Eduardo Chavez Gonzalez v The Queen
[2022] VSCA 41
•30 March 2022
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCR 2020 0205
| EDUARDO CHAVEZ GONZALEZ | Applicant |
| v | |
| THE QUEEN | Respondent |
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| JUDGES: | PRIEST, KYROU and WHELAN JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 16 March 2022 |
| DATE OF JUDGMENT: | 30 March 2022 |
| MEDIUM NEUTRAL CITATION: | [2022] VSCA 41 |
| JUDGMENT APPEALED FROM: | DPP (Cth) v Gonzalez (Unreported, County Court of Victoria, Judge Morrish, 22 November 2019) (Conviction) |
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CRIMINAL LAW – Appeal – Conviction – Importing a commercial quantity of a border controlled drug, cocaine – Whether police officer wrongly permitted to express opinion as to nature of importation – Evidence Act 2008 ss 76, 79.
CRIMINAL LAW – Appeal – Conviction – Importing a commercial quantity of a border controlled drug, cocaine – Incriminating conduct – Whether demeanour admissible as incriminating conduct – Whether consulting a lawyer admissible as incriminating conduct – Jury Directions Act 2015 s 18 – Appeal allowed.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Carr SC with Ms G Connelly | Slades & Parsons Solicitors |
| For the Respondent | Ms K Breckweg and Mr T Crouch | Commonwealth Director of Public Prosecutions |
PRIEST JA
KYROU JA
WHELAN JA:
Introduction
An indictment filed in the County Court charged the applicant and Gabriel Altamirano Galindo (‘Galindo’) with importing a commercial quantity of a border controlled drug, cocaine, between 8 and 10 November 2017.[1] On 18 October 2019, the trial judge ordered severance of the indictment. A few days later, a fresh indictment, dated 23 October 2019, was filed.[2]
[1]Criminal Code (Cth), ss 11.2A and 307.1(1). The maximum penalty is life imprisonment.
[2]The new indictment was in the following terms:
The Director of Public Prosecutions, who prosecutes in this behalf for Her Majesty the Queen, charges that EDUARDO CHAVEZ GONZALEZ and GABRIEL ALTAMIRANO GALINDO and unknown others at Melbourne in Victoria and elsewhere, between about the 8th day of November 2017 and the 10th day of November 2017, did import a substance, the substance being a border controlled drug, namely cocaine, and the quantity imported being a commercial quantity.
Statement of Offence — Import a commercial quantity of a border controlled drug contrary to subsection 307.1(1) of the Criminal Code (Cth), by virtue of section 11.2A of the Criminal Code (Cth).
The applicant’s trial, occupying some 16 sitting days, proceeded first. On 22 November 2019, the jury empanelled to try the applicant found him guilty.[3] A year and a half later, on 21 May 2021, Galindo pleaded guilty.[4]
[3]On 4 September 2020, the trial judge sentenced the applicant to be imprisoned for 18 years, and fixed a non-parole period of 12 years.
[4]On 17 August 2021, the judge sentenced Galindo to be imprisoned for 14 years and three months, with a non-parole period of nine years and six months.
By an amended notice dated 1 March 2021, the applicant seeks leave to appeal against his conviction on two grounds. The first ground in essence contends that the prosecution impermissibly adduced opinion evidence from Detective Sergeant Keith John Randall (‘Detective Randall’), an officer of the Australian Federal Police (‘AFP’), as to the true nature of the importation in issue in this case; and the second ground in essence contends that the prosecution impermissibly relied on purported evidence of ‘incriminating conduct’.
For the reasons that follow, we consider that the second ground must succeed. We would thus grant the application for leave to appeal against his conviction; allow the appeal; and order a new trial.
The prosecution case
So as to understand the issues raised by this application, it is necessary to summarise pertinent aspects of the prosecution case.
The applicant, a Mexican citizen, was an acquaintance of Dante Garcia Almanza (‘Almanza’). They had met at a secondary school in Mexico when they were students. Almanza assisted the applicant to establish an Australian company, C1 Superfoods Pty Ltd (‘C1’), for the purposes — at least ostensibly — of importing cocoa, coffee, salsa and Mexican foods into Australia from Mexico. C1’s registered address was the office of Junkeer Consultants Pty Ltd (‘Junkeer’) in Chadstone, Victoria, where Almanza worked. C1 had two directors, Jose Antonio Reyes (‘Reyes’), a Mexican citizen, and Jenny Junkeer, an Australian citizen. C1 purportedly was set up in Australia in order to service the needs of a Mexican company, Arte Ikoncreto (of which Reyes was a director), and its shareholders. It was agreed that Junkeer would be responsible for C1’s accounts and the applicant would handle logistics.
In total, C1 imported three consignments of goods into Australia, the third consignment arriving in two parts. The first and second consignments — which contained cocoa, but no illicit drugs — were said to be ‘dry runs’ for the third consignment, which contained a substantial quantity of cocaine.
The first consignment
The first consignment contained 415 kilograms of cocoa powder. On 21 August 2017, Arte Ikoncreto sent the cocoa from Mexico by air cargo to C1 in Australia. All of the boxes containing the cocoa had QR codes attached to them. Between 22 August and 1 September 2017, the applicant was in Australia. He dealt with the relevant customs clearance company, DSV Melbourne, and the storage and delivery company, Sahara Logistics, and had several apparently legitimate business meetings with Junkeer staff. On 25 August 2017, he visited Sahara Logistics premises and requested that a box of cocoa packets be opened and the individual cartons weighed. The prosecution’s case was that the attention given to the individual weights of the items supported an inference that the applicant was preparing to import cocaine in boxes of cocoa.
The second consignment
On 12 September 2017, Arte Ikoncreto sent a second consignment of 833.2 kilograms of cocoa powder by air cargo to C1. Again, all boxes had QR codes attached to them. Although the applicant did not come to Australia for this importation, he once more organised customs clearance through DSV Melbourne and delivery through Sahara Logistics. On 2 October 2017, he organised for Sahara Logistics to deliver particular boxes marked with identified numbers to Galindo at the Hilton Hotel in Sydney. Subsequently, on 5 October 2017, Galindo arrived in Australia and took possession of the delivery. Galindo told hotel staff that he was there to go to cafes in order to sell his product, and gave some packets to hotel staff. There was also evidence that he made inquiries about storage facilities in Sydney. A few days later, on 11 October 2017, Galindo left Australia. Police later recovered some of the boxes from which the QR codes had been removed. No cocaine was found in these boxes. The prosecution alleged that Junkeer was unaware of this consignment, although there was evidence that it received and paid invoices for its purchase by C1 from Arte Ikoncreto.
The third consignment containing cocaine
The third consignment arrived in Australia in two parts, on 8 and 10 November 2017 respectively. Both were sent by air cargo by Arte Ikoncreto. On their face, they contained a combined weight of 817.2 kilograms of cocoa. The second part of the consignment, which arrived in Australia on 10 November 2017, was sent by Sabormex, a Mexican company, and professedly contained 754.2 kilograms of coffee. At the direction of the applicant, both of these consignments were delivered together to Sahara Logistics, a company which provided warehouse services. On 15 November 2017, the applicant arrived in Australia and booked to stay at an apartment in Port Melbourne until 12 December 2017. He also made a number of business arrangements.
All three consignments were delivered to Sahara Logistics. Ultimately, Sahara Logistics held approximately two tonnes of cocoa powder and 750 kilograms of coffee for C1 at its Melbourne storage facility.
Galindo’s arrest and its aftermath
Galindo arrived at Melbourne Airport on 22 November 2017, the intention being that he would stay at the same apartment complex as the applicant. He was arrested, however, after a sniffer dog detected cocaine in his luggage, and placed in immigration detention. When arrested, Galindo was in possession of three telephones — one of which was a ‘Silent Circle’ phone — and a laptop computer. Searches of his telephones and laptop showed that he had tracked the third shipment and that he had: photographs of a C1 shipment; a C1 invoice from Arte Ikoncreto concerning the second shipment; a PDF document of the barcodes for the cocoa powder in the third shipment; and various searches relating to Australian accommodation, storage, Sahara Logistics and DSV.
On 22 November 2017, whilst in immigration detention, Galindo had three brief telephone conversations with the applicant.
