Cant v The Queen

[2003] NTCCA 5

Cant v The Queen [2003] NTCCA 5

PARTIES:CRAIG CANT

v

THE QUEEN

TITLE OF COURT:  COURT OF CRIMINAL APPEAL OF THE NORTHERN TERRITORY

JURISDICTION:  APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

FILE NO:CA 25 of 2001 (9900592)

DELIVERED:  22 July 2003

HEARING DATES:  20, 21 and 22 May 2003

JUDGMENT OF:  ANGEL, MILDREN & RILEY JJ

REPRESENTATION:

Counsel:

Appellant:P. Boulten

Respondent:  G.J. Bellew with M. Hassall

Solicitors:

Appellant:Dalrymple & Associates

Respondent:  Commonwealth Director of Public Prosecutions

Judgment category classification:    B

Judgment ID Number:  ril0317

Number of pages:  34

ril0317

IN THE COURT OF CRIMINAL APPEAL
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Cant v The Queen [2003] NTCCA 5
No CA 25 of 2001(9900592)

BETWEEN:

CRAIG CANT

Appellant

AND:

THE QUEEN

Respondent

CORAM:    ANGEL, MILDREN & RILEY JJ

REASONS FOR JUDGMENT

(Delivered 22 July 2003)

THE COURT:

History

1. On 9 November 2001, after a lengthy trial before a judge and jury, the appellant was convicted of one count of having been knowingly concerned in the importation of not less than a commercial quantity of MDMA (ecstasy) contrary to s 233B(1)(d) of the Customs Act.  The appellant was sentenced on 23 November 2001.  At that time he was already serving a sentence of 12 years and 6 months imprisonment in relation to a conviction of having been knowingly concerned in the importation of a commercial quantity of cannabis resin.  The learned trial judge determined the appropriate sentence for the MDMA offence as being imprisonment for a period of 14 years and 8 months and she ordered that 5 years and 8 months of that sentence be served concurrently with the earlier sentence.  The combined effect of the two sentences was that the appellant was required to serve 21 years and 6 months imprisonment and a new non–parole period of 13 years imprisonment was set.

2. The appellant wishes to appeal against both conviction and sentence.  In relation to some grounds he seeks leave to appeal and in relation to others no leave is required.

3. The Crown case was that a large quantity of MDMA tablets was imported into Australia from Indonesia in two steel cylinders described as “spare parts for an oil rig”.  The cylinders arrived at Darwin airport on a Garuda Airlines flight on 12 December 1998.  The package was addressed to Richard Silk at Falcon Engineering.  The cylinders were initially placed in a bond store but were eventually delivered to Mr Silk at Falcon Engineering on 29 December 1998 from where they were transported to the home of the appellant at 21 Cocos Grove, Palmerston.

4. It was the Crown case that the tablets were removed from the cylinders by the appellant and repacked.  Some were then transported by air to Sydney and Melbourne in the care of Peter Godbier acting on behalf of the appellant.  When Mr Godbier completed that journey and had returned to Darwin he was then asked to drive to Perth with a further quantity of tablets.  On 6 January 1999 Mr Godbier, who was accompanied by his teenage son Ben, was intercepted at Halls Creek in Western Australia in the course of the journey to Perth.  The scheme then unravelled.

5. The case against the appellant included a substantial body of circumstantial evidence together with the direct evidence of various people involved in one way or another in the enterprise.  The major witnesses for the Crown included Mr Godbier, his son Ben and Mr Richard Silk.  The appellant gave evidence in which he said each of those witnesses was untruthful.

6. Mr Godbier gave evidence that he came to Darwin from Sydney on 18 November 1998.  At that time he had recently separated from his de facto wife.  His airline ticket was paid for by the appellant and he lived with the appellant in his home at 21 Cocos Grove.  When he arrived at the airport he was met by two men, one of whom was later identified as Nick Karagiannis.  He said that about two weeks after his arrival the appellant told him of a plan to import “little fellas” or “ecstasy” in “a pretty ingenious container situation where they couldn’t be detected.”  He was told that an Asian man named “Bond” or “Bon” was organizing the importation.  Mr Godbier said he was present at meetings between the appellant and Bond relating to the importation.  Those meetings were held in and around the Bigfoot Restaurant in Darwin.

7. Mr Godbier became aware that the shipment arrived “early in December”.  It was intended that he would be involved in transporting the drugs to Sydney.

8. There was documentary evidence to show that Bond departed Australia on 25 November 1998 to fly to Kupang in Indonesia and that he returned on 3 December 1998.  His address was given as the street address of the Bigfoot Restaurant.  Hospital records showed he was admitted to Royal Darwin Hospital on 4 December 1998.  The appellant did not dispute that he knew Bond and that he visited him at the restaurant and in hospital with Mr Godbier on 4 December 1998.

9. The cylinders received into the bond store on 12 December 1998 were not immediately released.  Alan Walsh of the Customs Service had some concerns and, on 21 December 1998, requested the addressee, Mr Richard Silk, to provide further information.  Mr Silk said that the cylinders were “hydraulic presses” and undertook to obtain further information.  In his evidence Mr Silk told the jury that he passed this request for information on to the appellant and later received a diagram, together with a payment of $700, from a man named Greg.  It is said that this was Mr Godbier.  Mr Godbier said that he had been present when the diagram was given to the appellant by Bond “to show Customs”.  It was a fax from overseas and, on the advice of Bond, the top was cut off to remove identification marks.  The diagram was then photocopied and Godbier said he gave it to Silk as instructed by the appellant.  Customs was satisfied by the diagram and released the cylinder for delivery to Mr Silk at Falcon Engineering.  Police later found the original diagram in the appellant’s motor vehicle amongst some of his papers.

