregoing, grounds 2.1 and 3.3 cannot be upheld.
Tambakakis’ grounds 3.5 and 3.6: Consignment value and unbalanced direction
Senior counsel for Tambakakis orally argued grounds 3.5 and 3.6 together. Under cover of these grounds, counsel criticised the following part of the judge’s charge:[46]
[46]Emphasis added.
[T]he circumstantial evidence relied upon by the prosecution in the case of Mr Tambakakis is as follows.
Firstly, it’s the prosecution case that he collected the consignment shortly after it was delivered to Overall Auto Care. A couple of hours later.
Secondly, it’s the prosecution case that he arranged for it to be stored in Randor Street at The Block and, thereafter, took counter-surveillance activities in relation to it.
Thirdly, he met with Awad on 8 May 2017 to plan the collection of what was contained in the consignment.
Fourthly, he delivered himself the Kia van to Kanati’s premises and in doing so demonstrated that he knew the consignment was there at the house. Now whether you draw that inference or not, is a matter for you by reference to the circumstances and all the evidence. But that’s the way it’s put.
Fifthly, he made arrangements for Awad to pick him up after he dropped off the Kia at Kanati’s house.
Sixthly, that he, that is Mr Tambakakis, supplied scales, gloves and a scanner to be used in the unpacking of the border controlled substance, the cocaine.
Seventhly, he drove the Kia van to the warehouse.
Eight, he engaged in the unpacking of the boxes in the warehouse.
Nine, he fled following the discovery of the surveillance or listening device in the box that was unpacked.
Ten, the warehouse was rented by him in a false name.
Eleven, he was driving a vehicle with false plates on it to avoid police detection.
And finally, the value of the consignment was such that he must have known by reference to its value that it contained a border controlled drug, cocaine. It’s not put, as I’ve said, that he was reckless as to that fact. It’s knowledge in his case.
Now Mr Tambakakis gave evidence in this case and he stated that at all times until the package was opened in the warehouse by Sam, at all times, he believed that the consignment contained steroids and not – which is not, which are not, I should say, a border controlled drug.
Now, as I told you yesterday, Mr Tambakakis gave sworn evidence in his own defence. And there are four broad conclusions that you may reach about this evidence. And these are directions of law. If you think that his evidence is true, that is if you accept the truthfulness of Mr Tambakakis’ evidence then you would find him not guilty because you would accept that he did not know that the consignment contained a border controlled drug, namely cocaine.
If you’re not sure whether Mr Tambakakis’ evidence is true but you think it might be, then you’ll have a reasonable doubt about the prosecution’s case. And, again, you would find him not guilty.
Similarly, if you merely prefer the evidence of the prosecution witnesses to Mr Tambakakis’ evidence and his account, then you would also find him not guilty.
It’s not sufficient for you to merely find the prosecution case to be preferable to the defence case. In other words, it’s not a question for you of simply balancing one case against the other. As I said to you, at all times, you must – the prosecution, I should say, must establish Mr Tambakakis’ guilt beyond reasonable doubt.
So, therefore, if you conclude that the account that Mr Tambakakis has given, that is, that at all times he believed, up until the box was opened in the warehouse by Sam, he believed it contained steroids. If you believe that it’s reasonably possible that that’s what he believed, then you would find him not guilty of the charge. Because you would have a reasonable doubt that he knew it contained a border controlled drug. In this case, cocaine.
As I explained to yesterday, if you reject Mr Tambakakis’ evidence, simply put it to one side. If you’re not satisfied of its truthfulness and reliability, you put it to one side. Simply because you reached that conclusion it does not mean that you therefore find him guilty. You still have to examine the case relied upon by the prosecution and be satisfied of the issue, the element in his case beyond reasonable doubt before you could find him guilty.
So far as the value of the consignment was concerned, Detective Sergeant Keith Randall had given evidence that the wholesale value of the consignment of cocaine was between $3.920 and $5.376 million. He also gave evidence in cross-examination that the wholesale value of steroids of roughly the same amount would be $391,072 (at 2014 prices).