The next day, on 23 November 2017, the applicant visited the premises of Sahara Logistics and inspected the consignment of coffee. Using his telephone, he took photographs of boxes from the consignment and had one packet of coffee weighed. Later that same day, investigators seized all the C1 product being held by Sahara Logistics.
Fifteen boxes from the third consignment — supposedly containing cocoa powder — contained cocaine. The total gross weight was 299.8 kilograms, with a purity of between 76.4 per cent to 79.2 per cent, the pure weight of cocaine thus being 235 kilograms.
On Tuesday, 28 November 2017, the applicant told Almanza that, due to delay in Sahara Logistics delivering samples, he would leave Australia for Spain the next day. He booked a flight leaving the next day for Los Angeles. That afternoon, police visited Junkeer and told Almanza that Galindo had been arrested. Almanza relayed that information to the applicant, who then called an unidentified person; placed a box of cocoa in a public rubbish bin; and met with a Melbourne lawyer. The applicant separately told Almanza and Caitlin Budge — a woman he had met at a party in August 2017 and remained in contact with — that he had been advised by the lawyer to leave Australia. Ms Budge observed the applicant to be agitated.
Police arrested the applicant in the morning of 29 November 2017. When interviewed, he described his involvement in importing products for C1, but denied knowledge of the existence of drugs and an intention to import drugs. His seized BlackBerry telephone contained a ‘WhatsApp’ discussion on 22 November 2017 with one Stephanie Elmo about Galindo not showing up; and his computer had a ‘Storage King’ insurance premium price list.
The applicant did not give evidence at trial, relying instead on his detailed record of interview to contend that he was a genuine businessman unwittingly involved in the importation of cocaine. Evidence in the defence case consisted of character evidence from two witnesses, adduced by counsel reading their prepared statements to the jury.
Ground 1: Detective Randall’s evidence
Detective Randall gave evidence in the prosecution case concerning illegal drug importations, including the methodologies employed by international drug syndicates. We will set out the key aspects of his evidence below.[5]
[5]See [27]–[31].
As we have mentioned, the applicant’s first ground of appeal is concerned with Detective Randall’s evidence. It contends that
a substantial miscarriage of justice was occasioned by the admission, use and lack of necessary direction about parts of the evidence of Randall.
Particulars:
(a) The admission into evidence of opinions not based on specialised knowledge;
(b) The impermissible use by the prosecutor of Randall’s evidence as positive evidence of the applicant’s knowledge and agreement;
(c) The impermissible use by the prosecutor of Randall’s evidence for tendency and coincidence reasoning;
(d) The lack of direction to prevent the impermissible use and reasoning invited by the prosecutor.
Detective Randall’s statement
Detective Randall made a statement, dated 23 March 2018. Among other things, he stated:
· he had continuously been a member of the AFP for 34 years;[6]
[6]He had been a member of the AFP for 36 years by the time he came to give evidence.
· predominantly he had investigated crimes related to the importation into Australia and the subsequent trafficking of border controlled drugs in conjunction with the associated money laundering of the proceeds of crime;
· during his career he had ‘participated in numerous joint drug and money laundering operations’ with Australian and international law enforcement agencies, many of those investigations involving ‘targeting organised crime syndicates operating within Australia and at a transnational level involving criminal activity relating to drug importation, drug trafficking and money laundering’;
· in the course of his duties he had ‘conversed with numerous drug importers, drug traffickers and drug users’, and had ‘debriefed several human sources (informants) and conducted interviews with numerous suspects in relation to drug offences, drug purities and drug prices’;
· many of the drug investigations he had been involved with ‘utilized lawfully authorised telephone intercepts and surveillance devices to monitor the conversations of drug importers, manufacturers, traffickers and users’, as a result of which he had ‘listened to and analysed the contents of many conversations relating to the importation, manufacture, trafficking, quality and value of drugs and their precursors’;
· he had ‘delivered training to the Detective Training Schools of the AFP and Victoria Police on the investigation of Commonwealth Serious Drug Offences’, and had ‘delivered presentations in several law enforcement training forums in Australia and overseas’ (which he described in some detail);
· he regularly reviews ‘open source and restricted resource material available to police officers that provide information in relation to current intelligence, concealment methodology, consumption trends, wholesale prices, street prices and purity levels of various drugs’;
· as a result of his experience and duties, and keeping abreast of intelligence reports, he is ‘aware of various methodologies used by criminal syndicates in relation to the importation, manufacture and subsequent trafficking of drugs, precursors and other crime enabling commodities (eg false identification documents; firearms) at both a wholesale and street level in Australia’, and of ‘typical purity levels of various drugs when sold at both the wholesale and street level in Australia’ and ‘the typical commercial value of various drugs and precursors when sold at both the wholesale and street level in Australia’;
· since 2012 he has provided over 300 statements concerning his ‘knowledge of specified drug type information, as well as the wholesale and street values of the [type of] drugs seized in this case’, and has ‘presented evidence and been cross-examined’ in various Victorian and interstate courts.
Under the heading ‘Drug Trafficking Methodologies’, Detective Randall discussed some of the methodologies employed by drug syndicates, including the use of ‘burner’ and encrypted telephones; counter-surveillance techniques; the use of ‘safe houses’; and others. A number of paragraphs in Detective Randall’s statement were then devoted to the nature and effects of cocaine; the method and geographical location of its manufacture; cocaine trafficking and importation ‘methodologies’; the forms of marketing of cocaine at retail or ‘street’ level; the prices of the drug; and the various estimated wholesale and retail values of the cocaine seized in the present case.
Detective Randall’s evidence on voir dire
Prior to the jury’s empanelment, on 30 September 2019, Detective Randall gave evidence on voir dire.[7] With two minor, inconsequential amendments, he adopted as his evidence-in-chief the statement he had made on 23 March 2018 (Exhibit M).
[7]See Criminal Procedure Act 2009, s 198.
Detective Randall was then cross-examined by counsel for the applicant as to his knowledge of cases where innocent people had been ‘duped’ into importing illicit drugs, the obvious thrust of counsel’s cross-examination being to foreshadow a ‘defence’ of innocent agency.
In re-examination, the prosecutor adduced the following evidence from Detective Randall as to ‘dry runs’, a subject that he had not specifically adverted to in his statement:
[PROSECUTOR] Mr Randall, with Her Honour’s leave, as I understand it, there’s one other matter that I’d seek to raise with you. At paragraph 14 of you [sic] statement, p.5, you deal with the topic of drug trafficking methodologies as the subheading appears there. Is that correct?---Yes.
And you then go through in the following paragraphs a number of dot pointed indicia or different aspects of that methodology, is that right?---Yes. It is.
I want to ask you about one that I don’t think you’ve touched upon there. What do you say from your experience as you’ve outlined already in previous questions today to the methodology of international drug syndicates involved in importing border controlled drugs into Australia conducting dry runs prior to the actual final importation of a drug?---Yes. That’s part of a methodology that is quite regularly used for both sea cargo and air cargo consignments where a number of consignments are brought into the country where the contents do not contain any border [controlled] drugs and it’s done so with the view to bring [scil, bringing?] or collecting an import history to minimise the identification by predominantly Australian Border Force and other law enforcement agencies on the basis that it’s not a first off importation which might draw attention to it. If there is an import history then it’s less likely to draw attention to itself unless other circumstances arise on it.
So is it fair to say that it’s a methodology of establishing an apparently bona fide history of importations to Australia, so that less interest might be paid to the actual final importation or later importation which is the actual border controlled drug. Is that fair to say?---I agree with that description.
Significantly, the applicant’s trial counsel did not contend that any feature of Detective Randall’s evidence was inadmissible. Indeed, as will become apparent, much of counsel’s cross-examination clearly was calculated to affirm Detective Randall’s expertise.
Detective Randall’s evidence to the jury
In his evidence-in-chief before the jury, Detective Randall first gave evidence of his knowledge and experience, before turning to methods used by drug syndicate members to communicate clandestinely. Detective Randall then gave evidence as to the use drug syndicate members typically made of telephones equipped with encryption technology; the typical use drug syndicates made of photographs; and the use made of ‘third party locations’ for the storage and distribution of illicit imported drugs.
Of particular relevance to the first ground of appeal, Detective Randall next gave the following evidence concerning ‘dry runs’:[8]
[PROSECUTOR]: Another … methodology, used by international drug syndicates importing drugs into Australia by the name of dry run, or dry runs?---Yes.