10. When the cylinders were delivered to Falcon Engineering on 29 December 1998 Mr Silk telephoned the appellant.  The appellant told him to remove the top of each cylinder.  Later that night Silk says he and the appellant drove to Falcon Engineering and he saw the appellant unscrew the top of one of the cylinders.  Silk looked inside and saw some silver foil about 5 inches from the top.  They loaded the cylinders into the boot of the appellant’s car and the appellant then drove Silk home.

11. According to the evidence of Mr Godbier, he saw the appellant later that same night and was shown the cylinders in the boot of the car.  Godbier declined to assist in moving the cylinders and the appellant and his de facto wife, Vicki Taylor, did this.  Mr Godbier said he was later overcome by curiosity and entered the appellant’s bedroom.  There he saw the cylinders.  The appellant demonstrated to him how the lids screwed off and Mr Godbier looked inside.  He saw a piece of foil in a doughnut shape and, beneath that, packets of tablets.  He left the room and returned about an hour later when he observed packets of tablets stacked on top of a dresser and the cylinders at the foot of the bed.  The appellant told Godbier that there were between 110,000 and 120,000 tablets with 1000 tablets in each packet.  During the course of the evening the appellant asked Mr Godbier to fly to Sydney with the tablets and he agreed to do so.

12. The following morning the appellant gave him a black suitcase which had already been packed.  It contained two Tupperware containers in which the appellant told Mr Godbier there were 40,000 tablets for “Eddie” in Sydney and 12,000 to 16,000 tablets for delivery to Melbourne.  Mr Godbier flew to Sydney and, after some delay, met with Eddie.  He was given $2000 in cash as payment for delivering the tablets.  Eddie took some of the tablets from the package destined for delivery to Melbourne because, as he said, they “hadn’t paid their bill last time”.  Mr Godbier then flew to Melbourne where he was met by a man named Nick (subsequently identified as Nick Karagiannis).  The tablets were delivered to Nick and Mr Godbier was paid an additional $2000 for delivering the tablets.

13. Upon his return to Darwin Mr Godbier was joined by his teenage son, Ben.  They stayed together at the home of the appellant.  It was intended that they would travel to Perth so that Ben could live with his grandparents.  The appellant asked if Mr Godbier would deliver some tablets to Perth and he agreed.  According to Mr Godbier there was still a substantial number of tablets in the appellant’s bedroom.  Mr Godbier initially intended to hire a car for the journey.  However he purchased a secondhand BMW partly financed with money that the appellant provided for being a courier.  There is independent evidence of the appellant being present with Mr Godbier and his son at the relevant car yard.

14. The appellant provided Mr Godbier with a package wrapped in bubble-wrap which contained the tablets.  Mr Godbier had to rewrap the package in order for it to fit into a suitable location within the vehicle.  The appellant separately provided Mr Godbier with a small amount of ecstasy dust which Mr Godbier stored in a dental floss container.  When Mr Godbier and his son were stopped in Western Australia on 6 January 1999, the repackaged tablets and the ecstasy dust were found.  Initially Mr Godbier denied knowledge of the package, but when he was shown parts of an interview police had conducted with his son, he made admissions.  He did not name the appellant at that time.

15. The package located by police turned out to contain 12 plastic clipseal bags, each of which was inside another plastic sandwich bag.  Each of the bags contained around 1000 tablets with the total number of tablets being 12,034.

16. In his interview with police Ben Godbier had said that the appellant “had something to do with the package of ecstasy” and that the appellant had been present when the package was placed in the car. Later, when he was questioned by Northern Territory police at the Casuarina prison in Western Australia, Mr Peter Godbier gave a full and detailed account of events including the involvement of the appellant.

17. On the basis of the information provided by Mr Godbier to police in Halls Creek, police in Darwin executed a search warrant on the premises of the appellant on 6 January 1999.  In the course of the search police located 3 mobile telephones, the 2 metal cylinders, a copy of the diagram of the cylinders and various other items that were said to link him to the offence.  A warrant was also executed at Falcon Engineering and various items recovered.

18. Forensic testing of the cylinders revealed powder in both cylinders and under the caps of both cylinders.  That powder contained MDMA.  Vacuumings taken from the appellant’s bedroom also revealed the presence of MDMA.

19. On 26 February 1999 Mr Godbier was sentenced in the West Australian Supreme Court to imprisonment for a period of 4 years with a non-parole period of 2 years.  His sentence was subject to a 50% discount for co-operation in relation to giving evidence against the appellant.  Mr Richard Silk initially underwent committal proceedings as a co-accused with the appellant and was committed to stand trial in April 1999.  On 24 October 2000 Mr Silk provided a statement to authorities and the Director of Public Prosecutions entered a nolle prosequi in relation to the charge which had previously been laid against him.  He was provided with an undertaking that nothing which he said in evidence against the appellant would be used against him.