Tambakakis’ counsel submitted in this Court that there was no evidence that Tambakakis knew the value of the consignment. The jury ought to have been directed that there was no such evidence, as opposed to being invited to consider an impermissible line of reasoning. Moreover, the judge ought to have provided a more balanced direction in relation to whether the evidence established the element that was in dispute. Although the judge set out 12 propositions in support of the prosecution’s circumstantial case, the judge referred only briefly to Tambakakis’ evidence in support of the defence case, and did not refer to evidence that supported his account. A substantial miscarriage of justice resulted.
[101]Ibid 116–7 [28].
Winneke P said that taken as a whole, the jury were properly directed as to the manner in which they were to approach the evidence of the accused; and that they would, themselves, have been left in no doubt that they were to treat his evidence no differently than the evidence of other witnesses in the trial.[102] He rejected the submission that the effect of the directions was to invite the jury to treat the applicant as a ‘suspect witness’, or that the presumption of innocence was undermined.
[102]Ibid 117 [29].
In R v Buckley,[103] the trial judge in his charge to the jury referred to the fact that the accused had given evidence and to a comment by the accused’s counsel as to what to make of that fact, and continued that counsel for the accused had:
anticipated the comments that judges invariably make. What more can an innocent man do than get into the witness-box and pledge his oath to his account? On the other hand, there is an argument [to the effect that], well, you might as well get in there and brazen it out; you would be expected to give evidence and give an account about it. Those things sort of balance themselves out.[104]
[103](2004) 10 VR 215; [2004] VSCA 185 (Winneke P, Charles and Nettle JJA).
[104]Ibid 231 [54] (Nettle JA).
Nettle JA rejected a challenge to this aspect of the charge on the basis that:
Read in context, the words used are just another and in my view just as acceptable way of expressing the standard direction: that while an accused can do no more than get into the witness box and give evidence, it is always possible that a guilty person may decide to brazen it out in the witness box in the hope that he or she will be more likely to be believed by taking the risk of cross examination than by dodging it.[105]
[105]Ibid 231 [56].
In Brown v The Queen,[106] two judges of this Court observed that a direction of the kind in issue was, at the time, orthodox and rejected a ground that the giving of the direction (to which no objection had been made) resulted in a substantial miscarriage of justice.
[106][2020] VSCA 20 (Whelan and Priest JJA).
The conclusions reached in those cases as to the practical effect of the impugned direction given in this case accord with our conclusion in relation to the evidence of Tambakakis. For the reasons already given, in the context of the charge as a whole, the jury were not distracted from their task. The content of the direction was not such as to give rise to a miscarriage of justice.
It follows that, subject only to the question whether there was a fundamental departure from the process required for a fair trial, the contravention of s 44J(b) did not result in a substantial miscarriage of justice in the trial of Tambakakis.
That leaves for consideration the argument that the breach of s 44J of the JDA resulted in a substantial miscarriage of justice because it constituted a fundamental departure from the processes of a criminal trial, or went to the ‘root’ of the trial.
The fact that the legislature has prohibited a judge giving a direction in the form given in this case cannot be ignored. However, the breach did not involve a failure to instruct the jury on the burden and onus of proof and did not infect the jury’s assessment of the credibility of Tambakakis. Further, given that the purposes of the JDA are to reduce the complexity of jury trials and to simplify and clarify the issues that juries must decide, it cannot be concluded that every provision of the JDA reflects an essential requirement of a fair process that goes to the ‘root’ of the trial.[107]
[107]See Wilde v The Queen (1988) 164 CLR 365, 372–3; [1988] HCA 6 (Brennan, Dawson and Toohey JJ).
For example, in this case, the judge directed the jury, in considering the evidence of Tambakakis, to bear in mind that an accused person is ‘probably under more stress than any other witness giving evidence in a trial.’ That direction was in contravention of s 44J(a) of the JDA. Understandably, no complaint is made by Tambakakis about this direction. It could not have worked to his disadvantage, particularly where in the course of his evidence he had on a couple of occasions told the jury that he was under stress and that giving evidence was very difficult for him.
Unlike other provisions, for example s 44H of the JDA, the prohibition is imposed on the trial judge and not on the parties. It must follow that it would not be a contravention of the JDA for the defence or the prosecution to address the jury on these matters. As the note makes clear, where that occurs, the judge may refer to this issue in the context of describing how the parties put their cases.