Can you tell us anything about how that works?---Yeah, dry runs are a common technique used by, um, drug syndicates or organisations. Um, the methodology relates to, um, the group undertaking a number of legitimate, ah, importations, um, two, three or more importations, ah, in order to build up an importation history that, ah, is useful in attempting to defeat law enforcement and Australian Border Force attention by indicating that there’s legitimate trading that’s occurring between parties. Um, so that subsequently when an importation containing border controlled drugs that comes in, it won’t necessarily draw the attention, ah, of law enforcement.
Because of the previous clear, if I might call them, importations that have come through from the same consigner to the consignee, is that right?---Yes that’s correct sir.
[8]Emphasis added to this and following passages.
Counsel for the applicant commenced his cross-examination of Detective Randall shortly afterwards by fortifying his expertise:
[DEFENCE COUNSEL]: Detective, you’ve been called as an expert in this case and it’s fair to say, isn’t it, that your expertise has been gained through your work?---Yes.
Knowledge by way of your experience?---Agreed.
You’ve been a police officer for 36 years?---Yes.
You must have been involved in thousands of investigations?---Yes.
And you yourself, must have been an informant and conducted hundreds of investigations, would you agree with that?---I agree.
And the focus of your work generally has been on criminal organisations, correct?---Ah, well, certainly in the latter part of my career, but ah, I’ve certainly dealt with ah, drug users and ah, drug traffickers as well as — in the whole range of the syndications or um, levels of organisation.
For the last decade would you agree that you really focused on criminal organisations?---Yes.
Because, generally the organisations that you’ve been dealing with are criminal organisations that are engaged in drug importation, do you agree?---Yes.
But your area of expertise is not just limited to those who are bringing in drugs, do you agree?---Yes.
It’s [sic] also extends to criminal organisations that engage in other illicit activities, would you agree?---Yes.
And one of those activities would be to import tobacco?---Agreed.
Another would be to import money, or launder money?---Ah, it’s not common to import money, but ah, certainly money laundering um.
Money laundering, all right?---Ah, which may result from various drug sales and it’s more commonly for ah, monies to be transmitted offshore and various means.
All right. But in any event you’ve dealt with criminal organisations, not just that — not just in the drug sphere, but also in other spheres as well?---Yes, certainly, other illicit commodities ah, not just restricted to border control [sic] drugs, yes.
Significantly, relying on Detective Randall’s knowledge and experience to support the applicant’s ‘defence’ that he was a drug syndicate’s dupe or innocent agent, counsel for the applicant elicited the following evidence from Detective Randall:
[DEFENCE COUNSEL]: Now, some people who are recruited by the criminal organisation to bring drugs to Australia, might know everything about the criminal organisation. They might know everything about the drug they’re bringing in. They might know what type of drug it is and what weight it is, would you agree with that?---Yes.
There are other examples aren’t there, where someone would be recruited into the criminal organisation to partake in a specific role and they might know only part of what is going on. They might know for example that they’re importing something illegal, but they don’t necessarily know what it is, would you agree with that?---That’s possible.
But it’s possible isn’t it, that people could be recruited and could be completely kept in the dark as to what the true nature of what they’re doing is?---It’d be true that um, drug organisations use innocent agents to ah, convey ah, various ah, commodities and consignments.
Well in your vast experience, you’ve seen people be duped — couriers be duped into bringing drugs into Australia, do you agree?---Ah, that’s — such circumstances have occurred, yes.
…
And there are very good reasons, I suggest to you, that drug syndicates would engage someone to partake in a certain role and be an innocent agent. I suggest there are very good reasons why a criminal syndicate would do that?---Yeah, it’s quite common to use various innocent agents, um, freight companies are commonly utilised, um, to import consignments without, you know, their [scil, they’re] given certain information in good faith, um, as to what a consignment contains. Um, as is law enforcement, Australian Border Force, um, receives information from the exporter as to what a particular consignment, um, weighs, what its — how it’s configured and what its true contents are, and various judgments are made as a result of that, and various freight companies and transport companies are utilised in good faith, um, based on information provided by drug organisations, ah, to transport various goods.
[T]his isn’t a fantasy, is it? People are genuinely duped by drug traffickers, agree?---Ah, well, this — just in explanation, sir, is that there’s possibly a difference between people who are true innocent agents, such as the organisations I’ve just talked about, um, both law enforcement and also, you know, freight companies et cetera.
Yes, look, I agree with all that?---There’s certainly individuals that are — as you said before, sir, are given limited information.
Yes?---Ah, and they carry out, um, those instructions or — or their normal business, if you — if you wish, ah, with, ah, varying degrees of knowledge.
And we’ve gone through that. They can know everything, they can know some things, but sometimes they know nothing?---Yes.
Because let’s go back to the reasons why a criminal organisation would engage someone and not provide them with the full picture, all right?---Yes.
One of those reasons might be that keeping the person in the dark, who is undertaking the task, minimises the risk of them being caught, doesn’t it?---Yes.
And it minimises the risk of leaking of information which would expose people higher up the ranking, doesn’t it?---Yes, I agree.
Also another risk, as we’ve already established, there’s no honour amongst thieves, that with goods of a high value, telling someone the truth about the nature of the product and the value of the product might lead to those people being ripped off and the drugs being stolen, do you agree?---That’s one of, ah — one of the scenarios, yes.
Because you couldn’t exactly call the police if your drugs had been stolen, could you?---Ah, not usually.
Indeed keeping a person in the dark to undertake such a role provides a kind of insurance, I suggest?---Ah, I agree that it mitigates, um, the risks in the information holdings of, ah, various parties within a — within a supply chain.
All right. Now, in your vast array of experience in matters such as these, you’re familiar with the term piggybacking, aren’t you?---I believe so.
…
… It describes a methodology where a drug trafficking syndicate may identify a legitimate trader that has an import history of goods coming into Australia, and they … utilise the details of those consignments and those consignees to undertake an independent importation commonly using those details. And then generally, towards the arrival of that consignment, they might divert the consignment to a safe house or another location, and the legitimate consignor — both the consignor and the consignees may be totally unaware about the contents of that consignment or the drugs contained therein. Do you agree that that’s a fair description of what piggybacking is?---Yes, I agree with all that. Just a slight clarification towards the consignor or consignee being unaware.
Yes?---Um, certainly the, um, consignor, um, who has a legitimate business would — would certainly have, in that methodology, unlikely to have any knowledge, or may not have any knowledge of what importation.
Yes?---As far as the consignee is concerned, again, similarly a legitimate business can be used.
Yes?---Um, but the — the true consignee obviously does have knowledge, but the details that are — are contained within the various paperwork and documentation, um, are generally using legitimate businesses that have an import history.
Yes?---Most commonly, upon arrival, or landing in — in Australia, as in this case, they may well be diverted out to a safe house, another location, without the knowledge of the identified, um, consignor.
…
[I]t’s fair to say, isn’t it, that people who are genuinely going about their normal business activities are genuinely duped, pursuant to this piggybacking scheme?---Yes.
And indeed that is one of the methodologies, one of the several methodologies that you’ve seen happen in this country. It’s not a fantasy, this is a real thing, do you agree?---I agree that that particular piggyback methodology is — is certainly used and has been used in the past.
The particular evidence that is the foundation of the first ground of appeal — relating to ‘dry runs’ and ‘piggyback’ importations — was then adduced by the prosecutor in his re-examination of Detective Randall:
[PROSECUTOR]: … Now, I want to ask you also about this piggyback methodology that you were asked about, and correct me if I’m wrong, but your evidence was that one might have a scenario where there is a legitimate consignor and a legitimate consignee that have legitimate consignments of very [sic] goods, well established as a clean, if you like, import history?---Yes.
That correct [sic]?---Agree.
And when you say piggyback, what you’re suggesting is that the syndicate might learn of that innocent or legitimate history of importations and use the details of the legitimate consignor and the legitimate consignee as details for their own drug importation, is that correct?---I agree, yes.
And that would be a consignment of drugs that came in with the complete lack of any knowledge by the legitimate consignor and consignee, is that correct?---Yes, that can happen, yes.