    Jury Investigation

1. Before the argument in relation to the applications for leave and the appeal commenced, a preliminary matter had to be resolved.  By summons dated 13 May 2003 the appellant sought an order that this Court investigate whether there were reasonable grounds to suspect that the members of the jury in the appellant’s trial failed to discharge their task impartially.

1. The basis of the application is to be found in an affidavit sworn by Hercules Demourtzidis.  The name of Mr Demourtzidis had been mentioned in the course of the trial as being an associate of the appellant and it was the Crown case that Mr Demourtzidis was criminally complicit with the appellant in the offending.  He has not been charged.  He swore in his affidavit that he had a discussion with a person we identify as W and who, in the course of the discussion, informed Mr Demourtzidis that he had been a juror in the Cant trial.  W said that the name of Mr Demourtzidis had “come up a few times”.  In his affidavit Mr Demourtzidis went on to say that he asked W whether “he thought it was a fair trial” and then swore as follows:

   “11.  To the best of my memory W said that one of the people on the jury said that, during its deliberations, the jury was told about the appellant’s prior convictions.  12.  He said that this made a big difference on the other jurors and he said that they concluded that the Appellant should not be believed because of his prior convictions.”

2. In an earlier version of the same affidavit Mr Demourtzidis referred to that conversation but made no reference to the information making “a big difference” to anyone.  The information provided is difficult to follow.  It is not suggested that the juror W was told about the prior convictions.  Rather it is asserted that “one of the people on the jury” said, presumably to W, that the jury was told about the convictions.  W is not said to have himself made any observations as to the impact of this information upon them or even that he had heard the information during deliberations.  W recounted to Mr Demourtzidis what someone else had told him.

3. The trial of the appellant was completed in 2001, the jury was discharged on 9 November 2001 and the appellant was sentenced on 23 November 2001.  The conversation to which Mr Demourtzidis referred is said to have occurred in late October 2002 and was made the subject of the affidavit upon which the appellant relied on 12 May 2003.

4. Mr Demourtzidis swore that he did not “prompt” statements about jury deliberations from W. How that fits with his questioning of W as to whether it was a fair trial is unclear. The manner in which the matters addressed in the affidavit of Mr Demourtzidis were revealed was such that various persons, including Mr Demourtzidis, may have committed offences against s 49A and s 49B of the Juries Act (NT). We say no more on that issue.

5. At the hearing of the appeal there was much debate as to whether or not the court had jurisdiction to make the order sought by the appellant. It was submitted on behalf of the appellant that the provisions of s 49A and s 49B of the Juries Act permitted such an inquiry.

6. The respondent submitted that the effect of those sections was not to remove the fundamental proposition that exists at common law that what passes in the jury room during the course of a jury’s deliberations should be regarded as private and confidential.  It was submitted that the court should not receive evidence after verdict or inquire into what has taken place or passed between jurors during their deliberations.  The respondent referred to various authorities including R v Zampaglione (1981) 6 A Crim R 287; R v Medici (1995) 79 A Crim R 582; R v Portillo (1996) 88 A Crim R 283 and R v TanSeng Kiah (1999) 106 A Crim R 276. The respondent submitted that the courts have drawn a distinction between matters which pass in the jury room in the course of deliberations, the communication of which is prohibited, and matters which are extrinsic to those deliberations, the communication of which is not prohibited. The respondent distinguished Tan Seng Kiah (supra) from the present matter on this basis.

7. It is unnecessary for us to resolve the jurisdictional issue because, in our view, even if there was no doubt about jurisdiction, no inquiry would be directed to be made in the circumstances of this matter.

8. There are numerous authorities, including those referred to above, in which the reasons for maintaining the confidentiality of discussions in the course of deliberations by a jury are identified. Prominent amongst those reasons is the desirability of jurors feeling free to carry out their duty without fear that, long after the trial, they might be called back to the court to give evidence about something that they might or might not have done or said or thought at the time of deliberating. At the time of review some of the former jurors might not be available or might not have a clear recollection of what took place. Jurors are entitled to remain anonymous and the provisions of the Juries Act are designed to preserve their anonymity. Any investigation which would threaten their anonymity involves the risk that attempts may be made to bring pressure to bear upon them. They should be protected from being exposed to pressure to explain the reasons which actuated them in arriving at their verdict. In addition there is an obvious desirability in securing the finality of decisions arrived at by a jury. It is readily apparent that the free exchange of views and opinions amongst jurors in the course of deliberations might be stifled and independence of thought checked, if jurors are made to feel that discussions will be “freely published to the world”.

9. In inviting the Court to commence an investigation in this matter, the appellant is immediately met by those compelling reasons for maintaining the confidentiality of the jury room.  This is particularly so because the matters to be investigated are not extrinsic matters but rather the deliberations of the members of the jury.  If there be jurisdiction to order an inquiry of this kind, an issue we do not resolve on this occasion, such an inquiry would only be ordered in extreme circumstances and in very rare cases.