On that basis, the text of s 44J of the JDA allows for a party to address on one or more of the three matters covered by s 44J, presumably on the basis that it might legitimately have some forensic value to that party. Relatedly, it may be inferred that the introduction of one or more of the matters at the hands of a party would not poison the trial process. Of course that does not mean that there is no difference between one of the parties raising a matter in support of its case and the judge giving a direction. Plainly the two are very different. However, the ability of the parties to employ either of the rhetorical statements in s 44J(b) confirms that they are not inherently poisonous to the trial process.
With respect, we share the view taken by Priest JA that the contravention of s 44J did not amount to a serious departure from the prescribed processes of trial.
It follows that conviction ground 3.1 sought to be advanced by Tambakakis must fail, although leave should be granted in respect of it.
Subject to one qualification, that disposes of Tambakakis’ conviction appeal. The qualification concerns ground 3.5, as to which we reach the same result as Priest JA but for slightly different reasons. By this ground Tambakakis sought to take issue with the judge’s direction that it was part of the prosecution’s case that ‘the value of the consignment was such that he must have known by reference to its value that it contained a border controlled drug, cocaine’.
Priest JA considers that this direction was logically flawed because, for Tambakakis to have known the value of the drug, he had to first know that it was cocaine. We agree that, if the jury thought this was the prosecution case, they would readily have put the argument to one side because there was no evidence that Tambakakis knew the actual value of the drugs. However, Tambakakis gave evidence that he had been told that the drugs were worth a ‘stack’ and should not be left unattended in the open. In our view, the jury would have considered that the judge was referring to this evidence in his summary of the prosecution case. It was open to them to take this into account as part of the circumstantial case upon which the prosecution relied in order to infer that Tambakakis knew that the drugs were cocaine, rather than steroids.
We would therefore dismiss Tambakakis’ conviction appeal.
The position of Awad in relation to the s 44J argument is different in an important respect but the outcome is the same. Given the way the prosecution put its case, there can be no doubt that the evidence of Tambakakis was very important to Awad’s defence. However, in assessing Tambakakis’ evidence that Awad did not get in the van, for the purposes of Awad’s trial, the presumption of innocence that Tambakakis enjoyed in his own trial was not relevant. More fundamentally, however, for the reasons already given we are not persuaded that the impugned direction undercut the evidence of Tambakakis or invited the jury to disbelieve him.
It follows that the contravention of s 44J(b) in relation to Tambakakis did not result in a substantial miscarriage of justice in the trial of Awad.
Application for leave to appeal against sentence
We turn then to the applications for leave to appeal against sentence. The circumstances of the offending have already been described and it is not necessary to repeat those matters. The applicants were each sentenced to a term of imprisonment of 15 years with a non-parole period of 10 years.
The reasons for sentence
After setting out a description of the offending, the judge said that it was not possible to identify with absolute precision the role that each of the applicants played in the criminal organisation engaged in the offending. He continued:
However, it is clear that this was a well-resourced, planned and carefully executed crime. You were both engaged shortly after the consignment arrived from Mexico and you both took active counter-surveillance steps over a period of two days prior to deciding to take possession of the consignment for the purpose of unloading the cocaine. The consignment was moved to various locations with the knowledge of each of you for the purpose of detecting whether it was under surveillance by authorities.
I am satisfied on the evidence led at the trial that while you played different roles in the offence, you both played a coordinating and important role in it. You must have been in communication and you supported one another in your respective roles in the offending. You have known one another for in excess of 10 years and have a common circle of friends. There would have been a high degree of trust between you such that you would engage in this extremely serious offending together.
Whilst it is not possible to conclude that either of you were principals in the criminal organisation involved I am satisfied to the criminal standard that you both occupied senior roles. Plainly, you were also both motivated to offend by the enormous profits to be made and there is no proper basis for me to distinguish between either of you in that regard.[108]
[108]Reasons [13]–[15].
The judge did not accept that either of the applicants became involved ‘at the last minute’ and reiterated that their activities had been planned, co-ordinated and carefully carried out. The judge concluded that the applicants were ‘senior members of a criminal organisation engaged in a crime of the utmost seriousness for profit.’ He described the moral culpability of each applicant as high and observed that there was little to distinguish between them in terms of roles or moral culpability.