And what might be a common way in which despite the drug consignment coming in in those legitimate details, that the consignment of the drugs might nonetheless be diverted from its usual destination, that is the legitimate consignee’s premises?---Yes, there’s slight — various techniques and slight variations to that methodology, but um, the most common one is the contact phone number for the, um, consignee, the receiving party, um, may well be not the legitimate consignee but a receiver, um, well, the receiver of the drugs, who will then subsequently give instructions to divert from what might be the original consignment address to a different address, whether it’s a safe house or some intermediary location.
All right and if one was dealing with a scenario, compare it with the piggyback methodology that you’re talking about, if in fact one had evidence of a number of consignments from one consignor to a consignee where there were no drugs involved in those earlier consignments?---Yes.
And yet the consignment that actually contained the drugs was from the consignor but in fact delivered to the previous consignees premises, rather than being diverted somewhere else as you’ve described. Would that use of identical consignor/consignee and identical consignor and consignee destinations, qualify as one of your piggyback type scenarios? Or is that not a piggyback because it ends up at the legitimate location?---Yeah I would consider that more relating to the dry runs, so there’s dry runs that have occurred to give, give that ah legitimacy of the trading to take place.
Yes?---Um and then subsequently going to ah the same consignment address ah in that particular methodology um a ah diversion um is a variation of that technique if you like in that it goes away from a legitimate ah, a legitimate trade.
The applicant’s submissions
Notwithstanding that a number of distinct complaints were initially advanced in the applicant’s written case under the umbrella of the first ground, counsel for the applicant made it clear in oral argument that the ground should be understood as limited solely to a single contention: that Detective Randall was permitted to express the inadmissible opinion that the present was a case of two ‘dry runs’ (followed by an importation of drugs), rather than being a case of ‘piggyback’ importation.
The effect of Detective Randall’s evidence in re-examination, counsel submitted, was to ‘diagnose’ the present case as an importation following two ‘dry runs’, as opposed to being a ‘piggyback’ importation in which the applicant was an innocent dupe.[9] Counsel submitted that it was outside the scope of Detective Randall’s expertise to identify whether specific conduct was or was not an example of a piggyback method or a dry run, or was undertaken with or without knowledge of drugs. His expertise was limited to his experience of drug trafficking methodology generally and historically. The evidence, counsel submitted, was inadmissible and highly prejudicial in that the prosecution’s hypothesis was impermissibly adduced from the witness box as expert evidence.
[9]See [31] above.
Counsel for the applicant drew attention to the manner in which the prosecutor relied on Detective Randall’s evidence. Thus, in his final address to the jury, the prosecutor advanced the following arguments (among others):
· And that there was no cocaine in [the first and second consignments] because what the prosecution says is that they were what Mr Randall, remember the detective who gave evidence of his experience and expertise in these matters, are typical drug syndicate methodology, that that pattern of a couple of imports, clean imports if you like, No.1 and 2 here, followed by the actual final cocaine consignment is classic drug syndicate methodology.
· What the prosecution says about that is that Mr Gonzalez was somebody who also exhibited some other methodologies of what Mr Randall said was the drug syndicate type of methodology. …
· Further, when you consider that there was two tonnes of cocoa powder imported between August and November of 2017, why so much — and another, by the way, 750 kilograms of coffee — why so much when still, by November of 2017, there was no marketing strategy, no website set up and certainly no customers lined up at all, and yet you’ve got all this cocoa and coffee sitting in a warehouse in Melbourne. There was, it’s submitted, no sense to that and it’s another piece of evidence to indicate that this was not the way to run a legitimate business. It was being organised in that way, three separate stages, because as I say again, that’s classic drug syndication methodology according to Mr Randall.
· This was as I said to you I think at the start a man who was experienced and expert in the ways of imports and exports, not the sort of innocent agent person that you would be recruiting without him knowing about it to actually have control of your 300 kilograms of cocaine without him knowing about it for all of the obvious reasons that Mr Randall told you about of what are the risks involved if somebody that doesn’t know about it when he’s poking around weighing or examining the cocaine consignment suddenly coming across it, maybe in the presence of the Sahara Logistics people when he went out there and then the whole thing really unravelling anyway because he might then as a person supposedly innocent reveal the consignment to the police as Mr Randall said was one of the risks so that the whole consignment is lost.
And not only that, but that the police being involved and Mr Gonzalez knowing all about Mr Altamirano Galindo, can tell the police all about Mr Altamirano Galindo, if that’s what it’s suggested, that Mr Altamirano Galindo was using his friend and business associate Mr Gonzalez as an innocent agent, as somebody who was supposedly not going to be able to find out and he could send 300 kilograms through both by reason of their friendship — well, maybe friendship’s not everything in these types of syndicates.
But certainly in terms of his expertise this is not a naive innocent that you’re using as an unknowing courier or innocent agent, this is somebody who’s experienced, sharp and is just the sort of person who’s likely to find out what’s going on. That’s all evidence, in my submission to you, or arguments at least to indicate he must have known what was going on. You wouldn’t let somebody like that near your 300 kilos of cocaine if they really didn’t know what was going on. Just too many risks involved in that scenario.
Counsel for the applicant contended the first problem associated with the reasoning employed by the prosecutor is that it was illogical. Detective Randall’s evidence could never be used positively to identify the applicant’s behaviour as probative of his knowledge. It did not establish any basis to distinguish between legitimate importations and ‘dry runs’. Further, so counsel submitted, the ‘conclusionary and diagnostic impact’ of Detective Randall’s evidence was compounded by the way it was adduced. Thus, rather than being asked open questions, pitched at the same level of abstraction as in his statement, Detective Randall was taken only to those features of criminal syndicate methodology that were consistent with features of this case. The effect was to make it appear that every typical drug trafficking methodology in Detective Randall’s extensive experience was present in this case, thereby enhancing the apparent consistency of the applicant’s conduct with criminal conduct.
The second problem with the form of reasoning suggested by the prosecutor, counsel submitted, is that it invited tendency or coincidence reasoning, introduced without notice, or without the trial judge’s satisfaction that the statutory requirements had been met (indeed where the statutory requirements could not be met).[10] That cocaine had been imported was not a fact in issue in the trial, the only facts in issue being knowledge and intention. To reason that: criminal syndicates have certain methodologies; those methodologies were present in this case; therefore the applicant was knowingly part of a criminal syndicate; is tendency reasoning. Further, to reason that: illegal importations adopt a certain methodology; this importation adopted that methodology; therefore it is improbable that the applicant had an innocent state of mind; is coincidence reasoning. Counsel for the applicant submitted that the prosecutor invited this form of reasoning in his closing address and went further, inviting ‘rank propensity reasoning’: that the applicant, by reason of exhibiting the relevant methodologies, was the type of person who would intentionally import the cocaine. The evidence, counsel submitted, did not have significant probative value and the use of tendency and coincidence reasoning should not have been invited. But even if the evidence had probative value for this purpose, such value did not substantially outweigh the prejudice to the applicant. There was a grave risk, counsel submitted, that the jury would be distracted from its task of considering the applicant’s mental state, ‘instead evaluating the similarity of the importation in issue with the criminal paradigm’.
[10]See Evidence Act 2008, ss 97, 98 and 101.
Moreover, so counsel contended, the problems with Detective Randall’s evidence were compounded by the lack of judicial directions. Hence, the trial judge directed the jury that Detective Randall’s evidence was relied upon by both the prosecution and defence as a piece of circumstantial evidence showing consistency with their cases. But the judge was not asked to — and did not — give an anti-propensity direction (albeit counsel acknowledged that no exception was taken to this part of the charge). In summarising the prosecution arguments, the trial judge repeated the argument based on Detective Randall’s evidence that the consistency of the methodology with that of a typical criminal syndicate was a relevant piece of circumstantial evidence in proof of the prosecution case. And in summarising the defence arguments, the judge also repeated the defence reliance on Detective Randall’s evidence to add weight to the argument that the applicant was an innocent agent.
The applicant’s counsel submitted that the trial judge was not asked to — and did not — direct the jury not to adopt the purportedly impermissible reasoning invited by the prosecutor. Yet there were substantial and compelling reasons for the trial judge to direct the jury that they must not reason ‘directly’ towards guilt from Detective Randall’s evidence, and to instruct the jury not to use Detective Randall’s evidence as tendency or coincidence evidence.[11] There was no legitimate forensic reason for the applicant’s counsel at trial not to require corrective directions. Nobody connected with the trial identified the need for precision with respect to the permissible and impermissible uses of Detective Randall’s evidence.