10. In this case the appellant’s relationship with law enforcement authorities had been an issue during the course of the trial.  Counsel who appeared on behalf of the appellant at the trial cross-examined the witness Godbier in relation to his knowledge of complaints made by the appellant concerning the behaviour of police officers and as to the animosity held by police against the appellant.  Other witnesses were cross-examined as to their knowledge of complaints made by the appellant to the Ombudsman concerning the alleged behaviour of police, other than in the course of this investigation.  A police officer, Sergeant Oldfield, was asked whether he was interested in “pursuing” the appellant and police officers were asked in cross-examination whether the appellant’s residence had been under surveillance even before the date of Mr Godbier’s arrest on 6 January 1999.  In his final address to the jury counsel for the appellant made much of the relationship between the police and the appellant, noting the “troubled past relationship between Mr Cant and the police”, and suggesting to the jury that this was a situation where police pursued “a targeted investigation in relation to a suspect for whom they have a history and seek to rely on the evidence of alleged accomplices”.  It was put to the jury that they had a relationship of “antipathy” based on “past matters”.    The appellant complained of “police corruption”.  It was submitted that this might have led them to plant information upon the appellant.

11. If it were accepted that members of the jury became aware that the appellant had prior convictions, this must be seen in the context that the relationship between police and the appellant was already a matter raised by the appellant.  That relationship was said by the appellant to be acrimonious and to have arisen out of events that preceded the case then before the jury.

12. The information provided by Mr Demourtzidis was not revealed at the time of trial, but rather some 12 months later and was not brought to the attention of others until just prior to the commencement of this appeal. The suggested irregularity arose because of the questioning by Mr Demourtzidis, an associate of the appellant, of the juror as to the fairness of the trial. Without more, this would seem to be in contradiction of the requirements of the Juries Act.

1. The form of the statement made by Mr Demourtzidis that “W said that one of the people on the jury said that … the jury was told about the appellant’s prior convictions” must be assumed to be deliberate.  In his earlier affidavit Mr Demourtzidis swore that W himself had said that the jury was told of the convictions, but that assertion was subsequently abandoned in favour of the words set out above.  The material relied upon by the appellant may be characterised as a general assertion of what one juror said that another juror said the jury was told by an unidentified third person during its deliberations.  This, taken with the history revealed by the affidavit and considered in light of all of the circumstances of the case, leads us to the conclusion that this is not one of those exceptional and rare cases where a court, in which jurisdiction is vested, would order an investigation.

2. For these reasons we reject the application.  We turn to consider the substantive arguments.

   Ground 1

3. The appellant complained that the learned trial judge erred in law in permitting the Crown to adduce evidence of the distribution within Australia of the imported drugs as being relevant to the allegation that he was knowingly concerned in the importation.  The evidence was that the drugs were taken from Darwin by Mr Godbier and transported to Sydney, Melbourne and Perth.  Mr Godbier was paid $2000 on each occasion for taking the drugs to each of those destinations.  The appellant initially contended that this evidence was “outside the scope of the indictment and therefore irrelevant”.  In the course of argument, counsel for the appellant conceded that the evidence, if accepted, was capable of demonstrating that the appellant was knowingly concerned in the venture which centred upon the importation.  Following discussion, the ground was not pressed.

   Grounds 2, 3 and 4

4. These grounds were addressed together.  They centred upon the submission of the appellant that the trial judge erred in failing to adequately address the observation of the foreman of the jury when the foreman said:

   “We feel that the evidence that we have been given – and we know we have to find on the evidence that has been presented to us – is definitely not the whole story and we’re just finding it difficult to fill in the blanks, so to speak”.

5. This submission cannot be sustained.  Her Honour gave what the appellant acknowledges to be a clear direction to the jury that it was necessary to decide the case on the evidence that had been presented to the jury and that the jury should not engage in any speculation.  The direction was clear and appropriate.  It must be assumed that the jury acted in accordance with the direction.

6. It was further submitted by the appellant that error occurred because the learned trial judge failed to give a direction to the jury that they should not infer from the absence in the trial of the de facto wife of the appellant, Vicki Taylor, and of Anthony Silk, who is the brother of Richard Silk, as witnesses, that the evidence of those witnesses would not have assisted the defence case.  Her Honour gave clear directions as to the manner in which the jury should approach the absence of the witnesses Vicki Taylor and Anthony Silk.  Her Honour pointed out that the two witnesses may be said to be, on the Crown case, criminally complicit with the appellant and “it would not be reasonable to expect the defence to call such witnesses to give evidence”, and that it was not incumbent on the defence to call any evidence.

7. It is to be noted that the directions provided by the learned trial judge followed discussions with counsel as to the appropriate manner in which to deal with the issues raised and eventually proceeded without objection.  Although counsel for the appellant had initially submitted that a Jones v Dunkel direction should be given against the Crown in relation to the failure to call Taylor and Anthony Silk, ultimately counsel for the appellant withdrew that submission and acquiesced in the form of the direction foreshadowed by her Honour and, indeed, the direction was modified to accord with submissions made by the appellant’s counsel.

8. Rule 86.08 of the Supreme Court Rules is in the following terms:

   “No direction, omission to direct or decision in relation to the admission or rejection of evidence of the judge of the court of trial shall, without the leave of the Court of Criminal Appeal, be allowed as a ground for appeal, or for an application for leave to appeal, unless objection was taken at the trial to the direction, omission or decision by the party appealing or applying for leave to appeal.”