Addressing each applicant’s individual circumstances, the judge noted that Tambakakis was 35 years of age at the time of sentence, and was not a first time offender, but that his criminal history had no significance for sentencing purposes. He referred to what he said was an impressive body of character references and noted that Tambakakis had an established work history. He noted a medical condition that would cause continuing hardship but said that Tambakakis would be able to access medical support and medication for this in prison.
Awad was 41 years of age at the time of sentence and was also not a first time offender, but again the judge noted that his relatively minor convictions in 2009 had no significance for sentencing purposes. He had a stable childhood and is married with two young children. The judge found Awad to be an intelligent man with an established work history and referred to what he again described as an impressive body of character evidence. He said that Awad had made a considered decision to commit a crime of the utmost seriousness for profit, took a calculated risk, and that his prospects for rehabilitation must be approached with caution.[109] He noted that there was no evidence of remorse and that Awad had sought to minimise his role in the offending in relation to his co-accused.
[109]Reasons [39].
In the result, the judge said that he could not distinguish between the applicants based on their roles and respective culpability, and that the differences that existed in individual background and circumstances did not warrant a different sentence being imposed.
Tambakakis’ submissions
Tambakakis seeks leave to appeal his sentence on a single proposed ground that seeks to overturn findings made by the judge as to the role played by him in the offending.[110] He contends that it was not open to the judge to find that he and Awad:
[110]A proposed ground of manifest excess was abandoned at the hearing.
(a) occupied ‘senior roles’ in the organisation that imported the cocaine;
(b) were ‘senior members’ of that organisation;
(c) intended ‘to be involved in the commercial movement of the cocaine’; or
(d) did not become involved in the offending at the last minute.
Tambakakis submits that there was no evidence linking him to the importation of the cocaine before 8 May 2017. Specifically, there was no evidence linking him, or Awad, to the enquires with DHL Express about the arrival of the consignment or the payment of import duties. The applicant submits the fact that he drove a truck registered to his business and emblazoned with his business name and took the consignment to a property used by him was inconsistent with the judge’s view that the offending was well-resourced, planned and carefully executed.
He submits that the judge’s finding that neither Tambakakis nor Awad became involved ‘at the last minute’ is irreconcilable with another finding that both were ‘engaged shortly after the consignment arrived from Mexico’. Tambakakis referred to evidence of Detective Sergeant Randall that ‘heads of syndicates’ normally attempt to distance themselves from the drugs whereas Tambakakis had collected the consignment, and used his own truck to do so. There was no evidence that he had given instructions or directions that might point to a position of authority and there was no explanation for the judge’s conclusion that the two applicants were senior members who played senior roles in the activity.
Awad’s submissions
Awad seeks an extension of time in which to appeal his sentence. The extension is not opposed and it should be given. He also seeks to propound a single ground, namely, that the judge erred in failing to pass a sentence upon him that was less than that imposed upon Tambakakis, having regard to the different roles performed by each in attempting to possess the border controlled drug.
Awad submits that any assessment as to the respective roles in the offending must focus on the steps each offender took in the commission of the offence. He notes that the prosecution eschewed any reliance on complicity or joint commission of the offence.
In his written case in support of the ground, Awad identifies four ‘material and objective differences’ between the offenders’ offending. They are:
(a) Tambakakis admitted in his evidence that he was in contact with those responsible for the importation whereas there was no evidence Awad was connected to those responsible;
(b) Awad was only in possession of the substance from the time he entered the van whereas Tambakakis had been in possession from 8 May 2017;
(c) Awad did not facilitate the movement of the consignment before entering the van at King Street. Tambakakis moved the consignment to his yard on 8 May 2017. He arranged for access to his storage yard on 9 May 2017. He delivered the van to Kanati to facilitate the movement of the consignment to King Street. Even when the consignment was not in the exclusive possession of Tambakakis he was critical to the movements of it.
(d) Awad did not maintain any supervision over the consignment until he took possession in King Street.