[11]See Jury Directions Act 2015, s 16.
The respondent’s submissions
In written submissions, counsel for the respondent submitted that a ‘suitably qualified expert may give opinion evidence about the organisation and behaviour of criminal organisations and behaviour in the drug trade consistently with the established principles of expert evidence’.[12] The prosecutor led unchallenged evidence which established Detective Randall’s capacity to give expert evidence about drug importation methodology. Significantly, defence counsel did not object, and, indeed, affirmed Detective Randall’s expertise by adducing in cross examination that his expertise was gained through his employment; he had been involved in thousands of investigations; and he particularly focused on criminal organisations and drug importation. Defence counsel went on to elicit evidence from Detective Randall about the hierarchical nature of criminal organisations; the recruitment of people to assist; the use of innocent agents; and ‘piggybacking’ methodology to mitigate risk; and closed to the jury affirming Detective Randall’s expertise.
[12]Counsel cited Kalbasi v Western Australia (2013) 235 A Crim R 541, 560 [101]–[103] (Mazza J), and referred to Hermanus (a pseudonym) v The Queen (2015) 49 VR 486, 514–5 [126]–[127] (Priest JA); R v Marinovich (1990) 46 A Crim R 282, 298–301 (Malcolm CJ and Kennedy J); R v Cluse (2014) 120 SASR 268, 275 [15] (Kourakis CJ), 279–80 [43], 281 [48]–[49] (Vanstone J, Kourakis CJ and Kelly J agreeing).
The respondent’s counsel submitted in writing that Detective Randall did not at any stage of his evidence about drug methodology purport to ‘diagnose’ whether this particular case involved a ‘dry run’ or a ‘piggyback’ importation. Instead, based on his expertise, his evidence was confined to identifying hypothetical scenarios which were typical methodologies used by drug syndicates to import drugs.
As to the applicant’s knowledge, counsel for the respondent submitted that the prosecutor legitimately used Detective Randall’s evidence — in combination with evidence of earlier importations — to press available inferences about the applicant’s state of mind at the time of the charged conduct. Detective Randall’s evidence about the methodologies employed by drug importers was probative of the applicant’s state of mind because it provided the jury with a framework to understand the significance of the prior importations. It was circumstantial evidence which made it more likely that the applicant was acting with knowledge when he imported the consignment which contained drugs, and was also relevant to the ‘defence’ that he was an innocent agent.
Moreover, in written submissions the respondent’s counsel contended that the prosecutor did not employ tendency or coincidence reasoning in relation to Detective Randall’s evidence. His evidence was used as circumstantial evidence which went to the applicant’s state of mind. It is well established that evidence of previous conduct can be admissible for non-tendency and non-coincidence use in this way.[13] Since the prosecutor did not invite the jury to employ tendency or coincidence reasoning, there was no need for a direction about the topic (and none was requested by trial counsel for the applicant).
[13]Counsel cited Ivanoff v The Queen [2015] VSCA 116, [14]–[22]; Falzon v The Queen (2018) 264 CLR 361, 377–8 [42] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ); Lin v The Queen [2018] VSCA 100, [90].
Discussion
It will be remembered that it was counsel for the applicant who adduced evidence from Detective Randall concerning ‘piggybacking’. In cross-examination, counsel obtained Detective Randall’s agreement that piggybacking described a drug importation methodology whereby a drug trafficking syndicate identifies a legitimate trader who has a history of lawfully importing goods into Australia. The syndicate then utilises details of the legitimate trader’s lawful consignments, and uses the consignee’s details to undertake an importation of drugs using those details. Shortly before the consignment of illicit drugs is due to arrive, however, syndicate members divert the consignment to a safe house or other location, in circumstances in which both the supposed consignor and consignee may be totally unaware about the existence of the consignment, let alone the drugs contained within it.[14]
[14]See [30] above.
Presumably counsel cross-examined Detective Randall in the manner that he did accepting that Detective Randall’s training, study or experience, equipped him with specialised knowledge of methods such as piggybacking. Indeed, it is plain that a central aspect of counsel’s initial cross-examination of Detective Randall was to fortify the officer’s expertise in the eyes of the jury. It is equally clear that the applicant’s counsel sought to rely heavily on Detective Randall’s evidence to establish the ‘defence’ that the applicant was an innocent dupe.
Given that the applicant’s counsel sought to rely on Detective Randall’s knowledge and experience to establish parallels between piggyback importations and the circumstances of the applicant’s case, we consider that it was legitimate for the prosecution to adduce evidence in re-examination of Detective Randall’s opinion as to whether those circumstances were (or were not) consistent with a piggyback importation.
The opinion rule in s 76 of the Evidence Act 2008[15] would have rendered the impugned aspect of Detective Randall’s evidence inadmissible unless the provisions of s 79(1) were — as we consider they were — engaged.[16] In our view, the evidence clearly established that Detective Randall had specialised knowledge of drug importers’ and traffickers’ methods based on his training, study and experience, such that he was qualified to give the impugned evidence.[17]
[15]Section 76 provides:
76 The opinion rule
Evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed.
[16]Section 79(1) provides:
79 Exception—opinions based on specialised knowledge
(1) If a person has specialised knowledge based on the person’s training, study or experience, the opinion rule does not apply to evidence of an opinion of that person that is wholly or substantially based on that knowledge.
[17]See [21] and [29] above.
We do not accept the applicant’s contention that the effect of Detective Randall’s evidence was to ‘diagnose’ the present case as an importation following two ‘dry runs’, as opposed to being a ‘piggyback’ importation in which the applicant was an innocent dupe. His evidence did not purport to foreclose completely the hypothesis that the applicant’s case involved a form of piggyback importation. In our opinion, his evidence amounted to no more than that the circumstances of this case were more consistent with the kind of ‘dry run’ importations that he had observed in the past, rather than the ‘piggyback’ importations that he had encountered. We consider so much to have fallen within his specialised knowledge of the methods employed by drug importers and traffickers, built up over many years of study, training and experience.
Our view is reinforced by the manner in which the applicant’s counsel at trial sought to capitalise on Detective Randall’s evidence to found his defence. Indeed, as the following passage extracted from his final address to the jury amply demonstrates, Detective Randall’s evidence was the very cornerstone of the applicant’s defence. Thus, in his address, counsel said:
So let’s begin with Detective Randall and the drug world. The drug world most of us know very little about, or indeed have very little interest in. It’s foreign to us, and Detective Randall was called by the prosecution as an expert in these matters. He’s a very experienced police officer. He’s been involved in thousands of investigations, and he gave us a very helpful insight into the general workings of the international illicit drug trade.
Detective Randall told us that drug syndicates come in all shapes and sizes. They can be hierarchical. There can be those at the top, and there can be those at the bottom. He told us that members of those drug organisations had different roles within the drug organisations, and he told us that those drug organisations subcontract work out.
He told us that a subcontractor may know everything about the illicit activity that they’re involved in, but also a subcontractor may know nothing at all about the illicit drug trade they’re involved in. And Detective Randall, with his wealth of experience, agreed organisations, international drug organisations use innocent agents to convey commodities to Australia.
It probably comes as no surprise to you that international drug organisations cheat people. They dupe people. They use people. It’s a fact, a reality, that innocent, hardworking people and legitimate businesses get used; that hardworking, honest people can be tricked.
What I’m telling you, why I’m telling you that, I’m not telling you a fantasy. I’m telling you something that the police expert gave from this witness box, that this happens. People are tricked. People are used. That is part and parcel of the international drug trade.
And that makes complete sense, when you think about it, because it lowers the chance that the illegal activity will be found out. By using an innocent agent, it lowers the chances that the drugs will actually be found.
You see, keeping people in the dark mitigates the risk of exposure of that criminal organisation. If the innocent agent doesn’t know anything about the contents of a consignment in their luggage, for example, how can he or she say that the goods were put there, or who they were put there by, to the authorities when they’re intercepted. And you might think that if an innocent agent knows nothing, they are less likely to draw attention to themselves as they carry about their job in ignorant bliss.
And of course, by subcontracting work to other criminals who know about the true nature of the illicit drugs, well, that greatly exposes the owner of the goods to having those goods stolen by others that are involved.