9. There is no suggestion that there was some convincing reason why leave should now be given in respect of the matters now sought to be raised but which were abandoned by the appellant’s counsel at trial.  As was observed by Hunt J in R v Abusafiah (1991) 24 NSWLR 531 (at 536), the requirement of the Rule does not constitute a mere technicality “which may simply be brushed aside”. The purpose of the Rule is to ensure that the trial judge receives the assistance from counsel to which the judge is entitled in the task of giving appropriate directions to the jury. “Unless there is a convincing reason why the matter was not raised at the trial and unless the possibility of real injustice appears, an accused should be held to what was done for him at trial level” per Mahoney JA in R v Jeffrey (Court of Criminal Appeal of NSW, unreported, 16/12/93) applied in R v DH (2000) NSWCCA 360 at para 115.

10. The directions of the learned trial judge were appropriate, they were acquiesced in by counsel for the appellant and, in our view, no irregularity has arisen and no basis identified for the suggestion that any miscarriage of justice occurred.  In those circumstances, leave should be refused in relation to these grounds.

    Ground 5

11. In the course of the trial the learned trial judge directed the jury that evidence given by police officers that they observed silver foil in the base of the cylinders on the night of 6 January 1999 was evidence capable of corroborating the Crown witnesses Peter Godbier and Richard Silk.  The giving of that direction followed discussions between the learned trial judge and both counsel.  There was debate about parts of the evidence and whether that evidence could amount to corroboration.  In the course of the discussion, counsel for the appellant clearly acknowledged that the presence of silver foil in the base of the cylinders was evidence capable of corroborating the identified witnesses.  On appeal the appellant sought to resile from that position.  The appellant now says that the presence of the foil cannot be said to be capable of constituting corroboration because it did not implicate the appellant in the commission of the offence.  Further, it was submitted that the evidence was “so marginal as to have no significant relevance as to whether the appellant had any connection to the offence whatsoever”.

12. In reply, the respondent submitted that not only did the appellant not take objection to the direction at the trial, but positively acquiesced in it. It was submitted that this Court should apply Rule 86.08 of the Supreme Court Rules.

13. The submission of the respondent is that the evidence as to the presence of the foil was capable of amounting to corroboration when seen in the context of other evidence.  Both Peter Godbier and Richard Silk gave evidence that they had seen the foil within a cylinder.  The evidence of each was that they saw the foil near the top of the cylinder and, in the case of Mr Godbier, he said that “underneath the foil there was packets of tablets”.  On the other hand, the appellant said that he looked into the cylinder and “there was a cap, like a Tupperware cap sort of thing, that you get in Tupperware, it was about halfway – oh, two-thirds of the way down the cylinder”.  He said he put his hand within the cylinder and it was hollow.  He said there was no alfoil in the cylinders when he saw them.  He said there was a rubber lining within the cylinders and he had heard later that the rubber linings, which were no longer present when police arrived, had been thrown in the bin.

14. There was conflict between the appellant on the one hand and Mr Silk and Mr Godbier on the other hand as to what was in the cylinders upon their arrival at Falcon Engineering and at the residence of the appellant.  The cylinders remained at the home of the appellant.  When police took the cylinders 7 days later there were no tablets within them, but foil was found.  The Crown said that an available inference was that in the meantime the appellant had removed the tablets.  The cylinders were in the appellant’s custody between the date of their arrival on 29 December 1998 and the time the police attended on 6 January 1999.  Whether or not evidence is capable in law of amounting to corroboration depends upon the evidence of the surrounding circumstances of the case.  In the circumstances of the matter, this being circumstantial evidence, the evidence was capable of establishing a connection between the appellant and the offence with which he is charged.  The evidence of the presence of the silver foil in those circumstances was capable of implicating the appellant as the person who removed the contents of the cylinders (being the tablets) in the intervening period but left the foil behind.  It is an inference which the jury was able to draw.  Whether the evidence was accepted and whether it did amount to corroboration were matters for the jury.

15. In our view the evidence was capable of amounting to corroboration.  Given that counsel for the appellant at the trial conceded that to be so and did not seek any redirection from the trial judge, leave to appeal should not be granted.

    Ground 6

16. The appellant also complained that the learned trial judge erred by directing the jury that the evidence of Ms McCormack that Ansett Airlines had a record of a Mr P. Godbier travelling on 30 December 1998 from Sydney to Melbourne was evidence capable of corroborating Peter Godbier.  It was submitted that this evidence did not implicate the appellant in the commission of the offence and was not capable of so doing.  Reference was made to the observations of Gaudron ACJ, McHugh, Hayne and Callinan JJ in Conway v The Queen (2001-2002) 209 CLR 203; (2002) 186 ALR 328 where (at paragraph 61) they said:

    “It is at least open to serious doubt whether, on the trial of an accused, evidence which does no more than corroborate the involvement of a co-conspirator, may be used as corroborative evidence against the accused.  The relevant inquiry must be whether the evidence in question tends to confirm or support the evidence which implicates the accused, not just whether the evidence is relevant to the issues at trial.”

    Reference was also made to Lewis (1992) 63 A Crim R 18 at 31 - 32.