Analysis and conclusions
Both applications for leave to appeal against sentence touch upon the significance of the role or position of an offender in offences of this kind. Tambakakis submits that the judge overstated the roles of both him and Awad and Awad submits that the judge erred in his assessment of the relativities between the applicants.
In relation to offending of this kind, it has been held that the role or relative position of an offender may be relevant to an assessment of the gravity of the offending and the culpability of the offender.[111] It may assist in an assessment of the relative positon of offenders where more than one person is guilty of the offence. It is not essential for a judge to know where, in an overall hierarchy, an offender sits. There is no reason to think that large scale drug offences are undertaken by organisations that are structured by rank or roles distributed according to some formal job description. Moreover, a judge is only able to sentence on the basis of the facts known to the court, and a full picture of the relative roles and responsibilities for the offending is unlikely to be known with any precision.[112]
[111]R v Olbrich (1999) 199 CLR 270; [1999] HCA 54 (Gleeson CJ, Gaudron, Kirby, Hayne and Callinan JJ)(‘Olbrich’).
[112]Crimes Act 1914 (Cth) s 16A(2)(a); Olbrich (1999) 199 CLR 270, 278 [17]; [1999] HCA 54 (Gleeson CJ, Gaudron, Hayne and Callinan JJ).
The first point of significance is that the applicants were convicted of attempted possession of a border controlled substance. They were not charged with, and not to be punished for, the importation of the cocaine.[113]
[113]Olbrich (1999) 199 CLR 270, 279 [18]; [1999] HCA 54; R v De Simoni (1981) 147 CLR 383; [1981] HCA 31 (Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ).
Second, it is plain that Tambakakis took possession of the substance a very short time after it was imported. The printers containing the substance were delivered directly to the Auto Care premises and collected by Tambakakis a short time later. He retained possession up until the time they departed from the warehouse having discovered a covert device.
Third, although on the prosecution case Awad did not come into possession until he got into the van in King Street, he must have believed that the van contained cocaine, and he had with him equipment to package the cocaine. That is to say, his knowledge or belief that cocaine was in the van preceded him physically taking possession. It was well open to conclude, to the criminal standard, that he knew of the consignment before 10 May 2017. The judge found in his reasons for sentence that Awad was monitoring the activity undertaken by Tambakakis on 8 May.[114] On 9 May 2017, Awad was seen with the driver of the white BMW and in the vicinity of Randor Street.
[114]Reasons [7].
On 10 May 2017, both Awad and Tambakakis entered the van carrying with them digital scales, a vacuum sealer and plastic bags. The judge found that both intended to be involved in the commercial movement of the cocaine. Given that both men went to the warehouse with the repackaging equipment, the fact that the boxes were opened, and given the quantity of drugs involved, the finding that the two men would be involved in the further movement of the drugs was well founded and plainly open to be made.
Fourth, the quantity of drugs, and the form in which they were concealed when they were taken into the possession of Tambakakis and a relatively short time later into the joint possession of both applicants, pointed to a large scale and sophisticated operation.
Having regard to these matters it was open to the judge to conclude that neither of the applicants were mere conduits or had only a transitory connection with the contraband. Taken as a whole, the judge was entitled to regard both of the applicants as playing a key role in the possession of a large quantity of cocaine as it entered the Australian illicit market and for the purpose of it being moved on. It was well open to the judge to find that the role played by each applicant involved foresight and planning and was motivated by the promise of substantial gain. As the judge acknowledged, it was not possible to identify with absolute precision the role played by each of the applicants, however, the steps taken by each displayed an executive function that was beyond being merely a functionary.
Although it was apparent to the judge that each of the two applicants had played different roles, it was open to the judge to regard them as on par with each other. That did not require any precise degree of equivalence. It was an evaluative judgment used to assess the relative criminality involved. The degree of culpability that each had for the offending was not to be reduced to a mere comparison of the period of time in which each was in possession of the drugs.
Once these matters are brought into focus, it becomes plain that neither of the applicants can succeed in their respective applications. There was no error in the judge’s assessment that, in terms of culpability, the two applicants should be treated in the same way. That disposes of Awad’s contention. Further, the judge did not overstate the role played by each or the gravity of the offending. For that reason, Tambakakis’ ground also fails.
Each application for leave to appeal against sentence should be refused.
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