We know that this was a highly valuable commodity that was in Australia. We know it was worth many million dollars. Using an innocent agent provides a kind of insurance in that regard, that they can’t steal something they don’t know exists.
You recall Mr Randall explained to us some of the other methodologies used by organisations, and he explained by way of example the use of the courier. That was one methodology. But he also gave us [an] example of another methodology, this thing called piggybacking. And he explained that piggybacking is where criminal organisations use the details of another company with a history of importations, and use their details to import drugs that the consignee and the consignor are completely kept in the dark as to the nature of the particular importation, of the nature of the particular importation.
And of course, Mr Randall agreed that there are many variations to that methodology, and indeed that the international drug world evolves as police discover different methodologies along the way. So of course methodologies are going to change; of course methodologies are going to evolve. The nature of the game of international drug trafficking is that it does adapt to this.
We don’t say in this case that this was directly a piggybacking methodology. It doesn’t fit perfectly. But it’s analogous, isn’t it, and it’s similar? And it’s not a stretch to say that Mr Gonzalez was simply recruited to deal with the logistical side of a legitimate importation business; that he organises those shipments in complete oblivion of knowing the true nature of the third consignment.
I say to you that what you can take away from this is that the international drug trade is a world filled with deception. The need for deception to avoid detection, to avoid being cheated by others, a world of cloak and daggers. You might think, ladies and gentlemen of the jury, it is a world which is defined by deception.
And this is exactly what’s happened in this case. Mr Gonzalez is an innocent agent, and a victim of a horrible deception.
And finally, we heard from Detective Randall about this practice of using a minder, an overseer, a watcher, and that person may be known or unknown to the courier. So to use the example of the person coming from overseas who’s brought the drugs, there’s a minder that will actually come and watch in the distance, hiding in the shadows potentially, watching to ensure that those drugs go to the place that they need to go, whilst that courier could be in complete oblivion as to what they’re doing or what they’re carrying.
And Detective Randall told us that one scenario might be if the innocent agent discovers that the contents of the goods contain an illicit substance, the minder may attempt to make corrective actions, redirect the goods, or even threaten the innocent agent to ensure that the drugs or the illicit substance gets to where it’s supposed to go to. That was the purpose of the minder or the overseer, and I’m going to return to this theme of overseer later in my closing address to you.
The applicant has failed to demonstrate that Detective Randall’s evidence was inadmissible in any respect. Ground 1 therefore fails.
Ground 2: Incriminating conduct
As will become apparent, the two principal issues raised by the second ground are, first, whether it was permissible for the prosecution at trial to rely on evidence of the applicant’s demeanour as incriminating conduct; and, secondly, whether the applicant’s contact with a lawyer was capable of being incriminating conduct.
The ground is formulated as follows:
A substantial miscarriage of justice was caused by:
(a) the prosecution inviting the jury to rely on evidence that had not been the subject of any notice or grant of leave as evidence of incriminating conduct;
(b) the jury:
(i) being permitted, erroneously, to rely on evidence of ‘the accused’s panic attack after becoming aware that the police wished to question him’ as evidence of incriminating conduct; and/or
(ii) not being directed about the danger of inferring an admission of guilt from demeanour in circumstances when there were substantial and compelling reasons for such a direction to be given;
(c) the jury being invited to reason that evidence of the applicant’s attendance upon a lawyer for legal advice was an implied admission of guilt.
By a notice given pursuant to s 19 of the Jury Directions Act 2015 (‘JDA’), dated 7 February 2019 (‘the notice’), the prosecution flagged its intention to rely at trial on evidence of incriminating conduct. So far as relevant, the notice was in the following terms:
2. The conduct that the prosecution proposes to rely on as evidence of incriminating conduct is:
(a) The accused’s post offence conduct — being admissions or implied admissions as to the accused’s knowledge of the cocaine in the shipment:
(i) The accused’s intercepted telephone conversations with the witness Almanza demonstrating his concern at the police arrest of Galindo.
(ii) The accused’s dumping of a box of cocoa after being told by Almanza that the police wished to question the accused.
(iii)The accused’s panic attack after becoming aware that the police wished to question him.
(iv) The accused’s attempt to leave Australia after learning of Galindo’s arrest and the police intention to question him.
The applicant objected to the admission of the evidence referred to in paragraphs 2(a)(i) — the applicant’s telephone conversations with Almanza showing his concern about Galindo’s arrest — and 2(a)(iii) — his ‘panic attack’ after becoming aware that police wished to question him. (His objection to the evidence of attempted flight in paragraph 2(a)(iv) was withdrawn.)
In his submissions to the trial judge, the prosecutor argued that ‘the various alleged incriminating conduct against [the applicant] has to be considered as a package’. Although he identified individual items of incriminating conduct, he emphasised that the trial judge needed to consider the incriminating conduct in combination with the rest of the evidence in the case. He isolated the following items of alleged incriminating conduct:
· first, the applicant’s attempt to leave Australia;
· secondly, intercepted telephone calls between the applicant and Almanza;
· thirdly, the applicant’s dumping of a box of cocoa;
· fourthly, the applicant’s ‘panic attack’ (characterised by the judge as the applicant’s ‘reaction and demeanour after learning that the police wished to question him’); and
· fifthly, the applicant’s deletion of ‘WhatsApp’ chats with Galindo, Reyes and another.
As we have indicated, the applicant’s counsel withdrew his objection to the first item; and by a ruling dated 18 October 2019 the judge excluded the fifth item.[18] The judge held, however, that each of the second, third and fourth items was admissible ‘as [an] implied admission of guilt’, and said that she was ‘not persuaded that the evidence should be excluded in the exercise of discretion’.[19] She added that she would give ‘full directions’ to the jury about incriminating conduct.
[18]The judge did so on the basis that there ‘is no evidence as to the content of the messages’, so that ‘it is mere conjecture that the messages contained any incriminating representations’. It would therefore be ‘unsafe to infer that this evidence, even standing together with all of the evidence admissible against the accused could sustain an implied admission of guilt’.
[19]The judge’s reference to exclusion in the exercise of discretion was a reference to a trial judge’s obligation under s 137 of the Evidence Act 2008 to ‘refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused’. Although nothing turns on the judge’s error, no element of discretion accompanying the judicial exercise is contemplated in s 137: DPP v Wise (a pseudonym) [2016] VSCA 173, [50] (Warren CJ, Weinberg and Priest JJA).
Evidence of the applicant’s demeanour
Evidence concerning the applicant’s demeanour was received from Caitlin Budge.
Ms Budge gave evidence that she had first met the applicant and Almanza at a friend’s party in Melbourne in August 2017. She saw the applicant about three times over the succeeding week and a half, before he returned to Mexico. After he left Australia, they continued to communicate by email, messaging and ‘Skype’. In October, their ‘conversations progressively became more romantic in nature’. When the applicant returned to Melbourne in November 2017, their relationship ‘became more intimate’, so that Ms Budge would spend several nights a week with the applicant at his Melbourne apartment.
Ms Budge gave evidence that ‘in late November’ she went to dinner with the applicant, Almanza and Almanza’s ‘partner’, Natasha. The applicant arrived late. Her evidence continued:
[PROSECUTOR]: And when he arrived, can you describe to the jury what sort of mood or what sort of demeanour he seemed to be exhibiting when he arrived?---He was very distracted and seemed nervous. Wasn’t very relaxed at all.
Can you recall what he was like during the meal?---Didn’t make a lot of conversation and seemed like he was thinking about something else.
Had you ever seen him like this before?---No.
…
… Did you talk at all about what might be troubling him?---Not that I recall.
And at the end of dinner where did you go to then?---We left dinner and then went back to his apartment in Port Melbourne.
And who went back to [the applicant’s] apartment?---Myself and [the applicant].
Did you stay that night?---Yes.
And again can you tell the jury please how was [the applicant] behaving and what conversation, if anything, did you have with him when you were back at the apartment?---Once again he seemed very distracted and unnerved about something and he said he didn’t want to discuss it and it was time to go to bed.
Now you both went to bed I take it?---Yes.
…
… Do you recall what time [the applicant] woke during the morning, or who woke first, I should say?---I don’t recall who woke first, but it was — it was early. It was about 6 am.
All right. And did you have further conversation with him after waking in the morning?---Yes.