17. The direction in relation to which complaint is made was in the following terms:

    “Finally, with respect to Mr Godbier, there is evidence of Ms McCormack that Ansett has a record of a Mr P. Godbier travelling on 30 December ’98 from Sydney to Melbourne, departing Sydney time 3 pm and Ms McCormack gave evidence that the ticket was paid for in cash and booked at 1320 on 20 December ’98, that this could have been a booking by phone.  She stated the ticket was issued and paid for at the same time, probably from Sydney airport, but this cannot be confirmed by documentary evidence.  This evidence of Ms McCormack is capable of corroborating the evidence of Peter Godbier that at 3 pm on 30 December 1998 he flew from Sydney to Melbourne.  And with respect to this matter, I think you also note that Ms McCormack says the person named Godbier on the list of persons travelling at that time is shown as having carried two bags, which were checked into the hold of the aircraft.  The evidence of Mr Godbier is that he checked in only one bag.”

18. It is to be noted that the direction given by the learned trial judge was not that the evidence was generally capable of corroboration, but rather that it was capable of corroborating the evidence of Mr Godbier that he flew from Sydney to Melbourne.  The direction was of limited effect.

19. It is necessary to consider the evidence in the context of other evidence in the case.  It was the evidence of Mr Godbier that he travelled from Darwin to Sydney and then Melbourne on 30 December 1998 at the request of the appellant in order to distribute the tablets.  In Sydney he was to meet a man named Eddie.  When he arrived Eddie was not there and so Mr Godbier rang the appellant who said that he would ring Eddie and get back to Mr Godbier.  A short time later Mr Godbier said he received a telephone call from the appellant and that Eddie would be there in 45 minutes.  The appellant acknowledged that he knew Eddie and had his telephone number in his address book.  Eddie did arrive and was provided with the tablets.  Mr Godbier was then taken to the airport and he flew to Melbourne where he said he met with Nick Karagiannis and provided him with tablets.

20. At the time of his arrest the appellant was found to be in possession of 3 mobile telephones.  The history of those telephones was traced.  On the basis of the evidence presented to the jury, it was open to the jury to accept that the appellant called the telephone number of Nick Karagiannis on the night of 29 December 1998.  Further, it was open to conclude that on 30 December 1998 there was a call from a phone in the possession of Mr Godbier from a location in Sydney to a phone in the possession of the appellant, followed by a call from the phone in the possession of the appellant back to Mr Godbier a short time later.  There was also evidence from which it could be found that there was a later call from the same telephone in the possession of Mr Godbier, but which was made from a Melbourne location to a number shown to be that of Nick Karagiannis.

21. It was the submission of the respondent that even if the evidence of the travel between Sydney and Melbourne was not by itself capable of amounting to corroboration, if that evidence was considered in light of the telephone calls it was capable of corroborating Mr Godbier and of implicating the accused in the distribution of the tablets and therefore, in light of all the other evidence, of implicating him as being knowingly concerned in the importation.

22. In our view, in a circumstantial case such as this, the evidence was capable of amounting to corroboration and it was a matter for the jury to determine whether they accepted the evidence and whether it in fact amounted to corroboration.

23. The appellant acquiesced in the direction.  Leave to appeal should be denied.

24. In relation to the evidence referred to in ground 5 (the silver foil) and the evidence referred to in ground 6 (the evidence of travel) it should be noted that these items were just two out of five identified items capable of corroborating Mr Godbier and Mr Silk.  In addition, there was other evidence clearly capable of providing corroboration and that evidence was identified by her Honour.  There was no challenge to the characterisation of that evidence as being capable of providing corroboration.  The other evidence related to the finding of the diagram in the vehicle of the appellant, the finding of MDMA in vacuumings made of carpet in the home of the appellant, and the finding of traces of MDMA in the cylinders found in the possession of the appellant.  These were powerful pieces of corroboration, in addition to those in relation to which objection was taken.

    Unsafe and unsatisfactory

25. The appellant submitted that the conviction was unsafe or unsatisfactory.  In circumstances where an appellant submits that a verdict is unsafe or unsatisfactory the obligation imposed upon a Court of Criminal Appeal is to undertake an independent examination of the relevant evidence to determine whether it was open to the jury to be satisfied, beyond reasonable doubt, as to the guilt of the accused.  The court must assess the quality of the evidence; Morris v R (1987) 163 CLR 454. In determining whether the verdict of a jury should be set aside as unsafe or unsatisfactory, the test is whether it was open to a reasonable jury to be satisfied beyond reasonable doubt of the accused’s guilt. As was observed by Mason CJ in Chidiac v R (1990-1991) 171 CLR 432 at 444:

    “In resolving that question the court must necessarily recognise that issues of credibility and reliability of oral testimony are matters for the jury.  For that reason, if for no other, an appellate court will infrequently set aside a conviction as being unsafe because the evidence of a vital Crown witness lacked reliability or credibility.”

26. In M v R (1994) 181 CLR 487 the following observation was made in the joint judgment of Mason CJ, Deane, Dawson and Toohey JJ (493):

    “Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.  But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses.  On the contrary, the court must pay full regard to those considerations.”

27. The mere fact that there was, in a particular case, an attack upon a witness or witnesses for the Crown is not sufficient.  The issue will be the circumstances of the case including “the nature of the attack, its vitality and its proximity to the particular issue to which evidence was relevant”; R v Dellapatrona& Duffield (1993) 31 NSWLR 123 at 141.