And how did he seem in the morning in terms of his demeanour and his behaviour?---Equally as concerned as the night before.
…
And do you have a conversation with him about that topic, what was concerning him?---Yes.
…
HER HONOUR: Who spoke first? What did you say? What did he say?---Sure. So I asked him why he was so nervous and what was happening. And he didn’t initially give any particular information. I asked him why is he behaving like this, and then he explained to me that he needed to leave the country, um, upon advice of a lawyer.
[PROSECUTOR]: And did he say anything about why he needed to leave the country?---He mentioned to me within the conversation that he’d been advised because [Galindo] had some issues that he needed to leave the country as well.
Yes. Well, if you tell us what he told you about the issues that [Galindo] had had?---Sure. So [Galindo], I was told, had been arrested at Melbourne airport for carrying 5 grams of cocaine on him for personal use.
Yes. [The applicant] told you that, and did you say anything in response?---I said that was not a very intelligent decision to make given in Australia it’s illegal to be in possession of those drugs.
All right. And did you say anything else to [the applicant] about his nervousness, as you’ve [described] it?---I just questioned him further as to why he was behaving so erratically when it had been [Galindo] who, seemingly, was in the spotlight for doing something that was — ah, something he should not have been doing.
And did [the applicant] make any response to that comment from you?---Yes, he said he was concerned for [Galindo].
…
… Did [the applicant] tell you that he had arranged a lawyer for [Galindo]?---Yes.
All right. And was that the lawyer that he told you he had spoken to about leaving the country himself; is that right?---I don’t recall if it was the same lawyer, but I know that he did speak to a lawyer and received advice to leave the country.
All right. Did you make any response to that — any further response as to what [the applicant] had told you about the advice from the lawyer to leave the country?---Yes. I said that I was unsure of why he would be given that advice given that he would seem to be concerned that it was [Galindo] that had done something that he shouldn’t have done. And I didn’t understand why it was that he too would need to leave the country as well.
Did he say anything else about what was happening with his business at that stage, whether he had any issues or ongoing problems?---Yes. He was very vague, but he said there were legal issues they had from the business in Mexico.
And did he say anything about whether he proposed to do anything about those legal issues?---No specifics but that he needed to attend to them.
All right. Did he say how he was going to attend to them?---He was going to return at some stage to Mexico.
All right. And did he say anything about when he was going to leave Australia when you were talking to him on this morning?---Yes, within a few hours of our conversation, he was going to go on the plane and fly overseas.
…
And did you know how soon the flight was that he was leaving on?---I don’t recall the exact time, but it was early that morning [29 November 2017].
All right. So what happened thereafter in terms of [the applicant] and whether he left at all?---Sure. His behaviour continued to be quite erratic, and he said that he needed to pack and leave and get ready to go to the airport. Um, I found the situation to be quite strange. Ah, I offered to assist him with packing. I, in the end, did not assist him with that. And then I decided to go and leave the apartment and get coffee for myself and himself just to give him some space.
All right. Now, you left the apartment to go and get a coffee, and when you returned the police had arrived and had arrested Eduardo; is that correct?---I now understand that to be correct, but at the time, I didn’t know what was happening.
Under cross-examination by counsel for the applicant, Ms Budge gave the following evidence:
I want to take you now to the conversation on the morning of the 29 November [2017]. You say that there’d been a discussion between you and [the applicant] about [the applicant] returning to Mexico. Is that right?---Correct.
He also told you that he had business issues and needed to go back and sort them out. Didn’t he?---Correct.
But he told you, didn’t he, that he was in two minds about whether or not he should even take that flight, didn’t he?---Correct.
He was unsure about what he was going to do. Wasn’t he? Unsure if he’d actually leave. Do you agree with that?---What do you mean by unsure if he’d actually leave.
Well he was in two minds about whether he should take the flight. On the one hand, he’d said to you he'd been given this advice. Is that right?---By a lawyer, yes.
On the other hand he believed he should remain in Australia. Is that fair to say?---Correct.
In summary, Ms Budge’s evidence was that she observed the applicant’s ‘mood’ and ‘demeanour’ during dinner on 28 November 2017 to be ‘distracted’. He had ‘seemed nervous’ and was not ‘very relaxed at all’. When she and the applicant returned to his apartment, Ms Budge said, the applicant once again ‘seemed very distracted and unnerved about something’. And when the applicant awoke in the morning of 29 November 2017, he was ‘[e]qually as concerned as the night before’, and she questioned him further ‘as to why he was behaving so erratically‘. Ms Budge’s evidence also was that the applicant had arranged a lawyer for Galindo, and that a lawyer had advised the applicant to leave the country.
The evidence that the applicant spoke to a lawyer
Apart from the evidence of Ms Budge concerning the applicant’s contact with a lawyer (or lawyers), the prosecutor relied on intercepted telephone calls contained in a bundle of such calls, Exhibit R, which revealed that the applicant had visited a lawyer on 27 November 2017, and had once more spoken to the lawyer by telephone the next day.
Exhibit R contained a telephone conversation between the applicant and a lawyer at 4.45 pm on 28 November 2017. The applicant said that they had ‘met yesterday regarding Gabriel [Galindo] issue’. He then went on to say:
Yeah, do you have some time available today that we can speak? Because something new happens.
Discussion
We consider it to be clear that, when he ultimately went to the jury, the prosecutor expanded considerably the alleged incriminating conduct upon which the prosecution had initially relied, and upon which the judge had ruled.
It will be recalled that the first category in the notice which the judge had ruled was capable of constituting incriminating conduct was the applicant’s ‘intercepted telephone conversations with the witness Almanza demonstrating his concern at the police arrest of Galindo’. When the prosecutor turned to the issue of incriminating conduct in his final address, he began as follows:
Now I want to move, if I may, ladies and gentlemen, to the topic of incriminating conduct and I’m going to do it by just setting the overall picture first of all. The prosecution says to you, and it’s a matter for you because you’re the judges of the facts, I submit to you that you can be satisfied that there was various behaviour of Mr Gonzalez that indicates that he acted in a way so as to show that he knew all about the cocaine. And they are various ways along these lines.
Firstly the telephone conversations that you have in the jury book, the chronological transcripts beyond tab 16, Exhibit R, which I’ll take you through as much as I can today…
Amongst the transcripts in Exhibit R were transcripts of conversations with Almanza, and many other transcripts of conversations and text messages as well. Exhibit R contained records of communications extending well beyond the first category upon which the judge had ruled.
The prosecutor in his address then went through the material in Exhibit R commencing on the day of Galindo’s arrest, 22 November 2017. He had told the jury that he was ‘just setting the overall picture first of all’, but in taking the jury through the material in Exhibit R he made no distinction between that which was part of ‘setting the overall picture’ and that which was relied upon as incriminating conduct.
Hence, the prosecutor relied on the entirety of intercepted telephone conversations on 28 November 2017, Exhibit R, as part of the ‘package’ of incriminating conduct, and he told the jury that the telephone conversations show the applicant’s ‘escalating concern’ after Galindo’s arrest. Of particular significance, the prosecutor relied on the applicant having met, and spoken on the telephone to, a Melbourne lawyer, on 27 and 28 November 2017 respectively, tying that contact with the lawyer to Ms Budge’s evidence that the applicant’s behaviour ‘continued to be erratic’. Quite clearly, in our opinion, the prosecutor linked the applicant’s contact with a lawyer to the prosecution’s ‘package’ of incriminating conduct.
Among others, the prosecutor advanced the following arguments to the jury in his final address:
[At] 4.45, [the applicant is] on the phone to [the lawyer]. [H]e’s got through to [the lawyer] and says, ‘To remind you, Eduardo speaking. We met yesterday regarding Gabriel issue’. All right, so talked about Gabriel yesterday, but today he goes on to say — [the lawyer] says, ‘Oh yes. Yes, yes, yes. And [the applicant] says, ‘Yeah, do you have some time available today that we can speak? Because something new happens’.
So it’s not just about Gabriel, it’s something new that’s happening. And in my submission [to] you that’s clearly a reference to the information he now has that the police are going to come and talk to him and that’s what he’s concerned about and that’s why he wants to go back and see [the lawyer] again and they make an appointment for quarter to six that day.
The prosecutor went on to say that he would remind the jury of ‘the four areas of incriminating conduct relied upon by the prosecution’:
Firstly, the telephone conversations which the prosecution say show those and in fact text conversations as well. [The applicant’s] escalating concern after the police arrest of [Galindo].
Secondly, in no particular order, but also the behaviour he exhibited when he dumped the box of [cocoa] powder as you know after speaking to [Almanza]. Thirdly, the behaviour and demeanour that he exhibited especially as described by Ms Budge; you will recall her evidence. And, fourthly, the evidence of his attempt to leave Australia which is sometimes referred to as flight after learning of [Galindo’s] arrest and the intention of the police to question him …
If there were any doubt about the fact that the prosecutor was inviting the jury to rely upon material in Exhibit R as incriminating conduct beyond the first category in the notice, that doubt is resolved by the prosecutor’s express reference to reliance upon the ‘text conversations as well’.
Later in his final address, the prosecutor summarised the prosecution’s position concerning incriminating conduct as follows:
Now, that’s perhaps the essential points of the evidence of the … incriminating conduct that the prosecution relies upon and the way in which the prosecution says it’s relevant and indicates [the applicant’s] guilt of the charged offence is that the prosecution says that that behaviour shows that he was behaving that way because he knew he was guilty, that he was, through his conduct, admitting his guilt particularly when you look at the conduct as a package, that is all of those four things that I’ve mentioned when you consider them together in the way they fit together is all having the same sort of explanation, the prosecution says …
An examination of the prosecutor’s final address makes clear that the prosecution sought to rely on the whole of the intercepted telephone conversations — including those revealing the applicant’s contact with a lawyer — and Ms Budge’s evidence concerning the applicant’s demeanour.
In her charge to the jury, the trial judge identified the four items of incriminating conduct as follows:
In the trial the prosecution argued that you can use the evidence that [the applicant] (1), expressed concern to [Almanza] in a phone conversation about [Galindo’s] arrest — number one. Number one, expressed concern to [Almanza] in a phone conversation about [Galindo’s] arrest. (2), he dumped a box of cocoa powder … after being told by [Almanza] that the police wished to speak to [him]. That’s number two, dumped the box of cocoa powder after being told that the police wish to speak to him. (3), he behaved in a particular way after learning that police wanted to speak to him. And (4), he attempted to leave the country after learning of [Galindo’s] arrest and that the police wished to speak to him.
A curious feature of the judge’s charge is that, despite the prosecution’s reliance on all of the intercepted conversations — including the applicant’s conversation with the lawyer which allegedly showed his ‘escalating concern’ — the judge appeared to restrict the first item of incriminating conduct to a single conversation with Almanza. It is also noteworthy, however, that the third item left to the jury by the judge — that the applicant ‘behaved in a particular way after learning that police wanted to speak to him’ — would have been understood as encompassing both Ms Budge’s observations of the applicant’s demeanour, and the personal meeting and telephone conversation that he had with a lawyer.
Any examination of the admissibility and use of evidence of incriminating conduct must commence with s 28(3) of the Jury Directions Act 2013, which abolished common law rules governing lies and other incriminating conduct.[20] Evidence of incriminating conduct — its admission and use, and necessary jury directions — is now governed by the provisions of Division 1 of Part 4 of the JDA.
[20]See, eg, Edwards v The Queen (1993) 178 CLR 193 (‘Edwards’); Zoneff v The Queen (2000) 200 CLR 234.
Section 18 of the JDA defines conduct as ‘the telling of a lie by the accused, or any other act or omission of the accused, which occurs after the event or events alleged to constitute an offence charged’; and incriminating conduct as ‘conduct that amounts to an implied admission by the accused … of having committed an offence charged or an element of an offence charged’, or ‘which negates a defence to an offence charged’.[21]
[21]A lie is, of course, a deliberate untruth. See Edwards, 208 (Deane, Dawson and Gaudron JJ).
Assuming, without deciding, that there might be circumstances in which an accused person’s demeanour may be capable of constituting ‘conduct’, we consider that the circumstances in which it could do so will be rare. As a matter of ordinary usage, the term ‘demeanour’ is intrinsically imprecise, given that it is apt to conjure up notions of the manner in which a person’s appearance and behaviour is interpreted by an observer. Depending on context, ‘demeanour’ may also as a matter of language refer to both deliberate physical actions and involuntary physical reactions. Hence, a deliberately raised eyebrow might be intended to convey humour, surprise or anger, whether or not it in fact has that effect turning upon the observer’s subjective judgment. Involuntary blushing — which might be ‘demeanour’ but could not be ‘conduct’ for the purposes of s 18 — may evidence romantic stimulation (or another kind of passion); embarrassment; shyness; fear; or anger. Tears, involuntarily shed, might be a sign of happiness or of sadness, whereas deliberately shed crocodile tears generally will manifest neither emotion.
Not only, generally speaking, is the term ‘demeanour’ somewhat imprecise, but we consider Ms Budge’s specific descriptions of the applicant’s demeanour as ‘nervous’; not very ‘relaxed’; ‘distracted’; ‘unnerved’; and erratic, to be so nebulous and vague as to have no probative value. In order to have had any probative value, Ms Budge’s descriptions of the applicant’s demeanour needed to be capable of rationally affecting an assessment of the probability of a fact in issue; that is, whether by his demeanour the applicant was impliedly admitting guilt.[22] We fail to see how any of Ms Budge’s evidence could rationally bear upon that issue.
[22]See the definition of probative value in the Dictionary to the Evidence Act 2008. See also DPP v Paulino (2017) 54 VR 109, 124 [65] (Priest JA).
Our view is bolstered by the observations of Vincent JA (with whom Callaway and Buchanan JJA agreed) in Favata:[23]
Although I can see no basis in principle for excluding the reaction or demeanour of a person, in an appropriate context, from the kinds of behaviour that are capable of constituting implied admissions of guilt, as a practical proposition I consider that it would be rare indeed when a judge would be entitled to leave evidence of demeanour or reaction to events or disclosures before the jury on this basis. Among the reasons for concern would be the potential imprecision and unreliability of the observations. Frequently, but not here because the interview was recorded on video-tape, it would be very difficult for the jury, and indeed the judge for that matter, to be confident that they actually knew how the person did react. In any event, at most what could be observed would be the external manifestations of internal responses. The dangers of misinterpretation which, to some extent at least, may be influenced by the subjective views and attitudes of the observer are, I would suggest, apparent.
[23]R v Favata [2006] VSCA 44, [145].
In our opinion, not only was Ms Budge’s evidence concerning her observations of the applicant’s demeanour inadmissible as incriminating conduct, but we consider that the evidence of the applicant’s conduct in contacting a lawyer was also inadmissible as incriminating conduct.
The right to obtain advice from a lawyer is fundamental. It is difficult to envisage circumstances in which a person’s conduct in obtaining advice about the law and how it might apply to the person’s situation could ever qualify as incriminating conduct. People are entitled to obtain information about their legal rights, and to obtain a lawyer’s assistance with a legal problem. The evidence in the present case showed no more than that, after his associate Galindo had been arrested, the applicant had a personal consultation with a lawyer, and telephoned the lawyer the next day seeking to have a second consultation. We are completely unable to see how such ‘behaviour shows that [the applicant] was behaving that way because he knew he was guilty, that he was, through his conduct, admitting his guilt particularly when [the jury looked] at the conduct as a package’.[24] It should not have been left to the jury as possibly being an implied admission of guilt.
[24]See [71] above.
It follows that the applicant has made good the complaints embodied in the second ground of appeal. The two items of evidence left to the jury as incriminating conduct were not admissible as such. In those circumstances, the question that this Court must ask itself is whether, notwithstanding the wrongful admission of the evidence, conviction was inevitable.[25] We find ourselves unable to conclude that the evidence of incriminating conduct may not have been the tipping point for the jury in favour of conviction, and so cannot conclude that conviction would have been inevitable absent the impugned evidence.
[25]Baini v The Queen (2012) 246 CLR 469, 48 [32] (French CJ, Hayne, Crennan, Kiefel and Bell JJ); Andelman v The Queen (2013) 38 VR 659, 681–2 [104] (Maxwell P, Weinberg and Priest JJA).
For these reasons, we would grant leave to appeal; allow the appeal; set aside the conviction; and order that there be a new trial.
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