28. The appellant mounted an attack upon the evidence of Mr Godbier and Mr Silk and pointed to various matters which the appellant said undermined that evidence.  It was pointed out that Mr Godbier had been guilty of telling numerous lies during the course of the police investigation and in subsequent legal proceedings.  Those suggested lies and inaccuracies are detailed in the written submissions.  It was submitted that Mr Godbier’s evidence needed to be tested rigorously and that it was such that it could not be acted upon safely.  The Crown acknowledged that Mr Godbier told lies but asked the jury to accept his evidence regarding the involvement of the appellant.  There is no complaint that the jury was not given appropriate directions on this issue.  Of interest is whether those lies were in relation to anything central to the matters to be considered by the court or rather related to peripheral matters.  The full circumstances surrounding the evidence of Mr Godbier were known to the members of the jury and the lies drawn to their attention.

29. The appellant identified a number of matters which he had submitted were relevant to an assessment of whether the verdict was unsafe or unsatisfactory.  Those matters need to be considered separately and cumulatively, along with the whole of the evidence in the case, to see whether they have the effect for which the appellant contends.

30. In written submissions the appellant identified the first of those matters as relating to the quality of the evidence regarding the organisation of the importation from outside of Australia and, in particular, the involvement of the man named “Bond” or “Bon”.  It was submitted that the evidence of travel by Bond to Indonesia demonstrated that he went to Kupang, whereas the cylinders were said to have originated from South Sumatra and to have passed through Jakarta on the way to Australia.  The submission was that Bond was not shown to be in the relevant part of Indonesia at the relevant time. It was also suggested that the consignment of the cylinders was organised before Bond flew to Kupang.  Having made those points, the appellant acknowledged that there was a lack of evidence regarding the movements and activities of Bond within Indonesia.  The objective evidence showed that he was absent from Darwin between 25 November 1998 and 3 December 1998, but there was not a great deal more.  There was no dispute that he was hospitalised in Darwin on 4 December 1998, where the appellant visited him.

1. Whilst there may be gaps in the evidence to which the appellant can point, those gaps do not mean that it was not open to the jury to find that Bond was involved in the importation.  The nature and the extent of that involvement may not be clear.  It was not necessary to the Crown case to demonstrate that Bond needed to travel to Indonesia to effect the importation.  The submission of the prosecutor was that “Bond was to go overseas to organise it but it didn’t happen immediately as Bond had trouble with sickness and a passport.”  The Crown case was that he was involved with the appellant in the importation and that he travelled to Indonesia at about the time the cylinders were transported to Australia.

2. The appellant noted that Richard Silk claimed to have received the diagram, a copy of which was subsequently found in the motor vehicle of the appellant, on the same day it was faxed from Falcon Engineering to the Australian Customs Service.  It was suggested that other witnesses had seen the diagram in Mr Silk’s possession at Falcon Engineering prior to the relevant date and, it was submitted, if he had possession of the diagram at an earlier time, “that completely negates the evidence of both Richard Silk and Godbier that the appellant provided the diagram to Richard Silk via Godbier for the purpose of facilitating the completion of the importation”.  We were taken to each item of evidence upon which the appellant relied to establish that the diagram was received at an earlier time.  It is unnecessary to review each of those items of evidence.  The impact of them was that there was some tentative and equivocal evidence that the diagram may have been there at an earlier time.  The evidence was not of a quality that would establish the contention now made on behalf of the appellant, rather, at its highest, it raised a possibility the diagram was received at an earlier time.  As against that possibility, there was other evidence, including the evidence of the customs officer Mr Walsh (at transcript 593-605) to the effect that he asked Silk for a diagram of the cylinders and received one the next day, as well as the nature of the diagram itself, which tended to support the likelihood that the diagram arrived in the manner and at the time suggested by the Crown.  In those circumstances there is nothing in this evidence which, either by itself or in combination with other evidence, raises a reasonable doubt which the jury ought to have held as to the appellant’s guilt.

3. The appellant submitted that there were discrepancies between the analysed components of the ecstasy tablets seized from Mr Godbier in Halls Creek and the ecstasy powder found inside the cylinders at the premises of the appellant.  It was submitted that of particular significance was the failure to find ephedrine in the powder from the cylinders although it was found in the tablets.  It was accepted that there was a small sample available for testing in relation to the cylinders but that, even so, a major component of the MDMA, being ephedrine, would expect to be identified.  Reference to the evidence of Ms Poel, the forensic chemist who tested the materials, confirmed that one “major peak” component found in the tablets from Western Australia, being ephedrine, was not detected in the residue from the cylinders.  Ms Poel made it clear that the quantity available for testing was an important factor and therefore the tests were not absolute.  In her evidence she said that she could not “dismiss the possibility that the scraping from the lid of the cylinder is from the same source as the tablets.”  She could not be more positive in her evidence because her samples were insufficient.  However, there was no dispute that the materials tested from each location were MDMA.  The evidence of Ms Poel was not that the material tested from the differing locations was not the same, but rather that she could not establish that to be so on the basis of the sample that she had.

4. The next matter raised by the appellant was the suggestion that there was a different description of the colour of the tablets seized from Mr Godbier in Halls Creek from the colour of the powder detected in the cylinders.  It was the submission of the appellant that the descriptions provided ranged from white, off-white, a fine white powder, beige or cream.  It was suggested that the difference in colour led to a conclusion that doubt was cast upon the evidence of Mr Godbier that the tablets he had with him in Western Australia came from the cylinders.  Reference to the evidence of the witnesses reveals that Mr Godbier described the tables as “an off-white speckly” colour, Ms Poel described them as “white” although not bright white, and by Mr Currie as “off-white”.  In relation to the powder, that was described as “white” by Superintendent Waite, “white to off-white” by Ms Shinners and “white” by Ms Poel.  The descriptions of these witnesses do not support the submission made on behalf of the appellant.

5. The suggestion that the tablets were “well into the beige zone, getting close to light brown, well beyond cream” was made by the appellant’s counsel during his final address to the jury.  The jury saw the tablet to which counsel was referring and could make their own assessment of the colour and how that colour differed, if at all, from that which had been described to them.  None of the witnesses referred to was challenged as to their description of colour and none was asked to explain whether the colour might change in any way over a period of time.  None described the colour in the terms used by counsel.  The matter was left to the jury by counsel and by the learned trial judge and they were in a better position to make assessments on this issue than is this Court.  It seems they were unimpressed by the submission.

6. The respondent further submitted that there were unsatisfactory aspects of the evidence of Ben Godbier, the son of Mr Godbier.  His evidence was uncorroborated and it was said that he had good cause to give evidence designed to minimise the criminality of his father and to shift blame onto the appellant.  The jury was well aware of those matters.  In relation to the evidence of Ben Godbier, it is to be noted that when police detained him, along with his father, the two were immediately separated.  Ben Godbier gave a version of events that differed from the version given by his father and it was only when police showed Peter Godbier part of the interview with Ben Godbier that Peter Godbier admitted his involvement.  This does not suggest that Ben Godbier was lying to protect his father.  Indeed, he specifically mentioned that his father had placed the package in the vehicle.

7. Similar observations were made in relation to some of the evidence of Richard Silk.  Further, it was observed on behalf of the appellant that whilst fingerprints were developed from the diagram, those fingerprints did not include those of the appellant or Mr Godbier.  Further, DNA testing of the rubber gloves found at the Cocos Grove premises did not reveal the appellant’s DNA.  The parties addressed possible explanations for this.

8. The appellant suggested to the jury that Richard Silk’s brother, Anthony Silk, might have been a participant in the importation and that Richard Silk tailored his evidence to avoid inculpating Anthony Silk.

9. In the present case the Crown relied heavily upon the witnesses Peter Godbier, Ben Godbier and Richard Silk.  However, without those witnesses, there remained a strong circumstantial case against the appellant.  That case included the admitted involvement of the appellant with the cylinders, the fact that the cylinders had been imported from Asia into Australia, the design of the cylinders and the fact that they were of no use in other settings, the presence of those cylinders at his home, the finding of traces of MDMA within the cylinders, the finding of MDMA in the vacuumings taken from the home of the appellant, the packaging material located in the appellant’s bedroom, the possession by the appellant of 3 mobile phones and their connection to Mr Godbier, Mr Silk and Nick, and also the presence of the diagram (with the top part cut off) amongst the appellant’s papers in his motor vehicle.  In addition, the jury had before it the explanations of the appellant which were, in part, implausible and may have been regarded by the jury as lies indicating guilt.  Whilst it is true that the Crown relied upon the evidence of Peter Godbier, Ben Godbier and Richard Silk, that was not the only evidence upon which it relied.  There was a reasonable circumstantial case outside the evidence of those witnesses.

10. Taking all of these matters into account, the case against the appellant remained a strong one.  Each of the matters now raised by the appellant was before the jury and it was a matter for the jury as to whether they accepted the Crown case or whether they were left in any reasonable doubt in that regard.  The various witnesses for the Crown were subject to a sustained attack, yet the verdict of the jury indicates that those attacks were not sufficient for them to have reasonable doubt regarding the evidence in relation to the central issues in the proceeding.  Having reviewed the evidence, and having considered the matters raised by the appellant in writing and in argument, we do not see any reason to doubt the conclusions that the jury reached.  In our view, on the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty.

    Sentence

11. The appellant also appeals against the sentence imposed upon him by the learned trial judge.  One of the matters that informed the sentence imposed by her Honour was the conviction of the appellant for being knowingly concerned with the importation of a commercial quantity of cannabis. Subsequent to the date of sentencing in the present proceedings, a Court of Criminal Appeal set the earlier conviction of the appellant aside and a retrial was ordered.  The appeal against sentence must be allowed.

12. Whilst her Honour acknowledged that no conviction had been recorded in respect of the earlier matter at the time of this offending, it was something she took into account.  Further, and correctly, she also took into account the fact that the recent offending occurred whilst the appellant was on bail for the earlier matter.

13. The appellant invites us to re-sentence in light of the setting aside of the conviction and also asks that we take into account assistance he provided to authorities in New South Wales.  Bailey J discussed that assistance on the earlier occasion.  We adopt with respect the observations of his Honour when he said:

    “I accept that he does deserve some measure of credit for his assistance to the New South Wales Crimes Commission but, having regard to his refusal to make a statement or give evidence in one matter and the Commissioner’s doubts about his total honesty in the other matter, the allowance which should be granted to the prisoner in this regard is comparatively small.”

14. We will not repeat the observations made by the learned sentencing judge.  We set aside the sentence.  The appellant will be sentenced to imprisonment for a period of 14 years and we set a non-parole period of 8 years and 6 months, both sentence and non-parole period to commence from 19 November 2001.

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